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2010-2747-Minutes for Meeting June 30,2010 Recorded 7/16/2010NANCYUBLANKCOUNTY ENSHIP FCOUNTY CLERKOS vu 2~+0E27J+ COMMISSIONERS' JOURNAL NIII~IIIYINVIAIIpI~nl 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 BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JUNE 309 2010 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke, Tammy Baney and Alan Unger. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Mike Dugan, Deb Walker and Debi Harr, District Attorneys Office; Tom Blust and George Kolb, Road Department; Laurie Craghead, County Counsel; Cynthia Smidt and Peter Gutowsky, Community Development; Lori Hill and Terry Schroeder, Behavioral Health; Timm Schimke, Solid Waste Department; Dave Inbody, Administration; Joe Studer, County Forester; Joe Sadony, Information Technology; several representatives of the media and approximately twenty other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. Tom Blust explained that Dennis Morris and Wanda Kunz, who have been with the County for over thirty years each, are retiring. The Board thanked them for their years of service. 2. Before the Board was Consideration of Chair Signature of a Notice of Intent to Award Contract Letter for District Attorney Case Management Software Application Replacement. Mike Dugan explained the item. Deb Walker gave more detail on how the vendor was selected. They have basic parameters regarding pricing, and will negotiate with the vendor in this regard. The purchase is already budgeted. BANEY: Move Chair signature. UNGER: Second. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 1 of 24 Pages VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 3. Before the Board was Consideration of Signature of Document No. 2010- 420, a Road Project Agreement with the USDA, U.S. Forest Service regarding Road Maintenance. George Kolb said that this involves Deschutes Market Road and improvements that need to be made before the U.S. Forest Service can build its new facility at the Bend Pine Nursery site. BANEY: Move signature. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 4. Before the Board was Consideration of Signature of Document No. 2010- 458, a Scheduling Agreement with AFSCME Local 3997 related to Community Assessment Team Employees. Lori Hill gave an overview of the item, which involves daytime assessment team activities and personnel. It is similar to the crisis team that provides assistance during nighttime hours. Terry Schroeder said he supervises the mobile assessment team, which works 24/7 to help those people who are having an emotional or mental health crisis. If someone is hospitalized, the other team takes over for further assessment and treatment. This agreement will help them to allow continuity of services and will enhance employee retention. BANEY: Move signature. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 2 of 24 Pages 5. Before the Board was Consideration of Chair Signature of Document No. 2010-457, an Intergovernmental Agreement with the Oregon Department of Human Services regarding Financing of Local Public Health Services for Fiscal Year 2010-11. Nancy England provided a brief explanation of the item. BANEY: Move signature. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 6. Before the Board was Consideration of Chair Signature of a Notice of Intent to Award Contract Letter for Establishing and Administering an On-Site Employee Clinic. Dave Inbody explained that a lot of research has gone into the idea of an on-site employee clinic, and it appears that establishing one can save the County a great deal of money. Site visits were done as part of the process. Commissioner Baney asked how success will be evaluated and tracked. Mr. Inbody said there would be a two-year contract with an opportunity to extend it. It appears that two years is about the right timeframe to know how the program is working. The Employee Benefits Advisory Committee have been involved in the process for some time. BANEY: Move Chair signature. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 7. Before the Board was a Public Hearing, and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2010-024 and Ordinance No. 2010-025, Amending the Comprehensive Plan and Code, Adopting Destination Resort Remapping Goals, Policies and Procedures. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 3 of 24 Pages Peter Gutowsky read the opening statement. In regard to conflicts of interest, Commissioner Unger said he has just talked with staff and Planning Commissioners, and briefly with citizens Rod Corrigan and Matt Cyrus. Commissioner Baney said the same but it related to letters that are already in the record. Commissioner Luke said he has no financial interest in this issue and has only dealt with staff. Peter Gutowsky gave his staff report at this time. He said that if the Board adopts an Ordinance that treats all property the same, only seven government- owned properties would be affected. There are four County properties, two from the City of Bend, and one property owned by another entity. A request would be sent to the agencies asking that they be removed from the remapping process. In regard to a grandfather clause, if CCR's allow for it, individual lot owners could remain on the map. Also, staff entered the case file into the record, which includes seven letters received since the new hearing was opened. Chair Luke opened the hearing at this time. Christen Brown, Chair of the Deschutes County Planning Commission, and Merle Irvine, a member as well, came before the Board. They testified on behalf of the Planning Commission. Mr. Brown read comments into the record. Merle Irvine explained that made a recommendation to the Board in December. Subsequently, they learned more and requested the Ordinances be sent back to the Planning Commission for reconsideration in February. They then took action that included the issues that were just mentioned by Mr. Brown. The current Ordinance still retains the ineligible reference for irrigated land and platted subdivisions. However, there are provisions in the proposed Ordinance that would put the platted subdivisions under the grandfather clause. The Planning Commission has not reviewed this particular approach. Richard Klyce spoke as a private citizen. Commissioner Unger and Baney attended an economic alliance meeting. The question there was attracting business. If this is passed, it will shoot that down. The Cyruses concluded some years ago that their farm land was not profitable. Therefore, they developed Aspen Lakes with this in mind. They did not go off on their own but asked permission, and consulted with County Planners to make sure they did it properly. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 4 of 24 Pages This change would create an unstable business environment. This will tell investors that making decisions based on County decisions may change with the wind in the future. This will poison the well. The Cyrus' roots go back for generations. They have invested and supported school boards and irrigation districts. They have committed a lot of personal time and funding to benefit the community and should be supported. Brenda Pace, a previous Planning Commissioner, spoke as an individual. She read her statement into the record. There have been many criticisms of including Aspen Lakes Resort in the overlay. However, it needs to be fair to others who have had to bond or put up money before selling lots. This would shoot existing developers in the foot. She wants to see a level playing field. She agrees with State law regarding overnight lodging, but including cluster zones with or without OCR's is confusing. The County does not get involved with CCR's in subdivisions. The Cyrus' do not have the specific approvals of each property owner and cannot use the CCR's to differentiate projects. When Aspen Lakes was approved, it was done so as a cluster project. In that process, they were required to have open space in specific locations. That Ordinance required deed restrictions on those parcels, which cannot be built upon. The use of the open space was to continue unless the whole property was brought into an urban growth boundary. The Ordinance offers no exception. The County was generous with Aspen Lakes. It appears there are no deed restrictions recorded on those lots. George Read signed an agreement with Aspen Lakes LLC that totally gave the open space lots away. There is an Ordinance on one hand, an approved project on the other hand and the open space as required was given away. So Aspen Lakes no longer fits the Ordinance under which it was approved. The rules that were written for everyone seem to only apply to some of them. The Board needs to be consistent. If overnight housing is first, make it first in every case. The same would apply for requirements for open space. Commissioner Luke said that there are huge numbers of properties on the map that will never be a destination resort. The Board and staff have taken the position that for a cluster development to become a destination resort will take a change in State law. The destination resort map is extremely too big right now and most of it will never be classified as a destination resort. This is not about Aspen Lakes. It is about letting cluster developments ask to be left on the map if they so desire. They are already mapped for this. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 5 of 24 Pages Ms. Pace said that using CCR's in this case is wrong. She believes that the Ordinance has not been upheld in regard to the open space. Toby Bayard concurred with Ms. Pace. She said she has a lot of compassion for the Cyrus family. She referred to her letter dated June 25. She is concerned about the Board receiving testimony by parties after the record is closed. She does not want to see her property considered after the fact for a use that was not contemplated or known when she bought it. She is concerned about the legal implications as well. She understands that this is just a first step in a multi-step process, but is worried about ambiguity. Land use policy needs to be clear to avoid conflicts down the road. She does not want to see more bad press regarding the Commissioners. Rob Corrigan of Sisters testified that he has paperwork from David Lee in regard to the CCR's of the development that make no reference to a cluster development. The map is the first step in many hurdles, but thinks the map is meant to be a preliminary or obvious so that anyone could quickly access whether it has been fairly applied. Private, civil contracts between a developer and property owners may result in conflicts. To do a small finding that affects just one developer is not fair to others. There is a twenty-year history of statements that don't match the written record. If it is predicated on State law, platted subdivisions should be held off the map. He encouraged the Board to reject the Cyrus amendment. Commissioner Luke said that the grandfather clause applies to any property that is already mapped, not just this one. It is not the `Cyrus amendment'. Mr. Corrigan stated that individuals may not be able to speak for themselves in regard to their own property. CCR's are a civil document between private parties. Ms. Robb Reavill said she has written numerous letters. She wants to support the Sierra Club letters and letters from Paul Dewey, as well as the testimony of Brenda Pace. This is an anomaly and needs to be straightened out quickly. Jim Hill of Tumalo displayed a toy showing his disapproval of destination resorts. After reading Bulletin editorials, he is mad about this situation. He has submitted his comments. He said the In My View article is out of line. Mr. Shirtcliff said that environmentalists are dishonest and more. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 6 of 24 Pages Mr. Hill went on to explain his family's history. He is a developer, a builder, a community leader and a taxpayer. He thinks that all developers will demand the same preferential treatment that Aspen Lakes wants. There would be a lot of lawsuits resulting. Groups are advocating lowering the assessed value of these properties. It is hay season now, and it is a business. This increases property taxes. The Board needs to stop answering to destination resorts and listed to those who work the land. Destination resorts are not the cash cow they think they are. Things can be appealed. He has spent thousands of dollars over the years on appeals. They would like this to stop right now. Nunzie Gould asked if the Commissioners actually listen to the tapes. Commissioner Luke said he does if he is not in attendance. Commissioner Unger agreed. Ms. Gould said that in 1992 a broad brush painted destination resorts were placed on 112,000 acres of land. A 55,000 area is now included. This includes subdivisions and public lands in the eligible lands. This is not acceptable. Fifty overnight accommodations can be built prior to lot sales. No subdivision should be allowed to convert. Many resorts abut public lands. This allows public lands to be eligible for destination resort mapping, which may eventually become private lands. How can Deschutes County monitor wildlife and habitat on these public lands? Most CCRs are boilerplate. If a developer wants to expand, this would be permitted and would not protect the existing resort property owners. It is important that new legislative policy respect current property rights. These are challenging times economically. The Ordinance says there is no fiscal impact by doing these hearings. She wants these hearings tallied to show how much it costs. Five years of this process has a fiscal impact on County coffers. Some staff are traveling to the State today for another meeting there. Just when the County started remapping, it put it on hold for Measure 37. DC should wait for the State to establish its destination resort review. It is unknown where the State is going on this. It is a reflection on Deschutes County that other communities follow. It is a mockery of the process. Keep public lands exempted per Code. They can go through a process to transfer to public ownership. At that point the owner can go through the process. Do not add subdivisions. Goal 8 resorts are not supposed to be subdivisions. The State and the community have differentiated why Goal 8 is different. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 7 of 24 Pages She asked that the record be kept open. She wants to know what other lands the County owns that might be eventually affected, including one that abuts Thornburgh. She does not know if it is mapped. Better accounting is needed regarding the ripple effect of the Ordinance. Simplicity and specificity is needed. Commissioner Luke asked if federal lands are being considered. Mr. Craghead said that the restriction was to be removed from any public land. Nunzie Gould remove all public lands, including those of the school district and irrigation districts. By making them all eligible, this does not remove acreage. The Ordinance would require tracking of CCR's. She asked if the County can fund this kind of work. How many subdivisions have been reviewed that are in the destination resort area? The County has not done due diligence to analyze this situation. Staff is needed and she would like to know the potential cost. Commissioner Luke stated that the public lands would not be mapped. Mr. Gutowsky said those public lands are not mapped today but can apply to be put on the map if they are eligibility. Ms. Gould said the map supersedes the other. Kimry Jelen read a statement. It is the job of the Commissioners to represent everyone, not just friends or partners. Many years have been spent on seeking public input on this issue. If ineligible lands are removed, the gap would be smaller. This makes it even bigger. There needs to be a fair and lawful map. The information is available to make a decision to apply to all and not just special interests. Dennis McGregor of Sisters testified he has been following this issue for some time. He wrote a letter to the Board regarding the Cyrus family clearing their land. They said they were making a firebreak 200 feet wide. A few months later it was found they went far beyond that. It looked like they were preparing to develop it. It is designated open space. They made it so wildlife should move on. He asked the County to make them stop. He did not get an answer. It ended up in the letters to the editor in the Nugget. Everywhere he went in the community, he got support. There was not one disgruntled person. The people do not want a destination resort there. Commissioner Unger said that clearing the land was in conjunction with the Forester to do a fuels reduction project. This was to protect other lands. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 8 of 24 Pages Pamela Burry of Panoramic Estates in Sisters. There is a lot that is disturbing, mostly that this is supposedly only having to do with mapping. It is important and she feels that this is not being taken seriously. Commissioner Luke said that they are on the current map now, and there was a major attempt to reduce the amount on the map. The map is the first step. There is a big concern about the grandfather clause because of Measure 37 and 49, and what it might cost to defend those. It was never intended to be an insult and is just a minor step in the process. Ms. Burry said that she does not feel it is minor. There are other disturbing things, such as the contractual details of the law that created the process, which is undermined by priorities. She supports those who oppose this. No matter how these details evolve, the question is where this is going. When she spends her time and concern with projects and groups that are connected with the environment, if that area is rebuilt and open space is lost, this is 300 yards from the creek. She wants to preserve the creek and groundwater. Some is lost already to agriculture and housing. It feels like this is going backwards. Destination resorts are failing in the area. A lot could be lost. Commissioner Luke said he spent ten years on the Watershed Council and knows it is important for the area. The County has supported this. Ben Gordon spoke for 1,000 Friends of Oregon which submitted the original vision of reducing the map. They stand by those comments. The overwhelming response is for fewer destination resorts. In light of an article regarding Remington Ranch, it is not a viable economic model. They do not want to see development or more subdivisions, some of which might never get completed. It seems that the new Code provision was adopted only to accommodate a single property owner. This erodes the public trust in the land use process. Commissioner Baney rejoined the meeting at this time. Merry Ann Moore of the Sierra Club said that they have been at this for years in regard to Aspen Lakes. It was agreed that a subdivision cannot convert to a resort through a text amendment. She wants to know why this is now being considered. Ask yourselves, is it good government, what is the precedence, and what are the impacts on Whychus Creek. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 9 of 24 Pages You said you wanted the map to be clearer. Staff time should be redirected to more productive projects. The grandfather clause creates false expectations. Water rights to Whychus Creek are extremely over allocated. This resort would negatively impact it even more. If it impacts fish, it could be considered a taken. Strip the grandfather provision. Only allow those that meet both State and County criteria. Strip the Cyrus amendment. This started in 2005. Thousands of hours of staff time and personal time have been invested. The way this is decided will determine how County resources are spent. Pam Mitchell of Sisters testified that they are not asking for any special treatment. She is offended it is being called the Cyrus amendment. More than twenty years ago they moved down this road on the advice of County employees, starting one way and converting to a destination resort later. They want to continue the travels down this road and know it won't be easy. They don't feel it is fair to change the rules mid-stream. They spent a lot of resources based on the advice given and put certain tings into place based on this. They would like to continue the process. They do understand the importance of the creek. They invited Wolf Creek to bring classes there to learn more. They want to protect it. Development would not be within 300 yards. In regard to the CCR's, they have been in place for a long time. Homeowners purchases with those in place. They were not a secret. She does not know how many other subdivisions shave similar language. She could see that the destination resort issue was a moving target, which is why the put that language in. That was to protect their rights, and the buyers knew about this. Regarding the fuels reduction issue, that has been a red zone for years. It needs to be kept safe. Matt Cyrus submitted testimony already. She asked that the rules not be changed on them yet again. William Kuhn of Sisemore Road asked if hearings could be made available live via internet. He said that in the suggested Ordinance, 22.23.0 1 0(h)(3) he asked why those would be waived by the Board. That is in regard to filing fees. Commissioner Baney said that the County has the right to waive any fee at any point. They seldom do that. Mr. Kuhn stated that he thought the purpose was to reduce the number of eligible acreage. The opposite seems to have happened, especially by opening it up to public lands. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 10 of 24 Pages Commissioner Luke said the Ordinance would allow the entity to apply at a later time to be added to the map, which is a full public process. Mr. Gutowsky said the County would have a process to remove lands. Commissioner Luke stated that the written testimony can be submitted Grant Cyrus of Sisters said that Mr. McGregor's letter to the editor needed clarification and corrections. The thinning was useful and looks good. There were comments about building more golf holes, and they already have approval for 27. In regard to environmental impacts, they participated in the reintroduction of fish and have donated irrigation water back in stream, crediting the Sisters School District. They have self-imposed SDC's that go to a Sisters School capital fund. Commissioner Luke said that there was a question about listening to the recordings. Commissioner Baney said she would listen to anything she missed. Written testimony will be accepted until 5 PM on Tuesday, July 6, and the issue will be placed on the Wednesday, July 7 agenda. Mr. Gutowsky said that if the tax mailing is utilized, it needs to be ready before the first week of September. Sandy Lonsdale asked if a decision will be made at that time. Commissioner Luke said that it is unknown if they will get to that point by then. Commissioner Luke closed the hearing to oral testimony. Commissioner Unger left the meeting for a few minutes. Before the Board was Consideration of Approval of Consent Agenda. BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. Consent Agenda Items 8. Signature of Document No. 2010-452, Gate Permit No. 10-002 for Walker Road, Applied for by the Bureau of Land Management Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 11 of 24 Pages 9. Signature of Document No. 2010-453, Gate Permit No. 10-001 for Bear Creek Road, Applied for by the Bureau of Land Management 10. Signature of Document No. 2010-454, the Annual Assessment and Taxation Software Services Agreement with Helion Software, Inc. 11. Signature of Resolution No. 2010-094 Transferring Appropriations in the General Projects Fund 12. Signature of Resolution No. 2010-095, Transferring Appropriations in the Public Land Corner Preservation Fund 13. Signature of Resolution No. 2010-096, Transferring Appropriations in the Natural Resource Protection Fund 14. Signature of Resolution No. 2010-098, Transferring Appropriations from the General Fund to the Natural Resources Protection Fund 15. Signature of Order No. 2010-036, Transferring and Distributing Certain Monies from the Deschutes County Land Sales Fund 16. Signature of a Letter Extending the Term of Keith Cyrus on the Deschutes County Planning Commission through August 31, 2010 17. Signature of a Letter Reappointing Richard Klyce to the Deschutes County Planning Commissioner through June 30, 2014 18. Signature of a Letter Accepting the Resignation of James Kerfoot and Jade Mayer from the Deschutes County Audit Committee, and Thanking them for their Service 19. Signature of Letters Reappointing Tom Anderson and Dennis R. Luke to the Deschutes County Audit Committee, through June 30, 2012 20. Signature of Letters Reappointing Harold Ashford, Peter Geiser, Dennis R. Luke, Craig Moore and Bill Padgham to the Community Forest Authority, through June 30, 2014 21. Signature of Letters Reappointing Individuals to the Deschutes County Dog Control Board of Supervisors: Norma Brenton and Judith Parker (through June 30, 2011); and Patricia Moore, Laurel Pierson and Lani Skykes (through June 30, 2012) 22. Signature of a Letter Appointing Dennis Simeson as an Alternate Member of the Dog Control Board of Supervisors, through June 30, 2012 Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 12 of 24 Pages 23. Signature of a Letter Accepting the Resignation of Kelly Delauter from the Three Rivers Vector Control District Board, and Thanking her for her Service 24. Signature of a Letter Reeappointing Kristine West to the Three Rivers Vector Control District Board, through June 30, 2014 25. Signature of a Letter Appointing Cheryl Garrison to the Three Rivers Vector Control District Board, through June 30, 2014 CONVENED AS THE DESCHUTES COUNTY CONTRACT REVIEW BOARD 26. Before the Board was a Hearing to Review and Consider a Protest of a Proposed Biomass Contract Award. Mark Pilliod gave a brief overview of the process. The rules are set forth in Code. It is a de novo hearing, which should include the RFP, the responses to the RFP and the analysis provided by the Forester. They are focusing on the grinding and hauling component and not all of he various elements contained in the RFP. Joe Studer explained that the County received a grant award for biomass projects, and a deadline of December 2010 was established. An RFP was sent to those on the qualified pool list. In the RFP, it was to produce 20,000 green tons of biomass, detailing sources and how it would be used. The question was asked as to whether the respondents had existing similar contracts. They did not want to deal with delays either because of he time constraints. Also asked was how quickly this grinding and hauling could be done, and how many jobs could be created and maintained. The cost of grinding, loading and transportation had to be included and any additional costs were to be noted. There was a June 3, 2010 5 PM close date and time. There were six responses. On June 11 all the respondents were contacted with the conclusions. On June 18, Mr. Fagan called and they discussed how they might work through Mr. Fagan's issues with the award. They could not come to an agreement. Mr. Fagan chose to protest the bid award at that time. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 13 of 24 Pages Commissioner Baney said that there seems to be a discrepancy on what biomass is; whether it is mulch. Mr. Stutler said that it is commonly felt it is plant material that can be ground and used for biomass energy production. Mr. Fagan said that he considered mulch as biomass, but the grant is more specific. There is a qualified pool, and one includes this. Mr. Fagan has been on the qualified pool two times. It has been the same process for three years. Commissioner Luke disclosed that Mr. Fagan has done work on his personal property in the past. Wade Fagan said that he was notified to come here today on short notice and does not have the information with him. He feels that biomass is any organic material; it is a very general description. He thought that another respondent He would have done something differently. It was broken down to the tonnage rate, and he was told it would cost the County more. There have been discrepancies in the past. Using his chipper it would take more time to do it. He can produce so much more in other ways. He asked that they just run it across the scale to weigh it. He would accept being paid by tonnage. A per hour price makes it inequitable to him. This is not fair. All of his equipment runs on biodiesel and he keeps the work local. They turn biomass into mulch. On a global scale, this takes carbon and puts it into the ground, raising the soil profiles. This conserves water. When he added it all up, the volume could result in $2.8 million in value. The amount produced per day depends on the materials going in. Chippers are faster than a grinder. Grinders are better with limbs and that kind of material. The winning bidders ship theirs to the valley. When Crook County went out to bid, he was a winning bidder but was not allowed to bid on the next two. Not enough time was allowed to clarify the markets served. He feels that the `best value' issue allows too much subjectivity. They should go with the lowest total price. Commissioner Unger said that he knows Mr. Studer has tried to work with Mr. Fagan on the issues raised. Mr. Fagan said he was not informed about the protest day and time and he has not had time to prepare. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 14 of 24 Pages Mr. Stutler stated that the original RFP was schedule to close on June 3. In regard to item #2, the response could not be evaluated in the context of the RFP. He asked it be quantified. A revision came in then. He purposely sent the recommendations to the bidders and some of them said they understood. There is a difference of opinion regarding best value and low bid. He feels best value is the way to go. He looked at all six criteria in relation to the grant. Mr. Fagan's protest does not deal with carbon sequestration, which they were not looking for in the RFP. There is a basic philosophical difference regarding how the qualified pool is administered. He feels it is being doing correctly. He can address Mr. Fagan's written protest. Commission Luke said he has had concerns about the grouping since it began. The private sector can do what it wants. The public sector is different. People look at public money and feel that everyone should have a chance at it. He does not know what to do here. He is not an expert. Mr. Pilliod sated that the method of making a selection is not new. The protestor has utilized this in the past as well. It is provided for in statute and Code. The process was followed. If a person felt that the process was not appropriate, they were obligated to protest the process a month ago. Having allowed the process to proceed, it is not timely to say that it should have been done differently. The Board has provided the Forester the authority to prepare and announce an RFP. A notice of intent to award is pending. All but the grinding can go forward but they are waiting for this to be decided. There is a process established and the board needs to make sure the rules are being met. The bidders have to show that they are adversely affected, and they have to show that the process was wrong. There is a limited basis on which a protest can be supported. Commissioner Unger said that there is a difference in philosophy. These are federal contracts with certain specifications. He would have picked T-2 also. They seem to be the best match. He does not feel that Mr. Stutler erred in his selection. Commissioner Baney said that some of the concerns might be late in the game. There might be other ways to handle these in the future, but this is not the time do it. As she sees the synopsis of responses, she can't help but see the discrepancies relating to cost. Attachment 2 shows the cost per hour and per ton showing major differences. The one that was picked seems to be quite high. The meaning of biomass is defined as a renewable energy source. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 15 of 24 Pages Mr. Fagan said that it should be specified that it has to go to a CoGen plant. He feels that it is not just an energy source. Commissioner Baney said that biomass as a single word is defined as renewable energy source, and the grant is specific as to the production of energy. Mr. Studer explained that when looking at cost per hour, one might seem cheaper. The unknown is the transportation cost. It could cause the amount to be excessive. It is important that the product be handled quickly due to the time constraints of the grant. He gets bids all the time with the hourly cost being less, but the best value needs to consider all the potential costs. If they get behind they could lose the grant. Mr. Fagan's bid did not quantify this. The chips have to be clean as well. Commissioner Luke stated that as opposed to a hard bid contract, this has some variables and people can bid things differently. Mr. Stutler said that this is just for the biomass grant. There could be others that come up separately. Mr. Fagan is still in the qualified pool. He also agrees that they can talk about how the qualified pool works in the future. Mr. Fagan said the number of jobs created locally should be considered. He did object years ago with others regarding the qualified pool process. He would like to get together with some of the losers of the bid. He does not object to the pool but to how it is bid out. It is very cut and dried to him. Even T-2 said that dirty chips cannot go to the CoGen plant. He is utilizing the process because that is the way it has been shoved down his throat. He did not realize there might be different levels of materials. He thinks there is more figured out behind the scenes. T-2 has done it before and maybe were more specific. He can do it for less than half the cost but there is trucking involved. No one should care where it goes and what the material is used for. It is not a fair process. Commissioner Baney stated that they do have to care how the material is used. They have to report how it has been used, which is what the grant requires. This grant is for renewable energy and job creation. If it is not handled properly, the grant funds have to be paid back. She does not care how the material is used but the federal government does. Mr. Fagan would not have met the criteria in this situation. She asked that his concerns be detailed and perhaps a survey done with others in the pool to see if things could be improved. Commissioner Unger said that he feels that Mr. Studer tries to get local jobs going. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 16 of 24 Pages Mr. Stutler said that the qualified pool issue was objected by one person in the past. Mr. Fagan did not have a timely response and did not have standing then. There are 32 contracts in the pool. About a dozen of them made a business decision to overbid. They learn as they go. He left it open for week but no one asked for more time. The process is very transparent and he hopes it can continue. They are getting fuels work done for 50 cents on the dollar because of it. The reality is that he may not always agree with a contractor on what is the best value. He will work with others to make it clear, but once the bids are in he has to decide the best value. Usually there are few questions. Commissioner Baney asked if he has gotten feedback to make sure the bidders are comfortable with the process. Mr. Studer said that what happens is that there are enough projects that most have taken part in some of it. They open the process up for several weeks. They know the deadline. Mr. Fagan stated that he had questions about the first one, and most gave just a range. He did not understand how that would be specific enough. Some others disagreed with the process then. If he had more time, he would have been more prepared today. Commissioner Luke asked if Mr. Fagan was notified of the hearing earlier. Mr. Pilliod said that these hearings are uncommon but most are notified earlier. There has been nothing submitted that supports his appeal. Commissioner Baney asked that Mr. Fagan get the criteria on which he would base his appeal. Mr. Pilliod said that the County cannot give advice. The appeal is based upon material submitted within 7 days of the award, not what comes later. Commissioner Luke said that this is a public contract revised by State law. The Board cannot change how this is done. This has been a good discussion but interpreting the law and the grant, the County has no choice. It is not the job of the Board to give advice. Nothing has been kept secret and everything was available to Mr. Fagan. Commissioner Baney said she feels the appeal is based on the ultimate use of the material. It is for energy production. Mr. Fagan said that he feels this is not fair. Commissioner Unger said that the grant is very specific. Commissioner Luke said he does not think bottom line that the criteria used has been met. The County has some obligation to at least refer people to where they can find answers to their questions. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 17 of 24 Pages Mr. Pilliod said that an Order will have to be drafted with the Board's decision. Commissioner Baney feels that more notice should be have been given to Mr. Fagan and that he should be provided with the same information, even though he may not be eligible anyway based on his bid. She is uncomfortable with the process. Commissioner Unger said that although more help can be given to citizens, but there is a time issue so the work can be done as required. The requirements will still exist in a week and they were not met. They can work together on future projects. The Board directed staff to prepare an Order denying the appeal. CONVENED AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 27. Before the Board was Consideration of Signature of Resolution No. 2010- 097, Transferring Appropriations in the Sunriver Service District Fund. BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 28. Before the Board was Consideration of Signature of Document No. 2010- 441, Approving the 911 Service District Amended Operating Agreement. BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. 29. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District in the Amount of $4279324.22. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 18 of 24 Pages BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 30. Before the Board was Consideration of Signature of a Letter Accepting the Resignation of Jim Fields from the Deschutes County Extension 4-H Budget Committee, and Thanking him for his Service. BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. 31. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $9,446.30. BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 32. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $1,063,491.48. BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 19 of 24 Pages 33. ADDITIONS TO THE AGENDA A. Before the Board was Consideration of Authorization of a Contract Change Order regarding Knott Landfill Cell 5 - Area A Closure. Timm Schimke explained that this would be for the Area A closure. There is a lot of excavation and moving of rocks, and it was discovered that they are about 10% short of the soil suitable for coverage. There is no costs noted for stockpiling as it was not anticipated any stockpiles would have to be used. BANEY: Move authorization of County Administrator up to approximately $305,000, UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. B. Before the Board was Consideration of Signature of Order No. 2010-038, Reducing Temporary Restaurant Licensing Fees for Fiscal Year 2010-11. This item was continued from the Board meeting of June 28. Eric Kropp indicated that the estimated cost to the County is about $25,000. Tom Anderson said there were several changes to the original document. The wording now shows that the costs are fixed for the County. The various costs were also detailed. (A copy of the proposed Order is attached.) This would apply to events held in Fiscal Year 2011-11. Many vendors have purchased licenses for those events and will be entitled to a refund. Commissioner Baney explained that the State process is broken and it is hoped it will be fixed. The goal is to find a way to cover some costs There are a lot of moving parts and it is complicated. However, this will allow small businesses to operate at the same level as nonprofits, as this is a community benefit. Commissioner Unger added that this is just for a year, during which time it is hoped that some progress can be made on this issue. Commissioner Luke said that the City of Bend does not want to participate on this. He feels this is taking taxpayer money and using it for private businesses. He would like to know if the vendors are also charging the vendors as well. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 20 of 24 Pages Commissioner Baney stated that this is not happening in all areas. If there are six or more food vendors, they get a break when the others don't, which does not seem equitable. BANEY: Move signature. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes no. (Split vote) C. Before the Board was Consideration of Approval of EBAC Recommended Changes to the Health Benefits Plan. Ronda Connor explained that the Employee Benefits Advisory Committee meets monthly and represents all County employees. They look at the benefits program as a whole. Some recommendations were made by EBAC members regarding several items. One change is due to changes in federal law. The dependent qualification now goes up to age 23 regardless of student status, starting on August 1, 2010. They have to be dependent and not have coverage available to them otherwise. It is impossible to determine an exact cost but estimates were made using information on current employees who might have children that might become part of this program. An open enrollment will begin immediately. Currently Providence PPO is being utilized, but they are having a difficult time getting claims processed in a timely manner. Because of this, EBAC has recommended that First Choice be utilized. The third change is in regard to flu shots. Commissioner Baney noted that the County offers stellar benefits and this plan has good oversight. She does not think it should be instituted until Fiscal Year 2011-12 instead of immediately. Commissioner Unger said that he has a child who might fit into this situation. There are young people who really need to be covered in some way. EBAC recommended that this move forward per their recommendation. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 21 of 24 Pages UNGER: Move that the recommendations of EBAC be approved. LUKE: Second. VOTE: BANEY: No. (Split vote) UNGER: Yes. LUKE: Chair votes yes. Consideration of Approval of Minutes: • June 23 Work Session • June 23 and 28 Business Meetings BANEY: Move approval. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. D. Before the Board was a De Novo Public Hearing 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 and Laurie Craghead came before the Board. The hearing was already open from the original hearing on July 28. Commissioner Luke asked the applicant, Terry Anderson, if he wants a room and board situation. If the Board determines that room and board is anything over 30 days and can be more than one meal a day, is that a problem. Mr. Anderson said that the occupancy would not be transient. He can see two to three week occupancy. On occasion, there are disruptions because of storms or wildfire, and to find adequate housing short-term is difficult then. They would offer their property in this type of situation. They would like to do room and board. Commissioner Unger stated that this is being heard because of confusion between room and board and bed and breakfast. No one seems to know exactly what room and board is. There are a lot of possibilities. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 22 of 24 Pages Ms. Craghead said there is a definition of bed and breakfast in Code. What is not known is whether or where room and board fits in. Ms. Smidt sought out information on room and board. State law and Code do not define this. It is typically housing in exchange for labor or money. There is limited board with one or two meals or full board with three meals. There is also no time limit on room and board. Commissioner Baney noted that no one can say what this covers. They could hire a ranch hand who does not end up staying more than a few days. She asked what the intent is. Mr. Anderson said the intent is room and board, but the term could be a school year, or two or three weeks depending on what is taking place at that time. They back up to BLM property and have people who bring horses and stay for an extended period of time. They want to make this available to others. In some cases it would be nice to be remunerated. There could be a need for a ranch manager as well. Commissioner Luke stated that a guest ranch might work as well. Ms. Smidt said that she thinks this requires 160 acres. Ms. Craghead says that it is 160 acres with specific numbers of guests and certain activities. Ms. Craghead added that there is a Code provision for bed and breakfast, but room and board is not defined. Commissioner Unger would like to have some kind of definition of room and board for future situations. Commissioner Luke asked if it is allowed on EFU ground per the State. Ms. Craghead replied that it is no longer shown in law. Dave Kanner stated that there is no way to codify a definition of room and board quickly. That has to go through a long State and hearing process. Commissioner Luke stated that a declaratory ruling could be sought to define room and board. Ms. Craghead indicated that it could be part of this application but it will take longer. Conditions of approval would have to be defined. There are likely bed and breakfast establishments on EFU at this time even though the law no longer allows them, and that is why the Hearings Officer rejected the application. Commissioner Luke would like to work towards a definition of room and board. Ms. Craghead said it has to be specifically defined to allow for findings. Commissioner Luke feels that room and board should be for thirty days or more. Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 23 of 24 Pages Ms. Smidt said that the County had bed and breakfast in Code for about 19 years and the State acknowledged it. At some point it was found that the State no longer allowed it in EFU zones. Commissioner Unger prefers to toll the clock and define room and board. Commissioner Luke said that trying to define it now requires more public input. This could make it more complicated for the applicant. Commissioner Unger feels that the thirty day requirement is appropriate. Ms. Smidt said that there was no time limit or meals designated on the original application. Ms. Craghead stated they could determine length of stay and the number of meals. Commissioner Luke added that the applicant could appeal to LUBA for a different definition. The hearing was continued to the business meeting on Wednesday, July 7, 2010. Being no further issues discussed, the meeting ended at 2:15 p.m. DATED this 30th Day of June 2010 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Dennis R. Luke, Ctfa-ir Alan Unger, Vice Chair tam4y aney, Commissioner Minutes of the Board of Commissioners' Business Meeting Wednesday, June 30, 2010 Page 24 of 24 Pages ~vres ~o o < BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Alb CJO `✓l~c ~~~2 ate: Name Address Phone #s 5yl' 7 ce c- E-mail address In Favor d 1 c4,-t-, ❑ Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No If so, please give a copy to the Recording Secretary for the record. U1`~rES:,°o 0 cs" BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Z., A. Date: - o E-mail address In Favor Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? ❑ Yes No If so, please give a copy to the Recording Secretary for the record. Phone #s wG~~,-sus eo Z~ n -c BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Name 1112 6z ~1 t \v~, .ti Date: [7r0 J0 Address L`r-i-ki P,__ cmo Phone #s -SS E-mail address \ V"J ► vet. vin 1M5 cz`v"-, F-ft LLJ Neutral/Undecided Opposed In Favor Submitting written documents as part of testimony? ❑ Yes 0 No If so, please give a copy to the Recording Secretary for the record. G~J-VES e4 o { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Date: _ Name !_5~ Address > D~ /U_ G!~• r,/ Phone #s E-mail address a In Favor F-] Neutral/Undecided Opposed Submitting written documents as part of testimony? F-11/1 Yes F-] No If so, please give a copy to the Recording Secretary for the record. G~JTeU c~L o ti{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Date: 6., (3d k CL Agenda Item of Interest: Name Address Phone #s E-mail address IV ❑ In Favor ❑ 121"Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No If so, please give a copy to the Recording Secretary for the record. (ES n G1` :,.~~:7v 0 2{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Ace`!") i j ~°k~ p • ~ < 1 Date: Name Address Phone #s " "r . v' o < E-mail address 1-1 In Favor F-] Neutral/Undecided ® Opposed 4C"~ ~ ~ a L ° f f wfiii Submitting written documents as part of testimony? S Yes ❑ No If so, please give a copy to the Recording Secretary fdr the record. G~JT~~ cO` o Z{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Date: Name I\JUWZ-U Address Phone #s E-mail address In Favor 1:1 Neutral/Undecided Opposed Submitting written documents as part of testimony? 1-1 Yes F] No If so, please give a copy to the Recording Secretary for the record. v-s~s o A BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK r Agenda Item of Interest: Date: C0 J (D Name t- r Address FO 5-~,o\x 7 G.9 ~a _A R' A1' 47 Phone #s~ E-mail address 1-1 In Favor F-] Neutral/Undecided D Opposed Submitting written documents as part of testimony? ❑ Yes M No If so_ nlease give a cony to the Recnrdino, 4eCrAtarv fnr the rannrd ?a BOARD OF COMMISSIONERS' MEETING o -c REQUEST TO SPEAK Agenda Item of Intere i~t1.tYMAj Date: r~ i Names C L~ ` Address C 7 L 1eZ' Phone #s 4 / / ` ('Mcc address ~0~/6) ~ • (,/yl E-mail 1-1 In Favor F~ Neutral/Undecided 9- Opposed Submitting written documents as part of testimony? Xt Yes 0 No If so, please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: i Date: Name _/-1' Address Phone #s E-mail address In Favor Neutral/Undecided ,,0 Opposed Submitting written documents as part of testimony? Yes No z{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK ~o Agenda Item of Interest: Date: 14 Name Address Phone #s E-mail address In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. v-f~s o BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: f/ Date: L/3(, /10 Name , ~ 1 i/\\ v Address Phone #s E-mail address In Favor F-] Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes F] No rl`-- - - - - - `1 ^ - A' n r Z 1 a \2{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: /Z Q~V~P S / Date: (0 I C Name V1V1 S~ 1 Address Phone #s E-mail address - u 1V QV_e°1r14 I C In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? F-1 Yes 2-No If so, please give a copy to the Recording Secretary for the record. JTES ~ o BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Date: Jv _44, Name Address 12()( Phone #s t<0 Z E-mail address of h 1-1 In Favor Neutral/Undecided 4 Opposed Submitting written documents as part of testimony? 0 Yes ANO If so, please give a copy to the Recording Secretary for the recor JTES ~ 0 -A BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: L T"A.. Date: t ~ Names R ; Address Phone #s S I - ~n E-mail address F-1 In Favor F~ Neutral/Undecided Opposed Submitting written documents as part of testimony? Ekes F-] No If so, please give a copy to the Recording Secretary for the record. J CA O`~C BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Rsscr~- Name - 11 _~N Address Phone #s 6 r, - l - M - E-mail address In Favor F~ Neutral/Undecided Opposed Submitting written documents as part of testimony? E3-fes F] No If so, please give a copy to the Recording Secretary for the record. Date: BOARD OF COMMISSIONERS' MEETING oG `Z< REQUEST TO SPEAK Agenda Item of Interest: 84` Date: Name -PA4, ~ 1" Ll Tc/~°l 1 Address G'123q D~ v zw_ !Z 7'Z2 Phone #s 5W- 511- /nD a E-mail address 0/r,~, C~xJ~sa /mss , ~°t~ ❑ In Favor F-] Neutral/Undecided F-1 Opposed Submitting written documents as part of testimony? . / Yes F] No If so, please give a copy to the Recording Secretary for the record. a",+ e " 7 q77 s~ { BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK Agenda Item of Interest: 44? Date: Zo 3 0 . Name L- Address Phone #s ~54-1 3 9 ~ '-t~4, 7 E-mail address 5 I b ❑ In Favor F] Neutral/Undecided F~ Opposed Submitting written documents as part of testimony? F-] Yes F-] No If so, please give a copy to the Recording Secretary for the record. PRELIMINARY STATEMENT FOR A LEGISLATIVE PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS Destination Resort Map Amendment Public Hearing June 30, 2010 This is a public hearing on Ordinances 2010-024 and 2010-025, File Numbers PA-09-3 and TA-09-6. Initiated by staff and modified by the Deschutes County Planning Commission, the proposal amends the Destination Resort Chapter of the Deschutes County Comprehensive Plan as well as Deschutes County Development 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 The Board of County Commissioners will hear oral testimony, receive written testimony, and consider the testimony submitted at this hearing. The hearing is also being taped. The Board may make a decision on this matter today, continue the public hearing to a date certain, or leave the written record open for a specified period of time. The hearing will be conducted in the following order. The staff will give a report on this issue. We will then open the hearing to all present and ask people to present testimony at one of the tables or at the podium. You can also provide the Board with a copy of written testimony. Questions to and from the chair may be entertained at any time at the chair's discretion. Cross-examination of people testifying will not be allowed. However, if any person wishes ask a question of another person during that person's testimony, please direct your question to the chair after being recognized. The Chair is free to decide whether or not to ask such questions of the person testifying. Prior to the commencement of the hearing any party may challenge the qualifications of any Commissioner for conflict of interest. This challenge must be documented with specific reasons supported by facts. Should any Commissioner be challenged, the member may disqualify himself or herself, withdraw from the hearing or make a statement on the record of their capacity to hear and decide this issue. At this time, do any members of the Board need to set forth any information that may be perceived as a conflict of interest? will accept any challenges from the public now. (Hearing none, I will open the public hearing). STAFF REPORT Room and board - Wikipedia, the free encyclopedia Page 1 of 1 Room and board From Wikipedia, the free encyclopedia Room and board describes a situation where, in exchange for money, labor or other considerations, a person is provided with a place to live as well as meals on a comprehensive basis. In foreign countries this is sometimes translated to literally "room and food". It also occurs in hotel-style accommodation for short stays. Two commonly encountered boards are: ■ Half Board, where the host provides only a breakfast and dinner meals. ■ Full Board, where the host provides all three daily meals. Another option is: ■ Bed and breakfast, literally, a place to sleep and where breakfast is provided. References ■ http://www.phrases.org.ukibulletin_board/15/messages/521.html ■ http://www.funtrivia.com/askft/Question303l8.html ■ http://www.snopes.com/language/phrases/1500.htm Retrieved from "http://en.wikipedia.org/wiki/Room_and_board" Categories: Economics and finance stubs ■ This page was last modified on 8 April 2010 at 00:17. ■ Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. See Terms of Use for details. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization. ■ Privacy policy ■ About Wikipedia ■ Disclaimers http://en.wikipedia.org/w/index.php?title=Room_and board&printable=yes 6/30/2010 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, JUNE 309 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 a Notice of Intent to Award Contract Letter for District Attorney Case Management Software Application Replacement - Debi Harr and Deb Walker, District Attorneys Office 3. CONSIDERATION of Signature of Document No. 2010-420, a Road Project Agreement with the USDA, U.S. Forest Service regarding Road Maintenance - George Kolb, Road Department 4. CONSIDERATION of Signature of Document No. 2010-458, a Scheduling Agreement with AFSCME Local 3997 related to Community Assessment Team Employees - Lori Hill, Behavioral Health 5. CONSIDERATION of Chair Signature of Document No. 2010-457, an Intergovernmental Agreement with the Oregon Department of Human Services regarding Financing of Local Public Health Services for Fiscal Year 2010-11 - Nancy England, Health Services 6. CONSIDERATION of Chair Signature of a Notice of Intent to Award Contract Letter for Establishing and Administering an On-Site Employee Clinic -Dave Inbody, Administration Board of Commissioners' Business Meeting Agenda Wednesday, June 30, 2010 Page 1 of 8 Pages 7. A PUBLIC HEARING, and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2010-024 and Ordinance No. 2010- 025, Amending the Comprehensive Plan and Code, Adopting Destination Resort Remapping Goals, Policies and Procedures - Peter Gutowsky, Community Development CONSENT AGENDA 8. Signature of Document No. 2010-452, Gate Permit No. 10-002 for Walker Road, Applied for by the Bureau of Land Management 9. Signature of Document No. 2010-453, Gate Permit No. 10-001 for Bear Creek Road, Applied for by the Bureau of Land Management IO.Signature of Document No. 2010-454, the Annual Assessment and Taxation Software Services Agreement with Helion Software, Inc. 11. Signature of Resolution No. 2010-094 Transferring Appropriations in the General Projects Fund 12. Signature of Resolution No. 2010-095, Transferring Appropriations in the Public Land Corner Preservation Fund 13. Signature of Resolution No. 2010-096, Transferring Appropriations in the Natural Resource Protection Fund 14. Signature of Resolution No. 2010-098, Transferring Appropriations from the General Fund to the Natural Resources Protection Fund 15. Signature of Order No. 2010-036, Transferring and Distributing Certain Monies from the Deschutes County Land Sales Fund 16. Signature of a Letter Extending the Term of Keith Cyrus on the Deschutes County Planning Commission through August 31, 2010 17. Signature of a Letter Reappointing Richard Klyce to the Deschutes County Planning Commissioner through June 30, 2014 18. Signature of a Letter Accepting the Resignation of James Kerfoot and Jade Mayer from the Deschutes County Audit Committee, and Thanking them for their Service 19. Signature of Letters Reappointing Tom Anderson and Dennis R. Luke to the Deschutes County Audit Committee, through June 30, 2012 Board of Commissioners' Business Meeting Agenda Wednesday, June 30, 2010 Page 2 of 8 Pages 20. Signature of Letters Reappointing Harold Ashford, Peter Geiser, Dennis R. Luke, Craig Moore and Bill Padgham to the Community Forest Authority, through June 30, 2014 21. Signature of Letters Reappointing Individuals to the Deschutes County Dog Control Board of Supervisors: Norma Brenton and Judith Parker (through June 301, 2011); and Patricia Moore, Laurel Pierson and Lani Skykes (through June 30, 2012) 22. Signature of a Letter Appointing Dennis Simeson as an Alternate Member of the Dog Control Board of Supervisors, through June 30, 2012 23. Signature of a Letter Accepting the Resignation of Kelly Delauter from the Three Rivers Vector Control District Board, and Thanking her for her Service 24. Signature of a Letter Reeappointing Kristine West to the Three Rivers Vector Control District Board, through June 30, 2014 25. Signature of a Letter Appointing Cheryl Garrison to the Three Rivers Vector Control District Board, through June 30, 2014 CONVENE AS THE DESCHUTES COUNTY CONTRACT REVIEW BOARD 26. A HEARING to Review and Consider a Protest of a Proposed Biomass Contract Award - Joe Stutter, County Forester CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 27. CONSIDERATION of Signature of Resolution No. 2010-097, Transferring Appropriations in the Sunriver Service District Fund CONVENE AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 28. CONSIDERATION of Signature of Document No. 2010-441, Approving the 911 Service District Amended Operating Agreement - Mark Pilliod, County Counsel 29. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District Board of Commissioners' Business Meeting Agenda Wednesday, June 30, 2010 Page 3 of 8 Pages CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 30. CONSIDERATION of Signature of a Letter Accepting the Resignation of Jim Fields from the Deschutes County Extension 4-H Budget Committee, and Thanking him for his Service 31. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 32. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 33. 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. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572) Monday, June 28 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, June 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, June 30, 2010 Page 4 of 8 Pages Thursday 8:00 a.m. Meeting with Sisters City Council, Sisters City Hall Monday, July 5 Independence Day Observed - Most County offices will be closed 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 Wednesday, 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, July 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, June 30, 2010 Page 5 of 8 Pages MondaAugust 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) Monday, 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 18 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 23 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Mondgy, 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, June 30, 2010 Page 6 of 8 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, September 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 September 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) Thursday, September 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, June 30, 2010 Page 7 of 8 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, September 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 Mondgy, 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, June 30, 2010 Page 8 of 8 Pages VN.>- Q wgG C { Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org ADDITIONS TO BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JUNE 309 2010 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend A. CONSIDERATION of Signature of Order No. 2010-038, Reducing Temporary Restaurant Licensing Fees for Fiscal Year 2010-11 (continued from June 28) - Erik Kropp, Deputy County Administrator B. A DE NOVO PUBLIC HEARING (continued from June 28) 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 (Applicant: Anderson) - Cynthia Smidt, Community Development C. CONSIDERATION of Approval of EBAC (Employee Benefits Advisory Council) Recommended Changes to the Health Benefits Plan - Ronda Connor, Personnel D. APPROVAL of Minutes: • June 23 Work Session 6 June 23 & 28 Business Meetings 4u A ❑ "l Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org ADDITION TO BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JUNE 309 2010 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend CONSIDERATION of Authorization of a Contract Change Order regarding Knott Landfill Cell 5 - Area A Closure - Timm Schimke, Solid Waste Department Bocc- rewm -z- Hems, ~~~e ~0 2010 4t~L +0 o~ . oZo I© O-A,, C-9- Zo t o - 0(0( 20 10 -o< o:)_ C}V\ oNo- a QA d a-0 1,3 -o lvn C1v- Q/7 VV\A yvAX-,-S-V- s U~ CA, a, F-q-% La- C-f-e~ I ) Q n v~ L'll `s l- lJJ ,1~~~n..s 1"01,. ~ ~ ~n,ar-y~ r G~ ~ti✓~ ke- U AN S os~' C Ito ~'s c~ re b lam-~~ -02~4 a ,d Aum-J- tu- j4j~,-r~ wioo a "j- Ikl L~~-•c l ~ S!."4 ~ o arm 0'ln_-f- G3Yr. YYi.LLYVV~ 4 ~e ~-s cue - a, cl,- zc, - ,DMZ 4 $ L~9 c~ ~47 ~Q ry` 4 -A J f r~ f~lea Yt e- 4o&a~ e VJ CGt~ 1 ( v ~VC.~- A,0 VIQ-. 2l' S C C, vVv\) e no 7L 1 ) Sc(„ tn-,,, M c;6- c.d ji. awl.. "LSP~d f ~.J~/ • ~Y V Are_ 1,104-A- j-ra Ak~ /J~ cc P- Is V) r, V O cam. -0 ckwa,L cc, wdk"- tee 'j©CC S dJb~E%~~ 1 f~ ID `Jt s p ° LID ~,-v~"~ns'~ ` CWT ~~n fYt Vwv I lw~ r 1'X 0 ec~s c- "tj arw~,Wv~~ CAI,) U 4, be- Ar, Q P 2010-024, 2010-025 Destination Resort Re-mapping WITH FRIENDS LIKE THIS, WHO NEEDS ENIMIES? When I saw the Bulletin cover story in yesterday's paper on delinquent tax bills, and after reading the "In My View" piece by Mr. Shirtcliff in the June 25, 2010 Bulletin, I had that "I'm mad as hell, and I'm not going to take it anymore" moment from the 70's movie "Network". I have sbmitted both pieces with my comments. The "In My View" is so out of line, and so what's wrong with Deschutes County's system of directing land-use, and indeed ALL issues where planning commissioners shape County Commissioners opinions: they are selected by those SAME County officials. The blind leading the blind. Shirtcliff insinuates environmentalism is anti-growth, anti-God-fearing, anti-hardworking, dishonest, and anti-patriotic. My parents were environmentalists, and if Shirtcliff had charged either of them both were Marines with these accusations--well, let's say there'd be blood spilled. come from Wyoming, Mormon homesteaders who were told to come to the West with several ways to survive, because you weren't welcome if you dragged your community down being a deadbeat. I come from suffragettes who refused to be trampled upon. I'm proud of those bloodlines--trust me--my parents would be right in the middle of this land-use debacle if they were still alive. I own properties in Redmond, Bend, Sisters, and Tumalo. I'm a developer, a builder, a community leader, a farmer, and, yes, a tax payer. I'm not thrilled about how my property taxes are always spent; but, I PAY THEM. I would never say, well, things are rough, let everyone else cover Deschutes County's overhead. How can the County Commission EVER be trying to aid anyone who seeks a financial advantage in business, and doesn't comply with the basic requirements of doing business here? Do you not think every other development is going to not just request, but DEMAND, the same special treatment that you seem to be offering Aspen Lakes? Do you not think that they will begin the same process of telling Deschutes County that "it's normal business practice to let those (property taxes) ride in down years" as Matt Cyrus is quoted? Come on Deschutes County, can't you see all those law suits coming at you? I received the enclosed correspondance thru my ownership of a lot in Pronghorn Destination Resort. As you will note, we are being approached by groups advocating a successful lowering of assessed values in this destination resort. When is the light coming on .for Deschutes County regarding the future (or non-future) of Destination Resorts? One last thing: It is hay season in Central Oregon. Why is it that all of us who put up hay (and indeed all of the farming going on in Deschutes County) actually work so hard at it? Because, it is a BUSINESS - an honorable proud business, that has allowed us to develop our land and yes, our houses on this land. Hey, guess what? That means there are increased property taxes generated and every year they go up. The County Commission needs to stop answering to the special interests of destination resort developers, and pay attention to those who work the land, are community advocates, are honest and ethical, help develop Deschutes County's financial foundation through ALL of our property taxes. Destination Resorts are not the cash cow they contend and the County Commission needs to represent the people of Deschtues County who are here NOW - not who might, or might not, be here in the future. Jim Guild 19845 JW Brown Bend, OR 97701 541-388-3569 3 Enclosures: The Bulletin In My View, The Bulletin Property Taxes (both laminated), email Property tax assessments on Pronghorn Properties Infinity Internet Mail 6/29/10 5:56 PA Current Folder: INBOX Sign Out Compose Addresses Folders Options Search Help Calendar Fetch Todo Notes SduirrelMail Message List I Delete Previous I Next Forward I Forward as :attachment I Reply I Reply All Subject: Property tax assessments on Pronghorn Properties From: "Richard Korowicki" <rkorowicki@pronghomclub.com> Date: Mon, June 28, 201012:40 pm To: "Richard Korowicki" <rkorowicki@pronghomclub.com> Priority: High Signature: Unsigned Options: View Full Header I View Printable Version I View Message details I View as HTN1. We've heard good feedback from Chris's service and we feel that it may be of value to you. Please see below... Richard Korowicki Property Advisor/ Broker Pronghorn 830 NW Wall Street Bend, OR. 97701 Office: 541-312-9424 Mobile: 541-771-2297 Fax: 541-312-3199 rkorowicki@pronahornclub.com www.pronghornclub.com <http://www.pronahornclub.com/> I recently concluded a successful appeal on behalf of one the lot owners on the 2009 assessments. In looking over the assessment history it appears that he has a very good basis to retroactively appeal the 2007 https://webmaii.iinet.com/src/webmaii.php pans 1 of Infinity Internet Mail and 2008 assessments. Other owners may be in the same situation. It all depends upon what they paid and when and whether a club membership was included in their purchase. In order to challenge the 2007 assessment an appeal must be postmarked by June 30th. In my client's case 2007 was the first year that the county valued the individual lots. A successful appeal that lowers market value would reset the assessed or taxable value and therefore lowers the property taxes. Refunds are paid with 12% interest when the taxpayer is successful in getting a lower value in the same situation as my other client. If the lot has resold or been foreclosed on there still may be an opportunity for savings. Even if we are dealing with 2008 and 2009 assessments there is a real potential to obtain a value low enough to trigger refunds. If some of the lots on the market currently are bank owned then the REO person should really consider an appeal. I am available for any questions. I am traveling tomorrow. My cell phone is 503-858-5363. Email inquiries work even better. The opportunities are the same for improved lots with homes. Thank you for your interest. Our fees are contingent so in the event no refunds and/or savings are obtained though the appeal process there is no fee. Chris Robinson CHRISTOPHER K. ROBINSON, P.C. A Professional Law Corporation 1 Mount Jefferson Terrace, Suite 101 Lake Oswego, OR 97035 Tel 503-635-9330 Fax 503-635-9010 www.ckrobinsonlaw.com <http://www.ckrobinsonlaw.com/> This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address via regular postal service. 6/29/10 5:56 Ph https://webmail.iinet.com/src/webmaiI.php Page 2 of Infinity Internet Mail Download this as a file Attachments: untitled-[21 https://webmail.iinet.com/src/webmaii.php 16 k [ text/html ] Download I View Delete & Prev I Delete & Next Move to 1NBOX ; 9` Move 6/29/10 5:56 N Page 3 of Message Peter Gutowsky From: Alan Unger Sent: Tuesday, June 29, 2010 2:08 PM To: Nick Lelack; Peter Gutowsky Subject: FW: Aspen Lakes conversion to Destination Resort Attachments: Article XV Aspen Lakes CC&R's.pdf Alan Unger, Commissioner Deschutes County 1300 NW Wall St. Suite 200 Bend, OR. 97701 alanu@co.deschutes.or.us Office: 541-388-6569 Cell: 541-419-0556 Page 1 of 1 From: Gary Barnett [mailto:gbsss@bendbroadband.com] Sent: Tuesday, June 29, 2010 1:05 PM To: Alan Unger Subject: Aspen Lakes conversion to Destination Resort Dear Alan We have lived at Aspen Lakes for the past nine years. When we moved to Aspen Lakes in 2001 we read the CC&R's in detail before purchasing our home. As you will see in the attached Article XV section 15.1 of the Aspen Lakes CC&R's it has always been the intent of the developer to include the Aspen Lakes development in an overall "Destination resort". Any person purchasing a lot was given a copy of the CC&R's to review prior to that purchase. As the CC&R's constitute a binding agreement, the act of purchasing the lot at Aspen lakes was in effect an approval of the future expansion of Aspen Lakes into a Destination Resort by those individuals. Therefore the developer has the approval of the residents of Aspen Lakes to proceed with the Destination Resort through annexation of additional properties to Aspen Lakes. It is our desire that you approve the request by the Cyrus family to remain on the Deschutes County resort map. Gary and Barbara Barnett 16922 Royal Coachman Dr. Sisters, Oregon 97759 6/29/2010 Article XV DECLARANT'S RIGHTS 15.1 Transfer. Any or all of the special rights and obligations of the Declarant set forth in this Declaration or the By- Laws may be transferred to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration or the By-Laws. No such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Office of the County Clerk. Nothing in this Declaration shall be construed to require Declarant or any successor to develop any of the property set forth in Exhibit "B" in any manner whatsoever. So long as construction and initial sales of Units shall continue, the Declarant and Builders authorized by Declarant may maintain and carry on upon portions of the Common Area such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of such Units, including but not limited to business offices, signs, model units, and sales offices. The Declarant's or Builder's unilateral right to use the Common Area for the purposes stated in this paragraph shall not be exclusive and shall not unreasonably interfere with use of such Common Areas by Owners unless leased pursuant to a lease agreement with the Association providing for payment of reasonable rent. No Person shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Properties without Declarant's review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by recorded consent signed by the Declarant. The Declarant, in its sole discretion, may convert all or part of the Properties in Exhibits "A" and/or "B" to a "mini destination resort" or "destination resort" ("Resort") as those terms are now or hereafter defined in the Deschutes County Zoning Ordinance or any other applicable ordinance. If additional or substitute restrictions are appropriate or required under the Resort designation, the Declarant shall have sole discretion in making those changes. By purchasing a Unit in ASPEN LAKES each Owner expressly consents to such conversion to Resort status and to such additional or substitute restrictions and no further consent shall be required from any Owner. However, these additional or substitute restrictions shall not apply to those Units in Section 1, Township 15 South, Range 10 East, of the Willamette Meridian, except as may be necessary to establish Neighborhoods as described in Section 1.23 of this Declaration. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) 40 years after the conveyance of a Unit to a Retail Owner, or (b) upon recording by Declarant of a written statement that all sales activity has ceased. Thereafter, the Declarant or Builders may continue to use the Common Areas for purposes stated in this Section only pursuant to a rental or lease agreement between the Declarant or such Builder and the Association which provides for rental payments based on the fair market rental value of any such portion of ttie Common Areas. To: Deschutes County Commissioners From: Brenda Pace June 29, 2010 Concerning: Inclusions in the Destination Resort Overlay There is presently a question concerning whether the Aspen Lakes Golf Course and Subdivision should retain the Destination Resort Overlay. Other subdivisions are being excluded on the basis of the size of the lots. However, the Cyrus family is asking that the Aspen Lakes Golf Course and Subdivision retain its Destination Resort Overlay because it is a cluster development and includes a golf course and other destination resort-like amenities. I believe there are several problems with retaining a Destination Resort Overlay on these several properties. Others have cited a number of these problems including the following: Fairness--in that other destination resort projects were made to build or bond overnight housing in advance of selling lots whereas Aspen Lakes has not. State law--in that destination resorts are required to build overnight housing in advance of selling lots. The number of existing lot and home owners--in that the Cyrus family is representing all of the lot owners in making this request without necessarily having the lot owner's agreement. (The County refers to the Aspen Lake CC&R, however, the County has repeatedly said that it will not enforce CC&R.) However, I believe that there is yet another factor that particularly affects whether the lands first approved as a Cluster development should retain the Destination Resort Overlay. In the original approval, Tracts N, O and P were designated open space and were subject to an Open Space Management Plan. According to County Code concerning Cluster developments, the open space required as a condition of approval shall be covered by deed restrictions to "preclude all future rights to construct a residential dwelling on the lot, parcel or tract designated as open space". These deeds "shall also assure that the use of the open space shall be continued in the use allowed by the approved cluster development plan, unless the whole development is brought inside an urban growth boundary." The ordinance offers no exception. However, the county has been generous in its exceptions. The Cyrus family has apparently not recorded any deed restrictions on these properties in the many years since the approval of the cluster development. Indeed, in the agreement with the County, George Read signed away the open space saying that "Tracts N, O and P may be subject to future development in accordance with land use approvals relating to the Real Property. Any portion of the Real Property subsequently platted into lots in accordance with a land use approval shall not be subject to the Open Space Management Plan". As a result, the cluster development, Aspen Lakes, itself does not meet the standards of the Deschutes County Cluster Ordinance. The Cyrus family intends to build subdivisions on these open space lands. In short, the family has used these lands as a placeholder for future development without ever intending to maintain the open space required by the ordinance covering the existing development. I believe these lands in particular should not be covered by a Destination Resort overlay. I sympathize with the public and neighboring property owners when they realize that the rules established for all do not apply to some. I believe that the Deschutes County Commission should refrain from any further inconsistencies in the application of its rules. If a destination resort is required to have overnight housing before selling lots, that rule should apply to everyone. If subdivisions are to be excluded from the Overlay, that rule should apply to all subdivisions regardless of their CC&R. If Cluster development requires the establishment of open space lands, it should apply to all cluster developments. Aspen Lakes should not continue to be the recipient of special rules designed for it and the Cyrus family alone. Thank you for your consideration. Brenda Pace 60738 Golf Village Loop Bend, OR 97702 541-383-8055 jetpace@bendcable.com SIPEISO 0 ~ rl F0F v w - - Ch 0 ° ~ o z SHIVISH ARIA DIWVHOqVd N E- W o~ . w V o MW rnQ' w W~; v oN ~g YJ S ~ ~~s v~`2 CQ F O A w d,' ~ E"' I (ooorc] arorr) 6 - as Rah (BrsBZl Csazsrl (oorosr] ~i L-7 U ~ s d m W ~ ~ o ;l = ~ ~ uz 01'f9B= 1r£6L005 ~ rurBBZ ~~r.~I _ ILBT98Z 7At.BL005I ~ ~ W ~'8= I ~ P I Z A Z 3 r ZA9 & a p rCu SIS W IP400 ` y6 N ~a y, ✓ co 00 r4 cS* z -4 0 U E. W W 1 U O z r. 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Box 2229, Sisters, OR 97759 June 29, 2010 Deschutes County Board of Commissioners Deschutes Service Center 1300 NW Wail Bend, OR 97701. Re: Destination Resort Remapping Dear Commissioners, The Deschutes County Farm Bureau would like to express its concern over the proposed resort mapping language and its adverse impact on irrigated agriculture in Deschutes County. Specifically, the prohibition against mapping resorts on EFU lands with more than 40 acres of contiguous irrigated or 60 acres of non-contiguous irrigated land will adversely impact farm land, irrigation districts, and agriculture in general. Since the implementation of the Deschutes Basin mitigation rules, any development that occurs on non-irrigated land impacts nearly triple the acres of land that would have been impacted had the development occurred on irrigated land. Deschutes County is the only county that prohibits siting resorts on irrigated EFU. The Thornburgh resort is a good example of why this provision does not make sense. Thornburgh is located on non-irrigated land and subject to the Deschutes Basin water mitigation rules. In order to obtain ground water permits, it must purchase 1.8 acres of surface water right (which is then transferred back in stream) for each acre of ground water it is granted. This drys up irrigated farm land and takes it out of production. The total land impacted includes that in the Thornburgh resort plus another 1.8 that will be dried up for each acre that is watered by the resort. If the Thornburgh resort were to water 1,000 acres it would require the water off an additional 1,800 acres for a total impact of 2,800 acres. On the other hand, Brasada is located on irrigated EFU and within an irrigation district. No farm land was dried up in order to develop the resort. Instead, it simply changed the way the water was used. No additional land was impacted and the irrigation district still delivers the same amount of water, only now to a single large customer with modern delivery systems. Had Brasada been developed in Deschutes County, it would have had to develop on dry land and purchase water from neighboring farms, thus creating a significant impact on the county's agricultural base and the irrigation district. On behalf of our members, we ask that you remove the proposed language in Chapter 23.84.030 3.c. 5 and 6 as it will have a detrimental impact on irrigated agriculture in Deschutes County. Thank you for your consideration on these two very important matters. Sincerely.,, "00 Matt Cy President Deschutes County Farm Bureau Deschutes County Commissioners 117 NW Lafayette Avenue Bend, OR 97701-1925 RE: Destination Resort Map Amendment Procedures Commissioners My name is David A. Lee. I am one of the owners (David A. Lee, Karen R. Lee, Brian D. Lee, & Craig A. Lee) of Lot 12, Rim at Aspen Lakes, Deschutes County. The address is 70140 Camp Polk Road, Sisters, OR 97759. We purchased an Option on the property in the spring of 1989 and received a deed for the property in the spring of 1990. 1 also purchased a lot at the Golf Course Estates at Aspen Lakes in 1991. Prior to the initiation of Phase Two of Aspen Lakes there was no mention of the intent to convert this Rural Clustered Subdivision to a destination resort. There are a number of property owners within this development that will not be bound by the proposed amendment procedures. We strongly object to the inclusion of paragraph D in Chapter 22.23-Destination Resort Map Amendment Procedures.'lt is clear that the inclusion of this paragraph is for the benefit of one developer and totally ignores the property rights of many citizens of the County. The Golf Course Estates at Aspen Lakes (Aspen Lakes) is a "completed subdivision". There is no land available for development as a destination resort. The property consists of developed land and open space. Since the open space is an amenity to the platted lots it cannot be developed without the concurrence of all the property owners. The County cannot transfer my property rights to another individual or entity without my consent. This provision is ill-conceived, ill-advised and ill-legitimate. Again we strongly urge the County to remove this paragraph from the ordinance before passage. We hereby reserve our right to appeal this ordinance to LUBA and the courts as necessary. David A. Lee Toby Bayard • 20555 Bowery Lane *Bend, OR 97701 June 25, 2010 Tammy Baney, Deschutes County Commissioner Dennis Luke, Deschutes County Commissioner Allan Unger, Deschutes County Commissioner Deschutes County 1300 NW Wall St. Bend, OR 97701 Subject: Deschutes County's Destination Resort Remapping Rules and Procedures Dear Commissioners: In this letter, I am submitting written testimony with respect to the County's destination resort remapping process. I was away during the public hearings on this matter and could not give testimony, but I did read the December proposal made by planning staff online and agreed with the general policy direction. Along with many other County constituents, I was therefore stunned when on June 7, 2010, after lobbying by Matt Cyrus (which occurred after the public comments period ended) the Board of County Commissioners abruptly voted to add a new sub-section to the proposed amendment procedures. As you know, it is clearly and specifically aimed at the Aspen Lakes subdivision and would enable its developers to make a special application - on behalf of all residents of this cluster development - for destination resort land uses. I understand that at least some of you quickly regretted your vote. Thankfully, technicalities allowed the Board to withdraw and reconsider its ruling. For that I am grateful. I strongly oppose the amendment proposed and drafted by Aspen Lake's developers (subsection D) which gives an original subdivision's developer the right to apply on behalf of all individual lot owners to apply to remain on the destination resort eligibility map provided each lot in the subdivision has a deed restriction or CC&R that authorizes the original developer to apply for conversion of the subdivision to a destination resort. I ask that you remove this language from your approved policy. I personally hold your Commission in high regard and thank each of you for the fine work you have done on behalf of Deschutes County residents in the past. But why risk your reputations and the loss of public trust simply for the benefit of one party - Aspen Lakes and t~e Cyrus family? The manner in which this last-minute language was inserted smacks of back-room deal making and fuels the public hullabaloo (noted on multiple occasions by both the Bulletin and the Source) that surrounds Keith Cyrus, whose position as a member of the Planning Commission you, as a Board, recently extended for 60 days. While you may believe you are averting a theoretical Measure 49 claim (which if made, would be on a ludicrously tenuous legal footing) your decision creates an equally onerous set of legal land use issues that will very likely plague the County in the future. And, it Toby Bayard • 20555 Bowery Lane • Bend, OR 97701 invites other "specially situated" interests to attempt to influence public policy (during an election season, no less). I would hate to see the loss of another Board member at a time when experience is so critical to the future of the County. Further, is it appropriate to use deed restrictions or CC&Rs to authorize actions by a party other than a land owner? I live in a Deschutes County community governed by CC&Rs. The last thing I want to see is the original developer apply for land uses that were not openly contemplated when I bought my property. Who wants to buy land that could, at some future time, convert to a different use (including the addition of overnight lodging units) for the primary benefit of an original developer? And, does the County really want to be in the position of adjudicating if and when CC&Rs and deed restrictions might authorize land use changes imposed on land use owners by an original developer? Do you have the legal budget for this sort of activity? Is this a battle you really want to fight? In closing, the Board of Commissioners (all smart and experienced administrators), surely knows what is at stake as you approve Deschutes County's destination resort map. While it is true that you are taking a "first step" in a multi-step process and that issues can be resolved down the road when development applications are made, it is even more true that ambiguity is the enemy in land use planning. An old adage wisely states that "an ounce of prevention is worth a pound of cure". Clear policy that reflects the outcome of a lengthy public process can only help to avoid down-the-road conflicts, wasteful tying up of scarce planning staff time, unnecessary legal battles and more stingingly bad press for the County. Thank you in advance for your consideration, Sincerely, Toby Bayard 20555 Bowery Lane Bend, OR 97701-8850 Cc: Erik Kancler, Executive Director; Central Oregon Landwatch Robert W. Corrigan 69225 Hawksflight Drive rob@bendcable.com Sisters, OR 97759 30 June 2010 Deschutes County Commissioners 117 NW Lafayette Avenue Bend, OR 97701-1925 re: File Numbers PA-09-3 and TA-09-6 Dear Commissioners: Thank you for allowing this opportunity for members of the public to speak on what the Bend Bulletin has dubbed "the Cyrus Amendment." Following the uproar over process, I am glad to now address the issue of fairness that is raised by the Cyrus Amendment. It has been noted that the Cyrus Amendment affects the county's Destination Resort mapping guidelines. Mapping guidelines are the broadest set of criteria that define Destination Resort eligibility. As such, it would be glaringly inconsistent to finely and narrowly carve into this broad-brush statement of high level policy an exception that so obviously applies to one developer and one development only. It is even more jarring that such an exception would be based not on absolute and unequivocal criteria that could be easily assessed by staff or any interested private party (based on air miles, square miles, certain property designations, etc.), but on the possible existence of civil contracts between multiple private individuals which cannot be assessed in a straightforward way by anyone other than the developer himself. This approach seems certain to create further controversy and challenges, burn more staff time, and produce an ambiguous precedent at best. In the mapping guidelines, the commission should stick to broad brush policy, not entangle itself and county staff in civil contracts. Until the issue of the Cyrus Amendment was raised, based on extensive public input, staff time and deliberations at the Planning Commission and County Commission, you saw fit to exclude platted subdivisions from the Destination Resort map. This decision made good sense. The state has made clear (as staff acknowledged in the findings that accompany the draft text) that the purpose of Destination Resorts is to stimulate new economic development, and that Destination Resorts should have a particular focus on overnight lodging, explicitly not a focus on second home development. Platted subdivisions such as golf course communities embody the precise opposite of this intent. Further, the single development in Deschutes County that would be affected by the Cyrus Amendment is an already completed, clustered subdivision. At the time it was developed and lots were sold, its developers enjoyed the benefit of intensified development density in exchange for setting aside a large area as perpetual open space, under guidelines that explicitly emphasized the goal of preserving "rural character." To provide encouragement (through the Cyrus Amendment) for the conversion of what is today a perpetual open space mitigation into hundred of second homes inside a gated golf course community does not preserve rural character, does not fulfill the intent of a Destination Resort, has no Robert W. Corrigan 29 June 2010 Page -2- congruence with state or local planning goals, and makes absolutely no sense. You were right to exclude platted subdivisions, including the Cyrus's development, from the map. As the draft ordinance reads, "the purpose of the map is to provide greater certainty concerning destination resort siting." The county owes all citizens - developers, land-owners, potential and actual property purchasers, and county staff - clear, fair, and unambiguous direction. One interpretation of the more than twenty-year history of this development is that unclear and inconsistent direction from the county long ago has created a protracted waste of time, energy and money for all parties, based on the dream of a Destination Resort that should have been plainly ruled out in the first place. Please do not kick this can further down the road. Please make the map consistent with staff recommendations and state standards. Please be clear and consistent. Please treat all taxpayers and landowners in the county equally and fairly. Please uphold the integrity of a system at assures equal treatment of all. Please reject the Cyrus Amendment, and approve the Mapping Process and Guidelines as otherwise drafted. Thank you for your consideration. Robert W gan 69225 Hawksflight Drive Sisters, OR 97759 541-549-6006 Attachments: ■ G°TlaerhntPe AmPniie Tte 1?PCnrf Plan to RanPfit of Aenan T alrac " Rl;-"d Rv]wtivn R Tana 7n10 ■ "Officials to Revise Resort Amendment," Bend Bulletin, 9 June 2010. ■ "Hearing Set for Cyrus Amendment," Bend Bulletin, 10 June 2010. r Cyrus land left on resort map; Deschutes commission makes last-minute decision to include land Page 2 of 2 The amendment added Monday will allow the Cyruses and other subdivision developers to apply to keep their subdivisions in the resort zone, even if they have already sold lots. The catch is that the developers must have language on the deeds for those lots that authorizes the developer to convert the subdivision to a destination resort. Commissioner Tammy Baney said Aspen Lakes is the only subdivision she knows of with this language on property deeds. Baney said she was uncomfortable with the commission voting on the amendment without public comments Monday, but ultimately voted for it. Commissioner Dennis Luke also said the amendment might only apply to Aspen Lakes. "It doesn't say Aspen Lakes, but it's the only (such subdivision) we're aware of," Luke sad. The commissioners told Community Development Director Tom Anderson at a Thursday meeting that they wanted county staff to look into the issues Matt Cyrus raised, Lelack said. Commissioner Alan Unger, who e-mailed Lelack Monday morning to ask if county planners had produced an amendment, said in an interview later in the day that he originally thought the "grandfather clause" in one of the ordinances would have allowed the Cyruses to keep the land they developed in the resort zone. "And then to learn that no, that doesn't work with the Cyrus issue, it was like, 'Well, how do we deal with the issue that they had there?'" Unger said. Neighbors upset Merry Ann Moore, secretary for the Sierra Club Juniper Group, lives in a neighborhood the Cyruses developed, near the subdivision and golf course the family wants to convert to a resort. Moore questioned wFy the commission amended the ordinance so late in the process, after the public could no longer comment. "I think something smells bad when at the 11 th hour, a developer can go in after the record has been closed and no one else can comment, and get an amendment," Moore said. "I thought the county was trying to move beyond applicant-driven land use policy making, but I guess I was wrong." Derek Cornforth, who lives in the same neighborhood by Aspen Lakes, has opposed the Cyrus resort plans and said he was disappointed by the commission's decision Monday. "We feel really strongly that this is not acceptable," Cornforth said. "(The Cyruses) want to go in and say they can act on behalf of all the homeowners and just give a blanket thing that they're in favor of it." Luke said that despite the commission's vote Monday, the Cyrus' resort plans remain a long shot. County staff and Oregon's land use agency staff have said previously the family cannot convert the golf course and subdivision to a resort, because they have already built on the land. "Our staff and the (county commissioners) have maintained there would have to be a change in state law to make Aspen Lakes a resort," Luke said. Hillary Borrud can be reached at 541-617-7829 or at hborrud@bendbulletin.com. Published Daily in Bend Oregon by Western Communications, Inc. © 2010 www.bendbulletin.com http://www.bendbulletin.comlapps/pbcs. dll/article?AID=120100608/NEWSO 1 /6080399&template... 6/29/2010 Hearing set for Cyrus amendment; Deschutes Commission repealed change, now will hear comm... Page 1 of 2 bendbulletin.eem 1r xfi» Hearing set for Cyrus amendment By Hillary Borrud / The Bulletin Published: June 10. 2010 4:00AM PST Residents will get a chance to comment later this month on a last- minute amendment to a Deschutes County resort ordinance, after commissioners repealed it and another ordinance Wednesday afternoon. When commissioners introduced and adopted the amendment on Monday, the public comment period had already ended, so people in the audience were not allowed to testify. The county is in the process of updating its destination resort zone eligibility map, which currently includes some properties that do not meet qualifications for resort development. The ordinances the commission repealed Wednesday would remove ineligible lands from the zone, and one type of property they would remove is subdivisions. The amendment added Monday would allow subdivision developers, instead of property owners, to apply to keep their subdivisions in the resort zone, but only if the developers have language on the deeds for those lots that authorizes the developer to convert the subdivision to a destination resort. Commissioners said the amendment was intended to protect the Cyrus family's resort development plans. Matt Cyrus spoke to the three commissioners individually on June 3 about the need to change one of the ordinances. This, along with the introduction of the amendment after the public comment period ended, provoked criticism from some neighbors of the Aspen Lakes golf course and subdivision near Sisters, which the Cyrus family wants to convert to a resort. Keith Cyrus is a Deschutes County planning commissioner, and the County Commission recently granted him a iwo-month extension of his term on the Planning Commission. Keith Cyrus has recused himself from Planning Commission decisions on the resort remapping ordinances and other issues that affect his interests. Yet he has also spoken with other commissioners about his development plans at meetings and occasionally outside meetings. Family members have said in the past that converting their developments to a resort would allow them to build more homes, add overnight lodging units and expand their golf course. Commissioners repealed the ordinances Tuesday afternoon after realizing that the way they adopted the legislation might have broken Oregon law. In this case, state statute requires an amendment to be read out loud, and the commissioners failed to do so when they adopted the amended ordinances Monday. Commissioner Tammy Baney, who voted for the amendment and the two ordinances, also said she was uncomfortable with the way the commission did not allow public comments on the amendment. Baney called the process the commission used to amend and adopt the ordinances "broken" on Wednesday, and Commissioner Alan Unger also raid he was uncomfortable with the process and wanted to allow public input on the amendment. The commission scheduled a public hearing on the amendment and the ordinances at 10 a.m. June 30. Hillary Borrud can be reached at 541-617-7829 or at hborrud@bendbulletin.com. http://www.bendbulletin.com/apps/pbcs.dll/article?AID=/20100610/NEW SO 1 /61003 83 &template... 6/29/2010 Hearing set for Cyrus amendment; Deschutes Commission repealed change, now will hear comm... Page 2 of 2 Published Daily in Bend Oregon by Western Communications, Inc. © 2010 www.bendbulletAn.com http://www.bendbulletin.conVapps/pbcs.dlVarticle?AID=/20100610/NEWSO1 /6100383&template... 6/29/2010 }Commissioners plan a do-over; Deschutes officials made mistake in adopting resort amendment I Page 1 of 2 bend bulletin.corn Officials to revise resort amendment By Hillary Borrud / The Bulletin Published: June 09. 2010 4:OOAM PST Deschutes County officials apparently botched the adoption of an amendment to a resort ordinance Monday and will meet to address the problem this morning. The three commissioners voted unanimously Monday morning to amend one of two ordinances updating the county's resort eligibility zone. The ordinances aim to remove lands from the zone that do T6~ n If you go What: Deschutes County Commission meeting When: 10 a.m. today Where: 1300 NYV. Wall St., Bend not meet qualifications to become resorts. Commissioners said the amendment was meant to protect the Cyrus family's resort development plans to convert their existing subdivision and golf course near Sisters into a resort. But the County Commission did not read the amendment out loud when they adopted it, as required under state law, County Administrator Dave Kanner said Tuesday. The commission introduced the amendment at the last minute Monday, after the public comment period on the Nvo ordinances had ended. The idea for the amendment came from conversations the commissioners had with Matt Cyrus on Thursday, in which Cyrus told them his family would likely lose the resort zoning they currently have if the ordinances were not changed, the commissioners said. Commissioner Tammy Baney said Tuesday that she was bothered that the commission introduced and adopted the amendment after the public comment period had ended. So on Tuesday morning, when Baney went into the county offices, she told Kanner she was upset about it. In particular, Baney said she was concerned the County Commission decided to add the amendment Monday based on conversations with Matt Cyrus, after the public record had closed. But it appears that despite Barley's concerns, that element of the decision was legally sound, Kanner said. "This is a legislative matter, not a land use matter, so any citizen can talk to (the County Commission) about this at any time," Kanner said. Baney said Tuesday she plans to suggest reopening the public record today, so people can comment on the amendment. "I'm going to request that we not re-read the ordinance in its entirety, that we go ahead and open the record again," Barley said. "We make mistakes and what happened yesterday (Monday) was not proper." If the commission decides to keep the amendment, the Cyruses still face an uphill battle to convert their development to a resort. Officials at Oregon's land use agency have stated their opposition to the Cyrus proposal in two separate letters, one of them from Department of Land Conservation and Development Director Richard Whitman. Developed subdivisions cannot convert to destination resorts unless at least 50 overnight lodging units, such as a hotel, have already been built, Whitman wrote. This is because state law requires resorts to build lodging before developers can sell lots. http://Www.bendbulletin.com/apps/pbcs.dll/article?AID=/201006091NEWS01 /6090404&template... 6/29/2010 Commissioners plan a do-over; Deschutes officials made mistake in adopting resort amendment I Page 2 of 2 The Cyruses have not built overnight lodging at their Aspen Lakes golf course and subdivision, but Matt Cyrus has said he would like to do so as part of a destination resort. However, his family would probably need to build more homes to raise money to build the lodging, Cyrus has said. Hillary Borrud can be reached at 541-617-7829 or at hborrud@bendbulletin.com. Published Daily in Bend Oregon by Western Communications, Inc. @ 2010 www.bendbulletin.c®m http://www.bendbulletin.com/appslpbcs.dll/article?AID=1201006091NEWS01 /6090404&template... 6/29/2010 Dear Commissioner, Destination Resort Map Amendment Issue I will be away from the county on June 30 and unable to attend the meeting. As president of The Rim at Aspen Lakes Association, and a board member since I purchased my lot in 1992, I have been able to follow the Aspen Lakes development almost from inception. The Aspen Lakes property was originally zoned RR-10. By agreeing to develop it as a cluster development, the county allowed the developer to increase the density of homesites by 33%. Therefore, the developer has already benefited greatly from the increased density and, in return, had agreed with the county to preserve larger tracts of open space than would have occurred under RR-10. Now that the cluster development is finished, the developer wants to take back a large area of open space and put hundreds of houses on it. This totally destroys the original concept of creating and preserving the open space. Should it be allowed, it would be extremely unfair to many of your constituents who bought their properties in this area in the belief that the open space land was to be preserved in perpetuity by the county. For the Cyruses, it would amount to `double-dipping' - first selling land on the basis of a restricted housing density, and then coming back to sell many more homesites on the supposedly protected land. I find it hard to believe that the county will even consider such an outrage. It is well-known to residents at The Rim, who frequently met and conversed with both Keith and Matt Cyrus (both were on The Rim Board through 1993) that there was never any mention of a destination resort ambition nor any mention of the existence of the Declarants Rights clauses within the revised CC&Rs until we learned about them in 2005. Up to that time, it was evident that they were not building something that could be converted into a destination resort - no visitor lodging, homesites that were too large, and other noncompliance issues. People were buying and selling property in the surrounding areas with assurances that the open spaces of the two clustered subdivisions were being built with a strictly limited number of homesites to preserve the rural enviroimment, and aigc tracts of opcn spacc that "vvoiiiu rcinaiii so forever. As the representative of our Association, and also personally, I oppose this amendment because I can see no reason why an exception should be made for one cluster development when all others require unanimous consent. Furthermore, there has been so much secretiveness from the Cyrus family about their ambition to convert their development into a destination resort that to allow them to pursue it on a technicality is highly unfair to the many county residents who have moved into the periphery of Aspen Lakes with the understanding (from realtors and others) that this open space land was to remain pen-nanently undeveloped. For the record, I would like to summarize the events occurring in the early days that are relevant to this issue: 1988. Cyruses acquire an option to buy the property (1084 acres) from J.C.Compton, a contractor. 1989. Conditional Use permit CU89/70 allows KMB Enterprises (KMB), a partnership of Keith, Matt, and Brian Cyrus to develop a clustered subdivision of 144 (maximum) lots on formerly RR-10 zoned land 1989 or 1990. KMB subdivides the property into The Rim at Aspen Lakes and Golf Course Estates at Aspen Lakes as separate subdivisions. Lots at The Rim were sold quickly, supposedly to provide the money needed to repay Compton and construct a golf course. Ownership of the open space at The Rim was kept by KMB, although it had been expected to be turned over to the homeowners association (as occurred at a similar clustered subdivision in Sisters). 1991. KMB files and records the first set of CC&Rs for Golf Course Estates with the county. It is understood that multiple lots of Phase I were sold in 1991/92 under these first set of CC&Rs 1992. County Destination Resort Map is published, showing both the land at The Rim and Golf Course Estates as eligible for destination resort development. 1993. KMB files and records a second set of CC&Rs for Golf Course Estates that allegedly gives the developer the right to convert the property into a destination resort at some future date (with no limitations) The document title is changed from `Golf Course Estates' in 1991 to `Aspen Lakes' in 1993. It also added the open space at The Rim (Tracts A and B) to the document although they are already covered by The Rim CC&Rs and clearly belong there as being an integral part of that separate subdivision. The above chronology shows that the developments at Aspen Lakes were under way years before there was any talk of a destination resort. The history of the CC&Rs is not clean or consistent, and this example should not be used to make County Code criteria. In closing, I urge you to ignore the `Declarants Rights' clauses in the CC&Rs. They are at odds with the objectives of a rural residential clustered development and should never have been inserted there in the first place. There is also a question as to whether the early buyers in i 99 i are under an obligation to adhere to this amended set of CC&Rs. Tills is still a rural residential development operating under CU89/70 and the owners should be required to be polled individually on whether they wish to become part of a destination resort. Please strike out the amendment. Sincerely, Derek H. Comforth Individually and as President,The Rim at Aspen Lakes Association, Inc Paul D. Dewey Attorney at Law 1 1539 NW Vicksburg JUN 2 3 2010 Bend, Oregon 97701 (541) 317-1993 fax (541) 383-3470 pdewey@bendcable.com June 20, 2010 Deschutes County Commissioners 1300 NW Wall St. Bend, OR 97701 Re: EA-09-3 and TA-09-6 Destination Resort Remapping Rules and Procedures Dear Commissioners: I am writing on behalf of Central Oregon LandWatch to submit testimony for the hearing on June 30, as I will be out of town and unable to testify at the hearing. The Board of Commissioners added two elements to the proposed amendments late in the proceedings after the record had initially closed, one concerning allowing all public lands to be eligible for mapping and one specifically aimed at the Aspen Lakes development to allow its developers to make a special application for a destination resort. Neither of these proposed additions is appropriate. Provision for public lands to be mapped as eligible. During all of the proceedings in front of the Planning Commission and the Board no one advocated for this inclusion. The only concern had been expressed by the Department of State Lands for Common School Funds lands. This is too important of an issue with potential far- reaching implications for the Board to initiate significant amendments. It would be far more appropriate to remand these proceedings to the Planning Commission to address the issue of public lands since there are so many public lands administered by a number of different agencies in the County. No one knows what acreages are involved (certainly tens of thousands) and where they are located. LandWatch is particularly concerned about the creation of an incentative for federal land managers to trade away or sell federal lands, especially the BLM. Depending on what administration is in office, it may look attractive to add value to federal lands (due to the destination resort overlay) which would then make those lands look particularly appropriate for disposal. During the previous administration there was some controversy over the disposal of federal land near Las Vegas. This is a large subject with major implications that needs some investigation before the Board makes such a sweeping change in its policy. I have not heard of any counties mapping public land for destination resorts. Deschutes County Commissioners June 20, 2010 Page 2 We also do not see the need to do this where a private land owner can always make a mapping application for the land if it is transferred out of federal ownership into private ownership. Why take the risk of invoking the law of unintended consequences for a non-existent problem? DSL's only possible interest is in being able to possibly value its land higher to a potential buyer, but there is no evidence in the record showing that. In fact, from my review of DSL leases and discussions with Doug Parker, DSL would get the value of the land based on the use intended. They don't need to have the land mapped for destination resorts beforehand to get the most value possible. This potential change also makes more difficult the ongoing discussions between legal counsel for the County and others on potential amendments to state law regarding lot of record or legal parcels regarding transfer of federal lands. The possibility of facilitating development potential of federal lands by both easing these lot of record/legal lot rules and allowing mapping of destination resorts raises serious concerns. At the very least, the County procedures should not be changed to allow mapping of federal lands. Special proposal for Aspen Lakes The Aspen Lakes developers proposed and the County drafted a potential amendment to DCC 22.23.010 to include a new subsection (D) which would allow the original developer of a subdivision to apply on behalf of all individual lot owners to seek to remain on the eligibility map if each lot in the subdivision has a deed restriction or CC&R that authorizes the original developer to apply for conversion of the subdivision to a destination resort. There are several problems with this proposed provision. First of all, it is inappropriate, both legally and as a matter ofpoiicy, for the County to be drafting legislation aimed at and for the benefit of one party, in this case Aspen Lakes, or the Cyrus family. Furthermore, it is not appropriate to utilize deed restrictions or CC&Rs as criteria in a code for determining whether a particular proceeding or application is appropriate. Clear and objective standards need to be utilized in a provision. and the reference to deed restrictions or CC&Rs that "authorize" actions by a party other than the current owner of a property is too ambiguous to be applied. It also puts the County in the position of having to resolve whether or not deed restrictions or CC&Rs actually "authorize" such an application. That determination properly belongs with the courts, not with the County. The Board in the past has made a special point that it should not treat certain entities or owners different from others, and it would be a violation of this principle to insert this special section (D). Let everyone utilize DCC 22.23.010(C) and do not create special rules for the Aspen Lakes or Cyrus situation. Finally, it is not correct as has been stated recently that the Board is "only" approving a map and that issues can be resolved later when there are applications. First of all, these destination resort Deschutes County Commissioners June 20, 2010 Page 3 maps predetermine much of what can happen in the future. Applications often determine how a destination resort development will occur, not whether it will occur. Second, the Board should do everything that it can to avoid setting up inevitable conflict in the future that could be resolved by clear rules at this point. Leaving things open and creating vague criteria will be expensive for the County and parties in the future. Thank you for your consideration. Very truly yours, ~~,,,9 PAUL DEWEY '~Z PD:ao cc: Board June 29, 2010 SIERRA Dear Commissioners Baney, Luke & Unger: . CLUB Thank you for reopening the public record on the FOUNDED 1892 Deschutes County destination resort map ordinances. Sierra Club Juniper Group asks you to carefully consider these three issues as you make your decisions on these important policies. 1. Please ask yourselves if what you are doing is good government. 2. Please ask yourselves what precedents your decisions will create. 3. And please consider the special importance and fragility of Whychus Creek basin water supplies as you make your decision. As to good government, changes in land use ordinances should make interpretations of the law easier. The intent behind ordinances should be clear, so that future policymakers can follow this intent. This clarity then translates into efficiency for the taxpayer-funded work of our county, and perhaps even reduces--not prolongs--conflicts among neighbors. You set out in 2007 to make interpreting the destination resort map clearer. You stated you wanted to make the map reflect where resorts could actually be built. We hope that to some degree, you wanted to respond to abundant public testimony asking for better protection of the natural resources and landscapes that are being harmed by the new style of resorts. You no doubt would like to redirect staff time that is now being spent repeatedly rehashing the same issue to more productive projects. In our opinion, regrettably, parts of the ordinances before you do not meet these simple goals. As to precedents, your decisions on the current remapping ordinances will set broad precedents that someone in the future will seek to exploit. By adopting the Cyrus Amendment, are you saying that a subdivision developer has the unilateral right to rezone individual lot owners' property? Shouldn't rezoning require all landowners' consent, not just the former developer's consent? Here are some implications: 1. Landowners with property currently in the resort map that doesn't meet state or local criteria to qualify as a resort can apply to be grandfathered in on the new map. You may be creating new, false expectations or perceived new property rights that these properties can indeed be converted to resorts. For example, what if a Deschutes River Ranch decides to rewrite its CC&Rs and ask to be converted to a resort, just like Aspen Lakes? You will simply be perpetuating this drain on county resources as the same disputes get played out over and over. 2 2. Another precedent you will create is an expectation that a landowner or land use attorney can write amendments strictly benefitting a single commercial interest and get them adopted. As to Whychus Creek, we ask you to read the following one-page summary of some likely impacts of an Aspen Lakes resort on Whychus. Water rights to Whychus Creek are so overappropriated that approximately 210 cubic feet per second (cfs) in water rights are allocated for a stream that has a base flow of around 60 cfs. Water rights junior to 1895 can't be met except in late spring and early summer. (Deschutes Water Alliance assessment, Golden and Aylward 2006) As I have been stating since the proposal to convert Aspen Lakes Golf Estates was announced to my homeowners association in 2005, the talked-about resort would put a lodge, 300 to 500 more houses, water features, nine more golf holes and other amenities and a new population roughly the size of Sisters' as close as 300 yards from Whychus Creek. This population center would be situated within X mile of the prime spawning areas for reintroduced steelhead and salmon in the entire Deschutes Basin. The source of water would be groundwater that recharges Whychus. This is our chief concern about a resort at Aspen Lakes, or about ANY large-scale development that draws from the aquifer feeding the creek. The Cyrus Amendment is the first step towards a resort that will result in large groundwater withdrawals that will negatively impact Whychus Creek. If you start down this path, you may be creating new county liability under the Endangered Species Act, for allowing groundwater withdrawals that result in lower stream flow and takings of federally-listed threatened steelhead. We respectfully request the following actions to address these concerns. 1. Strip the grandfather provision allowing all property owners with land currently in the resort nlap to stay ill the illaN un request. Allow only lands that can meet both state and county criteria for resorts to be included. 2. Strip the Cyrus Amendment so that all subdivisions are removed from the resort map. 3. Make decisions now. You've been considering revising the resort map since 2005. Thousands upon thousands of hours of county staff time, hearings officer time, DLCD time, Interagency Wildlife Working Group time, attorney time, developer time and citizen time have been invested in the two decisions before you: where resorts may be and whether a subdivision can become a resort. The way you decide will determine if you continue to spend county resources on matters that should have been decided long ago, or move forward with a clear policy. Thank you for considering our views. Sincerely, Merry Ann Moore, Secretary, Sierra Club Juniper Group, P.O. Box 6376, Bend, OR 97708, 541.549.2468 3 Prospective Environmental Impacts of an Aspen Lakes resort on Whychus Creek Water rights to Whychus Creek are so overappropriated that approximately 210 cubic feet per second (cfs) in water rights are allocated for a stream that has a base flow of around 60 cfs. (Golden and Aylward 2006) An OWRD report states it will be difficult to mitigate groundwater withdrawals near Whychus Creek.' The Aspen Lakes resort footprint would come within about 300 yards of Whychus Creek. The source of water for a lodge, 500 more houses, water features, nine more golf holes and other amenities talked about as part of this resort is the aquifer which recharges Whychus, a federally-designated Wild & Scenic River upstream. The stretch of Whychus Creek in close proximity to Aspen Lakes is the site of native steelhead and salmon restoration projects to bring back anadromous fish into portions of their historic range. This effort spans many years, has cost over $100 million and involves more than 20 stakeholder groups including the Warm Springs Tribes and PGE. Whychus temperatures in the reach parallel to the proposed Aspen Lakes resort already "exceed the state temperature standard set to protect salmon and trout rearing and migration .i2 The state temperature standard for salmon and trout rearing and migration is 18 °C, but stream temperatures already reach nearly 26° C (about 64° F) near the resort site in the summer.3 Consequently, this reach already qualifies as a water-quality impaired river under Oregon Department of Environmental Quality Section 303(d). An Aspen Lakes resort would be sited approximately 1/16`h of a mile from Camp Polk Meadow, historically the best steelhead trout spawning location on Whychus. Camp Polk represents one- third of the available spawning and rearing habitat in the upper Deschutes basin. A U.S. Forest Service watershed analysis says this reach of Whychus is "almost unique in its combination of gravel for spawning, room for the stream to slow and meander, and natural springs that refresh the stream.i4 Detriment to these and other springs just upstream could damage efforts to keep creek surface water cold enough to support new fish. Large-volume groundwater pumping in the area will likely result in greater impairment, both increased water temperatures and lower flow, posing challenges to native fish sustainability. Fish populations would also be challenged by resort impacts such as: increased access to fragile riparian areas by new residents, anglers and recreational visitors; storm-water runoff from more streets, parking lots, rooftops, lawns and golf course acreage, resulting in more pollutants such as oil and grease, sediment, pesticides, herbicides and fertilizers, bacteria and heavy metals in the creek; and erosion from construction activity resulting in sedimentation of fish habitat. 1 Deschutes Ground Water Mitigation Program, Five-Year Program Evaluation Report (February 29, 2008) 2 Whychus Creek Watershed Project Temperature Monitoring Summary 2007 http://www.restorethedeschutes.org/CEDocuments/Downloads GetFile.aspx?id=250491&fd=0. 3http://www.nuggetnews.com/main.asp?SectionlD=5&SubSectionlD=5&ArticlelD=15466&TM=63960.67 4 Biography of a Place, by Martin Winch, 2006, p. 215. Nugget Newspaper - Sisters, Oregon News, Events, Classifieds I Study reveals Whychus Page I of 2 - NuggetNews.comThe Nugget Newspaper Tuesday; February 10, 2009 Study reveals Whychus Crepk warming By Craig Eisenbeis Tuesday, February 10, 2009 Reintroduction of salmon and steelhead runs to Whychus Creek has been a long-term goal since the fish were eradicated by dam construction in the 1960s. In addition to the passage of fish around the dams, another long-known impediment is that Whychus Creek has serious seasonal waterflow and temperature problems in the reach nearest Sisters. Document Reproduces Poorly (Archived) f . t r KL What hasn't been well known however - until discovered by a recent Oregon State University study - is that temperatures during historic salmon and steelhead spawning times could be. too warm to successfully sustain the fish reintroduction efforts that have already begun. A section of Whychus Creek According to Lesley Jones, Water Quality Specialist for the Upper currently undergoing habitat Deschutes Watershed Council (UDWC), "Nobody had looked at January restoration near Sisters. photo by to May against a potential future steelhead spawning standard of 13 Craig Eisenbeis degrees (Celsius). What we found is that, if that standard were in place, the creek wouldn't meet that standard from Sisters on down." Everyone knew that summer flows were too low and temperatures too high, but the high temperatures in winter and spring were a bit of a surprise. As a result, the TJDWC is interested in exploring how this issue could affect Whychus Creek restoration strategies. As it happens, there are two potential temperature standards. The spawning standard of 13 degrees Celsius (about 54 degrees Fahrenheit) is one. and the other is the salmon and trout rearing and migration standard of 18 degrees C (about 64 degrees F). Whychus Creek could have problems with both. Although the salmon and steelhead restoration efforts that started in 2007 could be stymied by water temperatures in Whychus Creek, Ryan Houston. Executive Director of the UDWC, explains, "steelhead trout are very resilient fish, well adapted to tough cunditions. Although the high summer temperatures are a well known problem, we don't know whether the winter and spring temperatures discussed in the OSU study will matter to the fish." Jones also commented, "Prior to their extirpation, the steelhead populations in Whychus Creek are approximated to be one thousand. At that time, water was being diverted and water temperatures were likely warm. So, current conditions are likely to sustain the reintroduced steelhead despite the warm water temperatures." Over the past three years, the UDWC has co-hosted an undergraduate internship with OSU-Cascades to monitor temperatures along the entire length of Whychus Creek from the Cascade crest to the creek's mouth where it empties into the Deschutes River 40 miles downstreain. The creek's watershed drains approximately 178,000 acres (278 square miles). To no one's surprise, the creek is in distress most everywhere below the irrigation diversions a few miles south of Sisters. http://www.nuggetnews.com/print.asp?SectionlD=5&SuhsectioiilD=5&Ai-ticleID=15466 6/29/2010 Nugget Newspaper - Sisters, Oregon News, Events, Classifieds I Study reveals Whychus Page 2 of 2 Some of the irrigation diversions have been in use since 1895 and siphon off nearly 90 percent of the water during the warmest months of the year. Further, irrigation begins in April, during a natural low-water period, before the snowmelt fully augments the stream capacity. Despite these daunting challenges, multiple agencies are cooperating to deal with the problem. For example, says Jones, "We are supporting the Deschutes River Conservancy's work with water users to move water back into the stream." Stream bank habitat restoration is another major effort that is being undertaken both north and south of Sisters by the UDWC and Wolftree, a science education organization. Three other projects currently in the ~vurks alao hope to further mitigate the elevated temperatures. One upgrade, at the site of the irrigation diversions, would help screen out fish from water headed into the irrigation systems and improve flow management. Two others, farther downstream, would physically alter the course of the creek to "reconnect" the stream flow to the groundwater and floodplain at Camp Polk Preserve and Rimrock Ranch. Together, the projects would help rehabilitate approximately three miles of Whychus Creek in the highly stressed mid-reaches below Sisters. Beginning this spring, the UDWC will work with the Deschutes Land Trust to implement a plan to reroute the streambed on its Camp Polk Meadow Preserve to reconstruct the natural meandering flow. The natural streambed was destroyed in the 1960s when the U.S. Army Corps of Engineers gouged out artificially straight channels to keep the creek from flooding the surrounding land. Mike Riehle, a fisheries biologist with the U.S. Forest Service, said, "The springs at Camp Polk - for whatever reason - seem to be more nutrient-rich than other springs in the area. The meadow complex associated with the springs was probably a spawning hot spot, historically." The Land Trust would like to see the creek flowing out across its floodplain again. "If the creek is connected to its floodplain and groundwater, it helps lower the temperature of the water," said Jones. When a large meadow, such as Camp Polk, is fully saturated with water, it acts as a giant reservoir, and that, accomplishes two things. First, this residual water acts to stabilize the rate of water flow when precipitation declines in the summer months. Second, the mass of water saturating the soil system is "connected" to the underground water, which typically has temperatures ranging far below that of the surface water, often around 7-11 degrees C (45-52 degrees F). Jones stressed the importance of cold groundwater entering Whychus Creek in that, it may "offer refuge to the fish during periods of low flow and high temperatures ...explaining why steelhead were able to have sustainable populations in the past despite challenging conditions." She also expressed concern over development of destination resorts "as a threat to the spring water contribution due to increased groundwater withdrawals." Regarding steelhead sensitivity to warmer water conditions, Riehle said, "It's not, an on-off threshold, but the incidence of fish mortality due to disease and fungus increases as the temperature gets above 13 degrees C." So, despite the complexity of the issue, the temperature problem is being attacked from several angles by multiple organizations. While, at first glance, the new findings of the OSU study might appear to be a setback, Jones and others are taking it in stride. As Jones explains, "There are always a lot of unanswered questions in watershed restoration, and Whychus Creek is certainly no exception. We'll keep working to help assemble a clearer picture of what needs to be done to help Whychus Creek." Related Links: ">Content © 2011) ">Software © 1998-2010 hip! Software, All Riphls Reserved http://www.nuggetnews.com/print.asp?SectionID=5&SubsectionID=5&ArticlelD=15466 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Page l of ll ce-golden destination resorts face uncertain future 0 Articles.- Judy 2010 Oregon's once-golden destination resort industry is under fire and in flux and the future is anything but clear. BY ROBIN DOUSSARD v The expansive sales office at Remington Ranch in Powell Butte sits empty and shuttered, mostly bare inside except for a large relief map of what the 2,080-acre destination resort entailed when it was approved in 2006 by Crook County: 800 homes, 400 overnight units, three golf courses, retail shops and several restaurants. That was the plan before the housing market began its freefall in 2007 and Remington shut down sales the same year. It was before Crook County voters in 2008 voted for a moratorium on large destination resorts. And it was before Remington Ranch filed for bankruptcy this January. But to Chris Pippin, the resort's youthful Stanford- r educated project manager and son of James Pippin, -.F Remington's managing member, the promise is still n _ there. As he tours the scrubby high-desert landscape on a cold early-spring day, pointing out one golf course that is 75% complete, Pippin sees a future for Remington: Moneyed baby boomers will keep rctirli]g, L, %_1 itrui Oicgon SLi iiCCf siiI*iN b, and as luck would have it, Crook County "closed f~a the door behind us." That door was shut after four resorts had been approved: Brasada Ranch, Hidden - Canyon, Remington Ranch and Crossing Trails, a ~combined 7,700 acres and 6,500 overnight and home units. "In some ways it is a positive that we didn't get too far down the road with a product we couldn't sell," Pippin says, referring to the 800 unbuilt homes. He's looking for a big push in sales in spring 2011 once Remington comes out of bankruptcy reorganization. Pippin may or may not be right about the future of his property, which Winchester Development paid http://www.orc(,onbusincss.com/~rrticlcs/87-'Lily-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business (TOP TO BOTTOM) PHOTO COURTESY SUNRIVER RESORT, OREGON BUSINESS PHOTO, PHOTO COURTESY BRASADA RANCH "Destination resorts are done in Oregon." Page 2 of I I $10 million to acquire. He could be the only upbeat developer left in Oregon. Maybe it is the required optimism of any developer talking to the press these days, much less one whose dad has skin in the game as one of the property's owners. But he does have one thing right. The door has closed - if not forever than at least for a good while - on the large resorts %vith hotels, golf courses and homes that dot the state and blanket Central Oregon. It's a once-coveted business that's in trouble with regulators, residents, environmentalists and the development industry. It's a business under fire and in flux, and one with an uncertain future. Jerry Andres, president and CEO of Jeld-Wen Development, is blunt and unequivocal: The forensics find the patient suffering from multiple wounds, some self-inflicted: the housing collapse, the subsequent recession, greed, need, bad timing, poor planning, overbuilding, speculation and more than a bit of magical thinking. The law of unintended consequences plus the economic collapse has spared no one. Most of the state's destination resorts are in various stages of distress: slowed sales to no sales to foreclosures to bankruptcy. The landscape is littered with foreclosures (currently more than 6,000 in Deschutes County alone), and the housing market in Central Oregon is woefully oversupplied. "Just in Deschutes, you have 15,000 approved lots," says resort consultant Linda Swearingen. National housing expert John Mcllwain has seen it hetore: " ()ne of the things the development community is really good at is spotting an opportunity and then overbuilding it." And then there's the long-standing criticism that newer resorts are stealth subdivisions that circumvent land use rules and provide only low-paying jobs and few of the public amenities that create tourism, which is why they were allowed to build in rural areas in the first place. There is growing opposition from Oregonians, legislators, the environmental community, and increasing alarm from nearby cities, which have no say over the approval of resorts. Cities do not share in the tax rewards that go to the counties (in 2008-2009, Deschutes County resorts paid more than $35 million in taxes), which approve the resorts. But cities have to cope with the impact they have on their services, roads, infrastructure and housing stock. Redmond, for instance, is having difficulty attracting high-end housing because of the nearby resorts, which limits its property tax revenues, according to the League of Oregon Cities. http://www.oregonbusiness.com/articles/87-July-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Page 3 of 11 r®iCC~if ~i t34.ACK LUTTE SukD 1388 €.t61 #S - TFKSRN@itRA'11 Bsd-i two V19 46 3,' EAGLt CREST dn:'d (Ri B:i 45 PRONGHORN Ati{v ai 641 (30 a% S i I V-? tOM7 6 b ; i rm cf THE EEYENTH PTt'. bead 376 16 I€b 1LR4A1Y RdCROSSA%T6R Find Ut W# 43i.. . CALDE?fk SRASNGS. Lo tsr ?A3 3'il is k.' \~r UH11+7rON RA,'KH kdgW 1,018 d: v 1 0 CROSS WtG TRA79.S " H-& SBi 0E ' 146 IMASADA RA MCH MeiOe 1,810 389 3t6 yy ~fL3 NR7UEN L4NYON trtartile. 3.156 t,{Sg I,II$ O 7{ C3? CRESC£MCREEK U me 3,A18 066 iS 6 Qt....RUNNINC YRANICH rxajl lsjy.:. CM 996 3K IS} SAUSKAN bxI4 nt - r~ -Sat r 'ice GfTER CREST tree 8;rj is - N u P RAHMN DUNES 93Z4m 918 196 ISO iJ PARADISERANCH r~ Pa>3 • ~nnATED APE ED V IOUMY; UNDM APM£ AT THE STATE 37P lE-a Nu . 67 It will take years, if not decades, to soak up the current supply of real estate and recover- prices. Residential property in Bend has fallen 75% from 2007 top prices, and commercial property values are half off their peak. A federal housing study released in late May showed that Bend suffered the sharpest housing price drop in the nation over the past year. Roger Lee, executive director of Economic Development for Central Oregon, has little sympathy. "The reset had to happen," he says. "Prices were too high." Even the mi-hty Jeld-Wen, Oregon's largest privately held company, is hurting. A major player in the resort industry, the company has developed three destination resorts in Oregon: Eagle Crest near Redmond. Brasada Ranch in Powell Butte and Running Y Ranch in Klamath Falls. If Chris Pippin is it youthful player in the resort game, Jeld-Wen's Jerry Andres is the old dog who has been around for decades developing properties for a behemoth company. Andres is not shy about ticking off the problems facing his firm's Oregon resort properties: "We've cut services, we're not growing. We've had layoffs and things are not over yet." He says that Eagle Crest is about 65% built out, but at Brasada, "we're selling for less than what we have in it." He says only 29 homes out of 900 planned at Brasada have been built and of the couple hundred lots sold, more than 50 are in foreclosure. Public amenities that have been built include a restaurant, sports center, golf course and 80 overnight cabins. http://www.oregonbuslness.com/articles/87-July-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Page 4 of I 1 "When you factor in capital requirements to get [resorts] started," says Andres, "we wouldn't touch another one in this state." In addition to the bruising downturn, developers say state rules requiring them to put in an upfront investment of at least $10 million in recreational amenities such as overnight lodging and golf courses have forced them into a large-scale Sunriver-type business model that is no longer viable. That likely is irrelevant to a county likes Deschutes, which partied the hardest with resorts. Its commission approved every resort that came before it and the county now has eight resorts totaling about 11,000 acres and almost 7,500 approved home sites. Central Oregon LandWatch, a conservation group, charges that "elected officials have shown little concern for the economic, social, environmental or energy-related impacts that these resorts bring that affect our landscape, our natural resources, our environments and our communities." The county is suffering from something of a resort hangover. Community meetings in 2008 and 2009 in Deschutes found residents wanting stronger efforts to offset resort-related impacts. Some wanted an outright ban on future resorts. "We may have made a mistake in Deschutes County with so many resorts," says Rep. Gene Whisnant, a Republican from Sunriver. "With the resorts that are here," says Deschutes County Commissioner Alan Unger, "we aren't going to be looking at another resort for many, many years." The debate over Oregon's large destination resorts has been swirling almost since the state in 1984 amended Goal 8, one of its statewide ]and-use goals, to allow them to be built outside urban growth boundaries. The exception was made in the hope that resorts would boost tourism and create jobs in struggling rural communities in the model of the successful Sunriver and Black Butte developments built in the 1960s. Black Butte has played a widely credited role in helping nearby Sisters thrive, and Sunriver provided a similar boost to pre-boom Bend. The other pre-Goal 8 resorts are Salishan, Bandon Dunes and Otter Crest on the Coast, and Inn of the Seventh Mountain outside of Bend. A dozen resorts statewide have since been approved by counties under Goal 8, nine of them in Crook and Deschutes counties. The approval rests with the counties after they have gone through a resort mapping process, and eight of Oregon's 36 counties have completed that process. http://www.oregonbusiness.com/articles/87-ju1y-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business TOP: The successful Sunriver resort was built in the 1960s and helped define the state's large-scale destination resort industry. MIDDLE: The shuttered sales office at Remington Ranch, one of the casualties of the housing collapse that has hurt or stalled many resorts. BOTTOM.: Property at Brasada Ranch near Prineville "is selling for less than what we have in it," says Jerry Andres of Jeld-Wen Development. (TOP TO BOTTOM) PHOTOS COURTESY EAGLE CREST RESORT, BRASADA RANCH, REMINGTON RANCH Page 5 of 11 But now development experts reject the Sunriver- type model that Goal 8 requires, saying it takes too much upfront investment and the overnight market is glutted. Peterson Economics, a Washington State firm that does economic studies for the development industry, said in an April report that the large-scale conference hotel and golf resort model is outdated and that "none of Oregon's new destination resorts, including Brasada Ranch, Pronghorn, Caldera Springs and Tetherow, have major hotel facilities" and none are likely to develop them anytime soon because of financial struggles. That gives resort opponents ammunition. The newer resorts "never were destination resorts," says Paul Dewey, an attorney for Central Oregon LandWatch. "They were always subdivisions fueled by residential sales. What concerned the conservation community was the evolution into pure subdivisions, which is antithetical to the land- use system of protecting the rural environment." Dewey for years has been battling the Thornburgh development for opponents of the resort, 2,000 acres at the base of Cline Butte in Tumalo. Approved in 2005, its plans call for about 1,000 homes, 350 cabins, a 100-room lodge, 150 timeshares and three 18-hole golf courses. Thornburgh is under appeal at the state level, and its CEO, Kameron DeLashmUtt, and his partners are tangled in internal legal battles and foreclosure proceedings. "There are suite developers who are trying to mind a way to use the destination resort law to create a cheaper subdivision, not a resort," agrees Mike Hollern, CEO of Bend real estate development firm Brooks Resources, which developed Black Butte. In many cases, the developers have circumvented the rules over time." "The new resorts were clearly geared to living there full-time, and not geared to the public," says Rep. Brian Clem, D-Salem. "I grew up in Coos Bay and I don't think the only option is to have to move to a city to get a job. I want to see tourism helped, and resorts may end up playing a role, but they can't be about permanent second homes. http://www.oregonbusiness.corn/articles/87-ju1y-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Page 6 of 1 I "I tried to go to Pronghorn and the guard at the gate wouldn't let me in." The gated Pronghorn, located between Bend and Redmond, has become for some a prime example of resorts gone wrong. Sen. Jackie Dingfelder, D-Portland, said during a May resort work group meeting that Pronghorn hasn't met its requirements, including a hotel, and should never have been approved. Deschutes County planning director Nick LeLack says the development "met the letter of the law." Pronghorn, which was approved by the county in 2002, has two operating golf courses, 60 of its 374 homes built, and 48 of its required 192 overnight units completed. It has an extension by Deschutes County until 2013 to build its hotel. Managing partner Tom Hix says they will meet that timeline. "We don't survive unless we have a public component, but you can't build a hotel on day one," he says. "You can't finance it." He adds that Dingfelder's remarks are "short-sighted" because the local economy benefits from the resort's 85 year-round jobs, the $2.5 million it paid in taxes last year and the $700,000 its foundation has given to the community so far. And those gates that keep out Rep. Clem and presumably other members of the wandering public? Are they conducive to attracting tourism? "There are gated resorts all over the country, all over the world," Hix says. "Being gated is a natural situation because you have a lot of money invested." Alarm over the rapid proliferation of resorts reached a peak statewide and in the Legislature in 2009 when Jefferson County attempted to bring destination resorts to its economically beleaguered county. "They looked at their opportunities," says Mike McArthur, executive director of the Association of Oregon Counties, "and there were few." Jefferson approved two destination resorts in the Metolius River basin in 2006. One was developer Jim Kean's Metolian, located inside the basin, comprised of 450 homes and a 180-unit lodge. The second, the Ponderosa, planned 2,500 homes and 1,000 overnight units. The fight to stop the resorts went all the way to the Legislature. It was an emotional, heated fight that called into question the motives of legislators with homes in the area. Thousands of Oregonians protested the resorts and the county sued the state, saying it had violated its own planning laws. In the end, the Legislature made the basin an area of critical concern, stopping the Metolian and downsizing the Ponderosa. In the same session, a resort reform effort that would have removed some regulations on resorts but overall tighten the rules was defeated. Sponsored by Rep. Mary Nolan, D-Portland, and supported by Jackie Dingfelder, the bill called for removing the current requirement for a large footprint, the $10 million for recreational amenities and the minimum number of overnight units. It also required developers to address workforce housing, emergency services and traffic impacts, and banned resorts in some irrigation districts (which would prevent water rights from farmland being transferred to developers) and wildfire areas. And it gave the state Land Conservation and Development Commission additional say in determining whether a resort was appropriate. Remington Ranch has completed 75 1/c or one golf course. It had planned three golf courses, along with 800 homes and 400 overnight units. OREGON BUSINESS PHOTO http://www.o-egonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Page 7 of 11 The Sierra Club endorsed the bill saying it would "assure that the future resorts are built on the model of Sunriver and Black Butte Ranch, which are genuine visitor-serving facilities, instead of the Pronghorn model which is really a gated luxury golf community for second homeowners." There's a bit of irony in the reference to Black Butte, which was started before the state wrote its resort rules. "In 1960, we needed four governmental permits," remembers Mike Hollern of Brooks Resources. Among those who opposed the bill was Gene Whisnant, who says he supported it "until Nolan changed the bill and put [the Land Conservation and Development Commission] in charge of policy and made changes that would make it economically not viable." In testimony, he called the bill a "death sentence for rural resorts and the future of some of these rural areas." The 2009 bill was defeated, but resort reform came up again in the 2010 special session in a bill passed with bipartisan support that required, among other things, that developers provide an economic impact analysis of cities within certain distances of a proposed resort, along with a traffic analysis and mitigation plan. Spurred by the defeat of the 2009 resort reform effort, Dingfelder assembled the resort work group - a broad coalition of developers, environmentalists, city and county associations, and state and county leaders with the goal of creating a "new destination resort model that promotes economic development for local economies and is consistent with Oregon's resource values." They are working through this year to recommend changes to the existing state statue in the 2011 session. "I think there are a number of things outdated," says Dingfelder of current resort rules. "The requirement that there are a set number of acres; the golf course requirement. For instance, no eco- resort model would be allowed. It doesn't allow for innovation." Current standards for large resorts require at least 160 acres of farm or forest land (unless within two miles of ocean, then it's 40 acres); and resorts must spend at least $10 million on onsite recreation and visitor-oriented accommodations. including restaurants for at least 100 people and 150 separate rentable units. At least 50 of those overnight units must be constructed before the sale of any real estate- a 2007 court affirmation that .Ield-Wens Jerry Andres says put the dagger into the heart of the industry. "The hope of the work group and rural counties is to reform the law to match the vision of a different kind of resort: smaller, greener, leaner," says Brian Clem, a member of the group. "The law itselfis a barrier to a different kind of resort." Linda Swearingen says she sees a possible new future not just for new resorts, but those already approved and sitting dead in the water. "I think we have an opportunity [during the downturn] to work with the entitled resorts and the older Goal 8 resorts and allow them the opportunity to downsize in exchange for some changes in how they develop," says Swearingen, who was on the development team for Crossing Trails, a 600-acre resort approved by Crook County in 2008 that faced vocal opposition from residents and is being appealed. The plans for Crossing Trails called for 500 homes. http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Page 8 of 1 I "My hope is to look at what's already on the ground, the existing entitled resorts, to make them more environmentally friendly, more economically feasible." "It's kind of ironic that now the industry wants a `new kind of resort' that's really a subdivision," says Paul Dewey. "They want to build smaller resorts with no requirement of overnights or recreation The 2-1 ratio [of homes to overnight units] was fraudulent enough." To Hood River County Commissioner and developer Maui Meyer_ helpin~~ this stalled industry is not the point. "Lost in the discussion is will this help people living in rural communities have a better life? Does the grocery owner benefit? To the extent that you can make a living, not a killing, out of it, no one will begrudge resorts," he says. "But this is not a savior to the rural communities." Clem, the chief sponsor of the bill to ban resorts in the Metolius, says he wants to reform the laws to make resorts more economically viable and to mitigate impacts of resorts. "But my concern is not how to bail out resort developers. It is how to enhance the economy of rural economies." It's a critical question about destination resorts: Do they really help rural areas? But there isn't a definitive answer. Opposing developer and environmentalist camps do not trust each other's economic studies. After approving eight resorts, Deschutes County - currently remaking its resort map - plans to produce its own "neutral" cost-benefit analysis of resorts for the first time. Supporters say they clearly help fill county coffers and provide many much-needed jobs (estimated at 2,000 in Central Oregon) without huge impacts on nearby communities. Opponents counter that the proliferation of resorts have huge negative impacts on nearby towns and the environment while creating mostly low-end jobs. In the case of Bend, some say the surrounding mass of resorts is hurting the very city that was supposed to be helped. Clem says the first resorts did help the economy by bringing a tot of people to Central Oregon "and then they explored Bend. The second wave of resorts I don't think has contributed positively to the economy. The resorts have become a competitor to Bend." Large or small, eco-minded or not, resorts will not drive rural economies, according to John iviciiwain, who authored a report this year on dousing in America in Lite next decade for the Urban Land Institute. "This kind of tourist business does not produce high levels of economic growth," he says. "The jobs generated by tourism are low; businesses are modest." Along with changing demographics and changing housing needs, "The U.S. economy is changing," says McIlwain. "It's an urban nation. We have to face the fact that rural areas will have modest economies. The reality is that you have limited options." Roger Lee, with Economic Development for Central Oregon. argues that the region has had successful job growth because of the resorts. "These resorts separate us from communities like Baker City," which struggles to build its tourism. "It does matter if they succeed." To Gene Whisnant, the destination resort is an option worth saving. "We don't have many industries left in Oregon. I think destination resorts - managed properly with the right guidance - work." http://www.oregonbusiness.com/articies/87-juIy-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Page 9 of 11 Mike Hollern believes the resorts have been good for their communities but "what is the true impact? Those are unanswerable questions." Still, he says, resorts have "delivered on their promise to help rural Oregon." Whether they will continue to deliver on that promise is also a question. With Pronghorn and other so-called "stealth subdivisions— fresh in the mind of some members of the Dingfelder work group at its May meeting in Salem, the controversial question of whether residential units should even be allowed at future destination resorts surfaced. The sentiment was an about-face from previous legislative actions. In 2003, the Legislature changed statutory requirements to allow developers to build more homes and fewer overnight accommodations (2.5 residential units for every rental unit). Gov. Ted Kulongoski signed the bill, but expressed worry that the change was "not focused on tourism." This was "before anyone had a clue as to what was coming," says Erik Kancler, executive director of Central Oregon LandWatch. It was a prescient concern. The Peterson report, which was presented to Dingelder's work group, says profits from lodging, dining, golf, and other amenities and recreation activities are "quite modest." Without robust home sales, developers say resorts aren't financially attractive enough. They want them still, even though it could take years to clear the current glut off the market. The Peterson report also says developers shouldn't be forced into building more resort lodges because the Northwest is oversupplied with those, too, and floats the idea to allow "ultra-low-density community with limited amenities and perhaps with no traditional lodging." "So what's the market'? Overnights or second homes?" asked Jackie Dingfelder during the meeting. Linda Swearingen admitted she was stumped. "It's a combination. But this market is so funny right now, it's hard to tell what the future of a resort needs to look like." John Mcllwain's national study says that the second-home market will be weak for decades; yocmger boomers won't be able to afford one and older boomers increasingly are interested in living in urban settings. Generation Y, the group coming up behind the boomers, will have little money for first homes, much less second homes. And other factors weigh in. In Deschutes County, ground zero for second-home saturation in the state, the City of Bend wants to expand its urban growth boundary by 8,400 acres, with 500 acres of land for second homes. That would leave less reason to continue building second homes in destination resorts. Jeld-Wen's Jerry Andres minces no words. "The future of the industry is not growth. It will be managing what's already on the ground," he says. "And if you're not already built," he adds, "it's not going to happen." The stalled Remington Ranch has every intention of building. In late May it filed its reorganization plan in U.S. Bankruptcy Court, seeking $35 million in new financing to finish phase one, which includes a golf course and 192 single-family homes. http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business Chris Pippin, project manager of Remington Ranch, near Redmond. Pippin hopes for a spring 2011 sales push after bankruptcy reorganization. OREGON BUSINESS PHOTO Page 10 of I 1 Of course, the court has to approve the plan, and the housing market by many accounts has not yet reached bottom, but Remington's Chris Pippin says his property is valuable and he's hoping to wait it out. "Remington is a 20- to 30-year build-out," he says. "Regardless of what happens, this project will get developed." an unwinnable argument as to who is right. Ultimately the market will decide which of the already-approved resorts will survive and the Legislature will decide the shape of future ones. It is Dingfelder says she would like to find consensus in the work group about that future. Time will tell if that is even possible, given the dozens of different agendas and that the group's recommendations still have to face the onslaught of special interests in the 2011 legislative session. And after the legislators have decided and the developers have left, time will also tell if the rural grocery owner was helped or if rules and promises were again made to be broken. Email This Share on Facebook, Digg etc. Comments (1) ` 4r i Subscribe to this comment's feed And history repeats itself... written by A. Kirk, June 28, 2010 3:24:25 pin PDT This reminds me of a TV show I saw on OPB not long ago where Christmas Valley was going to be all divided up into a beautiful resort/subdivision, etc. The developer flew people from California to the middle of the desert in planes and the people who bought places to live just about died the first winter because there was a horrible storm. It's practically a ghost town now. Sad how these things go... of course we're a little more modern and educated these days but not always. http://www.opb.org/progi-ai-ns/or ...g/book.php vote up vote down report abuse Votes: +1 Write comment title http://www.oregonbusiness.com/articles/87-ju1y-2010/3702-once-golden-destination-resort... 6/29/2010 Once-golden destination resorts face uncertain future - Oregon Business comment name email (will not be displayed) write the displayed characters smaller I bigger n 1 have read and agree to the terms of usage. I Add Comment Page 1 l of 11 http://www.oregonbusiness.com/articles/87-juIy-2010/3702-once-golden-destination-resort... 6/29/2010 History of Oregon Policy Decisions Affirming that Subdivisions Cannot be Resorts Feb. 25, 2010 Planning Commission proposes Formal motion by Planning new criteria: Commission • Existing "paper" platted (http://bit.ly/bZURom) subdivisions that were platted prior to 1992 must be allowed into the map. • Cluster subdivisions should be allowed into the map, if they meet the open space requirements of a resort. Work session May 26, 2010 BOCC reaffirms policy that subdivisions will not be included in resort eligibility map. June 7, 2010 BOCC accepts Cyrus Amendment as part of resort map ordinances, allowing an exception to exclusion of subdivisions from resort map. June 9, 2010 BOCC repeals remapping ordinances including the Cyrus Amendment. Hearing & possible decision on June 30, 2010 county subdivision/resort remap policy. Proposed Ordinance 2010-001 Chapter 23.84.030 section 3c9 says no platted subdivisions will be included in map. EXCEPT for those where: Each lot in the subdivision states in its deed or CC&Rs that the original developer is authorized to apply for conversion of the subdivision to a resort. (DCC 22.23.010D) Prepared by Merry Ann Moore, Sierra Club Juniper Group 6/29/10 History of Oregon Policy Decisions Affirming that Subdivisions Cannot be Resorts DATE ACTION SOURCE/DOCUMENTS Cyrus family requests approval of Fall 2007 text amendment that would Text Amendment 07-07 permit conversion of Aspen Lakes Golf Estates in Sisters, Oregon from a cluster subdivision to a resort. Deschutes County planning January-February department staff, county legal Staff report 2008 counsel and state Department of Land Conservation and state ousl i Attachment A, DLCD letter y m Development unan a subdivision cannot convert to a resort. Planning Commission votes no to June 2008 allowing the text amendment/conversion. County Commission votes no to November 2008 allow the text amendment/ conversion. County recommends May 2009 . removing existing housing Presentation by county subdivisions and lands platted planning staff, Community for subdivisions from map Conversations • removing parcels of land under 160 acres from map I County recommends unmapping July 6, 2009 of ineligible lands: Attachment A - Community • All platted subdivisions and Conversation Powerpoint parcels < 160 acre • Irrigated Farm Tracts (>40 http://bit.ly/9QR4n5 acres of contiguous irrigation, under one ownership) Prepared by Merry Ann Moore, Sierra Club Juniper Group 6/29/10 Document Reproduces Poorly (Archived) '137 - 1424 ' STATE CP ORr?W - • County of bescht171CS 1 . on F➢91.. 'RSM unJ•rslyd, r<!FO a Ry'ui is "`~{T a'+~'t ifs ruw tY ri7W ~FtOti, y+r.ca,.ify ap~eez'wi J LjP'J✓- kAown to me to be a partnar o u! : paftnara p r azsCU al thin ins tnwnt sM sek'xsw2FSdgsA tv tl+et s»er c4q^acn ciaa ab~evt7d the saae_ ~ S ' ~ ' ~ ~ c. i ~ ~ w1~F r ` j~W ~ 'x !ter J F'G ~tezy'Y`L~~ rb - on e u v` ~.i l.3irlH My t",..rf►sfan ¢rplrsrc~'~j p t ~ r azxsa OF QS=MM CountYot ~•xt~cc lL5 ss. 5 ~ L3,i{y~r7x"1'i. r ? M ~,-.H ! -F •a • tln 1491, ttA Ur4ar*LW5*A, • No Pxrblia S1r &M Los ■a tT 11 OtAti, p lly tp;rssY'7! C r ~ if rl ~7~ ~ 3 r ~S~~'hr. ~I -Y'1 ~'S f S; " " . a knoon t* oo t* be ° t f II1 ` ~ ij ! r ~ a „ Z - l,f ~ ~ { ',y ti. ~ f is Y} k:~. t partr»rs R w auacu w t A tnn* "'a "t and *Ckraat tD ai Y31JL b+.tG'1 O(71'QW1T'ltioq ~2aSA1= ttU lIMW1i. - ✓ } ~ 7 r~ I f O x Q ar tOOKIasiOn K1tp13'+tt/ bociareticna, pays 14 • .v . asstrictxons, D31#S}.OUw6,,kx"= t 2F Rrotactivs C Wansn#a 6 C"Oditio»! ~ w ra.✓r>Mw .l. Document Reproduces Poarey 137 - I d ~ 5 "Hi8tT "A- Leta CAa (l) thgough ynrty-three 03) and Private Hays, inclusive 01 CCtr C;Oxsz EATAT93 AT AM" 1.Aila3, IIesehetes County, Oregon. LUISIT "A, All the following described vroyerty, or any division of nev edeging tti•r•of: Yructs A and a. tool viva at coLr CCva3rr %sTAT8s AT harts Wis. 6•sctutea County. AysgOft• Lots one (1) thye,tgh ten (16) in atoet Bay" (3), Lots On. (1) throagh aevio (7), in Mock tight Lots OA* (1) thre49h r-rtern (lr) in alocA Nine (9), inclusive of iltLD Nt)fz MEApc(ts. Doschut•s County, or•gon, tots fts (1) throogh Nineteen (19), trucks a, a, and C. inclusive of 'M* A1# AA AM" Lam, Qiaohutss county, Oregon. V lT4kr1 of Otto" l tf. OwI ww~ gr grlsc»9m ) N - l a61t tp{ rtvzatan,Tdt y y wnda+rcn. r w 4 rKwsrr a co 1 Tet t1np4 fPIMrI. ee ettle ' ~ aMA,l n0 iC2~'S,u 1 w ItARY SUE COWITT CLEW4 +,uet sxaor - ' enavnt roaetr w Document Reproduces Poorly (Archived) LJ= 't3 ' - Section 7, CAPTiCNS. The captions of each Article and - daGti On hereof, ea' to the COl tanta of each Attlcia and Section are lnaerted only for Convenience and are in no vsy to be can- trued ae defining, limiting, ext-ding. or cthxrviea nodlfying or nddIng to the particular Article or Section to vhlch they Section 6. Tr`AnsFm of ADMSnISTtuTtvE S"FON5181"ry. On ' • June Is, 2000, or tuft later thin 330 days aftor lot* repreeentln] ' e-nty-five t--% (75t) of the -t.. h- con..Yed, - Khichever 0+a11 flrat occur, 0eolarant ehail ")i O e"ting for the Parma. Of turning over adxinietro r i--ihility for _ _ % SOLF COUPS ESTATES AT k£ Vi LAKES to the A.ettfatlon. Notice :Pa11 tM ee prcvioaa In tha eyla..a. At Vtr --t1n,;, Caclairant shells ~a tlwi ~y ror the a lei t_etic it J. h ESTA:. AT A f.4' i-kKE11 l-'11 the - - - Assocletlon shall accept the ldmIniatrative r-ponslbility fry thr tiaalarent ee provided in OVS ;4.6I6. ftt later than the 60th - • - der aft- the Oeclarent h.. aonwyed the lot. representing fifty - percent (504) of the votaa An CULF Cmr= E;TA7ES AT ASPEN LAKE3, _ - the peclatant shall call a eretlrq of curers for the purposes of - sele,ting a transitional advisory to»nittea to eaelet in the trm*ftr of *d-1nietret1ve atitbority. tN NS'NESS uxEACF, the des. iyned fl-tar-t has executed - thin AmeM_ wj Declaration thte ~!~_p`dpy,of „nt, , I4Dd., ~FIL14) iNTCRpAIS i.I. V • i ,O Y. yartruerah p 13 STATE of 0AZOON i j ra. County of f - On ~ytyt,i iy§1, V!Q vnABYaf geed, a notary Puolia 1. And tee said C--y and State, por -Ily ¢pPo:. r.xi • - .-.J.<l_Lu'G'! ¢t~ kh0+.'n to a0 ..O be a P of the p tnarehlp C tlkU•_.a God the v{th In Ina tr 1194f1t know tad7p4 to " that ouch cocpcrrotinn O-Uted the same. • Q :ti Ncltaty F*bl icrogaq Ply C.a-i tan 4 ac; 1 id ~ . r ~ c law . _ - ttsclate Cigna, page to ' ~ pastzf ctione, 0. PretaCY::• 41 1 ~:.~lilJlS<~ Covr manta L fbP diiSb[s8 ..............te ' - faith, The officer. arsd directors hall have no personal llabll- ity with respect to any cuntraCt or other p lt+wnt sods by _ thew, in good faith. on behalf of the Assoeio"on (ascapt to the .tent that such officers or directors may also be Members Of the _ Assaslation), and the Aa*ocIatlgn }hall in+dasnity and forever holti s*on sucN officer aM Alrwaor fr- and harmless sg^Sngt any ' and all llabilirY to other. on aceount of any avCh contract or Coen .ant, Any rlght to Ifni altlcatlan provldsd for he ralh shall n ~:1slve of any other right. to MW.h -Y -Blear ` former officer of filrectors, may be entitled. or director, Or The Asao iatiSn shall, a$ a cosmos, axpMU, sm"tain adequate yyanerat liability and oftlors, and dirsotti-, liability - a fnsuranDa to tutul this abllgatiari, if •ueh In.-.-_* 11 reasnn- - ably ve.-~b!9. Section e, EASEMENTS FOR UT1LITl'cZ. There to hereby rosti-sd to tRa Asscolatlon bfanlcst ***meant upon, aoreef, above, end under .11 property vlthifr GOLF COURSE ESTATES AT ASPE'lf LAKES i% for sacs.a, Ingram., prams, inatalleflon, repairing, iaplacing, CAY.t t)F1RSE ESTATES AT and Maintaining all utll£tle. ssrvlr.V I•° 4 r S ASPEN LAKES or any portion thereof, Including but not limited to rr gaa, ..Let, sanitary saw,, talsphans " alsctricity, as "It as 1 btora drainage and any other ae"I" such as, but not limited to is Raeter tslev:sian antenna system, zallle television system, or t f- l ` ~ eecarity tyetea which the AsSOClatlM Wight decide to have . . ` Ioatallsd to serve GOLF COURSE ESTA'M AT, ASPEN LAKES, It Snell be asprsssly permissible for the Astpciatlors or Its designee, as - r - the caee may be, to lnstall, repair, rspiecr, " .alntain or to 1 t •,ith- 26 the installation, repairing, replacing and maintaining Qi such viro, c4ndulta, cables and other xluiprsant related to the I Mviding of any 1-h utility or asrvico, Should any part fumif hlrq any such utility or servlca, requsst a specitlc license - or 91aemeot ty .Operate raconiable docuaant, the Board shall pave r 'y 2 the right to grant such aa.weant. - Sz~::1 nn S. Gel+L'ER Afl➢ GF-,V~A, The singular, alto C=3 oar uued _ - haraln, atoll On Goh.trumd to moan the plural, vKan appiicablo, and tr,a use of the maaClllltN pronoen shall include the neuter mnd f - - >actlcx, S. 'EVERA151L.7 Y. whenever pcasible, each prnvialon of this lfecleratlon shall bo interpreted in such canner as to be iff4f;tIv0 and valid, but if the application of any provision of this Oeclaratinn to any person or to any property shall tai pro- [iiCited - bald lnvaltd, .-n ptohibitl- or Invalidity shall riot - - atftct any ether provlatan or Iha appllcatlan of any pru,laion _ ~ which c n be given effect without this inv eIId provision ar applt. s - " cation, and, to thf. end, the ,rgglalono of this Deblaoallon are ao ra rebin, dec111ro3 to t. r`:r - 1 4 2 1 any a-h r.+ry!:l ta~?ents 1 sts:lv?gent, a this Sactlon shall auto- a'atioally be ase"fid to reflect such changes. ARTICLE X. GENERAL PRDVIS10NS fas'tl*" I_ iu'A7:UN_ Tna covaeahti and rgatIictioo# of this Dori 09 shell tun vith and bind the Properties, and shell insure t8 tha banafi.t of and shall he snag-ably hp tree Asaocl- att a ar V. caner of ar.y Propectiaa suble.,t to tnia baclaration, their re.pacriua Iegal vayraaentatlvas, hairs, 6uC, a4'ra, and maslgns, for s tern of thirty (30) yaar• fray tDa data this Ae6lara Li.n fa retrordnd, after rhich tlma they anall be automat- ically tan i0) yaar., nI.- -1 the hac Lunnrs, hca Daar~ :acr r;1,d uitf,io then year ~pracedtng the beginning of earn *a=ORSiva perlod of tan {10) yeers, agreeing to Change ■aid aovananta end raatrictl-, In wholo or in p"t, or to cirai"ta the sop, Section 2. ANEN*DNENT. This oaclarntlon may b a Oad unilet•ra lly et eny tie. and from tine to tloe by vaularant (a) if such as.andaent to aacaayary to bring any provieian hereof into coop II*-* with any appllCAble 90vsrV01"tal atotute, rule or regulation, o r vdicial dotarrlin.tiao wh1rh halt ba in v-fIict tharsvitA; or( ; b) if such arandlrnt is raquinad by an lnstitu- tianal-or govsrnaantal )bndar or purrhasar of mortgage loans, includino, for aseapla, the yaderel Ratlonat mirtgog* Abaocistlon or Fade rah Rt»a Loan lbrtgag.' Corporation, to enable ...h Isnder or purcneser to moka or purchass -tyape toany on the Lots subject to this Daolaration. provided, howavar, any ouch --1- Xt aha11 not adv. raoly •ffact the title to any C~+mar'g lot, pnlsss 6v.nor chall concant thereto in writing, In .4ditlnn to the a tea, this benaoration may be -v d*d upon the afftrmativa voto or vrittan consant, or any combihatlon tharaof, of nt least sasortty-tivs poroant ('11%) of ale ea.bars. Am od.anta to thfa. ilt3Cleratloo shall bsc_ efi-ti- upon re,mrdatic, in theDeschutaa County; 9rngan record,, unless a later effoctiva date is apontfled. thorain. Section 3_ INCERNIPic AT lON_ The 2.ssocsatlon shall indem- nify every of ti G¢r and director against any and e11 -penses, lncluding cavneel fcea, r---nobly iocurre,J by or i~pased upon any of !Jva: 9r director in --n tlon with any a .'qt, or atrter proceeding (I_'udirg settlement of any cult urpmc.tadtng, if approve,] by the then eon rd of Mrec tots) to wnlch ho or she may ba I party by Satl.dn of baitv7 or having bean an officer or d1r%% . 'rn officer, moo directora mull not ba 11ablo for any Rf stake of Sudq~ens. n®gligant ar othe Luis, accept f^r their own indivtdun J. v11; f,r1 aisfeosancc_ malfaaeanC@, aia :anduct, or bad ik; Ciaca ti.n4, Page i5 R, i r: t tons. Y L "~;N? {t f63idte* fr C 'ESVa $acticr 4. SPMAL rml[ _ PAOY:SIUN So long as squired t'y the mortgage corporation, the followlrag provisions .poly to-64dl- . ties to end not In lieu of the forspofng three Swctlons of this y a, _A Article. Unless two-thirds (713) of the first Mortgages or e Y - rr < t --c. glvs their consent, the Association shall not- i r y r .:r,',%; By act or talasion sesk to abandon, partition, . - - eubdlvida, encumber, sell or transfer the Cosron Area which the Aasoolation o:(rie, directly or indirectly (the granting of easaaanis for-publig utilities gr for other publi9 purposes - - ` conpiatent ?Meth the 1nt-404 49e of the Pzopertliy ahal.i not _ % be chased a trenW(or): ill rM-~,~ •r~ - hOd of detareining the o>'Ttga.- tlbna, aefeeam.nts, due-, or other ahergss Mhich may be - - levied against an Omer; - - (a) Chang. the mthad of dat.rminfng the oblige- - tICAS, asaescnante, dues, or other cna.Qts vhich may be 3iVi'~d Apsfna an L-h- _ }ist P r rti: ~ h f ' (d) Fell to sninGfn tire and sxtord.d ~1ag9 y .ar I i , M; $r+swtaf+cs, 'as required by this Declaretiont or i (e) Use hazard insurance proceeds for any C~ J Area losses for other than the repair, roplscwnt, at V 1 _ recrmstrection of such Proparttee. RJt ~3 1 t 1 ? The provtafona of this Section 4 shall not be conatrnad to i t roducs the pereentaga vote that must be obtained from mortgages - or C-r..hare a larger parcentags vote It otbarHisa raqulre4 _ for any of the actions contained in this Sactfon. c Fire, ear cgs sae may, Jointly or 1rtg1y, pay taws. or other g a charges uh!ch are In default and which may or have Lac w a charge msainet the C-Qr, Area and e,ay pay overdue p-tuaa on casual t•1 ittsu cones pvlisies, or svC ra new casualty invuratu:a - - wvarbg. upon the lapse of a policy, for the C-O Area, aril - - - first sortgogees asking such psy_nxa shall bo entitled to tmmodlAte relmbursement from the Association. ' m it La Qeslacent'a it tenCl¢n :A.a the developm.nt quality for the Poasitrle eels of mortgagas anaumboring Leta to the Federal He Sf on.l .wo r`gage Aa-tatjJ and/01 the yednral Home :.Qan Mortgage Corphra teen. The requ;ra mancn cantatned in this Snction - - to to effactuatu that purpoae_ Iih..id alth-r the Federal florae - Loan Mortgage Corporation or the raderel National MOrtgags, - - Asacciatian aub.aquantly dsieta any Of 'their reap-tive require- ' manta uhfch noc0..itata the provialann of this Saotinn or asks oeeiara bona, Page 15 . Restrictions. Lt17liiS; R7[Fs`t? a a ll OU lLK i . - 5 . 4 Ut L Protective % e_, Cavananis 6 Conde bona.. w.as.,~.„ - ' (4) Tha cunaont of at leant asvanty-five pKrcent (754) pf the aew.rs end the apPrbvai of the ailgibla holders Of fist mortVegas on unl to W uhiah at Nast ♦avanty-#ive percent (7~50) of the votes of units sublsot to a mortgage appertain, shall ba squired to terel nste tha Association. - . - (b) The consent of at lanai seventy-five percent - (754) of the members end tt. appro-I of s11;tble holders of - first mortgages oa 1--.its to which RL leeat fifty-q+~p Percent (311) of the Votes of tots subject to a -rtjnga appertain, *hall he required eatorlblly to asend any proviolone of the Declaration, Bylaws, or Articles of Thcarz-tion of the ` Association, or to add nny material prowisians th-to, ' sataaliad, provide for, ilov..., or r.gvlat. any of t- _ f.1.1-Ing, fi) uatfrspl ' i (ti) Atss.4ment., a...aament Ilan., or suoordi- y` nation of suth hens: 3f t } ems, ri~ fill) Ree. rues for aeintmnanGe. repair, end rsplacamaat of the comnoo Axes; ;i y (iv) insurance ar fidellty bondcf 1. fv) flights to use or the Cosem" Arsat k9 s%`s' (al) "Ap-Lbili Vy for aatntanance and repair of - - the Propsrtiesl (Vit) or t t ~s e _ addIti-, anna4ati0m, OrwItthdrav the ropartiaa i *1 P to and from the Association: (vifl) $iuxdativa of any Wt; - c fiisl Las ei ng of („-,its, - (x) Imp-itlcn of any right of first r.f-il or almllAr restriutioa al th. rlgAt Of any pun.gr Ca ' 4.111 tTen.a Ce r, CY oiha r'~Saw convey him 0. rwl LAC: ai) ~s to^iixrw~t of salt-roanag amens by the n~a~_inttnr. wnera ~rofacal 1 u+arng-ont has been . required 'ay ah eligible holder; or 1 Ar.y pro~ialonn Sncl vd ail !n ita fleCl era tlena - Dylawa, or Ar tE cles of tn~oryo ra t3an which are for ' the e_.pre.a bunwfit of hold-A, guarantors, or insurere n.' fjrat -rtgngaa on Cats. Puclaretl-mw P.,j. 14 ' - - iiaet'rictiona, t( k 'gi of lHiP Q i3: })attit2l " , , . , s . ProtootiYa „ cove-to t, Conditions . , s~ i at u~It1 stctio9 i_ NOTICES Of ACTION, An institutional old- , lases-, or guarantor of a first nwrtuege, who providae wrlttan raqu0.t to the At.e I.tlon-(euch request to state the n s and eddies. of s.cb holder, insursr, os quazantor end the lot nuhiwr). ;therefore be+:.r±eing an aligibi. holder), will be entitled to tioo Ly wrltton mtLao of: (a) Any proposed terslnaticn of ttie Association: [b) Any oondauration loss or any casualty lase -hiC;l effects a seteri Ai p-tion of the Properties or which effects any Lor on which there to A first .lortgage hold, insured, or guarantagd by such eligible holder, ic) Any delinq--j 1n pay-nt of aasesaments 07 charges owed ny nn ?hirer rr n Let -1,;-t to the mart5jago of Ouch eligible 1-1.1%r, insurer, or guarantor, where such dsficlsncy pee contlnusd for a period of sixty [60) doyei (d) Any laps., eancallation, or reteriei modlflce- tlon of any inauranc0 policy at fidelity Jf0nd meintsined by the Association) or (e) Any proposed *ctlon which would requiri the cons-1: of 41191151% holders, ant required to Sectitao 2 and J of t11. Article. Section 2. OTHEL PmOvISI0H4 MA FTAST LIEN HOLDIIIM. To the extent possible under (frogon lawr (o) Any rostoration or repair of the Proparties after a partial condsnnetlon or damage dui to an Insurable hazard shall be sub0t4otlslly'In eccardance with this Dooleretian' add the original pleas And sp*ri.fI"tI one en19.. ill approval of the eligible holdsrq of first martpegee on fate to which at least fifty-on* -.percent (Sit) Of the votes of Lots, oubjeat to mortgages held by such eligible holders are dl}.seated, to obtaloed. [b) Any election t) t.minat. the Aaacclet,jon efter sub0taitial duatziiciian ores syrbetar`ifi CaM3n9 In can+Jeh- nation must regglra the approval of the eligible holders of first mortgages on tests to whle, at least fifty-ono parcent (Sit) of tho votes of Iota, subject to mortgages hmid by such 0iig ib la holders, are all-tad. S-tlon I- AMESit)HENTS To DX_p4ENT 5. 71)9 fcllaving provisions .do not apply to aarOnd'4nts to tri0 'Canail leant docu_rc.tnts nr tarial- V. tlon of the A3:0013tion` 2440 as a raS.lc of destruction, damege,.or condemnation purguant. to Section 2(a) and [b) In this Article, or t4 th. addition of land In E.corxfanrs ult. Artlol. V- 0.1 laretions, pag4 id 8aac: Sc:ti9na, Praeeceiva Mcwu. T4.al:~t.. bi4,iyrovu ~ f^„tzzss~ . ZJl ~ 1*3i# a _ rsc r_~:;s t: ur-cl en, ++t~i ..ail ncI u~a +ri thin ltw defin - "'n 'taking, .,;sari ng, sxrd .{ion, grading., and other sit. wark, and rs p:a®tinge o- of pi an ca, trees, r anruba aba1F - take pl.Ca 4xcaptin .trlet cam pl Santa x,tR thls Section, until the re,lulr4a4nta ih.r.of hay-e bean fully met. 4n4 until the approval of the app-prl a to Caawittsa has been obtalh.d. - Section I. ARCHITECTURAL REVIEW ,n+I -rEt. 'Iivo ArCisi te~tvrdl ' a4w.14w Comralttea (ARC) shall have wwpl a1- )uticdioticn over all - original C-.tract!- on any portian of the Pct. ea c.. uris- - ' dletion over eadifioationa, .ddltloats; or .ltoratlons aaa. n or ` r.." to aulatlAg Residential Late and the CowAan area. it any, Appur. tanr t thorsto• i44 ARE shall preps* and, on behalf of the • - Board of Directors. shall pr-lgate design g,~td.tinaa and nvpil- ` - ca tt vn procadurea. Th. standards and L;z a of She Aq scl at!C^, a. !".a A F , f..: ' . ,tl.yc- r illy to pcepare and to n vnd tro* stacvlarda and proc.d arose it Shall sake both avpilAble to owners, butldors. and d."Iopera who - seek to eng.ga in d-lopcant of or canatn:etion upon all or any portion Of t40 Pccpcr^.183 and aho shall Conduct tboir operations strictly in ae_vrdanct therewith. until all the properties • ' ccntaln,M in kAhibit a have been --ysd to purchasers In the nor,sal cou-s of lo-lap-wnt and sale, or until the right of the D l 4c arartt to submit such prop4rtIve expire. tkq D4clorant - total" tho right to appoint all reubers of the AP.C, which shall consist at .t least throe l3), but coo aoro than rive (S) - - - p4r40n4. Thor. snail be no s4rr44dar of this right prior W that r - ~ time, 4ac4pt in 4 written instrt mnt in r4cotdablu tore as. utad ' by Declarant. upon ene 4Apiration Of such rtgpt, the seard of - Directors .hall appoint 2h4 seabors. In tho 4vent any dispute 'i shall arlue between t, A,7C and any property -r within the aubdivislon and if eh. - cannot bo re.olved by negotiations tet-n the Portia" each party agr.ma to 3ulu.tt such diapueo'to - _ bindinq arbitr.oion puracanc to the ru143 of the Tm4Yican AYDttratlon Aaaycia et on, Ii the parties Camot sera. uPon a aingla -:b Ltr.tor, sack (hell Cn-. an arbit. ciJt tRd the two so - chosen shall 3"act 4 t61rd. the d.cislan of any bm shah be binding Upon the parties, >o co„rt appeal of any such deelaldn ' tendered pursuant to 4rbit€eti shall ba permitted. ARTICLE 11. tKp 7tSA,lE PSGl1TS _ The f.11-in prov!s+ona azo for th, be-elt of hnld4rs, insvr.Ya, ,a tan,ora or first mrtgarlnH on r- O In C;il LF C:'.IRSE ESTATES AT ASPEN t-kXFS> To ct;a ---t aDpli r_nbSe. he~eL3a ry, or - proper, t" Pr-!31-9 of tr1Aa Article S% apply to both thls n.C3.ration and to the nylaws of A8P8a LAY.ES 14GMMwt4@RS - c ` ASSCIIA'T:ON. `+hota indicated, these proviaicna apply only to , - - slsgtbl4 b ]fa_ , as hereinefter dotinpyl, • -.v Eiaola ra taona, page 12 . RasTr Le tiOns, Pr6~bGtiva '+(Lt3AA. ~.~?;,1s lL: $.flGb£~. "t-mm, _ Co'+ananLH i CoatdltioflH w+s r~ ✓t.a....... Z37 - i4 i6 Section S. SUAOFOINATION of TNS tllk TO FIRST DEEDS OF TSat1u7 AND FIRST MORTGAGES. The Its. of the asaeaaeento, Including interest, lots charges, costs (including attorney's teas) Pro- Ided for heretn, shell be subordinate to the lien of any first Hortgage upon any Lot. The sale or transfer of any Lac hall not affect the 8asaeraesnL Ilea. HoweveK, its sale or tranrfer c( any Wt Pursuant to ,judicial or + ojudtal l tore- s'.' Cloaurs of a first Hottgags shall eAtinquisil the lien of such 09"#P tenth ea to 9aym-t2 whfrh ber -n d,e prior to such selu 9. trandfar. No wale or trannter shell ;alisve -KD Lot frvat lien right- for any ass-aw"nts tMraafter bscOelog dbe. 'harm the rwrtgagaa of a first. r7ortgago of record or other purchaser of e tat obtains title, his or her a c -ors end nsaiyns *hall not be i leblo f t,a 1 c{ aesotsments by dun prior to ins arqulaltion of title to such lot by -ucn scqulrer. Such unpaid _ i 1 where at Csoson srpanese or eases eaente aheli daeafed to be t cr,.=rpn expenses co2lvctibl• lrpn all tt» Lota, including quGh Ocqvirer, bit or her s"G_essors and assigns, hn ✓r c« Y: SoCoon 9. CAPITALIZATION OF ASSOCIATION. Upon acW1.1 tian v J!4- 1 of record title to a Lot from Reclarant, secn Ovndr shall tontrl- bu to to the tepital 0f the. Asacoistion en saount equal to ona- -fsth m6) of the"asount bt the general assesaaent [or that Lot _ f 7[ es determined by the Saord. This ramcwnt shall be deposit" by t - _ the buyer into tNa. Purchasa and Sales Escrow and disburaad there- > .'t dk~ 1 , from to the Association. iv32 t 4}, G ♦y'::_ Section 10. DATY OF COI4I9NC't:4KNT OF ANNUAL ASSESSMENTS. T" d-oal aeaaswOAta provided for herptn shall cons once as to Oil Lot, then ""sting and svbjoct to asaaas-t under the Deolars- tion on. the. first. day. of the month followlnq the conveyance of the first Lot by the Dsclsrsnt, and shell be due arnl payable in a - - - asnnsr and orl ii acht4ulo as the board of Directors say provide. - - TM first annual as.ssms or shall be edjustad ecco rd3 ng to the ` - number of months than ramainlnq in that fiscal yter. Th0 data - - any tot becoeee subject to asesssmant herevneer shall be the date - on vh.ish the Lot b040ae- subject to the DOci-tip". . ARTICLE V'ill- ANCNITEC;TUR.AL STAt2IARIAS The Board at Dlrecsore shall DO- the au Lhorlty and atandinq, on beAalf of the Aaaociatlon, to enf-co In aaurto of a - c','stnnt jurisdictions decisions of tt.e Cantes setabliehad in ' - tbia Article- TMs Arti Ola -y not its -,4td witAOst the Deelsrant'e written convent, s0 long as the Qeclaranc owns any - lend. subject to this Declaration or subject. to eahnxstion to this Declaret=on. T shall be deiinquant. Any a se scant deiinquent for a period o p - - more than ten dlA) days aha11 Lncur a iota Charge 1n a unt as the Boers may rZom, t1.e,0 to time datarslna. The ,Ameoc atio, shall x f.,• Caoae A notice of delinquency to be given to any ae,mear who hen not paid within tan (10) days followlnq the due date. it the assasssent 1e not paid within thirty ()0) deya a lien., as here.,- - - - - _ provided, at,6,1 attach nn d, is add, rich, me It.. shall include _ the tats charge. Interest. not to exceod the aeaimum legal rata on - - the principal 3--nt due, an,! ail late r.nnrgaa from the Caen firm due and payable, sit -ta of CollactIm roasanabls YY •tto-y'. fuse lousily ir.tu rrad, and any other amount. provided or parwlttrd by law. to the -ont that the •vaaecmant ce.ains unpaid altar sixty (60) day e. the Aaaaclation as y, no the Board shall ;.h and to . e ~ _ a par:y to any JC:.at typ of q Jn'✓eyancw, v sets In thw ASO w.iaiiff3 or Sts agents the riCht and prnar to bring 'all adieua against - him or her Iarsonally for the coliactioo of such charges as a dtbt .r to fcraclosa the afQreaeid lion in tJ~* a- -.tr .4 " other lines for the iapro-ht of real property. The Ilan pro- ' l _ vii:d for in this Article seals be In favor of the Aasociatl on _ and snail ba for the benefit of all other t,,ho . The AaaoC.ta- tion actin b h lf l , g On e a O Me Ownars, shall heoe the power to bid oo the Got at any foreclosure hale or to acquire, hold, t..sa, mortgage, or Canvey the It. )f4 .wear eny waive or ntnarwiae except liabilit f h y or t e Asaaamants provided for heroin, l inc udiK by way of illustration but net limitation,' abandor-rot of the Wt. . Ali pa yaenCa ahaIl Da spot Tad brat to caste end attorney's tees, then to late ch-g-, than to intarsat, then to Bali ruyca nt a xessmants, than to any :repaid -l na to ll menYa of the annual - a: -'print or eptctal ban-manta which are not the aublaCt - matter of suit in the .rd9r of their _.I» g dua, and than to any unpaid iootallmentn of the a heal axanaamant or species aaaeail- _ "nte which are tha a-b.e,vt matter of -it In the order of their caoing dwa. p - S~CtiGn 7. RESERVE ACC^.L't+T AND CONTRI 1JTION. The Board of Dl rectgra shall annually prepare a capital budget which shell take into account the u-tur and natures of ieplacaabla aabnte, ' the expected iifa of each aa5zta, and the aapaCtad ropair ov - raplnc-At C,"t, The Board shall bet thn raqulred Capital Con- . , trlbvtion, If nay, In on -uht sufficient to pewit meeting the ' p-1- ted cepltal nen]a of rho Aaepclatl cn, an Stro,n on the cap, tai Ledger, .,1 th :aapmct to boot b-+io„nC "'d t}m.nv by -.al on-sm-ts o"r the partod of the b,id-t. The Capital contribu- = tibn required hall b9 fixa4 ty the Hoard and included wlth4. the ' - bwdgat end ansnease-, on prodded in Section I of Chia drtidla. ' A Gapy of the teserva OrCCunt budget stall be distributed to each m..~b£r to the Rtma rpannar d~ cl+e CParering d13et_ ' oa,~a .~ratlona. Page 1~ n scttana, M ?'3s ~ ll 3 R uuu. 4n tc u ititu k 7yu Col"Int. Conditions 237 - 14 14 Sec tl on J. COIWVTAT ON Of AISESSH.ENT. It shell be the duty . of the 9vard to proper. . budoat cowaring the estiaetad costa of oper-+tittp the x_ooisticn during the co-tng year, which shell - include s capital contribution or roes-V in accordance with a _ capital budget .aparstaly proparod. Tna Uosrd shall cause the ..W _ Lu (;at a-d the asvavs nts to be Xa't-1 again.t each Wt for the year to be dallvar'a4 to each monoor at least thirty 1.,^) •.'ays prior to the and Of the oarta+t !Iaca! yaor. The Duc12oL aryl the assaasmant shall tp.cooa arfxtiva unlace disap7rovvd of a meeting by a Majority of the Cwnars.. Notrith- starv:nq the icropoing, however. In tnv want the aui+aoarcntp •x''`~ disapprovod the proposed budget or the 6oerd-falls for any reason 40 to tnrmina the budget for the auc:osdlag year, than awl - s la,e an a SuC~ar aha 11 Laen da taraln.d, .a pro.idad herein, the budget in effect for the then current year shell =r.ttnve for the wacosding year. fP! Sectinr. 4. SPKIAL ASSESSHEKTS. In addition to the other saa amanta authorized bareln. tba Aeaocletion say lacy spacial av 3d j } i• Y:.: ^ we=ar to In an? year. S. tong as the total asiount of sp*clal Y 1 ' ("r f i ~ Z+ eaaasewants allocable to nech Lot doer not eacead One fi-dred y impost word m 00) in fi l th SI00 c e v j ~n - a . any one y ar, e e a Dollars ( the spacial asness.ent. My s[Re1a1 Saaeaseant which mould catisa the amount of n ant. allocable to any Scot to exceed i ' n ty approved by a M.)Vr this Sisitation Snell tM rffactive only if J r f ' of th. C14.. A. nar..b+rr. Spgci.i s.seasMnts .hall be paid as -iv1~ .,y a h ~ dKerminad by the board, and the Board may pamit special aasass- , " <s 1 = i 1, „ t 3 mente to be paid in inatollmenta extending beyond the fiscal year ~ fn vhlch the aps1~111 e.yat,°en t. is fnpcsod. h. SciaLi on 5. L36!i FOR A55ESBHE:R'S. A11 cams e.eaaaa4 gal -t .ny tot -t to this D.clarati-. tagath.r with late charges, _ intersat, cDate, and rea6ouabla attornay's fats actually incurred, ea p:ovid.d hnraln, shall bo ..cured by a Ilan on such _ Wt in ?.I,- of th. Assnciaeton. Such lien aha11 be ..Pori- to all other li .a and oow:uabroncea on such Wt, axcept for (a) - Ilene for ad WlOre:n t-- or (b) lleni for all -ma unpaid on a first Norz-;e cr on any nortosga to Declarent duly rocorded in - the land to=rda Of Dee hutea County, ara+lon, and all amounts _ ' advanced pursu.nt to such war tgega and ..cease tharaby in sec.. r • - dA-. vlth the ter>s of ouch Ira trilman C. x11 -h- pn eCqu clot 11rnn pr .r pproncaa o any Lot _ • ahn1: n bear, rucoea.d in afchrneards after tn!a o--i... ti"" ' ' shalt ire d--I to c one t:'e t"".n flan. Gr on4,ambranr03 st=all _ L. inferior to fu t- !Sens row .9aeosacnta, .n vtovidd herein, ' in LGe +.heLhek or not prior ¢onvwnt t. speotflaally Sot forth instruments cr-ting ouch 11ans or e~w_vmbraricaa. Sr.-t:: fan. a. Ifr.ECT Of NONYAY-EnT Gk A.5SEjff1EI+:IS Rr-ILBIE.S OF "'E .ASSOCIATION. Any asaaasxant which are not pald when due Deci. arati.ns. Pepe 4 Restrlctiots, lVittltL G'S tlNnt;l++it%=:E,48"CtlP1Lu _ Protective - .a«~•.y«n3. Covenants L Er rnlitl are8 i-~ - 1 ~ - 237 - idt3 ' section 5. SELF_fl"-P. in addition to any other re"dies ' - provided for herein. the Aa.c1-f.n or It. duly authori?ed agent shall have the power ttt enter upon a Litt or any portion of the Corooon Vr,,q.:fy t- abate cr raobvd, uaing such force as pay be Te_e hly necessary, any erection, thlnq or conditio. -h ich - - :L' deletes thin Oeclerbtlon, the Bylaws, the ranee and reg112etiona, " r::*4<x;y. or the rya restrictions. U» le- en -rien,_y altngtIcA exists, _ the Soerd sha11 glv. tna violating Lot O''nei' ran (10) days _ vfltten n.t e?en of Its I a:a r;=/;n and!-help. All Costs et . - self-help, 1-ding c nablf ettarorY's lees actually Lnourred, shell be assaaaed against tlw Violating Wt Gvnsr and ahali be ❑ollocted as ;rovid.od for Mraih for the collection of . _ assns emunte. ~ .,a _ ll T.m.,e stow ;ka Asec-;fatian h e. • right, In eddition to and I— in it-itation, of all the right. it _ may have, to ant" CAto Iota for ezorgancy. tocurity, or safety . pnrpnsewhich right may ba oxarc ised by the Aaaeclatioa'a g,Y}ard of Directors, officers, agents, enplogeen, sanagars aril .1.1 pAlicy officers, firoflghtzre, oaoulanca personnel, and similar anargancy personnal in t1:n parforaenta of their respective duties. iscapt In an eaerganey situation, entry shall only be durtog reasonable hours and after reascnabls notlce to the pµit:,gr or occupant of the Sot. ARTICLE YIt AS5ZS H # _ Z ;8 6 section 1" PUR.POSB OF ASSESSMENT. The eaaoa6Rd,nts pr5vided for herein shall be vaed tot the yea.ral purposes of prcooting the racraa tion,tufalth, ee l8 ty, ..$lfore. Czcmon banellt, and - anfoywent of the owner. and occupents of tots, lrteludinO the a4tntornince of real and personal property, all as say be wore apaclfically authorised ft- time to time by the a0er0 of Dl'ractbre. - Section 2, :1Ri ATIUN a~ A5SESSMVIT- Each 0-ar At any Lot, by acceptance of a deed therefor, ehether or not It shall be so expressed in such dead, covenant, end agrees to pay to the _ Asacciationi (a) annual as saw s»ante or charges: (b) ap.aial ' er+e4 -A, ouch *-es-nta to ru asrabliahed and eelleetol as hueolnoltet praviddd. And (cl specific easeeaweata a9ni-t any - particular Lot ehich are established pvtevant to the terms of - - - - this Fieela re alert, lncludlrrg bur not 11.1tud m r -ble, fl:... 3 ay fray to !>rposed In --dance with the Corns af th .1 - Oe arotion. All such aaassc- te, topatnor with lot* Chargas, ' 1 tereuta, not to exceed the -l-, LEgai Cate, coute, and ' ` reasonable. ettornay'e fees ric vally Inc,-rad, ohnll he charges an r the 1-1 and shall ha p csnt.l nt,j ng tlon upon the L.Ot against . unich -h asaeea+;e n+_ 4a mad.. _ 0..)Clc r.7 P,la, Pane d A(l3Ydll..13)iw, • K"FJTU11I PEnWDt C- ._a : Gondl Glens. ? lal A" or 'S nice upon convoyance or dwd4catfnn shall be accopted - by tha J.9:soc:a tics O thareafta.r shall be msintainnd by the Association at its axpense for the benefit of all its Neobers. Section S. AMENOHENT. This Artiti® it not be amended ° without the written consent od C+acl;rant, song " the Osolarant owns Any property daaeribod In Exhibits "A' at '9', ARTICLE VI. RICiiTS AHD p9LMATIONS Of THE ASSQCJATjQ0 Section 1. COHIION AREA. The Assooiation, aubjact to the _ - rights of the owners sat forth 1. this fleel era ti.., shall be - -p-i514 for the sac lea SvR sanagement and cnntrnl Of the - Ccemon Acea sn6 all 1_p~eanta Chase wall koaD It in 9oo4. Clean, attractive, and sanitary Condition, o"ar, and ' repair, potassnt to the terms and Conditians of this Declaration . and the 9ylawe. Segticn i. SERVICES. I" Associatlon oay Obtain end pay for the services of any person or entity to manage its Affolro or any part thereof, to the extant it deewa advisable, as well Js such Other Personnel as the Aaaoclation shell dst*x-t w to behacae- _ eery or Casirable for the proper operation of the Properti*a, whether ouch pvraonnel or. lurniahed or "ployad dl"Ctly by the - ' . Aaexfat!on or by any person or entity xith whew or with whieh It , coatracta. The Axs lAtton may obtain and pay for legal 4" a.~ ancaonting earvica■ necessary or dssirabla in cannaction with the sra io f the PE i _ x ip n o t cpartfas or the enforcement of this Declare- tier. The A-ittion say, but shall hot be required to, artenye - as an Association --pen-ii with third Parties to.furnish aster, trash colTwtSAtt, :aaxsr ""I", Other co-ion aetvicse to each tot. ` Section J. PIAMWAL PROPERTY AND REAL PRCPEA Y FOA C011MON USE. The Association, through ectIm .?f Fta Uooid of Directors, _ Pay ecquira. hold, and di}iv}aa Of tangiblu and intangible erson l p a property and zeal prop try. Tha Board, acting on behalf - of tr,& AascrletlOn, shall accept any real or paraobsl property, ' leaxahold, or other property tnteromto looted within the " properties daseelbua In 9-hibit `A' nr 'D' conveyed to it by the Daclarent. Section 4. JtPLIEA RIGHTS. The !a.. aiLCn may ezorciss any other right or privilege given to it n.p ly by thta 1.eclore- _ tine or the RTlawg and ovary Other right or privilege reasonably ` ' to be impii64 from the aviatQ - of pry rt,lht or privilege given - ' to it harain of reasonably nacasaary to +fr-t-t. any sue, right or privilege. ' Declaration.. Page RaotrSe;t tuna, Protect lva 6S'USL VH hid3 txf 3E AS Covenants r. Canditiana u _ ~~wJnir of the i.proved and l,prv^ real property described Sts txnit,i; attached hereto and by teferanca made a part hereof by f1,11^, 1n the Doac:xUtoa Cou,:i, Oregon records, an soandment annexing ' such property. Such -ond"ht to this oe„.laratlon shall not rouiio the vo:. of -berm. Any such anno.stlon shall be of'.agt#va upon the q for ratord of wuCh *sand-t Unless otharwiae provided th rein. ' - - VoClarant shall have tie unilateral right to transfer to any other person the tight, ?rivllego, and option to annex additional - 1; property Which is tlaruln raearrad to Voolerent. Section 3. The rights rteoantvd unto Voclarant to subjoct - - additional land to tr ,....e .lion shall not be Implied or canotruad so as to r eh tlgatfon upon Ce_leztnt t c - - euL;.ct any of such e ]t,ionei land to this D-laratlon or to the - jurlsdlotlon of the Asnoclatlon not any obligation, it attbleCted, to build houaltig of the woos type, design, or aetarialt. if such - additional land 10 not subjeotod to this Declaration, Nciarant'o - 17-' rood rights shall not impose any obligation on Declarant to lMpneo any Covenants and rosOrlctiona almilsr to those Contained hnrofn upon ouch. additional land, nor shall sUOb rights in any it y oann*r limit or restrict tha use to which such additional land t may be put by Declarant or any subenquent -ar thereof, uhethfrF y = - iq' t such ueee are cc-1i tent with the covenente and reatrlctlo.>;r. b S n 4nt+oand Gereby or not. f `y y Sargon 3. ANNEXATION WITH APPROVAL Or MEMDiRSHIP. Subjaet tD the consent of the wnvr ttwreof, upon the written oOnsent or affirmative vote of a majority of the Members, tae xsncetation may annex real prnparty other then that shown on Exhibit '0', a" - fallowing the akptration of tt:a right in Secti- 1, the proper- Ties shown on Exhibit 'D' to the provision# of this Geclarati Dn and the jurlsdlotion cf U.,e Association by filing of tocord in _ the Official Records. of "o County of C»sChUtea, 0-Van, p Sabaagaa,it Amandwent in respect to the Prnperti- boing annexed- . Ary such SubseJUer,t Al."- shell be aig-,l by the • - Prealdtnt and the-Sasre"Vy of the Aaaarslatlon, end the --1 of tho properties boinq anmexaC. and any such annaxatiun $hail Ce - - affcctly* upo., filing unless othaxtiisa provided therefn. "a tio9 within which and ttv mnnner in which notiQa of any such -oting of tine Henn- of the Ann-aoiat,ton, caileFd for the purpose of datamintrxd wh'thut nddi tional property shell be annexed, and • the gunnm Tn,uirad for 2ha tcanaaetlon of businaaa at any ouch ' - ..,.oting• shall he - specified in th, 3ylaws of the Asaooiation for regular or special meat_'nga» as the case, stay 1,6. - 5acti vn J. ACGU15i:1on or Al:oi'TS{}HAL CommoN ARgA, aeclarant may Oun"y to me AssoCietlOn additionaA real estate, impravod or a imp: ovad, located - tntn the proportion deacelbad In fxhlbtto Geri aratiana.• page 6 - na, h101rL Q`Sr,1,A'.V{ ~iL£.d,T~i45 & E?.Flt(h Protective Pro Gavenants ~ GoxrCitiana tS; P~ aS 4' ~ f ! J ?c H. Owner, wh.thar une or ax'6 p.,:rscuza. .11.11 have worst .ha:, one ill membership par tot owned- In the event the Owner of a Lot to sere than aaa pataan at entity, -tea ahd right. of V and enjoywnt shall be as pro,vJdad hotel.. The rights and privilu{)., of smmborship. Including the right to vote, may be skertlsed by a Member or the Member's spouse, but in no event shall more than one (1) vote be cost for each tot, Section 3. VOTING, Sarh Owner shall be a member and aech somber stsall be snt:tled on all isseea to one (1) vats for each let in whien they hold the interest r"olred ter oemberahlp by Section 1 hareots there shall be only one (l) vote per Wt; provided, hos r, no vote ahell be cast or oounted for any Lot not sobjACt'to 6s99a•nent. '.than aura than one paruon or entity hatch av<h Interwar In any t-, the - 1-- -,'h ,,t be o-'Lined as thous i. 11,1 el~ae data.°tne and "Wsae tha secretary' of tn,* Aa9oclation prior to any maatlng. In tMe aO.SoCO of such sdvlcs, the Wt's Vote shall be euepandeC in the event more than on* person or entity seeka to exorcise It. Any Owner of Lots which are laaaod aay, in the 34ese or Other written Instre"nt, esalgn the voting right eppurtanant to that Let to th* leeesa, provided that a copy of such.inatt-ant 10 furnished to the Secretary prior to any eneting. ARTICLE 1'f. MAiNTENAN%H Section 1. ASSOCIATION'S ArSPONSISILITY. The Aasoeletlore shall maintain and keep In good repels the CoNVSGn Area, euch ealntennnCa to be funded as hereinafter provided. TtJa mainta- nancs shalt include, but not be limited to, saintahanco, repair and roplaceaent, subject to any insaranoo then in effaat, of 611 landscaping an other floe, structures, end lmprov-ntm situ- atsd,upon the cow Axe.. Section 2. OWNEH'$ N65 PONSTDSLSTY. E-Zpt as pr-tded in Section t of thin Article, all mainre--o of the Wt *,W 011 part of the, residence thereon shall be the respanaibility of the Owner,.. and tech Gunor shall raalntaln and keep in good repair such property and impro-zoments.. ARTICLE V. ANwF.XATIOe+ OF ADDITIONAL PROPERTY EeC;1on 1. AnNF,ATION w!THGR)T AFIHGVAL 7F CLASS A MEMBERSHIP. A. tag owner thereof or, if not tnn owner, with the consent of 11e owner tlhareof. Declarant ahhii haves the unilateral right, privktoga, and option. from time to time at any time until boceabsr 31, 2000, to a.bjocr to rues proves loos of thin oeelara- tit and the jur Ssdiation of the Ausctrlation all or arty portion Dmelarations. page 5 Reatrietiane,. MLUlt.. l)`SWLatiX IiAf1:t;ist r4 ikT!i.Z`~ Pro Covenants i Coodition. . rs~? env.v. is Article It, Sect-an Iib) MAY not ba owanded Without the ' Wri [Len Can9a r,t of Dec intent.-_ Duciarant Shall Canvey the Cos h Area to the Association upon raeordation of this poalaratl'an, Doctor." does not C6.t6s- . - - - Plata "XI09 ring i-V-0vement5 to the Como .Area, _ S#C%IOn 8 OVN€E'S RIGHT 70 IWItrSS, ECRESS, AND SVPPORT. " ' ' Each 6. - mha11 ha a the right to inreae And ogress over, apes, , and across the Can Area +sa aiy for access to his or her t.at + and shall have the right to 1 zaral support for him or has Lot., and such rights shall ba appurtenant to son pans .ith the title to each 14t. 5CCx1o" 9 US!! E --277 E'Cept a may bd t%Q -J a arpressly provided In Slily Declaration, each Lot ehali be as4 for resides- tial pvrpoes. Only; ad troda or bu lnana of any ;cl nd Ray be i l d l ovr + nc te . ease or rental of a tot or any building Lharoan for rezidsntiel turposaa shall not SAa conside:e<S to be a violation of this covenant, m 11,19 e. the loses 1m In cnmplianco With - ? a.-able rules and rrsgulationa am ttw Board of Directors may V-1- < om - ? ce " 3 Bata. Any lossaa Or tenant ;hail In all respects ba aubjact to the tar s and diti f h ti ps, i t , i r z . - .1 o con - o t is Declaratlan, she nyieun, eAd tRs tulas and r9 tal atY On d t d h e d , 9 m a e op er un er. _ z~ - I ) Section a. RULE5 AND RFGULATICKS, the Board of Directory may t oatabllsh rseapnablo halts And t,lg.latlons cnr_arning tha Use of the C~ Area, facilities located thereon and Individual - , t4ta. Cnpias of auth cegulatt- and aeandments thereto aha11 ba l furnTz x,J by tho A1-J tlon to all nvnery prior to the ails', affactlve data. a_h rogulati- sha11 be binding upon the CCntlre, thetr fanlli ea, tonnots, quaeta, ihvifaam, and agents ntil 1 ^ d - u An Un R ,3 5-1, regUlntlon, rule, or -quLramont shall be tpacif tcally over-led, caocollod, or -It tied by the Board or the Aeaocio tics in a regular or spec sal -,mt'nq by no vote of s ,beta holdl- a majority of the tntel. vntoa in tho AsaoFal- atdon. Th. onsrd s.`call have tt.a avth-lti to Scpoae raasonahla " ' - monetary 6-6 and other 9anntiona, and -tart' flnea may {'io eolloatpd.by lien and forsCloavta as Prov<_dad in Article VSI, ^ ARTICLE III. MEMBERSHIP A$0 b07,1tG RSGtrS~ - Section 1.. tEKBERSHIP. Every person or ant/ty Who is the " record owty of a fee Intareat, or Contract v 1. any Let that le 9vbJcot to this baciaratlin aS.11 h: deemed to have A • ° aiaaberahip to -.nA ASabclation. FiB"-a hip sha11 be appurtenant to and nta+,f not b. suparatad from such o -nornhlp, Sh.® foregoing is not intensed to include persona ono rald an interact merely As Security for the perfo mianco of en obit7itloR, and tho giving of a aeourI ty interest shall not tarminmta the C-cr'a a:Aa1b#rat+i?. - - - Dec IAratlRna, page 1 . _ ' _ fiasco is a Boa, Mifwu U';`cnrtw. M.a.ar,CUI AFsc^ Pr6 tact'14a . Cpvanan to Gonditicn. M .i «ffraare~aa* 27' -1IU3 Section 10 'Owner" 0.11 morn and "for to the recnro omen, whether one o e parsons or entities, of any cot ..hich is part of the Propertlear but excluding any party holding the f o atmple titLa merely as security for the performance of on obligation. Owner ah.11 include the Declarant. Section 15. 'Person' means, a natural person, a co rporatfon, a partnership, trustee, or other legal entity. Section 16. 'Property or Properties' shall mean and refer to the zeal property des. ribod on page one of this Denleratlon end such additional real property as may be added to accordance with Article, Y. Section L7. °_»hsequent Amendsont' ohall roan s enenda~enr, w this Declaration. which adds additional property to thot covered by this Declaration. Such SabaOgUant Amendment may. but is not Mquired to LTposa; expreasly of by reference, additional roott WUns and'oblloatlbns on the land autmittad by that Amendneat to the provisions of thi; DOolarstion: ARTICLE I1. PELCPERTY $ICNTS Section 1, OWNER'S CASEMENT OF sNJOYMENT. HVery Owner shall have a right and 0esement of myKeae end ogres., use and enjoy- mane in and to the common Area which she 1l be appurtenant to and shall pose withthe title tc every rot. nobj►Ct to the following provisions: ta) The right of the Declarant, with regard to the PropartlaSwhich may be owned for the purpose of do..14pment, to grant easements in and to the Common Area contalncd within the respectivo Properties to any public agency; authority; of utility for such purposes an benefits only the Properties or Portions thereof and Owhere or tots cantalned thereln; (b) The right of the Aseooiatlon to dedicate or transfer ell or, any portion of the Common Area to any public agency, authority, or utility for such purposes and subject to such condittgna an may be agreed to by the Bombers of the A.-I.tlon. No such C.dication tr transfer shall be effective unless an instrument agreeing to such dedication or transfer has been approved by at Least two-tnlyde (2/3) of the clasd A members of "0 Association which are present or represented by 'Proxy era entitled to celt at ameeting diely Called for such purpose. 1)ecl.-CLOna, page 3 Pestricticna, Protective MD1a1'1'Sn,nvE, KiciL & Pmst+ covenants a Cc~:dluc,:s %.37 - ,4a7 - Sal elan ? "gyl-x sha L1 rcter to t:l: A; laws of .9'-I•tIJ L KFS ' HOnEO'+KEFS ASSOC~A^, IOn. " Section 4. -Co¢AOn Area shall mean all reel and personal • pe op .,rty now or haraafter o„nod by the Aasoctetlcn fnr tha co- . i: .,-5' e use nd enjoyment of the D--, - Section 5. 'C-on C.penses" shall slash and include the act-L and estlmAted -pensea of operating the Asaoclatlon, any reeaooable re--, all as way he Loynd to be ' necessary and appropriate by the Board pursuant to the Declare- ^ tlon, tlw Bylaws, end the Articles of Incorporation of the Aeao- ter. - Sectlon 6. "Eligible Mortgage Holder' shall moan a holder, vrer cr _arent_r of a firit -r gage on a unit ono has y requested notice of certain mattors from the Aadociatton do here- _ insfter and in the Asaoeiaeion'a Bylaws provided o- , - ,''•'``-`T:`_ _ ' Section 7. 'Sliglble votes' shall mean those vote. available _ to be nest on the issue at hand_ A voU which Sa for any reason .uspendod is not available to be cast. 1S Y l`~t `~'S"`? f} at 1_ vq Section S. 'Lot" shall mean a porti ties Other n of the Pro t o per then the Common Atoka Intended' for any type of independent owner - „etll 1 i ship and ass ad nsy be at out L. this Declaration and as shall n t b h l ' ovn o e e he p ate filed vitr% thin Declaration or amandments Nh - thereto. are the context indiretas or requires, the term lot include. any structure on the Lot. i 9 ' ' on . Sect Menber shall mean and refet to a person or ~ ; T?' : ; entity entitled W -9obership in, the Association, as provided h o l Th A h ~ . ~ . . :IIJ era ss n. e ciation s all have onq class of member, Class A. Section 10. "Mortgage- means any mortgage, deed to smcors _ debt, end any and all other sSnttar tnstrumonte used for the - pu roes. of conveying or encu„bering real property oo security fct the paypent or satisfaction eE an obligaticn. _ Seatlon 11. "`Mortgagee" shall include a beneficiary Or holder - - of a deed of trust, as well 09 a martgageo. - Section 12. `N rtgagor" shall include the t-tor of a deed :>c truce, e. well al a mortgallo_. _ Sec ti on 13. -0; n Space" - That property as shown in The _ corded plat of Galf co- earetoa at Aspen Lakes as "open - space" which can be used An the same manner as 'open apace' is defined in the Deschateg County Zoning Crdlnance under 4.090 Bi ter as a dlroct or Conditional v4e. - Decl .rail one, Gage 1 . - _ R<a tr ice lone. Liu1u O'~PUV1 1 _ nrocec ti..o ti.iti:Rnrw~'Z ('-ru~l• Covenanra E Cond1 don. 1991 Golf Course Estates CCRs 231 - a96. T . -S ~ nr t 't t t 7 tl DiGLapATIDhS, RESTAICTIOtIB,°c c '~a d ~ Y PPOTSt slv~ cDVC FOR u=~ xa ciszo:s FOR COLT COURSE ESTATES AT ASPEN LAKES C o.. 1.7 Tort t -7 t 3 91-__•..•-•-._- i p VNEPEAE the DeClarent 1?14 Enterprises, a partr.aranip, f!Sue: -bs Dat?a fors, Ro~t..GtY: i, .a `L '+e C4vano~ts and ! Ganditlorts for CCLP CCVASt sSTAT8$ XT ASPEN t.AKK,%. racpreed Let s peps - Official ROC-0011 Of DaaChUtNe County, orogon: MNF.u6.AS. the DOclerant le still the os3ifr Of all t33q "rssl proporty described in Zxhibite A and e:4ttec7ted to and Each a part rot said Dnalarstlonl' wHERSP4. Declarant ie the owner of the real property described in Exhibit 'A', sttach►d hereto and Incorporated herein by reforence. MCI#ratit. intends by this Declarstion. to'. topoas upon the Properties sVtgally bonrriclel restrictions Und1L a rfaidsatlol property within (;OLF COURS9 LSTATL! AT ASPEN LAXT3, the planned unlt davfiopaent wade subjaot to this Declaration and !ny fuivre a ndaanta thereto by The recording of this iX Declaration; NOW, TOEREFORa, Oaclarant hereby deolaras". not all the etwpertias daaCribed in Babibit "A- and eny. additional property as say by subasquent afandaant be added to and vubjgotld to this bsclaretion ."Hall be held, sold, and cc-ftya4 subjsct to the 10110vinfl eaaaslntf, rfatriotiona, covanants, and conditions which are for ties purpose Of procscting the value and dosirabiI- ity of and which shall not with Ch6 real property eubjented to this DOClaratlbn and which shall'ba binding On all partios hovtog any right, title. ar intoreat In the deacelbe4. rropertlas or any part th-eebt, thiir hairs, vuecessars, sueca>gsora-in-tit's, and asaions, snd shall Inure to the benmfit of Each owner thtrsot.' AAT104C 1, DEFINITIONS ction 1. 'Additional Lend' ahail mean and rarer to addi-1 .il tool property aublact to Declerent-s unilateral right o}, annotation as provided slaavnart, in this Daclaration, which property to rare partitnJarly daacrtbad in Exhlbtt 'e', atteCOad hereto and incorporated thrp,lyt:out thin Declaretion by roteraaca. Sectlem 2. *9aard- shall refer to the DOnvd of DiverrOra of the a.9PCN LAKES NC` V',WNtAS ASSOCIATION- pro nratinna, Pagd I pea tr/ciienn, y~tual.O'sn+rvut. MACRlrsxrt &CtatssEr+ ieotlve _ Cavtlnants b k Matt Cyrus 16925 Green Drake Ct Sisters, OR 97759 June 29, 2010 Deschutes County Board of Commissioners 1300 NW Wall St. Bend, OR 97759 Re: Resort Remapping - 2010-24 and 2010-25 Dear Commissioners, More than 20 years ago and before the county had adopted its Destination Resort Ordinances, our family purchased an existing subdivision and began the long process to develop it into a destination resort. On the advice of a county planner, we applied for and received numerous approvals for a whole series of conditional use permits. We have invested millions of dollars in construction of the golf course, a lodge with dining facilities, and homesite infrastructure. This considerable investment was done to comply with resort requirements that have been implemented over the years. Aspen Lakes is currently mapped. The only component left to complete in order to become a full fledge resort is lodging. There are a number of different ways in which we can meet this requirement should a resort application be approved. As a matter of fairness (and the county's possible exposure to Measure 49 claims), we ask that we be allowed to remain on the resort map. We believe the county has attempted to address this issue through the grandfather clause that allows lands being proposed for removal to "opt in" and remain on the. map. Under this option, a landowner simply has to ask that their land remain on the map. As a platted subdivision, we are slated for removal from the map. We are afforded the opportunity to opt in under the grandfather provision, but there seems to be confusion as to how this would be handled procedurally. Planning staff has suggested that each individual lot owner may have to make application to opt in and remain on the map. If this is the case, will the failure of a single lot owner to make application cause the entire subdivision to be dropped from the map? In our case, we had the foresight when the CC&R were created to include a provision alerting our potential buyers to the intent to eventually convert to a resort. Article 15.1 of the Aspen Lakes CC&Rs provides in part; "By purchasing a Unit in ASPEN LAKES each Owner expressly consents to such conversion to Resort status and to such additional or substitute restrictions and no further consent shall be required from any Owner." It is possible that should Aspen Lakes be removed from the map, each of our 100 plus homeowners might qualify for Measure 49 compensation. I would offer three possible solutions; 1. The first would be to simply leave existing platted subdivisions on the map. This would not reduce the mapped acreage as much as may be desired, but it would have little impact on what properties could practically be developed because few, if any, other platted subdivisions could meet the requirements of a resort. 2. The second option would be to allow platted subdivisions with at least 50% open space to remain on the map. This would remove most platted subdivisions, but would leave those that already meet the 50% open space as is required of resorts. 3. The third option would be to allow the developers of platted subdivisions to act on behalf of the entire subdivision when choosing to remain on the map. Thank you for your consideration in this important matter. Sincerely, /V?~4~ Matt C DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES ("Declaration") is made this 8' day of March, 1993, by KMB Enterprises, an Oregon partnership ("Declarant"). Declarant filed the Declarations, Restrictions, Protective Covenants and Conditions for GOLF COURSE ESTATES AT ASPEN LAKES, recorded in Book #237, Page # 1406, in the Official Records in the Office of the County Clerk, Deschutes County, Oregon; Declarant is still the owner of the real property described in Exhibit "A" and "B" attached to and made part of said Declaration. Declarant, hereby, amends and replaces in its entirety, all language in aforementioned filing, including the title, with this DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES. Declarant is the owner of the real property described in Exhibit "A", which is attached and incorporated by reference. This Declaration imposes upon the Properties (as defined in Article I) mutually beneficial restrictions under a general plan of improvements for the benefit of the owners of each portion of the Properties, and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Properties. Declarant hereby declares that all of the property described in Exhibit "A" and any additional property subjected to this Declaration by Supplemental Declaration (as defined in Article I) shall be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirablility of and which shall run with the real property subject to this Declaration. This Declaration shall be binding on and shall inure to the benefit of all parties having any right, title, or interest in the Properties or any part thereof, their heirs, successors, successors-in- title, and assigns. 1.17 "Master Plan": The Master Plan for the Development of ASPEN LAKES as approved by CU-89-79 on the 8th day of August, 1989, as it may be amended, which plan includes the property described on Exhibit "A" and the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. The Master Plan may also include subsequent plans approved by Deschutes County for the development of all or a portion of the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. Inclusion of property on the Master Plan shall not, under any circumstances, obligate Declarant to subject such property to this Declaration nor shall the exclusion of property described on Exhibit "B" from the Master Plan bar its later annexation in accordance with Article IX. It is anticipated by the Master Plan that declarant may decide in the future to convert the Properties described in this Section to a "Destination Resort" as that term is defined in the Deschutes County Zoning Ordinance. Article XV DECLARANTS RIGHTS 15.1 Transfer. Any or all of the special rights and obligations of the Declarant set forth in this Declaration or the By- Laws may be transferred to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration or the By-Laws. No such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Office of the County Clerk. Nothing in this Declaration shall be construed to require Declarant or any successor to develop any of the property set forth in Exhibit "B" in any manner whatsoever. So long as construction and initial sales of Units shall continue, the Declarant and Builders authorized by Declarant may maintain and carry on upon portions of the Common Area such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of such Units, including but not limited to business offices, signs, model units, and sales offices. The Declarant's or Builder's unilateral right to use the Common Area for the purposes stated in this paragraph shall not be exclusive and shall not unreasonably interfere with use of such Common Areas by Owners unless leased pursuant to a lease agreement with the Association providing for payment of reasonable rent. No Person shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Properties without Declarant's review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by recorded consent signed by the Declarant. The Declarant, in its sole discretion, may convert all or part of the Properties in Exhibits "A" and/or "B" to a "mini destination resort" or "destination resort" ('Resort") as those terms are now or hereafter defined in the Deschutes County Zoning Ordinance or any other applicable ordinance. If additional or substitute restrictions are appropriate or required under the Resort designation, the Declarant shall have sole discretion in making those changes. By purchasing a Unit in ASPEN LAKES each Owner expressly consents to such conversion to Resort status and to such additional or substitute restrictions and no further consent shall be required from any Owner. However, these additional or substitute restrictions shall not apply to those Units in Section 1, Township 15 South, Range 10 East, of the Willamette Meridian, except as may be necessary to establish. Neighborhoods as described in Section 1.23 of this Declaration. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) 40 years after the conveyance of a Unit to a Retail Owner, or (b) upon recording by Declarant of a written statement that all sales activity has ceased. Thereafter, the Declarant or Builders may continue to use the Common Areas for purposes stated in this Section only pursuant to a rental or lease agreement between the Declarant or such Builder and the Association which provides for rental payments based on the fair market rental value of any such portion of the Common Areas. DECLARATION of COVENANTS, CONDITIONS, AND RESTRICTIONS for ASPEN LAKES TABLE OF CONTENTS Page Article I DEFINITIONS 1 1.1 "ASPEN LAKES" ......................................................1 1.2 "Area of Common Responsibility .....................................................1 1.3 "Articles of Incorporation" .....................................................1 1.4 "Association" .....................................................1 1.5 'Base Assessment" ......................................................1 1.6 "Board of Directors" or 'Board" .....................................................1 1.7 'Builder" ......................................................1 1.8 "Business" and "Trade" .......................................................................................................1 1.9 "By-Laws" .....................................................2 1.10 "Class "B" Control Period" .....................................................2 1.11 "Common Area" .....................................................2 1.12 "Common Expenses" ......................................................2 1.13 "Community-Wide Standard" ......................................................2 1.14 "Declarant" ......................................................2 1.15 "Design Guidelines" ......................................................2 1.16 "Golf Course" ......................................................2 1.17 "Master Plan " .....................................................2 1.18 "Maximum Units" .....................................................2 1.19 "Member" ......................................................2 1.20 "Mortgage" ......................................................2 1.21 "Mortgagee" ......................................................2 1.22 "Mortgagor" ......................................................2 1.23 "Neighborhood" ......................................................2 1.24 "Office of the County Clerk" ......................................................2 1.25 "Open Space" ......................................................3 1.26 "O.R.S.................................................................................................................................. 3 1.27 "Owner" ......................................................3 1.28 "Person" ..............................................................................................................................3 1.29 "Phase" ......................................................3 1.30 "Private Amenities" ......................................................3 1.31 "Properties" ......................................................3 1.32 "Retail Owner" ......................................................3 1.33 "Special Assessment" ......................................................3 1.34 "Specific Assessment" ......................................................3 1.35 "Supplemental Declaration" ......................................................3 1.36 "Unit" ......................................................3 1.37 "Voting Member or Members" ............................................................................................3 Article II PROPERTY RIGHTS .......................................................................................................................3 2.1 Common Area .....................................................................................................................3 2.2 Private Amenities .................................................................................................................4 Article III ASSOCIATION FUNCTION, MEMBERSHIP AND VOTING RIGHTS 4 3.1 Function of Association .......................................................................................................4 3.2Membership .........................................................................................................................4 3.3 Voting ..................................................................................................................................5 Article IV RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 5 4.1 Common Area 5 4.2 Personal Property and Real Property for Common Use 5 4.3 Enforcement b 4.4 Implied Rights; Board Authority .6 4.5 Governmental Interests .6 4.6 Indemnification .6 4.7 Dedication of Common Areas .............................................................................................b 4.8 Security .6 Article V MAINTENANCE ..............................................................................................................................6 5.1 Association's Responsibility ................................................................................................6 5.2 Owner's Responsibility ........................................................................................................7 5.3 Standard of Performance .....................................................................................................7 5.4 Party Walls and Similar Structures ......................................................................................7 Article VI INSURANCE AND CASUALTY LOSSES ......................................................................................8 6.1 Association Insurance ..........................................................................................................8 6.2 Owners Insurance ................................................................................................................9 6.3 Damage and Destruction ......................................................................................................9 6.4 Disbursement of Proceeds ...................................................................................................9 6.5 Repair and Reconstruction ...................................................................................................9 Article VII NO PARTITION ..............................................................................................................................1D Article VIII CONDEMNATION .........................................................................................................................10 Article IX ANNEXATION AND WITHDRAWAL OF PROPERTY ..............................................................10 9.1 Annexation Without Approval of Membership ..................................................................10 9.2 Annexation With Approval of Membership .......................................................................10 9.3 Withdrawal of Property ......................................................................................................1.1 9.4 Additional Covenants and Easements ................................................................................11 9.5 Amendment ........................................................................................................................1.1 Article X ASSESSMENTS ..............................................................................................................................1.1 10.1 Creation of Assessments ....................................................................................................11 10.2 Capitalization of Association .............................................................................................12 10.3 Date of Commencement of Assessments ...........................................................................12 U 10.5 Reserve Budget and Capital Contribution ............................................12 10.6 Special Assessments ...........................................12 10.7 Specific Assessments ............................................12 10.8 Limitation of Increases of Assessments .............................................................................12 10.9 Failure to Assess ............................................13 10.10 Lien for Assessments .........................................................................................................13 10.11 Exempt Property ............................................13 Article XI ARCHITECTURAL STANDARDS ................................................................................................13 11.1 General ...................................................13 11.2 Architectural Review ..................................................14 11.3 Guidelines and Procedures ...................................................14 11.4 Submission of Plans and Specifications .............................................................................14 11.5 No Waiver of Future Approvals ...................................................15 11.6 Variance ...................................................15 11.7 Limitation of Liability ...................................................15 11.8 Enforcement ...................................................15 11.9 Building Site ......................................................................................................................15 Article XII USE GUIDELINES AND RESTRICTIONS ...................................................................................15 12.1 Plan of Development; Applicability; Effect .......................................................................1.5 12.2 Board Power ......................................................................16 12.3 Members' Power ......................................................................16 12.4 Owners' Acknowledgment ......................................................................16 12.5 Rights of Owners ......................................................................16 12.6 Initial Use Guidelines and Restrictions .......................................................................1.7 Article XIII EASEMENTS ..................................................................................................................................19 10.4 Computation of Base Assessment ......................................................................................12 13.1 Easements of Encroachment ..............................................................................................19 13.2 Easements for Utilities, Etc .....................................................................19 13.3 Easements to Serve Additional Property .....................................................................19 13.4 Easements for Golf Course ................................................................................................19 13.5 Easements for Cross-Drainage ....................................................................20 13.6 Right of Entry ....................................................................................................................20 13.7 Maintenance ....................................................................20 Article XIV MORTGAGE PROVISIONS ..........................................................................................................21) 14.1 Notices of Action .......................................................................20 14.2 Special FHLMC Provision ......................................................................21 14.3 Other Provisions for First Lien Holders ......................................................................21 14.4 Amendments to Documents .......................................................................21 14.5 No Priority .......................................................................22 14.6 Notice to Association ......................................................................22 14.7 Amendment by Board .......................................................................22 14.8 Applicability of Article XIV ......................................................................22 lu 14.9 Failure of Mortgagee to Respond ......................................................................................22 Article XV DECLARANT'S RIGHTS ...............................................................................................................22 15.1 Transfer 22 15.2 Ownership and Operation of Golf Course 23 15.3 Right To Use 23 15.4 View Impairment 23 15.5 Limitations on Amendments 23 15.6 Jurisdiction and Cooperation 23 Article XVI DISPUTE RESOLUTION AND LIMITATION ON LITIGATION ..............................................24 16.1 Agreement to Avoid Costs of Litigation and to Limit Right to Litigate Disputes .............24 16.2 Exempt Claims ..................................................................................................................24 16.3 Mandatory Procedures For All Other Claims ....................................................................2.4 16.4 Allocation of Costs of Resolving Claims ...........................................................................25 16.5 Enforcement of Resolution ................................................................................................25 Article XVII GENERAL PROVISIONS ..............................................................................................................25 17.1 Term ..................................................................................................................................25 17.2 Amendment 25 17.3 Severability .26 17.4 Perpetuities .26 17.5 Litigation ...........................................................................................................................26 17.6 Use of the Words "ASPEN LAKES" 26 17.7 Compliance .26 17.8 Attorneys' Fees 26 17.9 Enforcement of Bonded Obligations 27 iv TABLE OF EXHIBITS Page First Appearing EXHIBIT "A" Land Initially Submitted 1 EXHIBIT "B" Land Subject to Annexation 2. EXHIBIT "C" By-Laws of Aspen Lakes Estate Owners, Inc 2 EXHIBIT "D" Rules of Arbitration 25 v DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FORASPEN LAKES ("Declaration") is made this day of , 1993, by KMB Enterprises, an Oregon partnership ("Declarant"). Declarant filed the Declarations, Restrictions, Protective Covenants and Conditions for GOLF COURSE ESTATES AT ASPEN LAKES, recorded in Book #237, Page # 1406, in the Official Records in the Office of the County Clerk, Deschutes County, Oregon; Declarant is still the owner of the real property described in Exhibit "A" and "B" attached to and made part of said Declaration. Declarant, hereby, amends and replaces in its entirety, all language in aforementioned filing, including the title, with this DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES. Declarant is the owner of the real property described in Exhibit "A", which is attached and incorporated by reference. This Declaration imposes upon the Properties (as defined in Article I) mutually beneficial restrictions under a general plan of improvements for the benefit of the owners of each portion of the Properties, and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Properties. Declarant hereby declares that all of the property described in Exhibit "A" and any additional property subjected to this Declaration by Supplemental Declaration (as defined in Article I) shall be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirablility of and which shall run with the real property subject to this Declaration. This Declaration shall be binding on and shall inure to the benefit of all parties having any right, title, or interest in the Properties or any part thereof, their heirs, successors, successors-in-title, and assigns. Article I DEFINITIONS The Terms used in this Declaration shall generally be given their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be defined as set forth below. 1.1 "ASPEN LAKES": The Properties as described in Section 1.31. 1.2 "Area of Common Responsibility": The Common Area, together with those areas, if any, which by the terms of this Declaration, any Supplemental Declaration or other applicable covenants, or by contract become the responsibility of the Association. 1.3 "Articles of Incorporation" or "Articles": The Articles of Incorporation of ASPEN LAKES ESTATE OWNERS, INC. as filed with the Secretary of State, Corporation Division of the Business Registry for the State of Oregon. 1.4 "Association": ASPEN LAKES ESTATE OWNERS, INC. an Oregon nonprofit mutual benefit corporation, its successors and assigns. 1.5 "Base Assessment": Assessments levied on all Units to fund Common Expenses for the general benefit of all Units, as more particularly described in Sections 10. 1, 10.3, and 10.4. 1.6 "Board of Directors" or "Board": The body responsible for administration ofthe Association, selected as provided in the By-Laws and generally serving the same role as the board of directors under the Oregon Nonprofit Corporations Act and the Oregon Planned Community Act. 1.7 "Builder": Any Person which purchases one or more, Units for the purpose of constructing improvements for later sale to consumers, or parcels of land within the Properties for further subdivision, development, and/or resale in the ordinary course of such Person's business. 1.8 "Business" and "Trade": Shall be construed to have their ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to Persons other than the provider's family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (a) such activity is engaged in full or part-time, (b) such activity is intended to or does generate a profit, or (c) a license is required. 1.9 "By-Laws": The By-Laws of ASPEN LAKES ESTATE OWNERS, INC. attached as Exhibit "C" and incorporated by reference, as they may be amended. 1.10 "Class "B" Control Period": The period of time during which the Class "B" member is entitled to appoint a majority of the members of the Board of Directors as provided in Section 3.3 of the By-Laws. 1.11 "Common Area": All real and personal property which the Association owns, leases or otherwise holds possessory or use rights in for the common use and enjoyment of the Owners. 1.12 "Common Expenses": The actual and estimated expenses incurred or anticipated to be incurred by the Association for the general benefit of all Units, including any reasonable reserve, as the Board may find necessary and appropriate pursuant to this Declaration, the By-Laws, and the Articles of Incorporation. Common Expenses shall not include any expenses incurred during the Class "B" Control Period for initial development, original construction, installation of infrastructure, original capital improvements, or other original construction costs unless approved by Voting Members representing a majority of the total Class "A" vote of the Association. 1.13 "Community-Wide Standard": The standard of conduct, maintenance, or other activity generally prevailing throughout the Properties. Such standard may be more specifically determined by the Board of Directors and the Design Review Committee. 1.14 "Declarant": KMB ENTERPRISES, an Oregon partnership, or any successor, successor-in-title, or assign who has or takes title to any portion of the property described on Exhibits "A" or "B" for the purpose of development and/or resale in the ordinary course of business and who is designated as the Declarant in a recorded instrument executed by the immediately preceding Declarant. 1.15 "Design Guidelines": The architectural guidelines and procedures adopted by the Design Review Committee pursuant to Article XI and applicable to all Units within the Properties. 1.16 "Golf Course": Any parcel of land adjacent to or within the Properties which is privately owned by KMB Enterprises, an Oregon partnership, its successors, successors-in-title, or assigns, and which is operated as a golf course, and all related and supporting facilities and improvements operated in connection with such golf course. 1.17 "Master Plan": The Master Plan for the Development of ASPEN LAKES as approved by CU-89-79 on the 8th day of August, 1989, as it may be amended, which plan includes the property described on Exhibit "A" and the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. The Master Plan may also include subsequent plans approved by Deschutes County for the development of all or a portion of the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. Inclusion of property on the Master Plan shall not, under any circumstances, obligate Declarant to subject such property to this Declaration nor shall the exclusion of property described on Exhibit "B" from the Master Plan bar its later annexation in accordance with Article IX. It is anticipated by the Master Plan that declarant may decide in the future to convert the Properties described in this Section to a "Destination Resort" as that term is defined in the Deschutes County Zoning Ordinance. 1.18 "Maximum Units": The units approved for development under the Master Plan approved by CU-89-70 on the 8th day of August, 1989, plus the maximum number of Units which may be developed in the property described on Exhibit "B" under the zoning designation of such property from time to time. 1.19 "Member": A Person entitled to membership in the Association, as provided in Section 3.2. 1.20 "Mortgage": A mortgage, a deed of trust, a deed to secure debt, or any other form of security deed. 1.21 "Mortgagee": A beneficiary or holder of a Mortgage. 1.22 "Mortgagor": Any Person who gives a Mortgage. 1.23 "Neighborhood": Two or more Units which share interests other than those common to all Units. By way of illustration and not limitation, a condominium, townhome development, cluster home development, or single-family detached housing development might each be designated as separate Neighborhoods, or a Neighborhood may be comprised of more than one housing type with other features in common. In addition, each parcel of land intended for development as any of the above shall constitute a Neighborhood, subject to division into more than one Neighborhood upon development. 1.24 "Office of the County Clerk": The Office of the County Clerk of Deschutes County, Oregon. 1.25 "Open Space": Privately owned land designated as "Open Space" and further regulated as such by Deschutes County Zoning Ordinances. Such designation may be placed on parcels within the Properties of Aspen Lakes. 1.26 "O.R.S.": The Oregon Revised Statutes. 1.27 "Owner": One or more Persons who hold the record title to any Unit, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Unit is sold under a recorded contract of sale, then upon recording of such contract, the purchaser (rather than the fee owner) will be considered the Owner, if the contract specifically so provides. 1.28 "Person": A natural person, a corporation, a partnership, a trustee, or any other legal entity. 1.29 "Phase": All Units simultaneously subjected to this Declaration by the Declarant by its execution and recordation of this Declaration and each Supplemental Declaration in the Office of the County Clerk. The property described in Exhibit "A" of this Declaration shall constitute the first Phase ("Phase I"). 1.30 "Private Amenities": Certain real property and any improvements and facilities thereon located adjacent to, in the vicinity of, or within the Properties, which are privately owned and operated by Persons other than the Association for recreational and related purposes, on a club membership basis, use fee basis, or otherwise, and shall include, without limitation, the Golf Course, if any. 1.31 "Properties": The real property described in Exhibit "A", together with such additional property as is subject to this Declaration in accordance with Article IX. Exhibit "A" and the Supplemental Declaration which subject additional property to the Declaration shall provide a legal description of the Common Area, if any. 1.32 "Retail Owner": An Owner other than the Declarant or Builder. 1.33 "Special Assessment": Assessments levied in accordance with Section 10.6. 1.34 "Specific Assessment": Assessments levied in accordance with Section 10.7. 1.35 "Supplemental Declaration": An amendment or supplement to this Declaration filed pursuant to Article IX which subjects additional property to this Declaration, and identifies the Common Area within the additional property, if any, and/or imposes, expressly or by reference, additional restrictions and obligations on the land described therein. 1.36 "Unit": A portion of the Properties, whether improved or unimproved, which may be independently owned and conveyed and which is intended for development, use, and occupancy as an attached or detached residence for a single family. The term shall refer to the land, if any, which is part of the Unit as well as any improvements thereon. The term shall include, by way of illustration but not limitation, condominium units, townhouse units, cluster homes, patio or zero lot line homes, and single-family detached houses on separately platted lots, as well as vacant land intended for development as such, but shall not include Common Areas or property dedicated to the public. In the case of a building within a condominium or other structure containing multiple dwellings, each dwelling shall be deemed to be a separate Unit. In the case of a parcel of vacant land or land on which improvements are under construction, the parcel shall be deemed to contain the number of Units designated for residential use for such parcel on the Master plan or the site plan approved by Declarant, whichever is more recent, until such time as a subdivision plat or condominium plat is filed of record on all or a portion of the parcel. Thereafter, the portion encompassed by such plat shall constitute a separate Unit or Units as determined above and the number of Units on the remaining land, if any shall continue to be determined in accordance with this paragraph. 1.37 "Voting Member or Members": Any Owner, Member, or Declarant representative selected formally or informally as appropriate to represent his/her Unit through signature on petitions, or voice or written ballot, including proxy, according to the provisions of Section 3.3. Article 11 PROPERTY RIGHTS 2.1 Common Area. Every Owner shall have a right and nonexclusive easement of use, access, and enjoyment in and to the Common Area, subject to: (a) This Declaration, the By-Laws and any other applicable covenants; (b) Any restrictions or limitations contained in any deed conveying such property to the Association; (c) The right of the Board to adopt rules regulating the use and enjoyment of the Common Area, including rules restricting use of recreational facilities within the Common Area to occupant of Units and their guests and rules limiting the number of guests who may use the Common Area; (d) The right of the Board to suspend the right of an Owner to use recreational facilities within the Common Area (i) for any period during which any charge against such Owner's Unit remains delinquent, and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation of the Declaration, any applicable Supplemental Declaration, the By-Laws, or rules of the Association after notice and a hearing pursuant to Section 3.23 of the By-Laws; (e) The right of the Association, acting through the Board, to dedicate or transfer all or any part of the Common Area pursuant to Section 4.7; (f) The right of the Board to impose reasonable membership requirements and charge reasonable membership admission or other fees for the use of any recreational facility situated upon the Common Area; (g) The right of the Board to permit use of any recreational facilities situated on the Common Area by persons other than owners, their families, lessees and guests upon payment of use fees established by the Board; (h) The right of the Association, acting through the Board, to mortgage, pledge, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, subject to the approval requirements set forth in Section 14.2. Any Owner may extend his or her right of use and enjoyment to the members of his or her family, permitted lessees, and social invitees, subject to reasonable Board regulation. An Owner who has the right to and does lease his or her Unit shall be deemed to have assigned all such rights to the lessee of such Unit. The initial Common Area as identified in Exhibit "A" shall be conveyed to the Association prior to or in concurrence with the conveyance of a Unit to a Retail Owner. 2.2 Private Amenities. Access to and use of the Private Amenities is strictly subject to the rules and procedures of the respective Owners of the Private Amenities, and no Person gains any right to enter or to use those facilities by virtue of membership in the Association or ownership or occupancy of a Unit. All Persons, including all Owners, are hereby advised that no representations or warranties, either written or oral, have been or are made by the Declarant or any other Person with regard to the nature or size of improvements to, or the continuing ownership or operation of the Private Amenities. No purported representation or warrant, written or oral, in conflict with this Section shall be effective without an amendment to this Declaration executed or joined into by the Declarant or the owner(s) of the Private Amenity(ies) which are the subject thereof. The ownership or operation duties of and as to the Private Amenities may change at any time and from time to time by virtue of, but without limitation, (a) the sale to or assumption of operations by an independent entity, (b) conversion of the membership structure to an "equity" club or similar arrangement whereby the members of a Private Amenity or an entity owned or controlled thereby become the owner(s) and/or operator(s) of the Private Amenity, or (c) the conveyance of a Private Amenity to one or more affiliates, shareholders, employees, or independent contractors of the Declarant. No consent of the Association or any Owner shall be required to effectuate such a transfer or conversion. Rights to use the Private Amenities will be granted only to such person, and on such terms and conditions, as may be determined by their respective owners. Such owners shall have the right, from time to time in their sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of their respective Private Amenities and to terminate use rights altogether. Article III ASSOCIATION FUNCTION, MEMBERSHIP AND VOTING RIGHTS 3.1 Function of Association. The Association shall be the entity responsible for management, maintenance, operation and control of the Area of Common Responsibility. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Properties as the Board may adopt. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration and in the Design Guidelines. The Association shall perform its functions in accordance with this Declaration, the By-Laws, the Articles, and Oregon law. 3.2 Membership. Every Owner shall be a Member of the Association. There shall be only one membership per Unit. If a Unit is owned by more than one Person, all co-Owners shall share the privileges of such membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 3.3 and in the By-Laws, and all such co-Owners shall be jointly and severally obligated to perform the responsibilities of Owners. The membership rights and privileges of an Owner who is a natural person may be exercised by the Member or the Member's spouse. The membership rights of an Owner which is a corporation, partnership or other legal entity may be exercised by any individual designated from time to time by the Owner in a written instrument provided to the Secretary of the Association. 3.3 Voting. The Association shall have two classes of membership, Class "A" and Class "B". (a) Class "A": Class "A" Members shall be all Owners except the Class "B" Member, if any. Class "A" Members shall have one equal vote for each Unit in which they hold the interest required for membership under Section 3.2; there shall be only one vote per Unit. (b) Class "B": Class "B" Members shall be the Declarant and any Builder who are Owners. Class "B" Members shall be entitled to three votes for each Unit owned. Unless otherwise specified in this Declaration, the By-Laws, or an agreement between Declarant and a Builder, the vote for each Unit owned by Builders shall be exercised by the Declarant. The Class "B" membership shall cease and be converted to Class "A" membership upon the earlier of the following: (i) When 75% of the Maximum Units are owned by Retail Owners; (ii) 15 years from the anniversary date of closing of escrow for the first Unit after the first sale to a Retail Owner; provided that the 15-year period for conversion shall be extended an additional five years unless a majority of the Voting Members representing Class "A" Members at a special meeting held for such purpose at least 30 days, but not more than 90 days, prior to expiration of the 15-year period, vote not to extend the 15-year period. Furthermore, if the additional five-year extension occurs under the preceding sentence, the 20-year period for conversion shall be extended an additional three years unless a majority of the Voting Members representing Class "A" Members at a special meeting held for such purpose, at least 30, but not more than 90, days prior to expiration of the 20-year period, vote not to extend the 20 year-year period; or (iii) when, in its discretion, the Declarant so determines. From and after the happening of these events, whichever occurs first, the Class "B" Member shall be deemed to be a Class "A" Member entitled to one vote for each Unit in which it holds the interest required for membership under Section 3.2. The Declarant shall have a right to disapprove actions of the Board and committees as provided in Section 3.18 of the By-Laws. In the event Class "B" membership has not terminated when more than 50% of the Maximum Units are owned by Retail Owners, the Association shall form a "Transitional Advisory Committee" in accordance with O.R.S. 94.604 and Section 5.3 of the By-Laws. No later than when 75% of the Maximum Units are owned by Retail Owners, the Declarant shall call a meeting for the purpose of turning over administration responsibilities to the Association in accordance with O.R.S. 94.609 and 94.616. (c) Exercise of Voting Rights. Except as otherwise specified in this Declaration or the By-Laws, the vote for each Unit owned by a Class "A" Member shall be exercised by Voting Member, as described within Section 1.37 and this Section. In any situation in which a Member is entitled personally to exercise the vote for his or her Unit and there is more than one Owner of a particular Unit, the vote for such Unit shall be exercised as such co-Owners determine among themselves and advise the secretary of the Association in writing prior to any meeting. Absent such advice, the Unit's vote shall be suspended if more than one Person seeks to exercise it. Article IV RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 4.1 Common Area. The Association, subject to the rights of the Owners set forth in this Declaration, shall manage and control the Common Area and all improvements thereon (including, without limitation, furnishings, equipment, and common landscaped areas), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, consistent with this Declaration and Community-Wide Standard. 4.2 Personal Property and Real Property for Common Use. The Association may acquire, hold, and dispose of tangible and intangible personal property and real property. Declarant may convey to the Association improved or unimproved real estate located within the properties described in Exhibits "A" or "B", personal property and leasehold and other property interests. Such property shall be accepted by the Association and thereafter shall be maintained as Common Area by the Association at its expense for the benefit of its Members, subject to any restrictions set forth in the deed. The Declarant shall convey the initial Common Area to the Association prior to or concurrent with the conveyance of a Unit to a Retail Owner. 4.3 Enforcement. The Association may impose sanctions for violations of this Declaration, the By-Laws, or rules in accordance with procedures set forth in the By-Laws, including reasonable monetary fines and suspension of the right to vote and to use any recreational facilities within the Common Area. In addition, in accordance with Section 3.23 of the By-Laws, the Association may exercise self-help to cure violations, and may suspend any services it provides to the Unit of any Owner who is more than 30 days delinquent in paying any assessment or other charge due the Association. The Board may seek relief in any court for violation or to abate nuisances. The Association, by contract or other agreement, may enforce county ordinances, if applicable, and permit Deschutes County to enforce applicable ordinances on the Properties for the benefit of the Association and its Members. 4.4 Implied Rights; Board Authority. The Association may exercise any other right or privilege given to it expressly by this Declaration or the By-Laws, or reasonably implied from, or reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in this Declaration, the By-Laws, Articles, or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership. 4.5 Governmental Interests. So long as the Declarant owns any property described on Exhibits "A" or "B", the Declarant may designate sites within the Properties for fire, police, utility facilities, public schools and parks, and other public facilities. The sites may include Common Areas. 4.6 Indemnification. The Association shall indemnify every officer, director, and committee member against all expenses, including counsel fees, reasonably incurred in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board) to which he or she may be a party by reason of being or having been an officer, director, or committee member. The officers, directors, and committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers and directors shall have no personal liability with respect to any contract or other commitment made or action taken in good faith on behalf of the Association (except to the extent that such officers or directors may also be Members of the Association). The association shall indemnify and forever hold each such officer, director and committee member harmless from any and all liability to others on account of any such contract, commitment or action. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any present or former officer, director, or committee members may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available. Pursuant to O.R.S. 65.784, if the Association indemnifies or advances expenses pursuant to this Section or O.R.S. 65.391- 65.401, the Association shall report the indemnification or advance in writing to the Members with or before the notice of the next meeting of the Members. 4.7 Dedication of Common Areas. The Association may dedicate portions of the Common Areas to Deschutes County, Oregon or to any other local, state, or federal governmental entity, subject to such approval as may be required by Section 14.2. 4.8 Security. The Association may, but shall not be obligated to, maintain or support certain activities within the Properties designed to make the Properties safer than they otherwise might be. NEITHER THE ASSOCIATION, THE DECLARANT, NOR ANY SUCCESSOR DECLARANT SHALL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHIN THE PROPERTIES, NOR SHALL ANY OF THEM BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR OF INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN. NO REPRESENTATION OR WARRANTY IS MADE THAT ANY FIRE PROTECTION SYSTEM, BURGLAR ALARM SYSTEM OR OTHER SECURITY SYSTEM CANNOT BE COMPROMISED OR CIRCUMVENTED, NOR THAT ANY SUCH SYSTEMS OR SECURITY MEASURES UNDERTAKEN WILL IN ALL CASES PREVENT LOSS OR PROVIDE THE DETECTION OR PROTECTION FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. EACH OWNER ACKNOWLEDGES, UNDERSTANDS AND COVENANTS TO INFORM ITS TENANTS THAT THE ASSOCIATION, ITS BOARD OF DIRECTORS AND COMMITTEES, DECLARANT, AND ANY SUCCESSOR DECLARANT ARE NOT INSURERS AND THAT EACH PERSON USING THE PROPERTIES ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO PERSONS, TO UNITS AND TO THE CONTENTS OF UNITS RESULTING FROM ACTS OF THIRD PARTIES. Article V MAINTENANCE 5.1 Association's Responsibility. The Association shall maintain and keep in good repair the Area of Common Responsibility, which shall include, but need not be limited to: (a) all landscaping and other flora, parks, signage, structures, and improvements, including any private streets, bike and pedestrian pathways/trails, situated upon the Common Area; (b) landscaping, sidewalks, street lights and signage within public rights-of-way within or abutting the Properties, and landscaping and other flora within any public utility easements and conservation easements within the Properties (subject to the terms of any easement agreement relating thereto); provided, however, that it shall be the responsibility of each Owner to landscape, irrigate, and maintain any area within public rights of way between such Owner's Unit and the paved roadway located in rights of way adjacent to such Owner's Unit from the date a certificate of occupancy is issued with respect to improvements on such Unit. (c) such portions of any additional property included within any Area of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration, or any contract or agreement for maintenance thereof entered into by the Association; and (d) any property and facilities owned by the Declarant and made available, on a temporary or permanent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from the Declarant to the Association and to remain a part of the Area of Common Responsibility and be maintained by the Association until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association. There are hereby reserved to the Association, easements over the Properties as necessary to enable the Association to fulfill such responsibilities. The Association shall maintain the facilities and equipment within the Area of Common Responsibility in continuous operation, except for reasonable periods as necessary to perform required maintenance or repairs, unless Voting Members representing 75% of the Class "A" votes and the Declarant, as long as the Declarant owns any property described on Exhibits "A" or "B", agree in writing to discontinue such operation. The Association may maintain other property which it does not own, including without limitation publicly owned property, conservation easements held by nonprofit entities, and other property dedicated to public use, if the Board determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard. Except as otherwise specifically provided herein, all costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a common expense to be allocated among all Units in the manner of and as part of the Base Assessment, without prejudice to the right ofthe Association to seek reimbursement from the Owner(s) of, or other Person responsible for, certain portions of the Area of Common Responsibility pursuant to this Declaration, other recorded covenants, or agreements with the Owner(s) thereof. 5.2 Owner's Responsibility. Each Owner shall maintain his or her Unit and all structures, parking areas, landscaping, and other improvements comprising the Unit in a manner consistent with the Community-Wide Standard and all applicable covenants unless such maintenance responsibility is otherwise assumed by or assigned to the Association pursuant to any Supplemental Declaration or other declaration of covenants applicable to such Unit. In addition to any other enforcement rights, if an Owner fails properly to perform his or her maintenance responsibility, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the unit and the Owner in accordance with Section 10.7(b). The Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation. 5.3 Standard of Performance. Maintenance, as used in this Article, shall include, without limitation, repair and replacement as needed, as well as such other duties, which may include irrigation, as the Board may determine necessary or appropriate to satisfy the Community-Wide Standard. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and all applicable covenants. Notwithstanding anything to the contrary contained herein, the Association, and/or an Owner, shall not be liable for property damage or personal injury occurring on, or arising out of the condition of, property which it does not own unless and only to the extent that it has been negligent in the performance of its maintenance responsibilities. 5.4 Party Walls and Similar Structures. (a) General Rules of Law to Apply. Each wall, fence, driveway or similar structure built as a part of the original construction on the Units which serves and/or separates any two adjoining Units shall constitute a party structure. To the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts of omissions shall apply thereto. (b) Sharing of Repair and Maintenance. All Owners who make use of the party structure shall share the cost of reasonable repair and maintenance of such structure equally. (c) Damage and Destruction. If a party structure is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the structure may restore it. If other Owners subsequently use the structure, they shall contribute to the restoration cost in equal proportions. However, such contribution will not prejudice the right to call for a larger contribution from the other users under any rule of law regarding liability for negligent or willful acts or omissions. (d) Right to Contribution Runs With Land. The right of an Owner to contribution from any other Owner under this Section shall be appurtenant to the land and shall pass to such Owner's successors-in-title. Article VI INSURANCE AND CASUALTY LOSSES 6.1 Association Insurance. The Association, acting through its Board or its duly authorized agent, shall obtain blanket "all- risk" property insurance, if reasonably available, for all insurable improvements on the Common Area and on other portions of the Area of Common Responsibility to the extent that it has assumed responsibility for maintenance, repair and/or replacement in the event of a loss. The Association shall have the authority to and interest in insuring any privately or publicly owned property for which the Association has maintenance or repair responsibility. Such property shall include, by way of illustration and not limitation, any insurable improvements on or related to parks, rights-of-ways, medians, easements, and walkways which the Association is obligated to maintain. If blanket "all-risk" coverage is not generally available at reasonable cost, then the Association shall obtain fire and extended coverage, including coverage for vandalism and malicious mischief. The face amount of the policy shall be sufficient to cover the full replacement cost of the insured property. The cost of such insurance shall be a Common Expense to be allocated among all Units subject to assessment as part of the annual Base Assessment. The Association shall have no insurance responsibility for any part of any Private Amenity property. The Association also shall obtain a public liability policy on the Area of Common Responsibility, insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members, employees, agents, or contractors while acting on its behalf. If generally available at reasonable cost, the public liability policy shall have at least a $1,000,0000.00 combined single limit as respects bodily injury and property damage and at least a $3,000,000.00 limit per occurrence and in the aggregate. Premiums for all insurance on the Area of Common Responsibility shall be Common Expenses and shall be included in the Base Assessment. The policies may contain a reasonable deductible which shall not be subtracted from the face amount of the policy in determining whether the insurance at least equals the required coverage. In the event of an insured loss, the deductible shall be treated as a Common Expense in the same manner as the premiums for the applicable insurance coverage. However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with Section 3.23 of the By-Laws, that the loss is the result of the negligence or willful conduct of one or more Owners or occupants, then the Board may specifically assess the full amount of such deductible against the Unit of such Owner or occupant, pursuant to Section 10.7(b). All insurance coverage obtained by the Association shall: (a) be written with a company authorized to do business in Oregon which holds a Best's rating of A or better and is assigned a financial size category of IX or larger as established by A.M. Best Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating which is available; (b) be written in the name of the Association as trustee for the benefitted parties. Policies on the Common Area shall be for the benefit of the Association and its Members; (c) vest in the Board, exclusive authority to adjust losses; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related to the loss; (d) not be brought into contribution with insurance purchased by individual Owners, occupants, or their Mortgagees; and (e) have an inflation guard endorsement, if reasonably available. If the policy contains a co-insurance clause, it shall also have an agreed amount endorsement. The Association shall arrange for an annual review of the sufficiency of insurance coverage by one or more qualified persons, at least one of whom must be in the real estate industry and familiar with construction in the Deschutes County, Oregon area. The Board shall use reasonable efforts to secure insurance policies containing endorsements that: (a) waive subrogation as to any claims against the Association's Board, officers, employees, and its manager, the Owners and their tenants, servants, agents, and guests; (b) waive the insurer's rights to repair and reconstruct instead of paying cash; (c) preclude cancellation, invalidation, suspension, or nonrenewal by the insurer on account of any one of more individual Owners, or on account of any curable defect of violation without prior written demand to the Association to cure the defect or violation and allowance of a reasonable time to cure; (d) exclude individual Owners' policies from consideration under any "other insurance" clause; and (e) require at least 30 days prior written notice to the Association of any cancellation, substantial modification, or nonrenewal. The Association shall also obtain, as a Common Expense, worker's compensation insurance and employer's liability insurance, if and to the extent required by law; directors' and officers' liability coverage, if reasonably available, and flood insurance, if advisable. The Association also shall obtain, as a Common Expense, a fidelity bond or bonds, if generally available at reasonable cost, covering all persons responsible for handling association funds. The Board shall determine the amount of fidelity coverage in its best business judgment but, if reasonably available, shall secure coverage equal to not less than one-sixth of the annual Base Assessments on all Units plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and shall require at least 30 days prior notice to the Association of any cancellation, substantial modification, or nonrenewal. 6.2 Owners Insurance. By virtue of taking title to a Unit, each Owner covenants and agrees with all other Owners and with the Association to carry blanket "all-risk" property insurance on its Unit(s) and structures thereon providing full replacement cost coverage less a reasonable deductible, unless the Association carries such insurance (which they are not obligated to do hereunder). Each Owner further covenants and agrees that in the event of damage to, or destruction of, structures on or comprising his or her Unit, he or she shall proceed promptly to repair or to reconstruct in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article XI of this Declaration. Alternatively, the Owner shall clear the Unit of all debris and ruins and maintain the Unit in a neat and attractive, landscaped condition consistent with the Community- Wide Standard. The Owner shall pay any costs which are not covered by insurance proceeds. 6.3 Damaee and Destruction. (a) Immediately after damage or destruction to all or any part of the Properties covered by insurance written in the name of the Association, the Board or its duly authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, allowing for changes or improvements necessitated by changes in applicable building codes. (b) Any damage to or destruction of the Common Area shall be repaired or reconstructed unless the Members representing at least 75% of the total class "A" votes and the Declarant, as long as the Declarant owns any property described in Exhibits "A" or "B" of the Declaration, decide within 60 days after the loss not to repair or reconstruct. No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Area shall be repaired or reconstructed. If either the insurance proceeds or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not. available to the Association within such 60-day period, then the period shall be extended until such funds or information are available. However, such extension shall not exceed 60 additional days. (c) If determined in the manner described above that the damage or destruction to the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, the affected property shall be cleared of all debris and ruins and maintained by the Association in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. 6.4 Disbursements of Proceeds. Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association and placed in a capital improvements account. This is a covenant for the benefit of Mortgagees and may be enforced by the Mortgagee of any affected Unit. 6.5 Repair and Reconstruction. If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board shall, without a vote ofthe Voting Members, levy Special Assessments againstthose Unit Owners responsible forthe premiums for the applicable insurance coverage under Section 6.1. Article VII NO PARTITION Except as permitted in this Declaration, there shall be no judicial partition of the Common Area. No Person shall seek any judicial partition unless the Properties or such portion thereof have been removed from the provisions of this Declaration. This Article shall not prohibit the Board from acquiring and disposing of tangible personal property nor from acquiring and disposing of real property which may or may not be subject to this Declaration. Article VIII CONDEMNATION If any part of the Common Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board acting on the written direction of Voting Members representing at least 66 2/3% of the total Class "A" votes in the Association, and of the Declarant, as long as the Declarant owns any property described on Exhibits "A" or "B" of the Declaration) by any authority having the power of condemnation or eminent domain, each Owner shall be entitled to written notice. The award made for such taking shall be payable to the Association as trustee for all Owners to be disbursed as follows: If the taking involves a portion of the Common Area on which improvements have been constructed, the Association shall restore or replace such improvements on the remaining land included in the Common Area to the extent available, unless within 60 days after such taking, the Declarant, so long as the Declarant owns any property described in Exhibits "A" or "B" ofthis Declaration, and Voting Members representing at least 75% of the total Class "A" votes in the Association shall otherwise agree. Any such construction shall be in accordance with plans approved by the Board. The provisions of Section 6.4 and 6.5 regarding funds for the repair of damage or destruction shall apply. If the taking does not involve any improvements on the Common Area, or if a decision is made not to repair or restore, or if net funds remain after any such restoration or replacement is complete, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall determine. Article IX ANNEXATION AND WITHDRAWAL OF PROPERTY 9.1 Annexation Without Approval of Membership. Prior to the sale of the first Unit to a Retail Owner, Declarant may unilaterally subject to the provisions of this Declaration all or portions of the real property described in Exhibit "B" until all property described on Exhibit "B" has been subjected to this Declaration or 30 years after the recording of this Declaration, whichever is earlier. After the sale of the first Unit to a Retail Owner, Declarant may unilaterally subject to the provisions of this Declaration all or any portion of the real property described in exhibit "B", until the earlier of (a) the date on which all property described on Exhibit "B" has been subjected to this Declaration, or (b) the later of (i) four years from the most recent sale to a Retail Owner, or (ii) four years from the date of recording of the most recent Supplemental Declaration to annex additional property. Declarant may transfer or assign this right to annex property, provided that the transferee or assignee is the developer of at least a portion of the real property described in Exhibits "A" or "B" and that such transfer is memorialized in a written, recorded instrument executed by Declarant. Nothing in this Declaration shall be construed to require the Declarant or any successor to annex or develop any of the property set forth in Exhibit "B" in any manner whatsoever. Such annexation shall be accomplished by filing a Supplemental Declaration in the Office of the County Clerk describing the property to be annexed and specifically subjecting it to the terms of this Declaration. Such Supplemental Declaration shall not require the consent of Members, but shall require the consent of the Owner of such property, if other than Declarant. Any such annexation shall be effective upon the filing for record of such Supplemental Declaration unless otherwise provided therein. 9.2 Annexation With Approval of Membership. The Association or the Declarant may subject any real property to the provisions of this Declaration with the consent of the owner of such property, the affirmative vote of Voting Members representing 66 2/3% of the Class "A" votes of the Association represented at the meeting duly called for such purpose, and the consent of the Declarant so long as Declarant owns property subject to this Declaration or which may become subject to this Declaration in accordance with Section 9.1. Such annexation shall be accomplished by filing a Supplemental Declaration in the Office of the County Clerk describing the property to be annexed and specifically subjecting it to the terms of this Declaration. Any such Supplemental Declaration shall be signed by the President and the Secretary of the Association, and by the owner of the annexed property. Any such annexation shall be effective upon filing unless otherwise provided therein. 9.3 Withdrawal of Property. The Declarant reserves the right to amend this Declaration so long as it has a right to annex additional property pursuant to this Article, without prior notice and without the consent of any Person, for the purpose of removing property then owned by the Declarant, its affiliates, or the Association from the coverage of this Declaration, to the extent originally included in error or as a result of any changes in the Declarant's plans for the Properties, provided such withdrawal is not unequivocally contrary to the overall, uniform scheme of development for the Properties. 9.4 Additional Covenants and Easements. The Declarant may unilaterally subject any portion of the property submitted to this Declaration initially or by Supplemental Declaration to additional covenants and easements, including covenants obligating the Association to maintain and insure such property on behalf of the Owners and obligating such Owners to pay the costs incurred by the Association. Such additional covenants and easements shall be set forth in a Supplemental Declaration filed either concurrent with or after the annexation of the subject property, and shall require the written consent of the owner(s) of such property, if other than the Declarant. 9.5 Amendment. This Article shall not be amended without the prior written consent of Declarant so long as the Declarant owns any property describe in Exhibits "A" or "B". Article X ASSESSMENTS 10.1 Creation of Assessments. The Association is hereby authorized to levy assessments against each Unit for Association expenses as the Board may specifically authorize from time to time. There shall be three types of assessments for Association expenses: (a) Base Assessments to fund Common Expenses for the general benefit of all units; (b) Special Assessments as described in Section 10.6; and (c) Specific Assessments as described in Section 10.7. Each Owner, by accepting a deed or entering into recorded contract of sale for any portion of the Properties is deemed to covenant and agree to pay these assessments. All assessments (except as otherwise provided in Section 10.7(b)), together with interest from the due date of such assessment at a rate determined by the Association (not to exceed the highest rate allowed by Oregon Law), late charges, costs, and reasonable attorney fees, shall be a charge and continuing lien upon each Unit which the assessment is made until paid, as more particularly provided in Section 10.10. Each such assessment, together with interest, late charges, costs, and reasonable attorney fees, also shall be the personal obligation of the Person who was the Owner of such Unit at the time the assessment arose. Upon a transfer of title to a Unit, the grantee shall not be liable for any assessments and other charges due at the time of conveyance unless expressly assumed by him or her. No first Mortgagee who obtains title to a Unit by exercising the remedies provided in its Mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title. Assessments shall be paid in such manner and on such dates as the Board may establish. If the Board so elects, assessments may be paid in two or more installments. Unless the Board otherwise provides, the Base Assessment shall be due and payable in advance on the first day of each fiscal year. If any Owner is delinquent in paying any assessments or other charges levied on his or her Unit, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately. 11 The Association shall, upon request, furnish to any Owner liable for any type of assessment a certificate in writing signed by an officer of the Association setting forth whether such assessment has been paid. Such certificate shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such certificate. No Owner may exempt himself or herself from liability for assessments, by nonuse of Common Area, abandonment of his or her Unit, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board. to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes. After the commencement of assessment payments as to any Unit, Declarant, if any, covenants and agrees to pay the full amount of any applicable assessment for each occupied Unit it owns; notwithstanding anything contained herein to the contrary, the Declarant shall not be required to pay Base, Special, or Specific Assessments for unoccupied units that it owns. Notwithstanding anything to the contrary herein, the Declarant may contribute assessments due from it in services and/or materials ("In-Kind"), rather than in money. The amount by which monetary assessments shall be decreased as a result of any In-Kind contribution shall be the fair market value of the contribution. If the Declarant and the Association disagree as to the value of any contribution, the Declarant shall supply the Association with a detailed explanation of the service performed and material furnished, and the Association shall acquire bids for performing like services and furnishing like materials from three (3) independent contractors approved by the Declarant who are in the business of providing such services and materials. If the Association and the Declarant are still unable to agree on the value of the contribution, the value shall be deemed to be the average of the bids received from the independent contractors. 10.2 Capitalization of Association. Upon acquisition of record title to each Unit by its first Retail Owner, a contribution shall be made by, or on behalf of, the purchaser to the working capital of the Association in an amount equal to one-sixth of the annual Base Assessment per Unit for that year. For purposes of this Section, the term "Base Assessment" shall be deemed to include the amount assessed against each Unit plus a pro rata allocation of any amounts (values) the Association received through any subsidy, maintenance agreement, or In-Kind services or materials, if any. This amount shall be in addition to, not in lieu of, the annual Base Assessment and shall not be considered an advance payment of such assessment. This amount shall be deposited into the purchase and sales escrow and disbursed therefrom to the Association for use in covering operation expenses and other expenses incurred by the Association pursuant to the terms of this Declaration and the By-Laws. 10.3 Date of Commencement of Assessments. Subject to Section 10. 1, the obligation to pay the assessments provided for herein shall commence as to all Units on the earlier of. (a) the first day of the month following the first conveyance of a Unit to a Retail Owner; or (b) the first day of the month following conveyance of the Common Area to the Association. The first annual Assessment shall be adjusted according to the number of days remaining in the fiscal year at the time assessments commence on the Unit. 10.4 Computation of Base Assessment. The Board shall prepare a budget covering the estimated Common Expenses during the coming year pursuant to the terms and provisions set forth in Section 3.20(f)(i) of the By-Laws. The budget shall include a capital contribution to establish a reserve fund in accordance with a budget separately prepared as provided in Section 10.5 The Base Assessment shall be levied equally against all Units subject to assessment and shall be set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses, including reserves. In determining the level of assessments, the Board, in its discretion, may consider other sources of funds available to the Association. In addition, the Board shall take into account the number of Units subject to assessment under Section 10.7(b) on the first day of the fiscal year for which the budget is prepared and the number of Units reasonably anticipated to become subject to assessment during the fiscal year. The Board shall send a copy of the budget and notice of the amount of the Base Assessment for the following year to each Owner not less than 45 nor more than 60 days prior to the beginning of the fiscal year for which it is to be effective. 10.5 Reserve Budget and Capital Contribution. The Board shall annually prepare a reserve budget which takes into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost and in accordance with O.R.S. 94.595. The Board shall set the required capital contribution in an amount sufficient to permit meeting the projected needs of the Association, as shown on the budget, with respect both to amount and timing by annual Base Assessments over the budget period. 10.6 Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted expenses or expenses in excess of those budgeted subject to the limitations set forth in Section 10.8. 12 Such Special Assessment may be levied against the entire membership, if such Special Assessment is for common expenses. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the fiscal year in which the Special Assessment is approved. 10.7 Specific Assessments. The Board shall have the power to levy Specific Assessments against a particular Unit or Units constituting less than all Units within the Properties as follows: (a) to cover the costs, including overhead and administrative costs, of providing benefits, items, or services to the Unit or occupants thereof upon request of the Owner pursuant to a menu of special services which the Board may from time to time authorize to be offered to Owners (which might include, without limitation, landscape maintenance, handyman service, pool cleaning, pest control, etc.), which assessments may be levied in advance of the provision of the requested benefit, item or service as a deposit against charges to be incurred by the Owner; and (b) to cover costs incurred in bringing the Unit into compliance with the terms of this Declaration, any applicable Supplemental Declaration, the By-Laws or rules, or costs incurred as a consequence of the conduct of the Owner or occupants of the Unit, their licensees, invitees, or guests; provided, the Board shall give the Unit Owner prior written notice and an opportunity for a hearing before levying a Specific Assessment under this subsection (b). 10.8 Limitation of Increases of Assessments. Notwithstanding any provision to the contrary, and except for assessment increases necessary for emergency situations or to reimburse the Association pursuant to Section 10.7, the Board may not impose a Base Assessment or Specific Assessment that is more than 20% greater than each of those assessments for the immediately preceding fiscal year nor impose a Special Assessment which in the aggregate exceeds 5% of the budgeted Common Expenses for the current fiscal year, without a majority vote of a quorum of Voting Members representing the Members which are subject to the applicable assessment at a meeting of the Association. For purposes of this Section, "quorum" means the Voting Members representing more than 50% of the Members which are subject to the applicable assessment. For purposes of this Section, the term "Base Assessment" shall be deemed to include the amount assessed against each Unit plus a pro rata allocation of any amounts the Association received through any maintenance agreement, if any, in effect for the year immediately preceding the year for which the assessment is to be increased. An emergency situation is any one or more of the following: (a) an extraordinary expense required by an order of a court; (b) an extraordinary expense necessary to repair or maintain the Properties or any part of them for which the Association is responsible where a threat to personal safety on the Properties is discovered; or (c) an extraordinary expense necessary to repair or maintain the Properties or any part of them for which the Association is responsible which could not have been reasonably foreseen by the Board in preparing and distributing the pro forma budget pursuant to Section 10.4. However, prior to the imposition or collection of such an assessment, the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expenses involved and why the expense was not or could not have been reasonably foreseen in the budgeting process. Such resolution shall be distributed to the Members with the notice of such assessment. 10.9 Failure to Assess. Failure of the Board to fix assessment amounts or rates or to deliver or mail to each owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessment. In such event, each Owner shall continue to pay Base Assessments on the same basis as for the last year for which an assessment was made, if any, until a new assessment is made, at which time the Association may retroactively assess any shortfalls in collections. 10.10 Lien for Assessments. All assessments authorized in this Article shall constitute a lien against the Unit against which they are levied until paid, unless otherwise specifically precluded in this Declaration. The lien shall also secure payment of interest, late charges (subject to the limitation of Oregon law), and costs of collection (including attorney fees). Such lien shall be superior to all other liens, except (a) the liens of all taxes, bonds, assessments, and other levies which by law would be superior, and (b) the lien or charge of any first Mortgage of record (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for value. The Association may enforce such lien, when delinquent, by suit, judgment, and foreclosure. The lien shall be effective for a period of ten (10) years from the date of filing. The lien shall be filed with the "Office of the County Clerk". The lien shall be foreclosed pursuant to Chapter 88 or O.R.S. The Association may bid for the Unit at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Unit. While a Unit is owned by the Association following foreclosure: (a) no right to vote shall be exercised on its behalf; (b) no assessment shall be levied on it; and (c) each other Unit shall be charged, in addition to its usual assessment, its equal pro rata share of the 13 assessment that would have been charged such Unit had it not been acquired by the Association. The Association may sue for unpaid Common Expenses and costs without foreclosing or waiving the lien securing the same. The sale or transfer of any Unit shall not affect the assessment lien or relieve such Unit from the lien for any subsequent assessment. However, the sale or transfer of any Unit pursuant to foreclosure of the first Mortgage shall extinguish the lien as to any installments of such assessments due prior to such sale or transfer. A Mortgagee or other purchaser of a Unit who obtains title pursuant to foreclosure of the Mortgage shall not be personally liable for assessments on such Unit due prior to such acquisition of title. 10.11 Exempt Property. The following property shall be exempt from payment of Base Assessments and Special Assessments: (a) All common Areas; (b) Any property dedicated to and accepted by any governmental authority or public utility; and (c) Unoccupied lots owned by Declarant. In addition, the Declarant shall have the right, but not the obligation, to grant exemptions to certain Persons qualifying for Section 501(c) status under the Internal Revenue Code so long as such Persons own property subject to this Declaration for purposes listed in Section 501(c). Article XI ARCHITECTURAL STANDARDS 11.1 General. No structure shall be placed, erected, or installed upon any Unit, and no improvements (including staking, clearing, excavation, grading and other site work, exterior alteration of existing improvements, planting or removal of landscaping materials, and installation or removal of an irrigation system) shall take place except in compliance with this Article and the Design Guidelines and upon approval of the appropriate committee under Section 11.2. Any Owner may remodel, paint or redecorate the interior of structures on his or her Unit without approval. However, modifications to the interior of screened porches, patios, and similar portions of a Unit visible from outside the structures on the Unit shall be subject to approval. No approval shall be required to repaint the exterior of a structure in accordance with the originally approved color scheme or to rebuild in accordance with originally approved plans and specifications. All dwellings and landscaping constructed or placed on any portion of the Properties shall be designed by and built in accordance with the plans and specifications of a licensed architect or licensed building designer. This Article shall not apply to the activities of the Declarant, nor to improvements to the Common Area by, or on behalf of the Association. This Article may not be amended without the Declarant's written consent so long as the Declarant owns any land subject to this Declaration or subject to annexation to this Declaration. 11.2 Architectural Review. Responsibility for administration of the Design Guidelines, as defined below, and review of all applications for construction and modifications under this Article shall be handled by the committee as described herein. The Members of the committee need not be members of the Association or representatives of Members, and may, but need not, include architects, engineers or similar professionals, whose compensation, if any, shall be established from time to time by the Board. The Board may establish and charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review. The Design Review Committee (DRC) shall consist of at least three, but not more than five persons. So long as Declarant, any affiliate of the Declarant, or any Builder owns any Unit primarily for development and/or sale, the Declarant retains the right to appoint all members of the DRC, who shall serve at the discretion of the Declarant. There shall be no surrender of this right prior to that time, except in a written instrument in recordable form executed by Declarant. Upon surrender of such right, the Board of Directors may appoint the members of the DRC, who shall serve and may be removed at the discretion of the Board of Directors. The DRC shall have exclusive jurisdiction over all original construction on or any modifications, additions, or alterations made to any Units owned by Declarant, any affiliates of Declarant, any Builder, or Units owned by Retail Owners. 14 11.3 Guidelines and Procedures. The Declarant shall prepare the initial design and development guidelines and application and review procedures ("Design Guidelines") which shall apply to all construction activities within the Properties. The Design Guidelines may contain general provisions applicable to all of the Properties, as well as specific provisions which vary from one portion of the Properties to another depending upon the location, unique characteristics, and intended use. The DRC shall adopt such Design Guidelines at its initial organizational meeting and thereafter shall have sole and full authority to amend them. Any amendments to the Design Guidelines shall apply to construction and modifications commenced after the date of such amendment only and shall not apply to require modifications to or removal of structures previously approved once the approved construction or modification has commenced. The DRC shall make the Design Guidelines available to Owners and Builders who seek to engage in development or construction within the Properties and all such Persons shall conduct their activities in accordance with such Design Guidelines. At the Declarant's discretion, such Design Guidelines may be recorded in the Office of the County Clerk, in which event the recorded version, as it may unilaterally be amended from time to time, shall control in the event of any dispute as to which version of the Design Guidelines was in effect at any particular time. 11.4 Submission of Plans and Specifications. (a) No construction or improvements shall be commenced, erected, placed or maintained on any Unit, nor shall any exterior addition, change or alteration be made thereto, until the plans and specifications ("Plans") showing site layout, structural design, exterior elevations, exterior materials and colors, signs, landscaping, drainage, lighting, irrigation, utility facilities layout, and screening therefor shall have been submitted to and approved in writing by the DRC. The Design Guidelines shall set forth the procedure for submission of the Plans. (b) In reviewing each submission, the DRC may consider visual and environmental impact, ecological compatibility, natural platforms and finish grade elevation, harmony of external design with surrounding structures and environment, and location in relation to surrounding structures and plant life. The committee may require relocation of native plants within the construction site or the installation of an irrigation system for the landscaping, including the natural plant life on the Unit, as condition of approval of any submission. The DRC shall, within 45 days after receipt of each submission of the Plans, advise the party submitting the same in writing at an address specified by such party at the time of submission of (i) the approval of Plans, or (ii) the segments or features of the Plans which are deemed by such committee to be inconsistent or not in conformity with the Declaration and/or the Design Guidelines, the reason for such finding and suggestions for the curing of such objections. In the event the committee fails to advise the submitting party by written notice within the time set forth above, of either the approval or disapproval of the Plans, approval shall be deemed to have been given. Notice shall be deemed to have been given at the time the envelope containing such notice, properly addressed, and postage prepaid, is deposited with the U.S. Postal Service, registered or certified mail, return receipt requested. Personal delivery of such written notice shall, however, be sufficient and shall be deemed to have been given at the time of delivery. (c) If construction does not commence on a project for which Plans have been approved within 12 months of such approval, such approval shall be deemed withdrawn and it shall be necessary to resubmit the Plans to the DRC for reconsideration. 11.5 No Waiver of Future Approvals. Each Owner acknowledges that the members of the DRC will change from time to time and that interpretation, application and enforcement of the Design Guidelines may vary accordingly. Approval of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval. 11.6 Variance. The DRC may authorize variances from compliance with any of its guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic or environmental considerations require, but only in accordance with duly adopted rules and regulations. Such variances may only be granted, however, when unique circumstances dictate and no variance shall (a) be effective unless in writing; (b) be contrary to this Declaration; or (c) estop the DRC from denying a variance in other circumstances. For purposes of this Section, the inability to obtain approval of any governmental agency, the issuance of any permit, the cost of compliance, or the terms of any financing shall not be considered a hardship warranting a variance. 11.7 Limitation of Liability. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only and the DRC shall not bear any responsibility for ensuring the structural integrity or soundness of approved construction or modifications, nor for ensuring compliance with building codes and other governmental requirements. Neither the Declarant, the Association, the Board, any committee, or member of any of the foregoing shall be held liable for any 15 injury, damages, or loss arising out of the manner or quality of approved construction on, or modifications to, any Unit 11.8 Enforcement. Any structure or improvement placed or made in violation of this Article shall be deemed to be nonconforming. Upon written request from the Board or the Declarant, Owners shall, at their own cost and expense, remove such structure or improvement and restore the land to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as required, the Board or its designees shall have the right to enter the property, remove the violation, and restore the property to substantially the same condition as previously existed. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefited Unit and collected as a Specific Assessment unless otherwise prohibited in this Declaration. Any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to comply with the terms and provisions of this Article and the Design Guidelines may be excluded by the Board from the Properties, subject to the notice and hearing procedures contained in the By-Laws. In such event, neither the Association, its officers, or directors shall be held liable to any Person for exercising the rights granted by this paragraph. In addition to the foregoing, the Association shall have the authority and standing to pursue all legal and equitable remedies available to enforce the provisions of this Article and the decision of the DRC. 11.9 Building Site. The DRC may establish building areas for each Unit. If so established, construction of a residence shall be restricted to said area, unless the DRC, upon good cause shown by the Unit Owner, shall select another suitable building area upon a Unit. Constructing on such alternate site shall not interfere with the view of any adjacent Unit nor shall it encroach upon any established Unit setback requirement. Article'XII USE GUIDELINES AND RESTRICTIONS 12.1 Plan of Development; Applicability; Effect. Declarant has created ASPEN LAKES as a residential and recreational development and, in furtherance of its and every other Owner's interests, has established a general plan of development for ASPEN LAKES as a master planned community. The Properties are subject to land development, architectural, and Design Guidelines as set forth in Article XI. The Properties are subject to guidelines and restrictions governing land use, individual conduct, and uses of or actions upon the properties as provided in this Article XII. This Declaration and resolutions of the Board may establish affirmative and negative covenants, easements, and restrictions ("Use Guidelines and Restrictions"). All provisions of this Declaration and of any Association rules shall also apply to all occupants, tenants, guests, and invitees of any Unit. Any lease on any Unit shall provide that the lessee and all occupants of the leased Unit shall be bound by the terms of this Declaration, the By-Laws, and the rules of the Association. Declarant promulgates ASPEN LAKES' general plan of development in order to protect all Owners' quality of life and collective interests, the aesthetics and environment within the Properties, and the vitality of and sense of community within ASPEN LAKES all subject to the Board's and the Members' ability to respond to changes in circumstances, conditions, needs, and desires within the master planned community. Declarant has prepared initial Use Guidelines and Restrictions which contain general provisions applicable to all of the Properties, as well as specific provisions which may vary within the Properties depending upon the location, characteristics, and intended use. Such initial Use Guidelines and Restrictions are set forth in Section 12.6. Based upon these Use Guidelines and Restrictions, the Board shall adopt the initial rules at its initial organizational meeting. 12.2 Board Power. Subject to the terms of this Article XII and to its duty of care and undivided loyalty to the Association and its Members, the Board shall implement and manage the Use Guidelines and Restrictions through rules which adopt, modify, cancel, limit, create exceptions to, or expand the Use Guidelines and Restrictions. Prior to any such action, the Board shall conspicuously publish notice of the proposal at least five business days prior to the Board meeting at which such action is to be considered. Owners shall have a reasonable opportunity to be heard at a Board meeting prior to action being taken. The Board shall send a copy of any proposed new rule or amendment to each Owner at least 30 days prior to its effective date. The rule shall become effective unless disapproved at a meeting by Voting Members representing at least 66 2.3% of the total Class "A" votes and by the Declarant so long as the Declarant owns property subject to this Declaration, or which may become subject to the Declaration. The Board shall have all powers necessary and proper, subject to its exercise of sound business judgment and reasonableness, to effect the powers contained in this Section 12.2. 16 The Board shall provide, without cost, a copy of the Use Guidelines and Restrictions and rules then in effect to any requesting Member or Mortgagee. 12.3 Members' Power. The Voting Members, at a meeting duly called for such purpose as provided in Section 2.4 of the By-Laws, may adopt, repeal, modify, limit, and expand Use Guidelines and Restrictions and implementing rules by a vote of 66 2/3% of the total Class "A" votes and the approval of the Declarant so long as the Declarant owns property subject to this Declaration or which may become subject to the Declaration. 12.4 Owners' Acknowledgment. All Owners are subject to the Use Guidelines and Restrictions and are given notice that (a) their ability to use their privately owned property is limited thereby, and (b) the Board may add, delete, modify, create exceptions to, or amend the Use Guidelines and Restrictions in accordance with Sections 12.2, 12.3, and 17.2. Each Owner by acceptance of a deed acknowledges and agrees that the use and enjoyment and marketability of his or her property can be affected by this provision and that the Use Guidelines and Restrictions and rules may change from time to time. 12.5 Rights of Owners. Except as may be specifically set forth in Section 12.6, the Board may not adopt any rule in violation of the following provisions: (a) Eaual Treatment. Similarly situated Owners and occupants shall be treated similarly. (b) Household Composition. No rule shall interfere with the freedom of occupants of Units to determine the composition of their households, except that the Association shall have the power to require that all occupants be members of a single housekeeping unit and to limit the total number of occupants permitted in each Unit on the basis of the size and facilities of the Unit and its fair share use of the Common Area, including parking. (c) Activities Within Unit. No rule shall interfere with the activities carried on within the confines of Units, except that the Association may prohibit activities not normally associated with property restricted to residential use, and it may restrict or prohibit any activities that create monetary costs for the Association or other Owners, that create a danger to the health or safety of occupants of other Units, that generate excessive noise or traffic, that create unsightly conditions visible outside the Unit, that block the views from other Units, or that create an unreasonable source of annoyance. (d) Pets. No rule prohibiting the keeping of ordinary household pets shall be adopted over the objection of any affected Owner expressed in writing to the Association. The Association may adopt reasonable regulations designed to minimize damage and disturbance to other Owners and occupants, including regulation requiring damage deposits, waste removal, leash controls, noise controls, occupancy limits based on size and facilities of the Unit, and fair share use of the Common Area. Nothing in this provision shall prevent the Association from requiring removal of any animal that represents an actual threat to the health or safety of residents or from requiring abatement of any nuisance or unreasonable source of annoyance. (e) Allocation of Burdens and Benefits. The initial allocation of financial burdens and rights to use Common Areas among the various Units shall not be changed to the detriment of any Owner over that Owner's objection expressed in writing to the Association. Nothing in this provision shall prevent the Association from changing the Common Areas available, from adopting generally applicable rules for use of Common Areas, or from denying use privileges to those who abuse the Common Area, violate rules of this Declaration, or fail to pay assessments. This provision does not affect the right to increase the amount of assessments as provided in Article X. (f) Rights to Develop. No rule or actions by the Association or Board shall unreasonably impede Declarant's right to develop in accordance with the Master Plan. 12.6 Initial Use Guidelines and Restrictions. (a) General. The Properties shall be used only for residential, recreational, and related purposes (which may include, without limitation, offices for any property manager retained by the Association or business offices for the Declarant or the Association consistent with this Declaration and any Supplemental Declaration). (b) Restricted Activities. The following activities are prohibited within the Properties unless expressly authorized by, and then subject to such conditions as may be imposed by, the Board: (i) posting of signs of any kind except those required by law, including posters, circulars and billboards, provided that the Declarant shall be entitled to post signs consistent with the development concept; 17 (ii) parking of commercial vehicles, recreational vehicles, mobile homes, boats or other watercraft, or other oversized vehicles, stored vehicles or inoperable vehicles in places other than enclosed garages; (iii) subdivision ofa Unit into two or more Units after a subdivision plan including such Unit has been. approved and filed with the appropriate governmental authority, or changing the boundary lines of any Unit, except that the Declarant shall be permitted to subdivide or change the boundary lines of Units which owns; (iv) active use of lakes, ponds, streams, or other bodies of water within the Properties or within any Golf Course, except that the owner of the Golf Course and its agents, successors and assigns, shall have the exclusive right and easement to retrieve golf balls from bodies of water within the Common Areas which are within range of golf balls hit from the Golf Course. The Association shall not be responsible for any loss, damage, or injury to any person or property arising out of the authorized or unauthorized use of lakes, ponds, streams or other bodies of water within or adjacent to the Properties; (v) operation of a fraction-sharing program exceeding five Owners whereby the right to exclusive use of the Unit rotates among participants in the program on a fixed or floating time schedule over a period of years, except that Declarant and its assigns may operate such a program with respect to Units which it owns; (vi) occupancy of a Unit by more than a single family. For purposes of this restriction, a single family shall be defined as any number of persons related by blood, adoption, or marriage living with not more that one person who is not so related as a single household unit, or no more than three persons who are not so related living together as a single household unit; (vii) capturing, trapping or killing wildlife within the properties, except in circumstances posing an imminent threat to the safety of persons using the Properties, and raising, breeding or keeping animals, livestock, or poultry of any kind, except that a reasonable number of dogs, cats, or other usual and common household pets may be permitted in a Unit. However, those pets which are permitted to roam free, or, in the sole discretion of the Board, make objectionable noise, endanger the health or safety of, or constitute a nuisance or inconvenience to the occupants of other Units shall be removed upon request of the Board. If the pet owner fails to honor such request, the Board may remove the pet; (viii) activities which materially disturb or destroy the vegetation, wildlife, or air quality within the properties, or which use excessive amounts of water, or which result in unreasonable levels of sound or light pollution; (ix) any construction, erection, or placement of ornamentation or other objects or equipment, permanently or temporarily, on the outside portions of the Unit, whether such portion is improved or unimproved; (x) the discharge of firearms within the Properties is prohibited. The term "firearms" includes B-B guns, pellet guns, bows and arrows, and other firearms of all types, regardless of size. Notwithstanding anything to the contrary contained herein, or in the By-Laws, the Association shall not be obligated to take action to enforce this provision; and (xi) Any business, trade, garage sale, moving sale, rummage sale, or similar activity, except that an Owner or occupant residing in a Unit may conduct business activities within the Unit so long as (a) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside the Unit; (b) the business activity conforms to all zoning requirements for the Properties; (c) the business activity does not involve regular visitation of the Unit by clients, customers, suppliers, or other business invitees or door-to-door solicitation of residents ofthe Properties; and (d) the business activity is consistent with the residential character of the Properties and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Properties, as may be determined in the sole discretion of the Board. This subsection shall not apply to any activity conducted by the Declarant or a Builder approved by the Declarant with respect to its development and sale of the Properties or its use of any Units which it owns within the Properties, including the operation of a timeshare or similar program. The leasing of a Unit shall not be considered a business or trade within the meaning of this subsection. "Leasing", for purposes of this Declaration, is defined as regular, exclusive occupancy of a Unit by any person other than the Owner, for which the Owner receives any consideration or benefit, including but not limited to a fee, service, gratuity, or emolument. Units may be leased only in their entirety. No fraction or portion may be leased. No structure on Unit other than the primary residential dwelling shall be leased or otherwise occupied for residential purposes. There shall be no subleasing of Units or assignment of leases unless prior written approval is obtained from the Board. All leases shall be in writing. No transient tenants may be accommodated in a Unit and all leases shall be for an initial term of no less than 30 days, except: (a) with the prior written consent of the Board, or (b) as initially authorized by Declarant in Exhibit "A" or a Supplemental Declaration for Units located within certain areas. The Owners may not amend this provision to prohibit leasing of Units within certain areas authorized by Declarant for rental to transient tenants and for a term less than 30 days until: (a) 75% of the Units within 18 a particular area are owned by Retail Owners, and (b) with approval of 75% of the Class "A" Members, other than the Declarant, within that particular area. Notice of any lease, together with such additional information as may be required by the Board, shall be given to the Board by the Unit Owner within ten (10) days of execution of the lease. The Owner must make available to the leasee copies of the Declaration, By-Laws, and the rules and regulations. The Board may adopt reasonable rules regulating leasing and subleasing. (c) Prohibited Conditions. The following shall be prohibited within the Properties: (i) exterior antennas, aerials, satellite dishes, or other apparatus for the transmission or reception of television, radio, satellite, or other signals of any kind unless completely contained within the dwelling on the Unit so as not to be visible from outside the dwelling or otherwise approved pursuant to Article XI; provided the Declarant and the Association shall have the right, without obligation, to erect or install and maintain such apparatus for the benefit of all or a portion of the Properties; (ii) sprinkler or irrigation systems or wells of any type which draw upon water from creeks, streams, ponds, or other ground or surface waters within the Properties; except that Declarant, the Association and the Golf Course shall have the right to collect and divert storm water runoff from streets and other hard surfaces for irrigation and other purposes; accordance with Article XI; the garage; and (iii) hedges, walls, dog runs, animal pens, or fences of any kind on any Unit except as approved in (iv) open garage doors. Garage doors shall remain closed at all times except when entering and exiting (v) excessive exterior lighting on any Unit. The Board shall in its sole discretion determine whether any exterior lighting is excessive. Exterior lighting shall be screened as set forth in the Design Guidelines. Article XIII EASEMENTS 13.1 Easements of Encroachment. There shall be reciprocal appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between each Unit and any adjacent Common Area and between adjacent Units due to the unintentional placement or settling or shifting of the improvement constructed, reconstructed, or altered thereon (in accordance with the terms of these restrictions) to a distance of not more than three feet, as measured from any point on the common boundary along a line perpendicular to such boundary. However, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, an Owner, occupant, or the Association. 13.2 Easements for Utilities, Etc. There are hereby reserved unto Declarant, so long as the Declarant owns any property described on Exhibits "A" or "B" of this Declaration, the Association, and the designees of each (which may include, without limitation, Deschutes County, Oregon and any utility) access and maintenance easements upon, across, over, and under all of the Properties to the extent reasonably necessary for the purpose of replacing, repairing, and maintaining cable television systems, master television antenna systems, security and similar systems, roads, walkways, bicycle pathways, trails, ponds, wetlands, irrigation systems, drainage systems, street lights, signage, and all utilities, including, but not limited to, water, sewers, meter boxes, telephone, gas, and electricity, and for the purpose of installing any of the foregoing on property which it owns or within easements designated for such purposes on recorded plats of the Properties. This easement shall not entitle the holders to construct or install any of the foregoing systems, facilities, or utilities over, under or through any existing dwelling on a Unit, and any damage to a Unit resulting from the exercise of this easement shall promptly be repaired by, and at the expense of, the person exercising the easement. The exercise of this easement shall not unreasonably interfere with the use of any Unit and, except in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or occupant. Declarant specifically grants to the local water supplier, electric company, telephone company, cable TV company, and natural gas supplier easements across the Properties for ingress, egress, installation, reading, replacing, repairing, and maintaining utility meters and boxes. However, the exercise of this easement shall not extend to permitting entry into the dwelling on any Unit, nor shall any utilities be installed or relocated on the Properties, except as approved by the Declarant. 13.3 Easements to Serve Additional Property. The Declarant hereby reserves for itself and its duly authorized agents, representatives, employees, successors, assigns, licensees, and mortgagees, an easement over the Common Area for the purposes of enjoyment, use, access, and development to the property described in Exhibit "B", whether or not such property is made subject to this Declaration. This easement includes, but is not limited to, a right of ingress and egress over the Common Area for construction of roads and for connecting and installing utilities on such property. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Area as a result of vehicular traffic connected with development of such property. Declarant futher agrees that if the easement is exercised for permanent access to such property and such property or any portion thereof is not made subject to this Declaration, the Declarant, its successors or assigns shall enter into a reasonable agreement with the Association to share the cost of maintenance of any access roadway serving such property. 13.4 Easements for Golf Course. (a) Every Unit and the Common Area are burdened with an easement permitting golf balls unintentionally to come upon such Common Area and Units and for golfers at reasonable times and in a reasonable manner to come upon the Common Area or the exterior portions of a Unit to retrieve errant golf balls; provided, however, if any Unit is fenced or walled, the golfer shal l seek the Owner's permission before entry. The existence of this easement shall not relieve golfers of liability for damage caused by errant golf balls. Under no circumstances shall any of the following Persons be held liable for any damage or injury resulting from errant golf balls or the exercise of this easement: the Declarant; the Association or its Members (in their capacity as such); KMB Enterprises, its successors, successors-in-title to the Golf Course, or assigns; any successor Declarant; any Builder or contractor (in their capacities as such); any officer, director or partner of any of the foregoing, or any officer or director of any partner. (b) The Owner of the Golf Course, its respective agents, successors and assigns, shall at all times have a right and non-exclusive easement of access and use over those portions of the Common Areas reasonably necessary, with or without the use of maintenance vehicles and equipment, for the operation, maintenance, repair and replacement of the Golf Course. (c) The Properties immediately adjacent to the Golf Course are hereby burdened with a non-exclusive easement in favor of the Golf Course for overspray of water from any irrigation system serving the Golf Course. Under no circumstances shall the Association or the Owners ofthe Golf Course be held liable for any damage or injury resulting from such overspray or the exercise of this easement. (d) The Owner of the Golf Course, its respective agents, successors and assigns, shall have a perpetual, exclusive easement of access over the properties for the purpose of retrieving golf balls from bodies of water within the Common Areas lying reasonably within range of golf balls hit from the Golf Course. (e) The Owner of the Golf Course, its respective agents, successors and assigns, as well as its guests, invitees, employees, and authorized users of the Golf Course, shall at all times have a right and non-exclusive easement of access and use over all roadways and golf cart paths, if any, located or to be located within the Properties at reasonable times before, during and after golf tournaments and other similar functions held at the Golf Course. (f) The Owner of the Golf Course, its respective agents, successors and assigns, shall have a perpetual non- exclusive easement, to the extent reasonably necessary, over the Properties, for the installation, operation, maintenance, repair, replacement, monitoring and controlling of irrigation systems and equipment, including without limitation wells, pumps and pipelines, serving all or portions of the Golf Course. (g) The owner of the Golf Course, its respective agents, successors and assigns, shall have a perpetual, non- exclusive easement to the extent reasonably necessary, over the Properties for the installation, maintenance, repair, replacement and monitoring of utility lines, wires, drainage pipelines and pipelines, serving all or portions of the Golf Course. (h) The Properties are hereby burdened with easements in favor of the Golf Course for natural drainage of storm water runoff from the Golf Course. (i) The properties are hereby burdened with easements in favor of the Golf Course for golf cart paths serving the Golf Course. Under no circumstances shall the Association or the Owners of the Golf Course be held liable for any damage or injury resulting from the exercise of this easement. 0) The Owner of the Golf Course, its respective agents, successors and assigns, as well as its guests, invitees, employees, and authorized users of the Golf Course, shall at all times have a right and non-exclusive easement to access and use over the golf cart paths located within the Properties. 13.5 Easement for Cross-Drainage. Every Unit and the Common Area shall be burdened with easements for natural drainage of storm water runoff from other portions of the Properties, provided no person shall alter the natural drainage on any Unit so as to materially increase the drainage of storm water onto adjacent portions of the Properties without the consent of the Owner of the affected 20 property. 13.6 Right of Entry. The Association shall have the right, but not the obligation, to enter upon any Unit for emergency, security, and safety reasons, to perform maintenance pursuant to Article V hereof, and to inspect for the purpose of ensuring compliance with this Declaration, any Supplemental Declaration, By-Laws, and rules, which right may be exercised by any Member of the Board, the Association, officers, agents, employees, and managers, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the right of the Association to enter upon any Unit to cure any conditions which may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure the condition within a reasonable time after requested by the Board, but shall not authorize entry into any single family detached dwelling without permission of the Owner, except by emergency personnel acting in their official capacities. 13.7 Maintenance. Some lots in this development are located adjacent to the Golf Course located within the Properties. Owners shall recognize that the proper maintenance of the Golf Course requires the use of mechanized equipment such as tractors, lawn mowers, fertilizer and/or pesticide applicators, and sprinkler systems, etc.. Some ofthis equipment must be operated in the early morning hours or late in the evening when the Golf Course is not in use. By acquiring a Unit which is located near the Golf Course, each such Person consents to the use of such equipment in a manner which is customary in the operation of Golf Courses in the Central Oregon area. Proper golf course maintenance requires adequate pest management. The golf course operator shall be allowed to take any actions necessary to control pests on the Golf Course or adjacent Properties without any interference. Article XIV MORTGAGE PROVISIONS The following provisions are for the benefit of holders, insurers and guarantors of first Mortgages on Units in the Properties. The provisions to this Article apply to both this Declaration and to the By-Laws, notwithstanding any other provisions contained herein. 14.1 Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage who provides written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the street address of the Unit to which its Mortgage relates, thereby becoming an "Eligible Holder"), will be entitled to timely written notice of: (a) any condemnation loss or any casualty loss which affects a material portion of the Properties or which affects any Unit on which there is a first Mortgage held, insured, or guaranteed by such Eligible Holder; (b) any delinquency in the payment of assessments or charges owed by a Unit subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of 60 days, or any other violation of the Declaration or By-Laws relating to such Unit or the Owner or occupant which is not cured within 60 days. Notwithstanding this provision, any holder of a first Mortgage is entitled to written notice upon request from the Association of any default in the performance by an Owner of a Unit of any obligation under the Declaration or By-Laws which is not cured within 60 days; (c) any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or (d) any proposed action which would require the consent of a specified percentage of Eligible Holders. 14.2 Special FHLMC Provision. So long as required by the Federal Home Loan Mortgage Corporation, the following provisions apply in addition to and not in lieu of the foregoing. Unless at least 66 2/3% of the first Mortgagees or Members representing at least 66 2/3% of the total Association entitled to vote, consent, the Association shall not: (a) by act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer all or any portion of the real property comprising the Common Area which the Association owns, directly or indirectly (the granting of easements for public utilities or other similar purposes consistent with the intended use of the Common Area shall not be deemed a transfer within the meaning of this subsection); (b) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner of a Unit; (c) by act or omission change, waive, or abandon any scheme of regulation or enforcement pertaining to 21 architectural design, exterior appearance or maintenance of Units and the Common Area (the issuance and amendment of architectural standards, procedures, rules and regulations, or use restrictions shall not constitute a change, waiver, or abandonment within the meaning of this provision); (d) fail to maintain insurance, as required by this Declaration; or (e) use hazard insurance proceeds from any Common Area losses for purposes other than the repair, replacement, or reconstruction of such property. First Mortgages may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against the Common Area and may pay overdue premiums on casualty insurance policies or secure new casualty insurance coverage upon the lapse of an Association policy, and first Mortgagees making such payment shall be entitled to immediate reimbursement from the Association. 14.3 Other Provision for First Lien Holders. To the extent possible under Oregon Law: (a) any restoration or repair of the Properties after a partial condemnation or damage due to an insurable hazard shall be performed substantially in accordance with this Declaration and the original plans and specification unless approval is obtained from the Eligible Holders of the first Mortgages on Units to which at least 51% of the votes of Units subject to Mortgages held by such Eligible Holders are allocated. (b) any election to terminate the Association after substantial destruction or a substantial taking in condemnation shall require the approval of the Eligible Holders of first Mortgages on Units to which at least 51 % of the votes of Units subject to Mortgages held by such Eligible Holders are allocated. 14.4 Amendments to Documents. The following provisions do not apply to amendments to the constituent documents or termination of the Association made as a result of destruction, damage, or condemnation pursuant to Section 14.3(a) and (b), or to the addition of land in accordance with Article IX. (a) The consent of Voting Members representing at least 66 2/3% of the Class "A" votes and of the Declarant, so long as it owns any land subject to this Declaration, and the approval of the eligible holders of first Mortgages on Units to which at least 66 2/3% of the votes of Units subject to a Mortgage appertain, shall be required to terminate the Association. (b) The consent of Voting Members representing at least 66 2/3% of the Class "A" votes and of the Declarant, so long as it owns any land subject to this Declaration, and the approval of Eligible Holders of first Mortgages on Units to which at least 51% of the votes of Units subject to a Mortgage appertain, shall be required to materially amend any provisions of the Declaration, By-Laws, or Articles of Incorporation, or to add any material provisions thereto which establish, provide for, govern, or regulate any of the following: (i) voting; (ii) assessments, assessment liens, or subordination of such liens; (iii) reserves for maintenance, repair, and replacement of the Common Area; (iv) insurance or fidelity bonds; (v) rights to use the Common Area; (vi) responsibility for maintenance and repair of the Properties; (vii) expansion or contraction of the Properties or the addition, annexation, or withdrawal of Properties to or from the Association; (viii) boundaries of any Unit; (ix) leasing of Units; (x) imposition of any right of first refusal or similar restriction of the right of any Owner to sell, transfer, or otherwise convey his or her Unit; (xi) establishment of self-management by the Association where professional management has been required by an Eligible Holder; or (xii) any provisions included in the Declaration, By-Laws, or Articles of Incorporation which are for the express benefit of holders, guarantors, or insurers of first Mortgages on Units. 14.5 No Priority. No provision of this Declaration or the By-Laws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Unit in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to, or a taking of, the Common Area. 22 14.6 Notice to Association. Upon request, each Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner's Unit. 14.7 Amendment by Board. Should the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation subsequently delete any of its respective requirements which necessitate the provisions of this Article or make any such requirements less stringent, the Board, without approval of the Owners, may record an amendment to this Article to reflect such changes. 14.8 Applicability of Article XIV. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, By-Laws, or Oregon law for any of the acts set out in this Article. 14.9 Failure of Mortgagee to Respond. Any Mortgagee who receives a written request from the Board to respond to, or consent to, any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within thirty (30) days of the date of the Association request, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested. Article XV DECLARANT'S RIGHTS 15.1 Transfer. Any or all of the special rights and obligations of the Declarant set forth in this Declaration or the By-Laws may be transferred to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration or the By-Laws. No such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Office of the County Clerk. Nothing in this Declaration shall be construed to require Declarant or any successor to develop any of the property set forth in Exhibit "B" in any manner whatsoever. So long as construction and initial sales of Units shall continue, the Declarant and Builders authorized by Declarant may maintain and carry on upon portions of the Common Area such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of such Units, including but not limited to business offices, signs, model units, and sales offices. The Declarant's or Builder's unilateral right to use the Common Area for the purposes stated in this paragraph shall not be exclusive and shall not unreasonably interfere with use of such Common Areas by Owners unless leased pursuant to a lease agreement with the Association providing for payment of reasonable rent. No Person shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Properties without Declarant's review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by recorded consent signed by the Declarant. The Declarant, in its sole discretion, may convert all or part of the Properties in Exhibits "A" and/or "B" to a "mini destination resort" or "destination resort" ("Resort") as those terms are now or hereafter defined in the Deschutes County Zoning Ordinance or any other applicable ordinance. If additional or substitute restrictions are appropriate or required under the Resort designation, the Declarant shall have sole discretion in making those changes. By purchasing a Unit in ASPEN LAKES each Owner expressly consents to such conversion to Resort status and to such additional or substitute restrictions and no further consent shall be required from any Owner. However, these additional or substitute restrictions shall not apply to those Units in Section 1, Township 15 South, Range 10 East, ofthe Willamette Meridian, except as may be necessary to establish Neighborhoods as described in Section 1.23 of this Declaration. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) 40 years after the conveyance of a Unit to a Retail Owner, or (b) upon recording by Declarant of a written statement that all sales activity has ceased. Thereafter, the Declarant or Builders may continue to use the Common Areas for purposes stated in this Section only pursuant to a rental or lease agreement between the Declarant or such Builder and the Association which provides for rental payments based on the fair market rental value of any such portion of the Common Areas. 15.2 Ownership and Operation of Golf Course. All Persons, including all Owners, are hereby advised that no representations or warranties have been or are made by the Declarant or any other Person with regard to the continuing existence, ownership or operation of the Golf Course, if any, and no purported representation or warranty in such regard, either written or oral, shall ever be effective without an amendment to this Declaration executed or joined into by the Declarant. Further, the ownership and/or operation of the Golf Course, if any, may change at any time and from time to time by virtue of, but without limitation, (a) the sale to, or assumption of operations of the Golf Course by an independent entity or entities; (b) the creation or conversion of the ownership and/or operating structure of the Golf Course to an "equity" club or similar arrangement whereby the Golf Course or the rights to operate it are transferred to an entity which is owned or controlled by its members; or (c) the transfer of ownership or control 23 of the Golf Course to one or more affiliates, shareholders, employees, or independent contractors of the Declarant. No consent of the Association or any Owner shall be required to effectuate such transfer or conversion. 15.3 Right to Use. Neither membership in the Association nor Ownership or occupancy of a Unit shall confer any ownership interest in or right to use the Golf Course. Rights to use the Golf Course will be granted only to such persons, and on such terms and conditions, as may be determined from time to time by the owner of the Golf Course. The owner of the Golf Course shall have the right from time to time in its sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of the Golf Course, including without limitation eligibility for and duration of use rights, categories of use and extent of use privileges, and number of users, and shall also have the right to reserve use rights and to terminate use rights altogether, subject to the provisions of any outstanding membership documents. 15.4 View Impairment. Neither the Declarant, the Association nor the owner or operator of the Golf Course guarantees or represents that any view over and across the Golf Course from adjacent Units will be preserved without impairment. The owner of the Golf Course, if any, shall have no obligation to prune or thin trees or other landscaping, and shall have the right, in its sole and absolute discretion, to add trees and other landscaping to the Golf Course from time to time. In addition, the owner of the Golf Course may, in its sole and absolute discretion, change the location, configuration, size and elevation of the tees, bunkers, fairways and greens on the Golf Course from time to time. Any such additions or changes to the Golf Course may diminish or obstruct any view from the Units and any express or implied easements for view purposes or for the passage of light and air are hereby expressly disclaimed. Declarant may choose to, but is not required to, construct a Club House facility to service the Golf Course. To enable that facility to enjoy a view of the Cascade Mountain Range, it may be necessary to remove or prune certain trees and vegetation on Common Area, Units numbered I through 3, 19 through 23, and 35 through 43 on plat no. 90-727 "Golf Course Estates At Aspen Lakes" Deschutes County, Oregon. Builders or Owners of said lots hereby agree to the removal of or pruning of such trees and vegetation on said lots as may be necessary for operator of said Golf Course to obtain and preserve views of the Cascade Range from Club House facility. 15.5 Limitations on Amendments. In recognition of the fact that the provisions of this Article are for the benefit of the owner of the Golf Course, no amendment to this Article, and no amendment in derogation of any rights reserved or granted to the owner of the Golf Course by other provisions of this Declaration, may be made without the written approval of the owner of the Golf Course. The foregoing shall not apply, however, to amendments made by the Declarant. 15.6 Jurisdiction and Cooperation. It is the Declarant's intention that the Association and the owner of the Golf Course shall cooperate to the maximum extent possible in the operation of the Properties and the Golf Course. Each shall reasonably assist the other in upholding the Community-Wide Standard. The Association shall have no power to promulgate rules and regulations affecting activities on or use of the Golf Course. Article XVI DISPUTE RESOLUTION AND LIMITATION ON LITIGATION 16.1 Agreement to Avoid Costs of Litigation and to Limit Right to Litigate Disputes. The Association, Declarant, Owners, all Persons subject to this Declaration, and any Person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, "Bound Parties"), agree to encourage the amicable resolution of disputes involving the Properties, and to avoid the emotional and financial costs of litigation if at all possible. Accordingly,each Bound Party covenants and agrees that all claims, grievances or disputes between such Bound Party and any other Bound Party involving the Properties, including without limitation claims, grievances or disputes arising out of or relating to the interpretation, application or enforcement of this Declaration, the By- Laws, the Association rules, or the Articles of Incorporation (collectively "Claim"), except for those claims authorized in Section 16.2, shall be subject to the procedures set forth in Section 16.3. 16.2 Exempt Claims. The following Claims ("Exempt Claims") shall be exempt from the provisions of Section 16.3: (a) any suit by the Association against any Bound Party to enforce the provisions of Article X; (b) any suit by the Association to obtain a temporary restraining order (or equivalent emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Association's ability to enforce the provisions of Article XI and Article XII; and 24 (c) any suit between Owners (other than Declarant) seeking redress on the basis of a Claim which would constitute a course of action under the law of the State of Oregon in the absence of a Claim based on the Declaration, By-Laws, Articles or rules of the Association, if the amount in controversy exceeds $5,000.00. Any Bound Party having an Exempt Claim may submit it to the alternative dispute resolution procedures set forth in Section 16.3, but there shall be no obligation to do so. 16.3 Mandatory Procedures For All Other Claims. Any Bound Party having a Claim ("Claimant") against any other Bound Party ("Respondent"), other than a Claim exempted from this provision by Section 16.2, shall not file suit in any court or initiate any proceeding before any administrative tribunal seeking redress or resolution of such Claim until it has complied with the following procedures: concisely: (a) Notice. The Claimant shall notify each Respondent in writing of the Claim ("Notice"), stating plainly and (i) the nature of the Claim, including date, time, location, persons involved, Respondents's role in the Claim and the provisions of this Declaration, the By-Laws, the rules, the Articles of Incorporation or other authority out of which the Claim arises; (ii) the basis of the Claim (i.e., the provisions of the Declaration, By-Laws, rules or Articles triggered by the Claim); (iii) what Claimant wants Respondent to do or not do to resolve the Claim; and (iv) that Claimant wishes to resolve the Claim by mutual agreement with Respondent, and is willing to meet in person with Respondent at a mutually agreeable time and place to discuss in good faith ways to resolve the Claim. (b) Negotiation. (i) Each Claimant and Respondent ("Parties") shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. (ii) Upon receipt of a written request from any Party, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in resolving the dispute by negotiation, if in its discretion it believes its efforts will be beneficial to the Parties and to the welfare of the community. (c) Mediation. (i) If the Parties do not resolve the Claim through negotiation within 30 days of the date of the Notice (or within such other period as may be agreed upon by the Parties) ("Termination of Negotiations"), Claimant shall have 30 additional days within which to submit the Claim to mediation under the auspices of the Neighborhood Mediation Center in Portland,Oregon, or such other independent agency providing similar services upon which the parties may mutually agree. (ii) If Claimant does not submit the Claim to mediation within 30 days after Termination of Negotiations, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons not a Party to the foregoing proceedings. (iii) If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation process, the mediator shall, within five days of the termination of the mediation proceedings, provide the Parties with a written non-binding recommendation for resolution of the Claim ("Mediator's Recommendation"). (d) Final and Binding Arbitration. (i) If the Parties do not agree in writing to accept the Mediator's Recommendation within 10 days after receipt of notice thereof, the Claimant shall have 30 additional days to submit the Claim to arbitration in accordance with the Rules of Arbitration contained in Exhibit "D" or the Claim shall be deemed abandoned, and Respondent shall be released and discharged from any and all liability to Claimant arising out of such Claim; provided nothing herein shall release or discharge Respondent from any liability to Persons not a Party to the foregoing proceedings. (ii) This subsection (d) is an agreement of the Bound Parties to arbitrate all Claims except Exempt Claims and is specifically enforceable under the applicable arbitration law of the State of Oregon. The arbitration award (the "Award") shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Oregon. 25 16.4 Allocation of Costs of Resolvinjz Claims. (a) Each Party shall bear all of its own costs incurred prior to and during the proceedings described in Section 16.3 (a), (b), and (c), including the fees of its attorney or other representative. Each Party shall share equally all charges rendered by the mediator(s) pursuant to Section 16.3(c). (b) Each Party shall bear all of its own costs (including the fees of its attorney or other representative) incurred after the termination of mediation under Section 16.3(c) and shall share equally in the costs of conducting the arbitration proceeding (collectively, "Post Mediation Costs"), except as otherwise provided in this subsection; provided, however, if the Claim is rejected in whole or in part, the Claimant shall pay all Post Mediation costs, including the costs incurred by the Respondent. 16.5 Enforcement of Resolution. If the Parties agree to resolve any Claim through negotiation or mediation in accordance with Section 16.3 and any Party thereafter fails to abide by the terms of such agreement, or if the Parties agree to accept the Award following arbitration and any Party thereafter fails to comply with such Award, then any other party may file suit or initiate administrative proceedings to enforce such agreement of Award without the need to again comply with the procedures set forth in Section 16.3. In such event, the Party taking action to enforce the agreement or Award shall be entitled to recover from the non- complying Party (or if more than one non-complying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including without limitation attorney fees and court costs. Article XVII GENERAL PROVISIONS 17.1 Term. This Declaration shall run with and bind the Properties, and shall inure to the benefit of, and shall be enforceable by the Association or any Owner, their respective legal representatives, heirs, successors, and assigns, for a term of 40 years from the date this Declaration is recorded. After such time, this Declaration shall be automatically extended for successive periods of 10 years, unless an instrument in writing, signed by a majority of the the Owners, has been recorded within the year preceding each extension, agreeing to amend, in whole or in part, or terminate this Declaration, in which case this Declaration shall be amended or terminated as specified therein. 17.2 Amendment. (a) By Declarant. (1) Prior to the conveyance of the first Unit to a Retail Owner, Declarant may unilaterally amend this Declaration. After the conveyance of any Unit, the Declarant may unilaterally amend this Declaration if such amendment is; (i) necessary to bring any provision into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (ii) necessary to enable any reputable title insurance company to issue title insurance coverage on the Units; (iii) required by an institutional or governmental lender, purchaser, insurer or guarantor of Mortgage loans, including for example the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable it to make, purchase, insure or guarantee Mortgage loans on the Units; or (iv) otherwise necessary to satisfy the requirements of any governmental agency for approval of this Declaration. This Declaration may be amended in accordance with Section 17.2(b). (2) Declarant may at any time amend this Declaration without consent of Owners, Board, or Association in connection with any conversion of the property to a Destination Resort as allowed in Section 15.1 herein. (b) By Owners. Unless the Declarant has the right to amend this Declaration in accordance with Section 17.2(a), this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Voting Members representing 75% of each class of Members. After conversion of the Class "B" membership to Class "A" membership, the Declaration may be amended by the vote or written consent of the Voting members representing at least (a) 75% of the Members; and (b) 75% of the Members other than the Declarant. In addition, the approval requirements set forth in Article XIV hereof shall be met if applicable. Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. 26 (c) Validity and Effective Date of Amendments. Amendments to this Declaration shall become effective upon their being recorded in the Office of the County Clerk unless a later effective date is specified therein. Any procedural challenge to an amendment must be made within one year of its recording or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration. If an Owner consents to any amendment to this Declaration or the By-Laws, it will be conclusively presumed that such Owner has the authority to so consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment. No amendment may remove, revoke, or modify any right or privilege of the Declarant without the written consent of the Declarant or the assignee of such right or privilege. 17.3 Severability. Invalidation of any provision of this Declaration, in whole or in part, or any application of a provision of this Declaration by judgment or court order shall in no way affect other provisions or applications. 17.4 Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of the Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. 17.5 Litigation. No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by Voting Members representing at least a majority of a quorum of the Class "A" Members. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); (b) the impositions and collection of assessments as provided in Article X; (c) proceedings involving challenges to ad valorem taxation; or (d) counterclaims brought by the Association in proceedings instituted against it. This Section shall not be amended unless such amendment is approved by the percentage of votes, and pursuant to the same procedures, necessary to institute proceedings as provided above. This provision shall apply in addition to the provisions of Article XVI, if applicable. 17.6 Use ofthe Words "ASPEN LAKES". No Person shall use the words "ASPEN LAKES" or any derivative, or any other term which Declarant may select as the name of this development or any component thereof, in any printed or promotional material without the Declarant's prior written consent. However, Owners may use the words "ASPEN LAKES" in printed or promotional matter solely to specify that particular property is located within the Properties and the Association shall be entitled to use the words "ASPEN LAKES" in its name. 17.7 Compliance. Every Owner and occupant of any Unit shall comply with this Declaration, the By-Laws, and the rules of the Association. Failure to comply shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, by the Association or, in a proper case, by an aggrieved Unit Owner(s). 17.8 Attorneys' Fees. In the event of an action instituted to enforce any of the provisions contained in this Declaration, the Articles of Incorporation or the By-Laws, the party prevailing in such action shall be entitled to recover from the other party thereto as part of the judgment, reasonable attorneys' fees and costs of such suit. In the event the Association is a prevailing party in such action, the amount of such attorneys' fees and costs shall be a Special Assessment with respect to the Unit(s) involved in the action. 17.9 Enforcement of Bonded Obligations. In the event improvements to the Common Area have not been completed as may be required according to approval provisions covering the Properties by Deschutes County or other government entity authorizing the commencement of Unit sales (Commencement of Sales) and the Association, as a result of such lack of completion, is an obligee under a bond or other arrangement ("Bond") to secure performance of the commitment of the Declarant or a Builder to complete such improvements, the following shall apply: (a) The Board shall consider and vote upon the question of action by the Association to enforce the obligations under the Bond with respect to any improvements for which a "Notice of Completion" has not been filed within 60 days after the completion date specified for such improvement in the "Planned Construction Statement" appended to the Bond. If the Association has given an extension in writing for the completion of any Common Area improvement, the Board shall consider and vote on the aforesaid question if a "Notice of Completion" has not been filed within 30 days after the expiration of such an extension. (b) In the event the Board determines not to initiate action to enforce the obligation under the Bond or in the event the Board fails to consider and vote upon such question as provided above, the Board shall call a special meeting of the Owners for the purpose of voting to override such decision or such failure to act by the Board. Such meeting shall be called according to the provisions of the By-Laws dealing with special meetings, but in any event, such meeting shall be held not less than 35 nor more than 45 days after receipt by the Board of a petition for such meeting, signed by Voting Members representing not less than 5% of the Members of the Association. 27 (c) Voting Members, other than the Declarant, shall be entitled to vote at such a meeting. A vote at such meeting of a majority of the Voting Members, other than Declarant, to take action to enforce the obligations under the Bond shall be deemed to be the decision of the Association, and the Board shall thereafter implement such decision by initiating and pursuing appropriate action in the name of the Association. IN WITNESS WHEREOF, the undersigned Declarant has executed this Amended Declaration this day of . 1993. KMB ENTERPRISES, an Oregon Partnership 17204 Hwy 126 Sisters, OR 97759 By: By: By: STATE OF OREGON, County of Deschutes, ss: On 1993, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be a partner of the partnership that executed the within instrument and acknowledged to me that such partnership executed the same. Notary Public for Oregon My Commission Expires STATE OF OREGON, County of Deschutes, ss: On 1993, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be a partner of the partnership that executed the within instrument and acknowledged to me that such partnership executed the same. Notary Public for Oregon My Commission Expires. STATE OF OREGON, County of Deschutes, ss: On 1993, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be a partner of the partnership that executed the within instrument and acknowledged to me that such partnership executed the same. Notary Public for Oregon My Commission Expires _ 28 EXHIBIT "A" Lots One (1) through Forty-three (43), rights of way for private roads designated as Brian Drive, Joseph Court, Matthew Drive, and Pamela Drive, inclusive of GOLF COURSE ESTATES AT ASPEN LAKES, Deschutes County, Oregon. EXHIBIT "B" All of the following described property, or any division of, or new mapping thereof (1) Tracts A and B, inclusive of GOLF COURSE ESTATES AT ASPEN LAKES, Deschutes County, Oregon; (2) Tracts A and B, inclusive of THE RIM AT ASPEN LAKES, Deschutes County, Oregon; (3) Lots One (1) through Ten (10) in Block Seven (7), Lots One (1) through Seven (7) in Block Eight (8), Lots One (1) through Fourteen (14) in Block Nine (9), inclusive of WILD HORSE MEADOWS, Deschutes County, Oregon; (4) any real property now owned or hereafter acquired by Declarant within One (1) mile of the perimeter boundary of the above described property. Such property, if not now owned, must be acquired within Ten (10) years of the date of recording of these restrictions. EXHIBIT "D" Rules of Arbitration 1. Claimant shall submit a Claim to arbitration under these Rules by giving written notice to all other Parties stating plainly and concisely the nature of the Claim, the remedy sought and Claimant's desire to submit the Claim to arbitration ("Arbitration Notice"). 2. Each Party shall select an arbitrator ("Party Appointed Arbitrator"). The Party appointed Arbitrators shall, by agreement, select one or two neutral arbitrators ("Neutral(s)") so that the total arbitration panel ("Panel") has an odd number of arbitrators. If any Party fails to appoint Party Appointed Arbitrator within 20 days from the date of the Arbitration Notice, the remaining arbitrators shall conduct the proceedings, selecting a Neutral in place of any missing Party Appointed Arbitrator. The Neutral arbitrator(s) shall select a chairperson ("Chair"). 3. If the Panel is not selected under Rule 2 within 45 days from the date of the Arbitration Notice, Claimant may notify the Oregon chapter of The Community Association Institute, which shall appoint one Neutral ("Appointed Neutral"), notifying the Appointed Neutral and all Parties in writing of such appointment. The Appointed Neutral shall thereafter be the sole arbitrator ("Arbitrator"), and any Party Appointed Arbitrators or their designees shall have no further duties involving the arbitration proceedings. 4. No person may serve as a Neutral in any arbitration under these Rules in which that person has any financial or personal interest in the result of the arbitration. Any person designated as a Neutral shall immediately disclose in writing to all Parties any circumstances likely to affect impartiality, including any bias or financial or personal interest in the outcome of the arbitration ("Bias Disclosure"). If any Party objects to the service of any Neutral after receipt of that Neutral's Bias Disclosure, such Neutral shall be replaced in the same manner in which that Neutral was selected. 5. The Arbitrator or Chair, as the case may be, ("Arbitrator") shall fix the date, time, and place for the hearing. The place of the hearing shall be within the Properties unless otherwise agreed by the Parties. 6. Any Party maybe represented by an attorney or other authorized representative throughout the arbitration proceedings. 7. All persons who, in the judgement of the Arbitrator, have a direct interest in the arbitration are entitled to attend hearings. 8. There shall be no stenographic record of the proceedings. 9. The hearing shall be conducted in whatever manner will, in the Arbitrator's judgement, most fairly and expeditiously permit the full presentation of the evidence and arguments of the Parties. 10. The Parties may offer such evidence and material as is relevant to the Claim, and shall produce such additional evidence as the Arbitrator may deem necessary to reach an understanding and determination of the Claim. The Arbitrator shall be the sole judge of the relevance and materiality of any evidence offered, and conformity to the legal rules of evidence shall not be necessary. The Arbitrator shall be authorized, but not required, to administer oaths to witnesses. 11. The Arbitrator shall declare the hearings closed when satisfied the record is complete. 12. There will be no posthearing briefs. 13. The Award shall be rendered immediately following the close of the hearing, if possible, and no later than 14 days from the close of the hearing, unless otherwise agreed by the Parties. The Award shall be in writing, shall be signed by the Arbitrator and acknowledged before a notary public. If the Arbitrator believes an opinion is necessary, it shall be in summary form. 14. If there is more than one arbitrator, all decisions of the Panel and the Award shall be by majority vote. 15. Each Party agrees to accept as legal delivery of the Award the deposit of a true copy in the mail addressed to that Party or its attorney at the address communicated to the Arbitrator at the hearing. PROPERTY TAXES Paying on time is a taxing issue for a few local officials Most are up to date, city, county planning commissioners are among the exceptions By .Hillary Bomid, Patrick Cliff, Scott Hammers and Cindy Powers The Bulletin . Government officials in Des- chutes County are paying their property taxes on time, with a couple of small exceptions and one large one. A Bend planning commis- sioner owed about $3,000 until contacted by The Bulletin earlier this week, while one Deschutes County planning commissioner owes approximately $2,800 and another commissioner's compa- ny owes nearly $200,000, accord- ing to county property records. Deschutes County Planning Conixnissforerz -Keith Cyrus owed the most -$199,441- pri- marily for property he owns through Wildhorse Meadows LLC. He owns 40 percent of the company, his daughter Pam Mitchell owns 20 percent and his son Matt Cyrus owns 40 percent, Matt Cyrus said. The property is Aspen Lakes Golf Course, which the Cyruses have said they want to convert to a destination resort, along with other land they own. The Bulletin examined the property tax records of city councilors, planning commis- sioners, county commissioners, city managers, the county ad- ministrator and other positions such as treasurer and justice of the peace. The search included companies owned by these pub- lic officials. The examination did not turn up any property tax delinquen- cies for officials in La Pine, Redmond or Sisters.. See Taxes /A6 'A6 Tuesday, June 29, 2010 • THE BULLETIN Taxes Continued from Al Deschutes County collects tax- es owed to itself, as well as taxes for schools, cities, road districts, park districts, fire districts and other entities. Keith Cyrus said Friday he was unaware he owed so much in property taxes. Asked whether he was concerned that he owed a large amount, Cyrus said, "No." "I really don't know anything about that," he said. "That's not my end of the business." He referred questions about the tax delinquency to Matt Cyrus, who said his family has not paid the property taxes be- cause their golf course and de- velopment businesses have suf- fered financially for the past four years. "It's the nature of the develop- ment business," Matt Cyrus said. "There are a lot of assets that are subject to a lot of property taxes every year. It's normal business practice to let those ride in down years, and pay them up in good years." As for the benefit of not pay- ing those property taxes, Cyrus said it comes down to preserv- ing the cash flow for the family's businesses. Wildhorse Meadows' defaulted on approximately, $4.5 million in loans and interest secured to the golf course when it failed to make monthly payments from August 2009 through February, according to documents. PremierWest Bank began the foreclosure process in March and in addition to the loan prin- cipal and interest, the bank wants the Cyruses to, pay their delinquent taxes. The property is scheduled to go up for sale in late July, but Matt Cyrus said he has been working with the lender to obtain more time to repay the loan. "We're confident that won't be an issue," Cyrus said. The other Deschutes County planning commissioner with un- paid property taxes is Ed Criss, who owes approximately $2,900, according to county property records. Criss said he has been•unable to pay those taxes because the last year and a half have been difficult financially. "Just because I", volunteer with the Planning Commission doesn't mean I'm wealthy," he said. "It's tough for a lot of folks, and it's tough for me." Criss added that he believes tax delinquencies are personal information on which it is in- appropriate for newspapers to report. Bend officials settle tax bills Among Bend city officials, only one had more than a nomi- nal property tax delinquency What happens to tax scofflaws property taxes are chargeo interest on-thetlelinquent amount, The. county begins foreclosure.,proceedings after #fiTee year`s' worth.of taxes 9a unpaid. 'Source i'DeschutesCounty 'Deputy Tax CollectW Dave ~iltey. COVER STORY when contacted by The Bulletin last week. Bend City Planning Commis- sioner Doug Knight had paid the majority of a $9,100 tax bill for a downtown property he plans to develop through one of his busi- nesses. But Knight said Tuesday that expenses for design consul- tants on the project held up his ability to pay the rest. "I have three years to pay," Knight said in response to ques- tions about the delinquency. While Deschutes County property owners can pay their taxes in installments, the taxes are considered delinquent when a payment is not made on time. When property taxes are three years delinquent, the county has the right to foreclose. County property records show Knight paid the balance of $3,119 on Wednesday. An inadvertent error left Bend City Manager Eric King unwit- tingly owing the county $5.40 on his 2009 property taxes. Rush- ing to pay the bill, King didn't realize the numerals in the box on his property tax check didn't match what was written out on the "amount" line. When he got a letter from the county noting the discrepancy, King paid the difference. Tax scofflaws face interest, fees Deschutes County charges interest on delinquent taxes and begins tax foreclosure after three years go unpaid, said Deputy Tax Collector Dave Lilley. "There really is no benefit to not paying," Lilley said. "The only reason to do that is if you don't have the funds to pay it, or if the cost of your funds else- where are higher than 9 percent or 16 percent." The county charges 16 percent interest on delinquent property takes until the property goes into foreclosure, then it imposes a fee and switches to 9 percent interest on the amount in foreclosure. Property owners can avoid tax foreclosure by paying off one year of delinquent taxes annu- ally, to stay below the three-year limit. But once they are approxi- mately one month into tax fore- closure, their only option is to pay off the entire amount, Lilley said. This year, the county will ini- tiate tax foreclosures against property owners who owe taxes going back to the 2006 tax year. Wildhorse Meadows' delin- quent taxes begin in 2007, so the Cyruses have a year before they would face tax foreclosure. Hillary Borrud can be reached at 541-617-7829 or at hborrud@ bendbulletin.com. Patrick Cliff can be reached at 541-633-2161. Scott Hammers can be reached at 541-383-0387 or shammers@ bendbulletin.com. Cindy Powers can be reached at 541-617-7812 or at cpowers@bendbulletin. com. Z E Ai ,V L V W ^ton W O hom n~ W O L V W v L c O ■ E E O V as o as 0040 Cd (L) 4, o " W aUi n 'o.° -.tea o ° bno~ $0 U23~ o cd Cd 'o In -&n 13 0 co 0 14= q) r" 0 v o Q. CD i 'U (L) y 0 O ~O by U Z p p w U 0CIO ) a~ .c bSD (L) 9 5, 5- a) ~ w= ~ w «f 0 f G) 0 En C ~w O~ w y y a~ y N on°' 0 ° 3 o ">,o='o,~ U; ~o x aVi 0° a= 3 0 a o.b o, .c'~ o p o..O Z ~ ~D°U'U ~cOiwxOcaca.'~UA VR.~•~.~ 20as°Qb.0 ~ici~OO~ -0 1 a~~OOy"cisC>bp o 0 ° ca• o o'o c~.ox~ &n E } a b°o~~ Q) w o 3'nu esa °°v av 0 (1) O sp. ~ a> ~ +0~ a) CIS ~ ct$ Ca cti a O O a3 O 0 •o y bA Cam " ° a$ aUi y p O 0 d .2 C. = r. CL) W I 'v, M p D vpi a~i O" y° Q 0 6 OFD O 0 co .0 0 c4 R. o y Q' a. O y V O N° 0 "O y 00 a s. 0 i t. 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A.pq_ b40 V CL) U Nw•V D'cii O V O.rO.,' C V x y.° w C b o N O, ° V rn '.Lys v y~ O O pOp y~ V 3= O z ca 'o E CL) OWN, o CL) E4. 0p OQ E ~ ~ Q O E Ida 0 C's cd = 33 S D'•m m b ca O fit". z+ w (3) cn .cn 0 .7 p, r ~o'ro b~v°~ °c.0 co s. a C, o3: :n09 FCO/Fagen Tree's and Chips Wade Fagen, Consulting Arborist 1328 NE Seward Bend, OR 97701 (541) 382-4997 Cell (541420-6645) June 18, 2010 Attn: Joe Stutler Deschutes County Forester (541) 322-7117 Office (541) 388-2719 Fax 61150 SE 27' Street Bend, OR 97701 Dear Joe Stutler, I have contacted your office and we subsequently have discussed the request for Bid Grinding for the Deschutes & Crook Counties Wildfire Grant bid results emailed 6/11/10. Your letter stated that you would be making recommendations and issuance of contracts pending review and approval of legal counsel and the County Administrators. I feel that our discussion of the results did not give my situation the proper respect and understanding that it truly deserved. I would like to submit a formal appeal and would like to further the discussion of keeping the money here in Central Oregon. I feel that my key points again stated below were not considered. It seems as thought you want the grinding done for free. The material chipped will be made into mulch locally. This is more beneficial at sequestering carbon in three ways: The material is not burned, keeping carbons out of the air. Since the material stays local, less forest fuels are used by decreased transportation distance. All equipment used runs on Bio-diesel, essentially a closed carbon loop fuel, saving yet more carbon output. I am asking for an appeal of your decision and a formal hearing to discuss this issue. Please let our office know of this formal process. Sincerely, Wade Fagen/President Fagen Trees & Chips Certified Arborist # PN0862A CCB#100453 Cc; County Commissioners .TES C Board of County Commissioners February 11, 2010 Sent via First Class Mail 1300 NW Wall St, Suite 200 • Bend, OR 97701-1960 (541) 388-6570 • Fax (541) 385-3202 www. co. deschutes. or. us board @ co. deschutes. or. us Tammy Baney Dennis R. Luke Alan Unger RE: Fuels Treatment Qualified Pool Retainer Agreements NOTICE OF INTENT TO AWARD CONTRACT On January 20, 2010, the Deschutes County Forester considered proposals for selection of a qualified pool of providers for Fuels Treatment Services, pursuant to Deschutes County Code Chapter 2.37.130. Fuels Treatment Services consist of one or more of the following: hand piling, grapple piling, sheering, slash busting, chainsaw thinning, chipping and removal, pruning/ladder fuel reduction, mowing, pile burning, lop and scatter, pine needle removal, crush and masticate, dozer piling, mulching and tub/horizontal grinding. The Forester determined which of the proposers' submittals and the particular services they offered represented the best value to the County. Attached to this Notice on Exhibit A is a summary of the proposers and the particular services that the Forester has recommended be placed in a "qualified pool" for selection within the current calendar year to perform such services on various work sites to be identified by the Forester. The decision to not select a particular proposer or one or more services for which a proposal was submitted shall not be construed as County's determination such proposer(s) were not "qualified" in a general sense. Rather the decision not to select one or more proposers or services being proposed were considered not sufficiently competitive or not in the best interest of the public. This Notice of Intent to Award Contract is issued pursuant to ORS 279B.135 and Oregon Administrative Rule (OAR) 137-047-0610. The Board hereby waives application of Deschutes County Code 2.37.140(c), requiring protests to be filed within three (3) business days. A copy of this Notice is being provided to each firm or person that submitted a proposal for this contract. Any firm or person who believes that they are adversely affected or aggrieved may submit to the Board of County Commissioners of Deschutes County, Oregon, 1300 NW Wall Street, Suite 200, Bend, Oregon 97701, a written protest within seven (7) days after the issuance of this Notice of Intent to Award. The seven (7) day protest period will expire at 5:00 PM on Wednesday, February 20, 2010. Enhancing the Lives of Citizens by Delivering Quality Services in a Cost-Effective Manner Any protest must be in writing and specify any grounds upon which the protest is based. If no protest is filed within the protest period, this Notice of Intent to Award becomes an Award of Contract without further action unless, for good cause, this Notice is rescinded by the County before the expiration of the protest period. The selected proposers will execute a retainer agreement, provided by the County. The Forester is hereby authorized to execute such retainer agreements with the proposers (contractors) and the associated services set forth on Exhibit A. Under the terms of the retainer agreement contractors' names will be placed on a list. At such time as the Forester identifies a Work Site and the need for fuels treatment services for which a contractor has been identified, Forester will negotiate with a contractor from the list for a personal services contract. As part of the execution of such contract, the contractor will be required to provide a certificate of insurance. If you have any questions regarding this Notice of Intent to Award Contract, the selection methodology or the procedures under which the County is proceeding, please contact Joe Stutler, County Forester, Deschutes County Road Department, 61150 SE 27th Street, Bend, Oregon 97702. Telephone (541) 322-7117. Sincerely, Dennis R. Luke, Chair Deschutes County Board of Commissioners Letter sent to: Chip Sweeney, Advanced Tree Service, 335 NE 6t" Street, Bend, OR 97701. John Williams, Quicksilver Contracting Co., 64682 Cook Ave. #99, Bend, OR 97701. Steve Lawn, T2, Inc., 44501 Wiley Creek Drive, Sweet Home, OR 97386. Marc Barnes, Integrated Resource Management, PO Box 547, Philomath, OR 97370. David Holmes, Heart of Oregon Corps Inc., PO Box 279, Bend, OR 97709. Scott Nelson, Summitt Forests Inc., PMB 218, 1257 Siskiyou Blvd., Ashland, OR 97520. Robert Otteni, Professional Tree Care, PO Box 65, La Pine, OR 97739. David Vitelle, Bear Mountain Fire, PO Box 145, Sisters, OR 97759. Leroy Dalebout, 1072 Fort Jack Pine Drive, Gilchrist, OR 97737. Mike Shields, La Pine Equipment, PO Box 154, La Pine, OR 97739. Keith Ross, Keith Ross Contracting, 5067 W. Hwy. 126, Redmond OR 97756. Mike Glafka, All Seasons Cleanup Service, 60911 Ashford Drive, Bend, OR 97702. Scott Spaulding, Spaulding Property Maintenance, 400 NE Robin Court, Prineville, OR 97754. Jack Owen, Wildfire Fuels Reduction LLC, PO Box 3823, Sunriver, OR 97707. Eric Metzger, Running Tree, LLC, 19435 Calico Road, Bend, OR 97702 David Elpi, Sisters Forest Products, LLC, 69490 Green Ridge Loop, Sisters, OR 97759. Allan Clark, Allan Clark, LLC, 13661 SE Cayuse Street, Prineville, OR 97754. Ron Paden, Woodland Rehab and Restoration, LLC, PO Box 821, La Pine, OR 97739. Andy Smith, Spring River Tree Service, Inc., PO Box 1987, Sunriver, OR 97707. Chris Vaughan, Arbor 1 Tree Service, 1429 NW 10th Street, Bend, OR 97701 Mike Sellers, Barbwire Fencing Company, 19520 Rudi Road, Bend, OR 97701 Brian Skidgel, Bar 7 A, PO Box 890, Redmond, OR 97756 Eric Evans, Botanical Developments, 409 NW Franklin, Bend, OR 97701 Mark Brink, Brink Bros., Inc., 83938 Enterprise Road, Pleasant Hill, OR 97455 Art Chase, Chase Construction & Trucking, PO Box 908, Bend, OR 97708 Wade Fagen, Fagen Trees & Chips, 1328 NE Seward, Bend, OR 97701. Robert Morris, Long Butte Contracting, 21270 Gift Road, Bend, OR 97701. Jeremy Dice, PatRick Corporation, PO Box 758, Redmond, OR 97756. Tyler Seliger, Seliger Excavation, 8120 NW Oasis Lane, Redmond, OR 97756. Kevin Smalling, Smalling Construction, 3300 NW Helmholtz Way, Redmond, OR 97756. Tim Chain, Timothy Chain Construction, 19500 Buck Canyon Road, Bend, OR 97702. Wystan Brown, Wystan Brown Excavation, 20225 Tumalo Road, Bend, OR 97701 Exhibit A Advanced Tree Service 1. Tub/horizontal grinding 2. Removal & haul treated fuels Quicksilver Contracting Co. 1. Hand piling 2. Grapple piling 3. Sheering 4. Chainsaw thinning 5. Chipping & removal 6. Pruning & ladder fuel reduction 7. Mowing 8. Lop & scatter 9. Pine needle removal 10. Crush & masticate 11. Dozer piling 12. Mulching 13. Tub/horizontal grinding 14. Removal & haul treated fuels T2, Inc. 1. Tub/horizontal grinding Integrated Resource Management 1. Hand piling 2. Grapple piling 3. Sheering 4. Slash busting 5. Chainsaw thinning 6. Pruning & ladder fuel reduction 7. Mowing 8. Pile burning 9. Lop & scatter 10. Pine needle removal 11. Crush & masticate 12. Dozer piling 13. Mulching 14. Removal & haul treated fuels Heart of Oregon Corps Inc. 1. Hand piling 2. Chainsaw thinning 3. Chipping & removal 4. Pruning & ladder fuel reduction 5. Lop & Scatter 6. Pine needle removal 7. Removal & haul treated fuels Summitt Forests Inc. 1. Hand piling 2. Chainsaw thinning 3. Chipping & removal 4. Pruning & ladder fuel reduction 5. Mowing 6. Pile burning 7. Lop & Scatter 8. Pine needle removal 9. Mulching 10. Removal & haul treated fuels Professional Tree Care 1. Hand piling 2. Grapple piling 3. Sheering 4. Chainsaw thinning 5. Chipping & removal 6. Pruning & ladder fuel reduction 7. Mowing 8. Lop & Scatter 9. Pine needle removal 10. Dozer piling 11. Removal & haul treated fuels Bear Mountain Fire 1. Hand piling 2. Grapple piling 3. Sheering 4. Slash busting 5. Chainsaw thinning 6. Chipping & removal 7. Pruning & ladder fuel reduction 8. Mowing 9. Pile burning 10. Lop & scatter 11. Pine needle removal 12. Crush & masticate 13. Dozer piling 14. Mulching 15. Tub/horizontal grinding 16. Removal & haul treated fuels Leroy Dalebout 1. Mowing La Pine Equipment 1. Hand piling 2. Grapple piling 3. Sheering 4. Slash busting 5. Chainsaw thinning 6. Chipping & removal 7. Pruning & ladder fuel reduction 8. Mowing 9. Pile burning 10. Lop & scatter 11. Dozer piling 12. Removal & haul treated fuels Keith Ross Contracting 1. Hand piling 2. Grapple piling 3. Sheering 4. Chainsaw thinning 5. Chipping & removal 6. Pruning & ladder fuel reduction 7. Mowing 8. Pile burning 9. Lop & Scatter 10. Pine needle removal 11. Dozer piling 12. Removal & haul treated fuels All Seasons Cleanup Service 1. Hand piling 2. Grapple piling 3. Chainsaw thinning 4. Chipping & removal 5. Pruning & ladder fuel reduction 6. Mowing 7. Pine needle removal 8. Removal & haul treated fuels Spaulding Property Maintenance 1. Hand piling 2. Chainsaw thinning 3. Chipping & removal 4. Pruning & ladder fuel reduction 5. Mowing 6. Pile burning 7. Pine needle removal 8. Removal & haul treated fuels Wildfire Fuels Reduction LLC 1. Pile burning 2. Crush & masticate 3. Mulching Running Tree, LLC 1. Hand piling 2. Chainsaw thinning 3. Chipping & removal 4. Pruning & ladder fuel reduction 5. Mowing 6. Pile burning 7. Lop & scatter 8. Pine needle removal 9. Removal & haul treated fuels Sisters Forest Products, LLC 1. Hand piling 2. Grapple piling 3. Sheering 4. Slash busting 5. Chainsaw thinning 6. Chipping & removal 7. Pruning & ladder fuel reduction 8. Mowing 9. Pile burning 10. Lop & scatter 11. Pine needle removal 12. Crush & masticate 13. Dozer piling 14. Mulching 15. Removal & haul treated fuels Allan Clark, LLC 1. Hand piling 2. Grapple piling 3. Chainsaw thinning 4. Chipping & removal 5. Pruning & ladder fuel reduction 6. Mowing 7. Dozer piling 8. Removal & haul treated fuels Woodland Rehab and Restoration, LLC, PO Box 821, La Pine, OR 97739. 1. Hand piling 2. Grapple piling 3. Sheering 4. Chipping & removal 5. Pruning & ladder fuel reduction 6. Dozer piling 7. Removal & haul treated fuels Spring River Tree Service, Inc. 1. Chainsaw thinning 2. Chipping & removal 3. Pruning & ladder fuel reduction Arbor 1 Tree Service 1. Hand piling 2. Chainsaw thinning 3. Chipping & removal 4. Pruning & ladder fuel reduction 5. Lop & scatter Barbwire Fencing Company 1. Hand piling 2. Grapple piling 3. Sheering 4. Slash busting 5. Chainsaw thinning 6. Chipping & removal 7. Pruning & ladder fuel reduction 8. Mowing 9. Pile burning 10. Lop & scatter 11. Pine needle removal 12. Crush & masticate 13. Dozer piling 14. Mulching 15. Tub/horizontal grinding 16. Removal & haul treated fuels Bar7A 1. Hand piling 2. Grapple piling 3. Sheering 4. Chainsaw thinning 5. Chipping & removal 6. Dozer piling 7. Tub/horizontal grinding 8. Removal & haul treated fuels Botanical Developments 1. Hand piling 2. Sheering 3. Slash busting 4. Chainsaw thinning 5. Chipping & removal 6. Pruning & ladder fuel reduction 7. Mowing 8. Lop& scatter 9. Pine needle removal 10. Dozer piling 11. Mulching 12. Tub/horizontal grinding 13. Removal & haul treated fuels Brink Bros. 1. Grapple piling 2. Slash busting 3. Chipping & removal 4. Pruning & ladder fuel reduction 5. Mowing 6. Dozer piling Chase Construction & Trucking 1. Removal & haul treated fuels Fagen Trees & Chips 1. Hand piling 2. Grapple piling 3. Sheering 4. Slash busting 5. Chainsaw thinning 6. Chipping & removal 7. Pruning & ladder fuel reduction 8. Mowing 9. Pile burning 10. Lop & scatter 11. Pine needle removal 12. Crush & masticate 13. Dozer piling 14. Mulching 15. Tub/horizontal grinding 16. Removal & haul treated fuels Long Butte Contracting 1. Hand piling 2. Slash busting 3. Chainsaw thinning 4. Pruning & ladder fuel reduction 5. Mowing 6. Lop & scatter 7. Pine needle removal 8. Removal & haul treated fuels PatRick Corporation 1. Hand piling 2. Chainsaw thinning 3. Chipping & removal 4. Pruning & ladder fuel reduction 5. Pile burning 6. Lop & scatter 7. Pine needle removal 8. Removal & haul treated fuels Seliger Excavation 1. Grapple piling 2. Chipping & removal 3. Tub/horizontal grinding 4. Removal & haul treated fuels Smalling Construction 1. Hand piling 2. Grapple piling 3. Sheering 4. Slash busting 5. Chainsaw thinning 6. Chipping & removal 7. Pruning & ladder fuel reduction 8. Mowing 9. Lop & scatter 10. Pine needle removal 11. Dozer piling 12. Mulching 13. Tub/horizontal grinding 14. Removal & haul treated fuels Timothy Chain Construction 1. Hand piling 2. Chainsaw thinning 3. Pruning & ladder fuel reduction 4. Mowing 5. Lop & scatter 6. Pine needle removal Wystan Brown Excavation, 20225 Tumalo Road, Bend, OR 97701 1. Hand piling 2. Grapple piling 3. Chainsaw thinning 4. Mowing 5. Lop & scatter 6. Pine needle removal 7. Dozer piling 8. Removal & haul treated fuels REVIEWED LEGAL COUNSEL RETAINER AGREEMENT FOR FUELS TREATMENT PARTIES: Deschutes County, Oregon (County) Advanced Tree Service (Contractor) 1. TERM: Upon signature by both parties through December 31, 2010. 2. DELIVERABLES: Fuels Treatment consists of one or more of the following services: hand piling, grapple piling, sheering, slash busting, chainsaw thinning, chipping and removal, pruning/ladder fuel reduction, mowing, pile burning, lop and scatter, pine needle removal, crush and masticate, dozer piling mulching, tub/horizontal grinding and hazard fuel removal. More specific descriptions of each Fuels Treatment service can be found on the following web sites or, upon request, in a printed form: http://www.blm.gov/nm/st/en/prog/fire/fuels management/fuel treatments.html http://www.forestency-clopedia.net/p/p285 http://www.nifc.gov/fuels/overview/outsideCommunities.html For purposes of this retainer agreement a list of Services that may be provided by Contractor are identified on Exhibit A, attached hereto and incorporated herein. 3. COMPENSATION: The amount or rate of payment associated with each particular Service that may be provided by Contractor is shown on Exhibit A. Where such compensation is shown as a range, the parties will negotiate a fixed rate or price as part of preparing a service agreement. 4. LOCATION OF SERVICES: Services to be provided by Contractor will occur in Deschutes County at a place or places more specifically described at the time a service contract is executed. The service location may be referred to as Work Site. 5. PROCESS: Contractor and other contractors submitted proposals in response to County's RFP. County analyzed proposals for adequacy of labor, equipment and experience, as well as price. Based upon County's analysis of Contractor's proposal, County has selected Contractor and particular Services identified on Exhibit A to be listed among a pool of contractors to perform one or more of the Fuels Treatment services during the term of this Agreement. Services for which Contractor submitted a proposal, but which are not identified on Exhibit A will not be the subject of a services agreement between Contractor and County. Page 1 of 3 RETAINER AGREEMENT FOR FUELS TREATMENT Doc. No. 2010-074 At such time during the contract term that County identifies a particular Work Site, and required Services for which Contractor has been listed, County will notify Contractor or some other contractor from the pool for purposes of negotiating and preparing a services agreement. Following notification by County the parties shall negotiate specific terms, including the Work Site, Service(s), sequence of Service(s) and compensation. The parties will utilize a standard county personal services contract covering general terms. The Services may include only those identified on Exhibit A. If the parties are unable to reach an agreement on any term, including the amount or rate of compensation for any one or more particular Service(s) to be provided, County may in its sole discretion enter into an agreement with Contractor for performance of those Services on which the parties have successfully negotiated all terms, and separately negotiate with another contractor from County's pool for performance of Service(s) on which County and Contractor have not reached agreement. Notwithstanding any representation or rule to the contrary, the parties understand and agree that the County shall be entitled to determine in its sole discretion what particular Services are required at a Work Site, the appropriate sequence and timeframe in which such Services will be provided by Contractor and that such Services will be provided by a contractor from the pool at a rate or cost which County has determined represents the best value to the public. The parties shall execute a written agreement based upon the agreed terms. Contractor shall promptly furnish required certificates of insurance. Only after a contract is fully executed and acceptable proofs of insurance are furnished will County issue a Notice to Proceed. 6. NOTICE TO PROCEED: Following County issuance of Notice to Proceed but before Contractor begins work under the agreement; Contractor shall meet with the County Forester at the Work Site. The purpose of such meeting will be for the County to give specific instructions to Contractor as to Services to be furnished at the Work Site based upon unique circumstances. Contractor shall follow County's instructions as if set forth in the agreement. Dated this day of .2010 Deschutes County, Oregon County Forester Advanced Tree Service Chip Sweeney, Authorized Signature Page 2 of 3 RETAINER AGREEMENT FOR FUELS TREATMENT Doc. No. 2010-074 Exhibit A Chip Sweeney, Advanced Tree Service 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Tub/Horizontal Grinding: $475 per hour. 16. Remove & haul treated fuels to designated disposal sites: $80 per hour Page 3 of 3 RETAINER AGREEMENT FOR FUELS TREATMENT Doc. No. 2010-074 DESCHUTES COUNTY DOCUMENT SUMMARY (NOTE: This fort is required to be submitted with ALL contracts and other agreements, regardless of whether the document Is to be on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board agenda, the Agenda Request Form is also required. If this form is not included with the document, the document will be returned to the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form electronically to the Board Secretary.) Please complete all sections above the Official Review line. Date: anua 28, 201 Department: Forest Contractor/Supplier/Consultant Name: Numerous Qualified Pool Contractor: Contractor Contact: 0 Contractor Phone M Type of Document: 32 Retainer Agreements for Services for a Qualified Pool Goods and/or Services: Treat approximately 600 acres of wildland fuels in twelve (12) areas throughout Deschutes County. Some treatment will occur with "sweat equity" where private property owners will place defensible space materials along roads and driveways for pick up and disposal by contractors; other work will entail thinning, chipping and removal of fuels from county owned lands; and some work will entail grinding treated materials to convert either to compost or generate electricity. Background & History: During 2010 Deschutes County plans to treat approximately 600 acres of wildland hazardous fuels in twelve (12) work areas within the county. All work will be accomplished using service contracts and funded by federal and state agency grants Deschutes County has received. In order to minimize administrative work, all work areas and all potential "services" were consolidated in a a single Request for Proposal as per Deschutes County Code2.37.130. The Request for Proposal was issued December 15, 2009 by individually mailings to 63 contractors, additional the Request for Proposal was published in the Bend Bulletin which generated an additional 12 request by contractors. The Request for Proposal closed at 5:00 p.m. on January 20, 2010. A total of 32 proposals were received. By creating a qualified pool from the Request for Proposals, Deschutes County can select the best value contractor for each work area for specific services to be provided with individual service contracts utilizing the successful proposals. The following documents are attached for review; Request for Proposal, Notice of Intent and Retainer Agreement for services. This will be the third year where the Qualified Pool concept has been advertised and utilized to treat fuels in Deschutes County. A reement Starting Date: February 15,72 071 Ending Date: Decembe- 31, 2010 Annual Value or Total Payment: $600,000 ® Insurance Certificate Received check box) Insurance Expiration Date: Check all that apply: 2/9/2010 ® RFP, Solicitation or Bid Process ❑ Informal quotes (<$150K) ❑ Exempt from RFP, Solicitation or Bid Process (specify - see DCC §2.37) Funding Source: (Included in current budget? ® Yes ❑ No If No, has budget amendment been submitted? ❑ Yes ❑ No Is this a Grant Agreement providing revenue to the County? ® Yes ❑ No Special conditions attached to this grant: Deadlines for reporting to the grantor: None If a new FTE will be hired with grant funds, confirm that Personnel has been notified that it is a grant-funded position so that this will be noted in the offer fetter: ❑ Yes ® No Contact information for the person responsible for grant compliance: Name: Joe Stutler Phone M 322-7117 Departmental Contact and Title: Phone M Department Director Approval: Signature Date Distribution of Document: Retainer Agreements returned to Joe Stutler for mailing. Official Review: County Signature Required (check one): ❑ BOCC jDepartment Director (if <$25K) Administrator (if >$25K but W<$; if >$150K, BOCC Order No. ) Legal Review Date Z - ea-i. Document Number ,~O 1 d- 07 4 4--A r tA c?-6/ 0_ lo z4 Q h d U- /0 2/9/2010 w MEMORANDUM DATE: June 22, 2010 TO: Deschutes County Board of Commissioners FROM: Joe Stutler, Deschutes County Forester RE: Fagen Protest On May 24, 2010 1 sent via email a Request for Proposal (RFP) with a response date and time of 5:00 p.m. (COB) on June 3, 2010. There are ten contractors (providers) of tub/horizontal grinding on the Deschutes County Qualified Pool and each received the request of which six responded. The specific questions asked were as follows: RFP Questions 1. We are required to produce 22,000 Green Tons of biomass, how will the material be utilized and to what source(s) (specifically) will the material be delivered after the grinding? If contracts exist with companies for biomass products, please identify the names and locations. 2. If there is delay in transporting ground material, how long will the material occupy the disposal site? 3. All grinding will be at designated disposal sites with road access, please provide both the daily and monthly production levels in both Green Tons and Chip Truck Loads. 4. How many jobs will either be created or maintained with this job opportunity including your company and others associated with the effort? 5. Please provide total cost of grinding, loading and off-site transportation, please provide that cost in terms of $/hour. 6. Please provide costs of mobilization/re-mobilization from one disposal site to another, please provide that cost in terms of $/hour. On June 11, 2010 1 reviewed and analyzed the responses and sent my proposed recommendations to the respondents. On June 18, 2010 Mr. Wade Fagen (Fagen Trees and Chips) decided to protest my recommendations to the Deschutes County Board of Commissioners. On the same day (June 18, 2010) and prior to filing a protest, Mr. Fagen and I discussed the process, bids, criteria used for making the recommendation and the merits of economic stimulus before he decided to file a protest. We simply could not reach common ground on his issues. My first response is that Mr. Fagen's protest appears to address "non merit" issues of the RFP, consequently either non-responsive or Mr. Fagen wants to change the process or change his response to the RFP. Mr. Fagen seems to want to address carbon sequestration with his protest which was not a consideration in the RFP. Another consideration is the definition of biomass. In the original RFP I did not specifically quote the commonly used definition of biomass. Based on my professional experience with biomass and after research on the internet there is a wide range of definitions but the most commonly understood definition of biomass is "plant materials and animal waste used as fuel to create power by burning." All of the other respondents seemed to understand the intent of the RFP. Listed below are the key points/issues of Mr. Fagen's protest which I will address individually. 1. I feel that our discussion of the results did not give my situation the proper respect and understanding that it truly deserved. Response: On June 2, 2010 the day before the responses were due, Mr. Fagen submitted a response. After reviewing his response, Item 2 was not adequately addressed from the perspective that I could not sufficiently evaluate his response. I called Mr. Fagen and explained my concern and ask that he re-evaluate that response and gave an explanation of my desired expectations. Later that day (June 2, 2010) Mr. Fagen amended his original bid with the necessary information for Item 2. On June 18, 2010 Mr. Fagen and I discussed my evaluation and proposed recommendations of the responses. Mr. Fagen did have the same definition of biomass as me or the commonly held definition. Additionally, Mr. Fagen wanted to address carbon sequestration and keeping the economic stimulus results local in Deschutes County, which were not considerations of the RFP. Mr. Fagen asked that I discard the entire response and issue another RFP addressing his issues, which I declined. In summary, I worked with Mr. Fagen before and after the responses were due and the results are that I understand Mr. Fagen issues, I simply do not agree. 2. 1 would like to submit a formal appeal and would like to further the discussion of keeping the money here in Central Oregon. Response: The Biomass Stimulus Grant asked us to look beyond Deschutes County and we are looking at potential biomass opportunities in four counties, thus responsive to the grant received. The grant specifically asks us to consider biomass projects to improve the following scenario: "resulting in loss of jobs both in the field and at biomass energy facilities. Increasing the availability of biomass material will help to fill raw material gaps and allow retention of employees at facilities that produce energy from biomass." Since we have limited biomass energy facilities in Deschutes County, I was looking at job opportunities at those locations with my RFP questions. The reality is both contractors which are recommended to receive contracts employ people who live and work in Deschutes County thus local salaries, fuel, lodging and meals will also contribute to the local economy. The importance of jobs at the co-generations facilities and retaining the biomass energy infrastructure is also an important goal of the Stimulus Grant and was addressed in the RFP. The retention of the biomass energy infrastructure is important in furthering goals of wildland fire hazardous fuels reduction since it is the only industry that can support the long term use of large quantities of biomass materials. The stability of the biomass energy infrastructure also provides the basis for planned co- generation facilities to be built in Central Oregon. 3. It seems as though you want the grinding done for free. Response: Since the RFP asked for cost for grinding and other associated costs for mobilization and trucking this does not seem to fit with the RFP. 4. 1 feel that my key points again stated below were not considered. Response: Mr. Fagen's key points were not part of the RFP or his initial response and although understood, not considered as part of the RFP. 5. The material chipped will be made into mulch locally. This is more beneficial at sequestering carbon in three ways: Response: Mulch is not biomass by definition (plant material burned to create power). The reality is mulch continues to release both carbon dioxide and methane gas as it breaks down in nature. Methane gas is recognized as an even more powerful greenhouse gas than carbon dioxide by the magnitude of at least 30 times. There is no evidence that mulch itself sequesters carbon in the long term and must be replaced on a regular basis. Again sequestering carbon was not a RFP response requirement. 6. The material is not burned, keeping carbons out of the air. Response: True, the material is not burned (definition of biomass) but false from the perspective that mulch continues to release carbon dioxide as well as methane gas. 7. Since the material stays local, less forest fuels are used by decreased transportation distance. Response: I think Mr. Fagen's' point regarding local use was to imply that less fossil fuel is consumed by local use which is true. However, local use as mulch does not support the biomass energy infrastructure, including transportation, which is a major goal of the grant. 8. All equipment used runs on Bio-diesel, essentially a closed carbon loop fuel, saving yet more carbon output. Response: Although important neither were considerations in the RFP. Bio-diesel is currently not produced locally in volume. The majority of the bio-diesel is produced from soybeans grown in the Midwest using high levels of petroleum based fertilizers and heavy irrigation. The environmental benefits of 100% bio- diesel over the use of super low sulfur diesel, particulate filters, and bio- diesel blends on a per energy unit basis have yet to show that 100% bio- diesel is a superior choice for the environment. In fact, the National Bio- diesel Board reports that burning 100% bio-diesel results in a 10% increase in nitrogen oxides (NOx) when compared to standard diesel. In addition, the American Society of Testing and Materials (ASTM) has only approved bio-diesel blends of 20% or less for transportation use due to concerns regarding "cold flow" properties, material compatibility, maintenance intervals, fuel stability, biological growth, energy content, and emissions influence with higher concentrations. Mr. Fagen may have a personal preference to run 100% bio-diesel in his own trucks, but there is no data supporting the overall lifecycle benefits of this over the 20% or lower blends approved by the ASTM standard. In addition to my specific response to Mr. Fagen's protest issues, I have included Attachments 1&2 for your review and consideration which include the RFP questions, synopsis of response, my analysis and recommendations. Please contact me if you have additional questions. Thank you for scheduling a hearing date of June 30, 2010. /s/ Joe Stutler Joe Stutler Deschutes County Forester Attachments Cc: Dave Kanner, Erik Kropp, Mark Pilliod Attachment 1 2010 Biomass Bids RFP Questions : 1. We are required to produce 22,000 Green Tons of biomass, how will the material be utilized and to what source(s) (specifically) will the material be delivered after the grinding? If contracts exist with companies for biomass products, please identify the names and locations. 2. If there is delay in transporting ground material, how long will the material occupy the disposal site? 3. All grinding will be at designated disposal sites with road access, please provide both the daily and monthly production levels in both Green Tons and Chip Truck Loads. 4. How many jobs will either be created or maintained with this job opportunity including your company and others associated with the effort? 5. Please provide total cost of grinding, loading and off - site transportation, please provide that cost in terms of $/hour. 6. Please provide costs of mobilization/re-mobilization from one disposal site to another, please provide that cost in terms of $/hour. Responses: Bar7A: 1. Long history with numerous/diverse companies selling biomass fuels, current agreement/contracts to three companies for biomass products. Delivery of products based on location of raw material and prices at the time. 2. No delay in transportation, grind into trucks. 3. Production rate is 8 loads (256 green tons) per day and 160 loads (5120 GT) per month. 4. Create/maintain 6 jobs, possibly more with the need for trucking. 5. Costs would be $680 hour inclusive of grinder, trucks and other equipment. 6. Mobilization is $90/hour not including the trucks. T2: 1. Long history with numerous/diverse companies selling biomass fuels, current agreement/contracts to five companies for biomass products. Delivery of products based on location of raw material and prices at the time. 2. No delay in transportation, grind into trucks. 3. Production rate is 10-15 truck loads (300-450 GT) per day and 220- 330 chips truck (7,000-10,000 GT) per month. 4. Create/maintain 25 jobs directly with T2 and retain 12 positions @ Prairie City facility for a total of 37 positions. 5. Costs vary depending on quality of product: $545/hr. for high quality product; $685/hr. for marginal quality product; $400/hr. for dirty material/green waste and $80/hr. to truck to designated facility i.e. Knott Landfill. Charges will be for grinding only with high quality product. 6. Mobilization is $150/hour flat rate. Botanical Development: 1. Approximately 500 GT will be used for local landscape industry and no current contracts exist. 2. Two weeks or less. 3. Production rate is 80 GT/day and 1,760 GT/month. 4. Create/maintain 12 jobs. 5. Costs would be $650/hr. and off site transportation is $100/hr/truck. 6. Mobilization is $100/hr flat rate. Fagen Tree's and Chips: 1. All material will be used for mulch locally, nothing identified for contracts out of area. 2. No delay in transportation, grind into trucks. 3. Production rate is 4-8 trucks/day (100-160 GT) and 80-160 trucks/month (2000-4000 GT). 4. Create/maintain 13 jobs. 5. Costs would be $100/hr and $85/hr/truck. 6. Mobilization is $85/hr. Tyler Seliger Excavation: 1. On going contract with White City and have a quote from Prairie city. 2. The longest delay would be 1 week with hopes to transport daily. 3. Production rate is 6 trucks/day (180 GT) and 120 trucks/month (3600 GT). 4. Create/maintain 15 jobs. 5. Costs would be $350/hr. for grinder, $140/hr. for excavator/operator, $100/hr. for loader for total of $590/hr and $85/hr. for each truck. 6. Mobilization is $120/hr. Quicksilver: 1. Current contract with White City, potential delivery to other facilities. 2. No delay in transportation, grind into trucks. 3. Production rate is 12-14 trucks/day (360-420 GT) and 250-300 trucks/month (7500-8800 GT). 4. Create/maintain 10-15 jobs. 5. Costs would be $424/hr. 6. Mobilization costs would be $110/hr. Selection/Recommendation of best value contractor: After reviewing the response to the Request for Proposal and referring to the existing agreement with Oregon Department of Forestry which is specific to the scope and intent of the Stimulus Grant my recommendation to the County Administrator and County Commissioners is as follows: T2 will receive the primary contract for the work to be performed. Quicksilver will be the primary backup and also receive a contract in the event T2 is unable to keep up with the demand. I will make my recommendation for these contracts based on the following: 1. T2 and Quicksilver can produce the most green tons both daily and monthly of all the bidders. In reality we likely will exceed the 22,000 Green Ton targets thus volume/production is a key component. 2. Best value, both T2 and Quicksilver offer the best value based on grinding/mobilization based on the quantity of the product to be delivered with no additional costs per hour for trucking. 3. Job creation, T2 will create or maintain approximately 37 jobs and Quicksilver can create or maintain 10-15 jobs. 4. One of the primary purposes of the Stimulus Grant is to process biomass for energy production, T2 has the most contracts and diversity of delivery options and able to handle a wide range of product. 5. Fagen and Botanical were not chosen because a majority of the product would be used for mulch locally and no existing contracts for energy production. The daily and monthly production rates of each would likely not keep up with the demands. Additionally over all grind costs and costs for trucking could actually result in over all cost being higher per green ton based on the number of trucks and distances for hauling. T2 and Quicksilver offered flat rates for the same services with much higher production rates. 6. Bar Seven A was not chosen based on higher cost for grinding, lower production rates and approximately six jobs created or maintained although Bar Seven has a diverse delivery potential. 7. Tyler Seliger Excavation was not chosen based on higher overall costs, lower production rates and only one source for product identified. Below are excerpts from the Oregon Department of Forestry Agreement with Deschutes County identifying both scope and purpose of the Stimulus Grant. The purpose of the Grant is to fund work associated with collecting woody biomass that is produced by thinning overstocked stands and processing it for energy production. The marginal economics of creating and transporting biomass especially during the recent downturn in the economy has decreased the utilization of this material for producing renewable energy. The cost of processing and transporting woody biomass using existing techniques currently exceeds the value placed on the biomass as renewable energy. Consequently, the woody biomass from hazardous fuel treatment projects has been burned or the disposal has been postponed resulting in loss of jobs both in the field and at biomass energy facilities. Increasing the availability of biomass material will help to fill raw material gaps and allow retention of employees at facilities that produce energy from biomass. Attachment 2 Synopsis of Responses Contractor Maximum Cost/hour Cost/Green Additional Biomass Mobs Production Ton Costs Rate Bar 7 A 5,120 $680 $21.25 Unspecified Yes 6 GT/Month costs for trucking T2 10,000 $543 $8.68 None Yes 37 GT/Month ***average of 3 quotes Botanical 1,760 $650 $59.09 $10041r. Some/500 12 Development GT/Month and GT for unknown Mulch per day. Fagen Tree's 4,000 $100 $4.00 $85/hr. and No 13 and Chips GT/Month unknown per day Tyler Seliger 3,600 $590 $24.8 $85/hr. and Yes 15 Excavation GT/Month unknown per day Quick Silver 8,800 $424 $7.70 None Yes 10-15 GT/Month Green Ton Cost: 160 hrs. /Month X Cost/hr. divided by Monthly Production Rate= Costs/Green Ton . We Can Prevent Forest Fires With a Biomass Strategy - Biomass Magazine ..;.aloe-~,t iii i[0lLy1/k Search Articles RSS Feed Home Current Issue Subscribe Now Search Archive Events Ethanol Producer Biodiesel Magazine Advertising Contact Us BloLogue Biomass Radio M Advanced Search From the July 2010 Issue ShareTh! _:u RSS Feed We Can Prevent Forest Fires With a Biomass Strategy By Bob Cleaves After a long, cold winter, the summer is finally here. For most Americans, this is the season of cookouts, bonfires and fireworks. But these warm months also bring a different, dangerous kind of blaze: forest fires. Seemingly every year, forest fires bum through millions of acres across the country, devastating communities and causing billions of dollars in damage. The sad truth is that regular forest maintenance could greatly impede the speed and ferocity with which these fires spread; reducing costs to fight them and protecting homes and lives in harm's way. The climate legislation currently being considered by Congress should take into account that in addition to being a valuable renewable energy source, the biomass industry helps to reduce the spread of forest fires by clearing highly flammable debris from the forest floor. According to the National Interagency Fire Center, in Bob cleaves 2009 alone there were nearly 80,000 wildfires burning through almost 6 million acres across the United States. Forest fires are often fueled by excess small trees and brush that choke forests and create fire ladders that direct fires into the crowns of the largest trees. These varying tree densities and the dead, dry brush left behind act as kindling to allow crown fires to move across the landscape in a highly destructive manner. Anide Continues After Advertisement . h / 'D t~ LLL I I Jf~ -Y, ' ;J View current issue here View past issues here yc, 1. I The biomass power industry is uniquely positioned to improve forest health and reduce the threat of forest fires, while at the same time provide dean, renewable electricity to Americans in every region of the country Without proper forest maintenance-mincluding managed thinning and prescribed bums-forest waste is left to build up over time and stoke the flames of future fires. The biomass power industry is prepared to work directly with the U.S. Forest Service and other industry partners, as well as environmental groups, to ensure that forest material is carefully removed and converted to produce green electrical power. Some environmental groups fear that the biomass industry will dear-cut forests for fuel. This fear can be put to rest. It is not the practice of the biomass power industry to dear-cut forests and it is simply not economically viable to chop down whole trees to generate electricity. Biomass power uses only waste material such as scrap lumber, forest debris, or agricultural harvest waste to generate dean electricity, material that would otherwise be dumped in landfills, openly burned, or left as fodder for forest fires. re Page 1 of 2 ;14: Combustion Technologies for Biomass 8etrolt Stoker 119ompany All telihnologles. FE-0-1. ORMI 0-1111111111M BIODIESEL novozymes- Mh.rkTnm (Archived} http://www.biomassmagazine.com/article.jsp?article_id=3876 6/21/2010 We Can Prevent Forest Fires With a Biomass Strategy - Biomass Magazine Currently, the biomass power industry removes more than 68.8 million tons of forest waste annually. The biomass power industry effectively encourages regular forest management by creating a market for the excess small trees, slash and brush that are choking many of our forests. Removing this incentive to clear brush by discouraging biomass power would result in overgrown, unmanaged forests that pose an increased risk for forest fires. r Furthermore, generating electricity from biomass actually reduces greenhouse gases. As dead brush decomposes it releases harmful methane gas and carbon dioxide into the atmosphere. During the electricity-generating process, biomass power eliminates methane gas and reduces the carbon dioxide that would have been emitted otherwise. Accounting for displaced fossil fuels, the biomass power industry removes more than 30 million tons of greenhouse gases from the atmosphere annually. Leammnat The climate legislation introduced by Sens. John Kerry, D-Mass., and Joseph Lieberman, I-Conn., with its IVIWlPer&6erl frco m focus on stimulating the renewable energy industry, presents an opportunity for the biomass industry to gain the recognition it deserves as a viable and mature renewable energy source. Not only will more aggressive renewable energy mandates reduce greenhouse gas emissions, but these mandates will also spur new investment in biomass power and encourage the maintenance necessary to clear the waste debris responsible for fueling the massive forest fires witnessed around the country in recent years. Reducing the intensity and extent of forest fires by improving forest health will also lower costs for containment and keep firefighters and communities out of harm's way. Sens. Kerry and Lieberman are leading a new national agenda to build a clean energy economy. With the goals of reducing forest fires, creating jobs, and improving the environment, biomass power stands to lead the way in the renewable energy sector. Bob Cleaves is president and CEO of the Biomass Power Association. To learn more about biomass power, please visit www. USABiomass.om. Search This Article lW From the July 2010 Issue ShareThis Zj'Subscribe Print this Page 2 of 2 Home I Current Issue I Subscribe Now I Search Archive I Events I Ethanol Producer Magazine I Biodiesel Magazine I Advertising I About Us I Contact Us 308 2nd Avenue North, Suite 304 Grand Forks, ND 58203 (701)746-8385 Fax:(701)746-5367 Subscription Fax:(701)738-4927 p 2010 BBI International Media 7 http://www.biomassmagazine.com/article. j sp?article_id=3 876 6/21/2010 Biomass - Wikipedia, the free encyclopedia Biomass From Wikipedia, the free encyclopedia Page 1 of 5 Biomass, a renewable energy source, is biological material derived from living, or Renewable energy 1 recently living organisms, 111 such as wood, waste, (hydrogen) gas, and alcohol fuels. Biomass is commonly plant matter grown to generate electricity or produce heat. In this sense, living biomass can also be included, as plants can also generate electricity while still alive. [21 The most conventional way on how biomass is used however, still relies on direct incineration. Forest residues for example (such as Biofuel dead trees, branches and tree stumps), yard clippings, wood chips and garbage are Biomass Geothermal often used for this. However, biomass also includes plant or animal matter used Hydroelectricity for production of fibers or chemicals. Biomass may also include biodegradable Solar energy wastes that can be burnt as fuel. It excludes organic materials such as fossil fuels ( Tidal power which have been transformed by geological processes into substances such as coal Wave power or petroleum. Wind power Industrial biomass can be grown from numerous types of plants, including miscanthus, switchgrass, hemp, corn, poplar, willow, sorghum, sugarcanel31, and a variety of tree species, ranging from eucalyptus to oil palm (palm oil). The particular plant used is usually not important to the end products, but it does affect the processing of the raw material. Although fossil fuels have their origin in ancient biomass, they are not considered biomass by the generally accepted definition because they contain carbon that has been "out" of the carbon cycle for a very long time. Their combustion therefore disturbs the carbon dioxide content in the atmosphere. Plastics from biomass, like some recently developed to dissolve in seawater, are made the same way as petroleum-based plastics. These plastics are actually cheaper to manufacture and meet or exceed most performance standards, but they lack the same water resistance or longevity as conventional plastics.[4] Contents ■ 1 Chemical composition ■ 2 Biomass sources ■ 3 Biomass conversion process to useful energy ■ 3.1 Thermal conversion ■ 3.2 Chemical conversion ■ 3.2.1 Biochemical conversion ■ 4 Environmental impact ■ 5 See also ■ 6 References ■ 7 External links ■ 8 Further reading Chemical composition Biomass is carbon based and is composed of a mixture of organic molecules containing hydrogen, usually including atoms of oxygen, often nitrogen and also small quantities of other atoms, including http://en.wikipedia.org/wiki/Biomass 6/21/2010 2010 Biomass Bids RFP Questions: l' l1 ~~Or~ 1. We are required to produce 22,000 Green Tons of biomass, how will the material be utilized and to what source(s) (specifically) will the material be delivered after the grinding? If contracts exist with companies for biomass products, please identify the names and locations. 2. If there is delay in transporting ground material, how long will the material occupy the disposal site? 3. All grinding will be at designated disposal sites with road access, please provide both the daily and monthly production levels in both Green Tons and Chip Truck Loads. 4. How many jobs will either be created or maintained with this job opportunity including your company and others associated with the effort? 5. Please provide total cost of grinding, loading and off - site transportation, please provide that cost in terms of $/hour. 6. Please provide costs of mobilization/re-mobilization from one disposal site to another, please provide that cost in terms of $/hour. Responses: Bar 7 A : 1. Long history with numerous/diverse companies selling biomass fuels, current agreement/contracts to three companies for biomass products. Delivery of products based on location of raw material and prices at the time. 2. No delay in transportation, grind into trucks. 3. Production rate is 8 loads (256 green tons) per day and 160 loads (5120 GT) per month. 4. Create/maintain 6 jobs, possibly more with the need for trucking. 5. Costs would be $680 hour inclusive of grinder, trucks and other equipment. 6. Mobilization is $90/hour not including the trucks. T2: 1. Long history with numerous/diverse companies selling biomass fuels, current agreement/contracts to five companies for biomass products. Delivery of products based on location of raw material and prices at the time. 2. No delay in transportation, grind into trucks. 3. Production rate is 10-15 truck loads (300-450 GT) per day and 220-330 chips truck (7,000-10,000 GT) per month. 4. Create/maintain 25 jobs directly with T2 and retain 12 positions @ Prairie City facility for a total of 37 positions. 5. Costs vary depending on quality of product: $545/hr. for high quality product; $685/hr. for marginal quality product; $400/hr. for dirty material/green waste and $80/hr. to truck to designated facility i.e. Knott Landfill. Charges will be for grinding only with high quality product. 6. Mobilization is $150/hour flat rate. Botanical Development: 1. Approximately 500 GT will be used for local landscape industry and no current contracts exist. 2. Two weeks or less. 3. Production rate is 80 GT/day and 1,760 GT/month. 4. Create/maintain 12 jobs. 5. Costs would be $650/hr. and off site transportation is $100/hr/truck. 6. Mobilization is $100/hr flat rate. Fagen Tree's and Chips: 1. All material will be used for mulch locally, nothing identified for contracts out of area. 2. No delay in transportation, grind into trucks. 3. Production rate is 4-8 trucks/day (100-160 GT) and 80-160 trucks/month (2000-4000 GT). 4. Create/maintain 13 jobs. 5. Costs would be $100/hr and $85/hr/truck. 6. Mobilization is $85/hr. Tyler Seliger Excavation: 1. On going contract with White City and have a quote from Prairie City. 2. The longest delay would be 1 week with hopes to transport daily. 3. Production rate is 6 trucks/day (180 GT) and 120 trucks/month (3600 GT). 4. Create/maintain 15 jobs. 5. Costs would be $350/hr. for grinder, $140/hr. for excavator/operator, $100/hr. for loader for total of $590/hr and $85/hr. for each truck. 6. Mobilization is $120/hr. Quicksilver: 1. Current contract with White City, potential delivery to other facilities. 2. No delay in transportation, grind into trucks. 3. Production rate is 12-14 trucks/day (360-420 GT) and 250-300 trucks/month (7500-8800 GT). 4. Create/maintain 10-15 jobs. 5. Costs would be $424/hr. 6. Mobilization costs would be $110/hr. Selection/Recommendation of best value contractor: After reviewing the response to the Request for Proposal and referring to the existing agreement with Oregon Department of Forestry which is specific to the scope and intent of the Stimulus Grant my recommendation to the County Administrator and County Commissioners is as follows: T2 will receive the primary contract for the work to be performed. Quicksilver will be the primary backup and also receive a contract in the event T2 is unable to keep up with the demand. I will make my recommendation for these contracts based on the following: 1. T2 and Quicksilver can produce the most green tons both daily and monthly of all the bidders. In reality we likely will exceed the 22,000 Green Ton targets thus volume/production is a key component. 2. Best value, both T2 and Quicksilver offer the best value based on grinding/mobilization based on the quantity of the product to be delivered with no additional costs per hour for trucking. 3. Job creation, T2 will create or maintain approximately 37 jobs and Quicksilver can create or maintain 10-15 jobs. 4. One of the primary purposes of the Stimulus Grant is to process biomass for energy production, T2 has the most contracts and diversity of delivery options and able to handle a wide range of product. 5. Fagen and Botanical were not chosen because a majority of the product would be used for mulch locally and no existing contracts for energy production. The daily and monthly production rates of each would likely not keep up with the demands. Additionally over all grind costs and costs for trucking could actually result in over all cost being higher per green ton based on the number of trucks and distances for hauling. T2 and Quicksilver offered flat rates for the same services with much higher production rates. 6. Bar Seven A was not chosen based on higher cost for grinding, lower production rates and approximately six jobs created or maintained although Bar Seven has a diverse delivery potential. 7. Tyler Seliger Excavation was not chosen based on higher overall costs, lower production rates and only one source for product identified. Below are excerpts from the Oregon Department of Forestry Agreement with Deschutes County identifying both scope and purpose of the Stimulus Grant. The purpose of the Grant is to fund work associated with collecting woody biomass that is produced by thinning overstocked stands and processing it for energy production. The marginal economics of creating and transporting biomass especially during the recent downturn in the economy has decreased the utilization of this material for producing renewable energy. The cost of processing and transporting woody biomass using existing techniques currently exceeds the value placed on the biomass as renewable energy. Consequently, the woody biomass from hazardous fuel treatment projects has been burned or the disposal has been postponed resulting in loss of jobs both in the field and at biomass energy facilities. Increasing the availability of biomass material will help to fill raw material gaps and allow retention of employees at facilities that produce energy from biomass. 06/03/2010 14:45 FAX 541 317 1465 Quicksilver Contracting 2001 QUICKSILVER ' CONT'R"ACTING CO. Logging, C41pppind del Refheestation 64682 Cook Ava. #99 (541) 552.5655 Band, OR 97701 FAX $17-1466 FAX COVER SHEZW TO: Jam- 5 ~ DATE : ORGANIZATION: FROM PHONE'. PAGES (INCLUDING COVER) ~~~r1111NN...-.NMMNNY.PIVww.~~~..ww--w--_w-r- -~we MESSAGE; FAX NO: IF YOU DO, NOT RECEIVE ALL PAGES., PLEASE CALL AS SOON AS POSSIBLE. NOTXCE TO RECIPIENT: This communication may contain confidential information that is intended onlY for.-the individual or entity named on this cover sheet. if received by you in error, please notify the -sender as soon as possible. TWk you. 4 j 06/03/2010 14:45 FAX 541 317 1465 Quicksilver Contracting 10002 QUICKSILVER CONTRACTING CO. 64682 Cook Ave. #99 r'O Ch1ppij2,0 &J?eforesta tion Bead, OR 97"701 Main Office (84x)582-3653 gsilver2@bendcable.com Baokkeeping(541) 330-1980 Fax (541) 517-1465 Joe Stutler 61150 SE 27`x' St. Bend, OR 97702 June 3, 2010 RE: Grinding Project Joe; In response to your request for bids on the biomass grinding project, I am submitting this letter to provide answers to your questions as well as prices. 1. We will process material using a Peterson 5400 of 4700B horizontal grinder. Material will be fed to the grinder with a wheel loader and a track mounted shovel. Hogfue) produced by our operation will be delivered to Biomass One in White City, OR to fulfill our existing contract. Fuel may be delivered to other facilities as well. 2. Material will be loaded directly into a chip van as the grinder processes it. There would not normally be any stockpiling of material at the disposal site. 3. Our daily production level usually range is between 360 and 420 green tons or about 12 to 14 truckloads. Monthly production would be approximately 7,500 to 8,800 green tons or about 250 to 300 truckloads. 4. This project would create or maintain about 10 to 15 jobs. 5. Our total cost for processing would be $424.00 per hour based on estimated production of 30 to 40 green tons per hour. 6. Our cost per hour for mobilization/re-mobilization would be #110 per hour for our tractor or tractor/lowboy. ank ou, John Williams President 06/03/2010 13:34 5413671016 T2 INC PAGE 01/03 T2 44502 Wiley auk Arive Sweet Home, OR 97386 Phone: $41-367-5180 Fax: 541-367-1016 Fax V% Fax: Sy 3i4~- 2~1 I iim: Phone: Dat : ( - - ~b Re: CC: Comments: 06/03/2010 13:34 5413671016 T2 INC PAGE 02/03 T2 June 3, 2010 Joe Stotler County Forester Deschutes County 61150 SE 27 h St. Bend, Oregon 97702 RE: Bid for Grinding Dear Joe: T2, Inc. is pleased to submit this bid to perform grinding of forest slash materials and transport of the ground materials to co-generation facilities for the generation of renewable energy. The following numbered responses correspond to your questions forwarded on May 24, 2010: T2, Inc. will deliver the ground biomass materials to several co-generation facilities that we have contractual arrangements and allocations. The final destination of the ground material will be based upon the quality of the material and the number of loads per day generated. Our current allocations range from 2 loads per day fox some facilities to 16 loads per day. Facilities that we have current contracts and allocations with that would receive material from this project include Biomass One in White City, Roseburg Forest Products in Dillard, Freres Lumber in Lyons, Co-Gem Co. in Prairie City, and SP Newsprint in Newberg. Our largest daily allocations are at the facility in Prairie City. Between these facilities, T2, Inc. can transport the expected total production of 22,000 green tons. 2. In most cases we will load directly into truck and trailers. However, when we do grind to the ground, we will continue to load out the material until it is gone. Although we would move our grinder to a new location, the front end loader would remain on site to continue loading out the ground material. In some cases that could take up to a week to move the material. In all cases, T2, Inc. will make an effort to move the ground maternal as fast as possible. 44501 Wiley Creek Drive, Sweet Home, OR 97386 Phone: (541) 367-5180 Fax: (541) 367-1016 06/03/2010 13:34 5413671016 T2 INC PAGE 03/03 3. Grinding will be performed at a rate of approximately 300 to 450 green tons per day which is equal to 10 to 15 chip truck loads. Monthly production levels would be based upon the wood being ready to grind. Assuming 22 production days per month, T2, Inc. could grind and transport approximately 7,000 to 10,000 green tons per month, or 220 to 330 chip trailer loads. 4. This project would allow us to bring back 5 laid offjobs at 12, Inc. and retain 4 additional field positions in Central Oregon. In addition, we could bring back up to 16 outside truck drivers. The material going to Prairie City would retain 12 positions at the co-generation facility that are currently threatened. 5. T2, Inc. is providing hourly rates for three different conditions that will be encountered on this project. The conditions are based upon quality of the wood and the rate of production. Due to limited allocations and very high quality standards at some of the facilities, smaller projects with higher quality wood would result in lower hourly costs for the County. The three conditions are: 1)clean, high quality wood materials up to 10 loads per day at an hourly rate of $545/hour; 2)mar&al quality of wood and other biomass materials up to 16 loads per day at $685/hour; and 3)dirty materials/green waste which will be rejected by cogeneration facilities will be ground at $400/hour and then delivered to Knott Landfill or other location designated by the County at $80 an hour for trucking. It is anticipated that the majority of the wood generated by this project will meet condition 41 and will be similar in nature to the materials that have historically been brought to the Fontana grinding location. The hourly rate includes equipment and personnel to perform grinding, loading, and off-site transportation. The Couxrty will be charged for grinding hours only. If wood is ground to piles on the ground and then loaded out later, the loading time will be covered by the original charge for the grinding hours. 6. Equipment mobilization will be charged at $150/hour for movement from one disposal site to another. Thank you for the opportunity to submit this bid. We look forward to providing our services to continue hazardous fuels reduction work in Deschutes County. If you have any questions regarding this submittal, please feel free to contact rue at your convenience at (541) 913-8681, Sincerely, St en Lawn 44501 Wiley Creek Drive, Sweet Home, OR 97386 Phone: (541) 367-5180 Fax: (541) 367-1016 e J `Q I ~P r ~ ((I 1 V~ i IS CH U , `p--; C; c OADOOP r 1. We are required to produce 22,000 Green Tons of biomass, how will the material be utilized and to what source(s) (specifically) will the material be delivered after the grinding? If contracts exist with companies for biomass products, please identify the names and locations. Our plan is to transport the biomass to a co-generation facility where it will be burned for renewable energy. We have an ongoing contract with Biomass One out of White City, Oregon. We have also been quoted an amount with CoGen Inc. (DR Johnson) in Prairie City, Oregon. 2. If there is delay in transporting ground material, how long will the material occupy the disposal site? At this particular time there should be a very short delay, if any at all in transporting the materials off site. The longest it would sit would be around a week. We are hoping to transport the material daily, and be able to keep up with the grinding. 3. All grinding will be at designated disposal sites with road access, please provide both the daily and monthly production levels in both Green Tons and Chip Truck Loads. We are able to grind at the least 180 green tons of materials daily, which would be around 6 truck loads a day. That equates to around 3600 green tons of material a month and 120 truck loads a month. 4. How many jobs will either be created or maintained with this job opportunity including your company and others associated with the effort? If we were to be awarded any part of this contract we believe we could create and maintain around 15 positions. We would need at least 6-8 additional truck drivers daily, a loader operator, a grinder operator, a foreman, and excavator operator. Those positions would be for this job only, which would help maintain the five other full time positions that take care of other contracts we have. 5. Please provide total cost of grinding, loading and off- site transportation, please provide that cost in terms of $/hour. 1. Tub Grinder $350 per hour 2. Grinder Support (Excavator and Operator) $140 per hour 3. Loader $100 per hour 4. Off-Site Transportation $85 per hour for each truck 6. Please provide costs of mobilization/re-mobilization from one disposal site to another, please provide that cost in terms of $/hour. 1. $120 per hour for our Lowboy to move everything from one site to another. r ~ FCC)/Fagen. Tree's and. Chips 3 = J Wade Fagen, Consulting Arborist 1328 NE Seward Bend, OR 97701 (541) 382-4997 Cell (541420-6645) June 3, 2010 Attn: Joe Stutter Deschutes County Forester (541) 322-7117 Office (541) 388-2719 Fax 61150 SE 27th Street Bend, OR 97701 RE: Request for Bid Grinding Mr. Stutter: Our response to your email of May 24, 2010 at 11:44 a.m. regarding the above reference project are: 1. The material chipped will be made into mulch locally. This is more beneficial at sequestering carbon in three ways: • The material is not burned, keeping carbons out of the air. • Since the material stays local, less forest fuels are used by decreased transportation distance. • All equipment used runs on Bio-diesel, essentially a closed carbon loop fuel, saving yet more carbon output. 2. All material will be transported immediately during the chipping process. It should be able to be transported from site in as reasonable amount of time or at least before site fills to capacity, we see no reason for delay. 3. Daily production can range from 100 to 160 tons or 4 to 8 truck loads per day. That is equal to 80 to 160 chips truckloads a month. 4. (a) Six new jobs will be created and 7 jobs maintained for approximately 1 to 4 years. (b) Each chip truck load should produce 50 man hours of work ranging from $25 to $15 per hour to the employee. (c) About $65 to $100 for employer. This equates to approximately $2,860 per truck load staying in the community and jobs created through added value of the material at 22 tons per truck that would be $2.86 million staying in the community and zero carbon for the global environment. Page 2 - Request for Bid Grinding 5. Grinding - $100.00 per hour Transportation - $85.00 per hour Loading - Zero Dollars 6. Mobilization and Re-Mobilization - $85.00 per hour Wade Fagen Certified Arborist # PN0862A CCB#100453 President Fagen Trees & Chips i r •~05/30/2010 11:47 5416170443 sl~C vi; FAX COVER BOTANICAL DEVELOPMEN PAGE 01/03 Botanical Developments Date: June 3, 2010 To: Joe Stutlcr @ Deschutes County Fax #/Phone: fax 541-388-2719 From: Eric Evang @ 541-280-7871 Subject: Grinding Estimate # Pages: 3 page(s), including cover sheet. Please call f f you do not receive all pages. Hi Joe, Attached is our estimate for the grinding of forest products in Deschutes, Crook, Jefferson and Northern Klamath County projects. If you have any questions or concerns, please feel free to call me at 541-280- 7871. Thanks for the opportunity and we look forward to working with you. Physicnl: 303 SE 2"". St; Bond, Orcgon 97702 Mailing: 409 NW Fmnklin Ago. Bend, Oregon 97701 (541) 617 - 5926 Pax (541) 617 - 0443 r 05/30/2010 11:47 5416170443 BOTANICAL DEVELOPMEN PAGE 02/03 }'4+ Botanical Demelopments June 3, 2010 Deschutes County Road Department Attn.: Joe Stutter, County Forester 61150 S.E. 27" St. Bend, Or 97702 541-322-7117 Re: Estimate for grinding forest products in Deschutes, Crook, Jefferson and Northern Klamath County Dear Joe, Botanical Developments is once again, happy to provide you with a contractors quote for the grinding of forest products in Deschutes, Crook, Jefferson and Northern Klamath Counties. Having extensive fuel reduction experience, extensive resources, and a professional staff, we feel that we axe extremely qualified for implementing safe, efficient and, timely grinding and transportation, activities to meet your project needs. Attached are our answers to the Request for. Bids questionnaire for your review. If you have any questions or concerns, please feel free to contact meat (541) 280-7871. We look forward to working' with you once again on your community protection and habitat enhancement projects. Respectfully, ~i {PLC ~V(.l VLS ~/l,t,L~ Eric Evans Botanical Developments, LCB# 81.40 409 NW FRANKUM 8KND, 4RRG0N 97701 (54 t) 617 - 5926 (541) 617 - 0443 rAx 05/30/2010 11:47 5416170443 BOTANICAL DEVELOPMEN PAGE 03/03 Devefv men& Questions with Answers for bidding the grinding forest products in Deschutes, Crook, Jefferson and Northern Klamath County Project 1. We are required to produce 22,000 Green Tons of biomass, how will the material be utilized and to what source(s) (specifically) will the material be delivered after the grinding? If contracts exist with companies for biomass products, please identify the names and locations. Answer: A portion of the material will be utilized within the Central Oregon Landscape Industry as a mulch product (roughly 500 tons) with the remainder of material to be delivered to hog-fuel processers. No current contracts exist. 2. If there is delay In transporting ground material, how long will the material occupy the disposal site? Answer: Any delays would be within two weeks or less. 3. All grinding will be at designated disposal sites with road access, please provide both the daily and monthly production levels in both Green Tons and Chip Truck Loads. Answer: Daily production level is an average of 80 tons per day and 1,760 tons per month. 4. How many jobs will either be created or maintained with this job opportunity including your company and others associated with the effort? Answer: We assume that at least one dozen jobs will be created and or maintained with this job opportunity. 5. Please provide total cost of grinding, loading and off-site transportation, please provide that cost in terms of $/hour. Answer: The total cost for a tub grinder and loading is $650/hr. and the off site transportation cost is $100/hr. 6. Please provide costs of mobilization/re-mobilization from one disposal site to another, please provide that cost in terms of $/hour. Answer: The cost for mobilization/re-mobilization is $100/hr. 402 NW FRANKLIN BGND, OR%GON 97 701 (541) 617 5926 (541) 617 - 0443 IrAx Page 2 of 5 Cc: Nicole Taylor Subject: Fw: Request for bids for grinding To: Joe Studer Re: Deschutes County Qualified Pool Contractors The following is in response to your questions in your Email dated May 24, 2010: 1. Bar Seven A Companies has sold biomass fuel to numerous customers over the years. These customers include SP Newsprint, Newberg OR, Georgia Pacific Paper Mill, Camas, WA, Roseburg Forest Products, Dillard, OR, Warm Springs Forest Products, Warm Springs, OR, Prairie Wood Products, Prairie City, OR, Boise Cascade Paper Mill, Wallula, WA, BioMass One, White City, OR, Freres Lumber, Lyons, OR and Weyerhaeuser, Longview, WA. Bar Seven A presently has agreements to deliver material to Camas, Newberg and White City. The specific customer we deliver to would depend on the location of the raw material and what the various buyers are paying at the time. 2. Normally, we grind into trucks so there is no delay in transportation. 3. Our normal production rates average 8 loads (256 green tons) per day or 160 loads (5120 green tons) per month. 4. This job opportunity would maintain/create at least 6 positions, possibly more depending on the need of trucks to transport the ground material. 5. The total hourly cost of grinding, loading and off-site transportation would depend on the number of pieces of equipment necessary to perform the task. If we consider one grinder and two pieces of support equipment @ $395/hr combined, and three trucks @ $95/hr each, the total hourly cost would be $680 per hour. 6. Mobilization would be charged at the rate of $90/hr for each piece of equipment (not including the trucks). Chris Tolke Bar Seven A Companies Redmond, OR 541-548-4747 6/11/2010 rage s or On Wed, 6/2/10, Nicole Taylor <nicolebsa@~yahoo.com> wrote: From: Nicole Taylor <nicolebsa@yahoo.com> Subject: Fw: Request for bids for grinding To: ctolke@yahoo.com Date: Wednesday, June 2, 2010, 1:20 PM Forwarded Message From: Joe Stutter <Joe_Stutler@co.deschutes.or.us> To: stephen lawn <t2_slawn@msn.com>; coatssellers@aol.com; nicolebsa@yahoo.com; Bear Mountain Fire < bearmountainfire@ykwc. net>; Eric Evans <Eric@botanical- developments.com>; tfagen@bendcable.com; gsilver2@bendcable.com; seligerexcavation@q.com; digdevil2@msn.com Cc: BROZNITSKY Brian <brian.broznitsky@state.or.us>; BENTON Kevin <kevin.benton@state.or.us>; john@singletreeconsulting.com; Joe Stutter <Joe_Stutler@co.desch utes.or. us> Sent: Mon, May 24, 2010 11:43:59 AM Subject: Request for bids for grinding To: Deschutes County Qualified Pool Contractors May 24, 2010 This email will serve as an official request from the companies on the Deschutes County Qualified Pool to provide requests for grinding forest products in Deschutes, Crook, Jefferson and Northern Klamath County. Deschutes County is currently the recipient of a stimulus grant, working with Oregon Department of Forestry, to both treat wildland fuels and create biomass, along with creating/maintaining jobs. By June 3, 2010 at the Close of Business I need information/answers to the following questions : 6/11/2010 Yage4oTJ 1. We are required to produce 22,000 Green Tons of biomass, how will the material be utilized and to what source(s) (specifically) will the material be delivered after the grinding? If contracts exist with companies for biomass products, please identify the names and locations. 2. If there is delay in transporting ground material, how long will the material occupy the disposal site? 3. All grinding will be at designated disposal sites with road access, please provide both the daily and monthly production levels in both Green Tons and Chip Truck Loads. 4. How many jobs will either be created or maintained with this job opportunity including your company and others associated with the effort? 5. Please provide total cost of grinding, loading and off -site transportation, please provide that cost in terms of $/hour. 6. Please provide costs of mobilization/re-mobilization from one disposal site to another, please provide that cost in terms of $/hour. Please remember that once a contractor(s) are chosen, proof of insurance is required before we proceed with the work. I expect this work to continue thru December, 2011. Thank you in advance for your replies. You may email me the responses, fax or bring by my office before the deadline. Joe Stutler 6/11/2010 rags ui I Deschutes County Forester (541) 322-7117 office (541) 388-2719 fax 61150 SE 27th St. Bend, OR 97702 joest _ co.deschutes.or.us 6/11/2010