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2020-376-Minutes for Meeting October 19,2020 Recorded 11/3/2020
01E S CUGZ BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541 ) 388-6570 1:00 PM Recorded in Deschutes County CJ2020-376 Nancy Blankenship, County Clerk Commissioners' Journal 11 /03/2020 9:25:34 AM Co,6,2; 2020-376 rum Krk-uKVII14l7 JIAMF UNLY ^ a I IWI k MY I d MONDAY October 19, 2020 Barnes Sawyer Rooms Live Streamed Video Present were Commissioners Patti Adair, Anthony DeBone, and Phil Henderson. Also present were Tom Anderson, County Administrator; David Doyle, County Counsel (via Zoom conference call) and Sharon Keith, BOCC Executive Assistant (via Zoom conference call). Attendance was limited in response to Governor's Virus orders. CALL TO ORDER: Chair Adair called the meeting to order at 1:00 p.m. PLEDGE OF ALLEGIANCE ACTION ITEMS: 1. Presentation - Update on Veteran's Village Project Property Manager Kristie Bollinger introduced this presentation. Members present on behalf of Bend Heroes Foundation were Erik Tobiason and Sam Davis. Members present on behalf of Central Oregon Veterans Outreach were Kathy Skidmore and Mitch Sparks. Health Services representatives present via Zoom conference call was Janice Garceau and Colleen Thomas. J.W. Terry, COVO, was present via Zoom conference call. The Bend Heroes Foundation presentation is attached to the record. Funding is secured for BOCC MEETING OCTOBER 19, 2020 PAGE 1 OF 3 phase 1 to care for 12 shelters for homeless veterans. COVO representatives presented the staffing plan for the village. Commissioner DeBone feels that the next step is to designate the responsible party of the operations. COVO underscores that the village will be used to house not only veterans but homeless veterans. COVO will hold the service coordination and operational responsibilities. Maintenance of the village will also be cared for by COVO. Stakeholders are the community, City of Bend and Deschutes County. Each of the stakeholders are being asked to cover 1/3 of all costs. The request of Deschutes County is $100,000 each year. Bend Heroes will meet with the City of Bend on November 4. Commissioner Henderson asked to be informed of the level of commitment given by the City. Veterans are provided with resources and connections with the Veterans Service officer. Landscaping work is hoped to be provided by contractors on an in -kind basis. A draft lease agreement will be presented to the Board next week. RECESS: At the time of 2:23 p.m. the Board went into recess and reconvened the meetinor at 2;77 n m, 2. License Agreement to Use Right of Way with Tumalo Property Owners Association Road Department Director Chris Doty, County Engineer Cody Smith, Assistant Legal Counsel Adam Smith, Environmental Soils Supervisor Todd Cleveland (via Zoom conference call) presented. Also present was applicant Larry Kine (via Zoom conference call). Mr. Doty presented the summary of the process leading to the pending license agreement. Mr. Kine presented the history of the failing septic system of the Tumalo Feed Company and the plans to make improvements with a wastewater collection system. Mr. Kine's request is to use the right-of-way for the project without a license or with a substantially revised license agreement. The Board would like to review this further with Legal Counsel and suggests that this item be added to a future agenda. BOCC MEETING OCTOBER 19, 2020 PAGE 2 OF 3 3. A Review of Draft State of the County Address Director of Communications Whitney Hale presented a draft presentation packet for the BOCC to consider for the upcoming State of the County Addresses. The Redmond and Sisters event is scheduled for Friday October 23 and the Bend event is scheduled for Tuesday October 27. The Chambers are interested in providing one event and combining the two dates and only holding the presentation on Tuesday. The Board supported one event. Recommended revisions were made to the slide presentation. EXECUTIVE SESSION: None presented M�l RPinp nn fi ir1-hPr items me to cobefore the Board, the meetine was adiourned at 3:42 o.m. ._. _.._.._-. - -- -- _ before _ DATED this Day of �_ 2020 for the Deschutes County Board of Commissioners. ATTI ADAIR, CHAIR ATTEST: L ANTHONY DEBONE,VICE CHAIR i, t HILIP G. HENDERSON, COMMISSIONER BOCC MEETING OCTOBER 19, 2020 PAGE 3 OF 3 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - www.deschutes.org BOCC MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:00 PM, MONDAY, OCTOBER 19, 2020 Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend This meeting is open to the public, usually streamed live online and video recorded. To watch it online, visit www. deschutes. org/meetingss. Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Item start times are estimated and subject to change without notice. CALL TO ORDER MEETING FORMAT In response to the COVID-19 public health emergency, Oregon Governor Kate Brown issued Executive Order 20-16 (later enacted as part of HB 4212) directing government entities to utilize virtual meetings whenever possible and to take necessary measures to facilitate public participation in these virtual meetings. Since May 4, 2020, meetings and hearings of the Deschutes County Board of Commissioners have been conducted primarily in a virtual format. Attendance/Participation options include: Live Stream Video: Members of the public may still view the BOCC meetings/hearings in real time via the Public Meeting Portal at www.deschutes.org/meetings. In Person Attendance: Limited due to Virus restrictions. Please contact Sharon Keith at sharon.keith@deschutes.org prior to the meeting to request in person attendance. Citizen Input: Citizen Input is invited in order to provide the public with an opportunity to comment on any meeting topic that is not on the current agenda. Citizen Input is provided by submitting an email to: citizen input@deschutes.org or by leaving a voice message at 541-385-1734. Citizen input received before the start of the meeting will be included in the meeting record. Zoom Meeting Information: Staff and citizens that are presenting agenda items to the Board for consideration or who are planning to testify in a scheduled public hearing may participate via Zoom meeting. The Zoom meeting id and password will be included in either the public hearing materials or Board of Commissioners BOCC Meeting Agenda Monday, October 19, 2020 Page 1 of 3 through a meeting invite once your agenda item has been included on the agenda. Upon entering the Zoom meeting, you will automatically be placed on hold and in the waiting room. Once you are ready to present your agenda item, you will be unmuted and placed in the spotlight for your presentation. If you are providing testimony during a hearing, you will be placed in the waiting room until the time of testimony, staff will announce your name and unmute your connection to be invited for testimony. Detailed instructions will be included in the public hearing materials and will be announced at the outset of the public hearing. PLEDGE OF ALLEGIANCE ACTION ITEMS 1. 1:00 PM Presentation - Update on Veterans Village Project - Kristie Bollinger, Property Manager 2. 1:45 PM License Agreement to Use Right -Of -Way with Tumalo Property Owners Association - Chris Doty, Road Department Director 3. 2:30 PM Review of Draft State of the County Address - Whitney Hale, Director of Communications OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues, or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN To watch this meeting on line, go to: www.deschutes.org/meetings Board of Commissioners BOCC Meeting Agenda Monday, October 19, 2020 Page 2 of 3 Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar (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.) Board of Commissioners BOCC Meeting Agenda Monday, October 19, 2020 Page 3 of 3 I E s CoG� o Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners BOCC Monday Meeting of October 19, 2020 DATE: October 14, 2020 FROM: Kristie Bollinger, Property Management, 541-385-1414 TITLE OF AGENDA ITEM: Presentation - Update on Veterans Village Project RECOMMENDATION & ACTION REQUESTED: Not applicable as this is a presentation. BACKGROUND AND POLICY IMPLICATIONS: Over the last few months, Bend Heroes Foundation with support from Central Oregon Veterans Outreach and Deschutes County have been developing a plan to capitalize and operate a project known as Veterans Village. The County has committed the use of approximately 1.25-acres of County -owned property located on the Public Safety Campus at 20355 Poe Sholes Drive, Bend; to be memorialized by a ground lease. The County has also provided Bend Heroes Foundation a Letter of Intent (LOI) dated September 21, 2020, that affirmed the County's commitment to provide $150,000 in capital funding and an undetermined fiscal commitment towards annual operating costs. The LOI also spoke to some requirements in terms of use of the County -owned property as well anticipated partnerships with County Departments to provide supportive services. This presentation will include a quick recap of completed tasks/accomplishments, current status, and where the project will be in the next few months, 6-months, 1-year. Some key points that will be included in the presentation, • Operational structure and budget o Staffing plan o Major line items o Solidified financial commitments/revenue sources -both capital and operations o Village day-to-day operations ■ Resident management ■ Services offered ■ Length of stay parameters ■ Security plan ■ Neighbor dispute plan Involvement of County Behavioral Health, County Veterans Services, other? City of Bend, status of commitment Questions and answers FISCAL IMPLICATIONS: The County is providing the use of approximately 1.25-acres of County -owned property located at 20355 Poe Sholes Drive, Bend. The County has also committed $150,000 towards the capitalization of Veterans Village as well as an undetermined fiscal commitment towards annual operating costs. There is also a level of support required by County Departments including Health Services -Behavioral Health, Veterans Services, etc. RECOMMENDATION & ACTION REQUESTED: Not applicable. ATTENDANCE: Erik Tobiason with Bend Heroes Foundation, J. W. Terry with Central Oregon Veterans Outreach L CAA N O O 00 \ O o .� O N \ '� L CL ON N c-I �+ p .\I O E U \ O L f6 N to ,�, W _O ® cn p U L O •C O L >, N L v% F- (n O -0 L 4- U W O L bD = 4-' O 0 N 4- (U m U O p c O o 0 ai ca a) v a UCL O CAUQ - V) buo C� U aj m2 4-j EN O U �• o - QQ � � � ++ C >>,NN C co \ tw b CO w X ! 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U = c m . V C C O U `" aj ai A O CL N a-+ m C N av L- CL v c� a- J N le, u Central Oregon Veterans Village Service Plan Staffing plan — The optimal staffing for the Veteran Village would center around a full time site manager and an evening assistant site manager. Site managers would be present from 6:00 AM to 10:00 PM. Monday through Friday. The weekends would be covered by on -site staff who would be there from 6 AM to 6 PM. The on -site manger would be responsible for all housing needs including the onboarding of new residents. They would also have the authority to mediate disputes and rule infractions. The site manager will also coordinate meal planning and preparations. Site manager will also be responsible for the any volunteers who would give their valuable time to the resident veterans. All logistics of site services and visiting medical providers such as Mosaic Medical and any pro-bono mobile dental services that frequent the Central Oregon area. COVO will provide case management for all residents, on -site Monday through Friday. COVO case managers will serve residents with intensive care and case management in direct partnership with the areas many service providers. Our main focus will be a holistic approach of shelter first and services for mental and physical health in partnership with Deschutes County Behavioral Health, the Federal VA Mental Health Clinic and Bend CBOC. Our case managers will properly assess each veteran for possible veteran benefits such as Disability Compensation or Pension working very closely with the Deschutes County Veterans Service Office. We will start a comprehensive list of barriers that are preventing successful placement into permanent supportive or independent housing. These barriers have existed for many years for many of these veterans and for many of them, the first time that an organization has addressed the issues and applied the advocacy support to break them down. We will also engage our Community Action Organization, Neighbor Impact for housing and support using the VA SSVF or Rapid Rehousing programs. Village day-to-day operations — Resident Veterans will have an opportunity to reside in a safe and comfortable residence with food and clean water provided. Residents will have the case management and opportunity to have their needs assessed and have the community and VA providers to service their needs. Veteran residents will have the opportunity to meet and know the many individuals and service organizations who can provide the comradeship and brotherhood of fellow veterans. Resident management — The Village Resident Manager will be the onsite representative who will represent and monitor residents on a daily basis. They will be the link between our case managers and providers to assist with their needs. Managers will also ensure that the village is a safe area for all and that residents conduct themselves in manner that is respectful to all staff and our adjoining neighbors in the area. There will be a council of Village Veterans as well to provide to provide peer support in following rules, planning activities and represent the Veterans on the advisory council. Village residents will be elected by their peers and serve up to a 90- day term. Services offered — From the most basic needs of clean water and healthy meals to places where they can shower and clean their clothes to the intensive wrap around services using case management, residents will be supported in a manner that we as a nation should be assisting our veterans. Length of stay parameters —Transitional housing for up to 24 months is a reasonable length of time for those who have homeless and have significant barriers to housing — i.e., credit, criminal history, eviction or substance abuse history, PTSD, significant mental or physical health issues that limit the ability to work. It is also reasonable to anticipate that the majority of the Village residents will be able to move into housing or complete their service plan in a 6-9 month time frame. The length of time in the Village will depend on the service plan developed with the Veteran and his or her case management team, and the Veteran's personal investment in the work to follow through with their plan, supported by the team of professionals that are now available to him or her because of being a resident of the Village. Security plan —The village will have onsite managers and staff who will ensure that the established rules of residency will be followed. With staff coverage during and after normal hours, residents will have support for disputes or disturbances. Our goal is to have a safe place to live for all and that we will be good neighbors to the area and the City of Bend and Deschutes County. We will have a gated fence with security code that will only be available to staff and residents. There will be a curfew for being in the village. Village residents will have to check out and check in. They will be required to let staff know if they are going to be out of the Village outside of curfew hours or gone overnight, and get approval from case manager. Village residents will have staff phone numbers to call for crisis or emergencies during the hours staff is not on site. • Involvement of County BH, County Veterans Services, other — A Village oversight council will consist of COVO, Deschutes County representatives, Bend Heroes Foundation, and key service partners (in process of being determined) that work directly with this population of Veterans. COVO leadership and the Deschutes County Health Services Director are meeting on November 41" to discuss project goals, how DCBH can help and any agreements/protocols we should begin to develop for shared clients. The veteran residents who reside in the village will need to transition from homelessness to a sheltered residence. For many, they have been homeless for many years and this transition time will be crucial to their success in a structured living situation. COVO case managers have many years of experience in working the areas homeless veteran population. Veteran residents will have progressive case management that will be structured for each individual resident. Our experience has shown that when a veteran is residing in a safe housing situation, case management can be done without traveling out to homeless camps or shelters. We have found that veterans or any homeless person is more receptive to case management when the very basic needs of shelter, food and water are available. To successfully transition residents from the Village to permanent housing, case managers must throw a very wide net of wrap -around services to see to all the needs met. We are fortunate that Central Oregon has a cohesive team of County, State, Federal and Non -Profit services available for the homeless veteran community. Deschutes County Behavioral Health, County Veterans Service Office are a critical part of the county team with our local Police and County Sheriff and Jail. Many of our homeless veterans enter case management through a justice involved situation. One of the goals during case management is for the resident to engage with the Federal VA for health services and monetary benefits that can provide a Permanent source of income and health services. Every veteran who engages with the Federal VA and receives benefits, allows county and state services to transfer their services and the funds that can go to another county resident. Veterans will also engage with housing programs that are centered on homeless veterans, such the SSVF and Permanent Supportive Housing Programs. For many homeless veterans, they have attempted to engage these services before but failed to obtain housing because they were living on the streets or camps and not accessible by phones. Our ability to house these veterans will allow the time to finish the most important part of case management and placement on any needed waiting list for a housing voucher or program. Accessibility to the these programs is only available when all the screening and assessments are complete. Example of case management: 30-year old homeless Veteran, recently released from a hospital, referred to COVO by a family member researching services for Veterans. Over a 12- month period, this COVO's case manager served as a point of communication and support for this Veteran and their family and coordinating services with the following providers: • Veterans Affairs Regional Office • Oregon Department of Veteran Affairs - Women Veterans Coordinator • Veteran Affairs Medical Center Portland, Women Veterans Care Coordinator • Deschutes County Public Defenders — Mental Health Commitment • Sageview —Crisis Mental Health • MCT— Crisisintervention • Central Oregon Payees— Financial planning • Vet Center — Mental Health • Still Serving Counseling — Mental Health • Best Care — Sober Transitional Living • Deschutes County Behavioral Health —Crisis Intervention • Palo Alto Veteran Affairs Medical Center — Discharge planning • Deschutes County Veteran Service Officer — Benefits enhancement and follow through • Ron Wyden — Veterans Coordinator — Benefits enhancement • Deschutes County Jail — • AA —Substance abuse Staff Roles Two tracks for staffing the Village: site supervision and intensive case management. Site supervision to include: 0 16 hours per day, 7 days per week 6 a.m. to 10 p.m. o Coordinate and communicate with case managers for each Veteran on how to best support the Veteran in their day-to-day schedules o Check in with residents on their daily schedules to support and encourage them in following their service plans o Respond to crisis situations 0 oversee meals o Maintain schedule of volunteers o Maintain schedule of service providers meeting on site with Vets o Schedule meeting space availability o Supervise and schedule volunteers and community donors providing meals o Coordinate and schedule social and educational activities on site o Trouble shoot property issues o Oversee safety protocols and procedures are followed for the property and residents o Respond to resident concerns, i.e. frustrations regarding their living space or neighbors, communicate and work with case managers to mediate or identify best response to the situation Case/services management 8 hours per day 5 days per week, phase one and two: o Current COVO direct service staff and management staff will rotate office hours at the village community center, 6-8 hours per business day. This is in addition to the site supervision staff so that there will be at least 2 staff available on site during the day. o All Village residents would most likely be COVO clients in some respect even if not housed at the Village. The difference will now be that with the Veteran is in a stable, central living environment. The case managers will be able to work more closely with the Veteran, on a daily basis, to respond to their concerns or needs and facilitate/coordinate other service providers to meet the Veteran's goals. This accessibility of clients and case manager to each other provides a level of intensive case management that is not possible when the clients are living homeless, and is the key element of successful transitional housing. �01 E S CO o � Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners BOCC Monday Meeting of October 19, 2020 DATE: October 14, 2020 FROM: Chris Doty, Road Department, 541-322-7105 TITLE OF AGENDA ITEM: License Agreement to Use Right -Of -Way with Tumalo Property Owners Association RECOMMENDATION & ACTION REQUESTED: Staff recommends approval of the License Agreement as presented. BACKGROUND AND POLICY IMPLICATIONS: State statutes authorize use of right-of-way under the jurisdiction of county government for the location of power, water, gas and communication utilities. Privately -owned wastewater collection systems within public right of ways are not explicitly addressed in state statutes or administrative rules, leaving it up to the County to regulate these matters under our authority granted by statute. Deschutes County Code (DCC) Section 12.40 authorizes the Board to enter into a License Agreement for use of County right- of-way with recommendations of any necessary conditions proposed by the Road Department Director. In February, 2020, the Road Department was approached by Larry Kine, President of the Tumalo Property Owners Association regarding a request to expand upon the wastewater collection system constructed in association with his residential development constructed west of Wood Avenue. Given the nature of the proposal - to construct a sewer utility within public right-of-way throughout the Tumalo Community - a License Agreement was selected as the appropriate regulatory mechanism to authorize use of the right-of-way for the project. Conversations regarding the Agreement ceased in April, briefly resumed in September, and have now reached an impasse regarding specific elements. It has been proposed by Mr. Kine that the Board consider the agreement as drafted and decide upon disputed items accordingly. Remaining disputed items are as follows: Item 7AA: Performance Bond: The Road Department has requested a Performance Bond such that the work that is authorized within the right-of-way is completed as proposed and that the County is not left with any expense associated with the repair or restoration of the right-of- way should things not go as planned. The applicant desires to delete this provision. Item 7C: Right-of-way permit requirement. The applicant requests that the County issues permits within five (5) business days. Item 913: Insurance: County risk management has requested commercial general liability insurance in the amount of $2M per occurrence and $4M in general aggregate. The applicant requests amounts of $1 M per occurrence and $2M in general aggregate. Item 11: Performance Bond Release. Per request associated with Item 7A.4, the applicant desires to delete this provision. Item 15 B: Termination: Per DCC 12.40.40 and general legal definition, a License Agreement is revocable by the County. A non -revocable license equates to an easement and the County does not have easement authority for public right-of-way. The applicant desires to delete this provision. Additional items for the Board to consider in granting this License: Construction of a private wastewater collection system for an undefined area is unique and rare. These type of systems are typically constructed for specific development projects and have limited system capacity and service area. The applicant appears willing to construct and extend this system to interested parties throughout the Tumalo community and has created a property owners association to eventually own and operate the system. 1. The Board may wish to inquire of the capacity of the system to determine how much of the community could be served by the improvements. 2. The Board should be aware that OAR 340-071-0160 will restrict the County's ability to issue septic permits (new or repair) to applicants located within 300 feet of a sewer system if the owner is willing or obligated to provide service. FISCAL IMPLICATIONS: None ATTENDANCE: Chris Doty, Road Department Director, Adam Smith, Assistant Legal Counsel, Todd Cleveland, Environmental Health Supervisor, Cody Smith, County Engineer, Larry Kine, Tumalo Property Owners Association. REVIEWED LEGAL COUNSEL For Recording Stamp Only REVOCABLE LICENSE (TO USE RIGHT OF WAY) DESCHUTES COUNTY, a political subdivision of the State of Oregon ("Licensor') hereby grants to TUMALO PROPERTY OWNERS ASSOCIATION, an Oregon nonprofit corporation ("Licensee"), a non- exclusive Revocable License (License) to use public right of way, as shown in Exhibit "A," attached hereto and by this reference incorporated herein and together referred to as the "Right of Way," for the purpose of installation, operation, maintenance, and repair of the Laidlaw Sanitary Sewer wastewater collection system, referred to herein as the "Underground Facilities". RECITALS 1. Pursuant to ORS 368.036, ORS 374.305, ORS 374.309, and ORS 374.315 and Deschutes County Code Title 12, Chapters 4, 12, 16, and 24, Licensor has authority to permit construction and uses within public right of ways under the jurisdiction and control of Licensor. 2. The Right of Way shown in the attached Exhibit "A" is comprised of public right of ways under the jurisdiction and control of Licensor. NOW THEREFORE, this nonexclusive, revocable license is granted upon the following terms and conditions: 1. Term. The term of this License shall commence upon signature of all parties and continue until terminated or abandoned as provided herein. 2. Possession. Licensee's right to utilize the Right of Way and obligations contained herein shall commence as of the date of this License. Pursuant to the terms and limitations of this license, Licensee shall have use of the Right of Way described in Exhibit "A" for the purposes set forth herein. 3. Condition of Right of Way. Licensor represents that it has full right, power, and authority to enter into this License for the term herein granted and that the licensed Right of Way may be used by the Licensee during the entire term for the purposes herein set forth. If it is determined that Licensor did not have the right, power or authority to enter into this License because of Licensor's failure to have properly acquired jurisdiction over, or the Right of Way is under lease or license to another and Licensee has not acquired the leasehold interest of such other person(s), firm, or corporation, this License shall automatically terminate. In the event of termination under the circumstances set forth in this paragraph, Licensee shall waive any and all claims or causes of action against Licensor. 4. Consideration. The Right of Way herein licensed is held by Licensor for the purpose of public interest. The consideration for said license is other than payment. Page 1 of 8 — License to Use Right of Way — Document No. 2020-180 Additional License Fees. As additional license fees, Licensee shall pay the following amounts: A. All amounts which Licensee is required to reimburse Licensor for expenses incurred by Licensor in discharging Licensee's obligations. B. All other amounts, which the Licensee is required to pay by any other provisions of this License. Permitted Use. The Licensee may utilize the licensed Right of Way described in Exhibit "A" attached hereto and by this reference incorporated herein, for the purpose of installation, operation, maintenance, and repair of a municipal wastewater collection system in accordance with the laws of the State of Oregon, Deschutes County Code (DCC) and all applicable regulatory requirements. Restrictions on Use. In connection with the use of the Right of Way, Licensee shall: A. Prior to construction of the Underground Facilities=; 1. Subscribe to the Oregon Utility Notification Center as an Operator, as defined in ORS 757.542(5). 2. Obtain plan approval from the Deschutes County Road Department. Plans shall be prepared in accordance with applicable sections of DCC 12.20 and 17.48. 3. Obtain a right of way activity permit from the Deschutes County Road Department. 4. 'Furnish to the Deschutes County Road Department a performance surety instrument executed by a surety company authorized to transact business in the State of Oregon in a form approved by Deschutes County Legal Department in an amount equal to 120% percent of the estimated cost for construction of the Underground Facilities. B. Submit to the Deschutes County Road Department as -built drawings for the Underground Facilities. C. Obtain a right of way activity permit from the Deschutes County Road Department for every occurrence of traffic control, excavation, repair, or other work associated with the Underground Facilities within the Right of Way. D. Contact the Oregon Utility Notification Center to obtain utility locates for every occurrence of excavation within the Right of Way. E. Obtain all necessary legal and regulatory approvals or permits prior to any uses of the Right of Way. F. Maintain the Right of Way to standards of repair, orderliness, neatness, sanitation and safety acceptable to Licensor. G. Conform to all applicable laws and regulations of any public authority affecting the Right of Way and Underground Facilities and the use after the date of this License, and correct at Licensee's own expense any failure of compliance created through Licensee's fault or by reason of Licensee's use if such failure of compliance arises as a result of conditions occurring after the date of this License. H. Refrain from any use which would be reasonably offensive to the Licensor, or owners or users of adjoining real property, or which would tend to create a nuisance or damage the Right of Way. I. Refrain from making any unlawful or offensive use of said Right of Way or to suffer or permit any waste or strip thereof. J. Exercise diligence in protecting from damage the Right of Way covered by and used in connection with this License. Licensee's Obligations. The following shall be the responsibility of the Licensee: Page 2 of 8 — License to Use Right of Way — Document No. 2020-180 (Commented [CDl]: Applicant wishes to delete this requirement. Commented [CD2]: Applicant wishes to require County to issue permits within five business days 10. 12. A. Any repairs necessitated by the negligence of Licensee, its agents, employees and invitees to the licensed Right of Way. B. Any repairs or alterations required under Licensee's obligation to comply with laws and regulations as set forth in "Restrictions on Use" above. C. Right of Way at end of License period shall be in as good condition as it was in at the beginning of the term, reasonable wear and tear excepted. D. Pay Licensor for any damage resulting from Licensee's negligence or from the violation of the terms of this License. E. Upon order by Licensor, remove or relocate any portion of Underground Facilities within Right of Way when Licensor deems it expedient. F. In the event, Licensor is required to perform any work required of Licensee under this License, or perform work to restore its right-of-way to its original condition following any work by Licensee, Licensee shall be required to reimburse Licensor for the cost of any such work within 30 days of Licensor providing documents establishing the scope of work performed and the cost associated with that work. Insurance A. It is expressly understood that Licensor shall not be responsible for carrying insurance on any property owned by Licensee. B. Licensee shall carry commercial general liability insurance, on an occurrence basis with a combined single limit of not less than 02,000,000 per occurrence and $4,000,006, in general aggregate. Licensee shall provide Licensor with a certificate of insurance, as well as an endorsement, naming Deschutes County, its officers, agents, employees and volunteers as an additional insured. There shall be no cancellation, termination, material change, or reduction of limits of the insurance coverage during the term of this License. Incnertion of Right of Way. L inengnr shall have the riaht to inspect the Riaht of Way at any reasonable time without need for formal notice. Approval of Work and Release of Performance Bond. At such time when Licensee completes the installation of the Underground Facilities and any other work subject to the performance bond described in Section 7.A.4 above, Licensee shall notify the County of the completion of the work. The County shall have ten (10) business days after receiving Licensee's notice to complete any and all inspections it deems required. After completing the inspection and within the ten (10) business day period, the County shall either issue a punch list, or the County shall approve the work covered under the performance bond and issue documentation sufficient to release the performance bond. If a punch list was issued by the County, Licensee shall notify the County of completion of the punch list items, and the inspection process shall proceed as stated above:, Liens. A. Except with respect to activities for which the Licensor is responsible, the Licensee shall pay as due all claims for work done on and for services rendered or material furnished to the licensed Right of Way and shall keep the Right of Way free from any liens. If Licensee fails to pay any such claims or to discharge any lien, Licensor may do so and collect the cost as additional license fees. Any amount so added shall bear interest at the rate of nine percent (9%) per annum from the date expended by Licensor and shall be payable on demand. Such action by Licensor shall not constitute a waiver of any right or remedy, which Licensor may have on account of Licensee's default. Page 3 of 8 — License to Use Right of Way — Document No. 2020-180 Commented [C3]: Applicant wishes $1M per occurrence and $2M general aggregate insurance limits. CCOmmentsd [CD4]: Applicant wishes to delete this requirement. B. Licensee may withhold payment of any claim in connection with a good faith dispute over the obligation to pay, so long as Licensor's Right of Way interests are not jeopardized. If a lien is filed as a result of nonpayment, Licensee shall, within thirty (30) days after knowledge of the filing, secure the discharge of the lien or deposit with Licensor cash or a sufficient corporate surety bond or other surety satisfactory to Licensor in an amount sufficient to discharge the lien plus any costs, attorney fees and other charges that could accrue as a result of a foreclosure or sale under a lien. 13. Continuing Obligation. Said License shall be an ongoing, continuous and binding obligation and privilege for Licensee. The protections, rights and authority reserved to the Licensor herein shall inure to the benefit of any successor governmental authority. 14. Default. The following shall be events of default: A. Abandonment of the licensed Right of Way or the cessation of use of the Right of Way described in Exhibits "K. B. Upon sale or abandonment of the personal property owned and occupied by the Licensee, C. Failure of Licensee to pay any license fees or other charge within thirty (30) days after it is due and written notice is given by Licensor to Licensee. D. Failure of Licensee to comply with any term or condition or fulfill any obligation of the License within thirty (30) days after written notice by Licensor specifying the nature of the default with reasonable particularity. If the default is in such a nature that it cannot be completely remedied within the thirty (30) day period, this provision shall be complied with if Licensee begins correction of the default within the thirty (30) day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. 15. Termination. Said License shall terminate: A. By mutual agreement of the parties; B. Upon 30 days' written notice by Licensor; (COmrtletft2d [CDS]: Appivan[ wishes to delete this requirement. C. Immediately upon written notice by Licensor identifying existing public health and safety issue(s) associated with the Underground Facilities; D. Upon Licensee's written notice to Licensor to include mutually agreed upon schedule for removal and/or secure capping of Underground Facilities; E. Upon default which is not cured in accordance with the paragraph above entitled "Default"; F. Automatically upon vacation of the Right of Way. 16. Remedies on Default. A. In the event of a default, the License may be terminated at the option of the Licensor by notice in writing to Licensee. Except in the instance of an existing public health and safety issue(s) associated with the Underground Facilities, the notice may be given at any time after the thirty (30) days grace period for default given under the paragraph entitled "Default." If the Right of Way is abandoned by Licensee in connection with a default, termination shall be automatic and without notice. B. In any of the above set out cases or events, the Licensor, or those having the Licensor's estate in the Right of Way, lawfully at its option may enter into and upon said Right of Way and every part thereof, and repossess the same of Licensor's former estate, and expel said Licensee and those claiming by and through or under Licensee, and remove Licensee's effects at Licensee's expense, forcibly if necessary, and store the same, Page 4 of 8 — License to Use Right of Way — Document No. 2020-180 without being deemed guilty of trespass and without prejudice to any remedy which otherwise might be used for arrears of license fees or preceding breach of covenant. C. The foregoing remedies shall be in addition to, and shall not exclude, any other remedy available to Licensor under applicable law and/or regulatory provisions. 17. Facilities, Structures, and Equipment. A. All equipment or other personal property associated with the Underground Facilities during the term by Licensee shall remain the property of Licensee except as otherwise provided herein. B. Upon abandonment, termination, revocation, or cancellation of this License, the Licensee shall remove, within a reasonable time, all equipment and other personal property associated with the Underground Facilities except those owned by Licensor. If Licensee fails to remove all or part of such personal property and equipment within thirty (30) days, and such additional time as is reasonable and necessary to effect such removal as may be agreed upon by the parties, then upon election of Licensor they shall become the property of Licensor. 18. Notices. Any notice by Licensee to Licensor or Licensor to Licensee must be served by certified or registered mail, postage prepaid, addressed to the other at the address given below or at such other address as either may designate by written notice. Licensor: Deschutes County Road Department Chris Doty, Director 61150 SE 27'h Street Rend, OR 97702 Licensee: Tumalo Homeowners Association Larry Kine, President 250 NW Franklin Ave, Ste 401 Bend, OR 97703 19. Nonwaiver. Waiver by either party of strict performance of any provision of this License shall not be a waiver of or prejudice the party's right to require strict performance of the same provision in the future or of any other provision. 20. Partnership. Licensor is not by virtue of this License a partner or joint venturer with Licensee in connection with activities carried on under this License, and shall have no obligation with respect to Licensee's debts or any other liabilities of each and every nature. 21. Land Use Permit. This License does not constitute a land use permit or regulatory authorization, nor does issuance of this License by Licensor constitute approval of any legal, regulatory, legislative or quasi-judicial action required as a condition precedent to use of the land for the intended purpose. 22. Licensor's Right to Cure Defaults. If the Licensee fails to perform any obligations under this License, the Licensor shall have the option to do so after thirty (30) days' written notice to the Licensee. All of the Licensor's expenditures to correct the default shall be reimbursed by the Licensee on demand with interest at the rate of nine percent (9%) per annum from the date of expenditures by the Licensor. 23. Licensee Not An Agent of Licensor. It is agreed by and between the parties that Licensee is not carrying out a function on behalf of the Licensor, and Licensor does not have the right of direction Page 5 of 8 — License to Use Right of Way — Document No. 2020-180 or control of the manner in which Licensee transports or disposes of materials so long as Licensee meets criteria set forth herein. 24. Litigation Fees and Expenses. In the event an action, suit or proceeding, including appeal therefrom, is brought for failure to observe any of the terms of this License, each party shall be responsible for its own attorney's fees, expenses, costs and disbursements for said action, suit, proceeding or appeal. 25. Indemnification. Licensee shall defend, save, hold harmless, and indemnify Licensor, its agencies, officers, directors, agents, and employees from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever resulting from, arising out of, or relating to the acts or omissions of Licensee or its employees, contractors, officers, or agents under this License, including but not limited to installation, operation, maintenance, and repair of the Underground Facilities. 26. Time is of the Essence. Time is of the essence in each and every provision of this License. 27. Severability. The parties agree that if any term or provision of this License is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the License did not contain the particular term or provision held to be invalid. 28. Attorneys' Fees. In the event a suit or action of any kind is instituted on behalf of either party to obtain performance under this License or to enforce any rights or obligations arising from this License, each party will be responsible for paying its own attorney fees. 29. Authority. The signatories to this License covenant that they have the legal authority to bind their respective principals to the terms, provisions and obligations contained within this License. 30. MERGER. THIS LICENSE CONSTITUTES THE ENTIRE LICENSE BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS LICENSE SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS LICENSE. LICENSOR, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT LICENSOR HAS READ THIS LICENSE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. (SIGNATURE PAGES TO FOLLOW) Page 6 of 8 — License to Use Right of Way — Document No. 2020-180 LICENSEE: DATED this day of 2020. Larry D. Kine, President STATE OF OREGON ) ) ss. County of Deschutes ) Before me, a Notary Public, personally appeared Larry D. Kine. DATED this day of , 2020. My Commission Expires: Notary Public for Oregon Page 7 of 8 — License to Use Right of Way — Document No. 2020-180 LICENSOR: DATED this day of 2020. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON PATTI ADAIR, CHAIR ANTHONY DEBONE, VICE CHAIR PHILIP G. HENDERSON, COMMISSIONER STATE OF OREGON ) ) ss. County of Deschutes ) Before me, a Notary Public, personally appeared Patti Adair, Anthony DeBone, and Philip G. Henderson. DATED this day of , 2020. Notary Public for Oregon My Commission Expires: Page 8 of 8 — License to Use Right of Way — Document No. 2020-180 AFTER RECORDING RETURN TO Kine LLC 250 NW Franklin Ave., Ste. 401 Bend, OR 97703 Deschutes County Official Records Nancy Blankenship: County Clerk 2018-43964 �a\S'(ES �GC7 II I I ii 1 1 11 1 1 1 it 1 1 11 l 111 l 11 111 11 li IIIIIIE1 111 111$178.00 01200628201800439640180188 D-CCR Cnt=l Stn=4 SRB 10/31/2018 03:09 PM $90-00 $11 M $61.00 $10,00 $6. oo A&:, DECLARATION OF JOINT USE AND MAINTENANCE OBLIGATIONS FOR PRIVATE COMMUNITY SEWER SYSTEM TABLE OF CONTENTS RECITALS ARTICLE 1 DEFINITIONS...................................................................... ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION........... 2.1 Initial Development ...................................... 2.2 Additional Property ....................................... 2.2.1 Voting Rights of Additional Lots ..... 2.2.2 Additional Lot Owners as Members. ARTICLE 3 .............................. I .............................................2 .............................................3 .............................................3 .............................................3 .............................................3 .............................................3 OWNERSHIP AND EASEMENTS....................................................................................4 3.1 Non-Severability.........................................................................................A 3.2 Additional Property......................................................................................4 3.3 Additional Easements..................................................................................4 ARTICLE 4 OWNERSHIP AND MAINTENANCE OF COMMUNITY SEWER SYSTEM...............4 4.1 Description of System................................................................. ................. 4.2 Association's Authority to Borrow Money..................................................4 4 3 t"ulure 1onnecLions/L',',Xt)Al1Sll)11....................................................................✓ ARTICLE 5 EASEMENTPROPERTY...................................................................................................5 5.1 Condemnation of Easement Property..........................................................5 5.2 Damage or Destruction of Easement Property.............................................5 ARTICLE 6 MEMBERSHIP IN THE ASSOCIATION; MANAGEMENT...........................................5 6.1 Organization.................................................................................................5 6.2 Members......................................................................................................6 6.3 Termination of Membership/'Termination Fee ............................................... 6.4 Control of Affairs of Association................................................................6 6.5 Control After Turnover................................................................................6 6.6 Proxy............................................................................................................6 6.7 Voting Rights...............................................................................................6 6.8 Procedure.....................................................................................................7 6.9 Professional Management............................................................................7 ARTICLE 7 FUNDSAND ASSESSMENTS..........................................................................................7 7.1 Rights to Assess and Purposes of Assessment; Expenses ...........................7 III 7.2 Covenants to Pay..........................................................................................7 7.2.1 Funds Held in Trust.........................................................................8 7.2.2 Offsets..............................................................................................8 7.2.3 Rights to Profits...............................................................................8 7.3 Basis of Assessment/Commencement of Assessments................................8 7.3.1 Commencement of Operating Assessments.....................................8 7.4 Annual Assessments....................................................................................8 7.4.1 Budgeting.........................................................................................8 7.4.2 Reserve Fund...................................................................................9 7.4.3 Allocation of Assessments...............................................................9 7.4.4 Nonwaiver of Assessments..............................................................9 7.5 Special Assessments....................................................................................9 7.5.1 Correct Deficit.................................................................................9 7.5.2 Special Obligations of an Owner.....................................................9 7.5.3 Repairs.............................................................................................9 7.6 Accounts......................................................................................................9 7.6.1 Types of Accounts...........................................................................9 7.6.2 Additional Accounts......................................................................10 7.6.2.1 Special Reserves............................................................................10 7.6.2.2 Refunds of Assessments................................................................10 7.7 Default in Payment of Assessments, Enforcement of Liens......................10 7.7.1 Personal Obligation........................................................................10 7.7.2 Association Lien...........................................................10 ARTICLE 8 GENERALPROVISIONS................................................................................................11. 8.1 Records......................................................................................................11 8.2 Indemnification of Directors, Officers, Employees and Agents................11 8.3 Enforcement; Attorneys' Fees....................................................................11 8.4 Severability................................................................................................12 8.5 Duration.....................................................................................................12 8.6 Amendment................................................................................................12 8.7 Resolution of Document Conflicts.............................................................12 DECLARATION OF JOINT USE AND MAINTENANCE OBLIGATIONS FOR PRIVATE COMMUNITY SEWER SYSTEM THIS DECLARATION OF JOINT USE AND MAINTENANCE OBLIGATIONS FOR PRIVATE COMMUNITY SEWER SYSTEM ('Declaration") is made and entered into effective this 26"' day of October 2018 by Kine, LLC and Tumalo Investments, LLC (the "Declarant"). RECITALS The Declarant is the owner of all of the property located in the unincorporated community of Tumalo, Deschutes County, Oregon identified in Exhibit A (the "Property"): The Property consists of legal lots previously created by virtue of a recorded township plat entitled "Map of the Townsite of Laidlaw, Crook County, Oregon". Declarant is not subdividing property or creating a subdivision, subject to the Oregon Planned Community Act, ORS Chapter 94. However, the unincorporated community of Tumalo does not have a public community sewer system and all property within that community must rely upon private community sewer facilities. To provide sanitary sewer service to each existing Lot, Declarant intends to create an association of property owners that will construct, own, maintain and repair a Private Coiniiiurirty k)iC VM uySteiii — - nvmm�n M— - o f each 1 tit— I'll.. the Prpp-.I., and to other properties within the unincorporated community of Tumalo, and future properties that may decide to connect to that system subject to the terms of this Declaration. To assure that the Private Community Sewer System is maintained, repaired or reconstructed as needed, Declarant is recording this Declaration incorporating those provisions from ORS Chapter 94 that will assure the proper maintenance, repair or reconstruction of the private sewer system so that the properties served by the Private Community Sewer System will continue to have effective sanitary sewer services as long as those services are needed. The Declarant has deemed it desirable for the efficient operation of the Private Community Sewer System to create an Association of Owners of properties that will connect to and use the private community sewer system as a nonprofit corporation, to which will be delegated and assigned the powers and authority to own, maintain and repair the Private Community Sewer System to administer the affairs of the Association, and to collect and disburse the assessments and charges hereinafter created. The Declarant reserves the right for itself, and the Board of Directors of the property owners' association to allow additional properties to connect to the Private Community Sewer System and to become members of the Association, on the condition that any property that connects must agree to be obligated by the terms of this Declaration and record an acknowledgment document to that effect in the Deschutes County Recorder's Office. NOW 'THEREFORE, the Declarant declares that the Property, and any additional property that connects to the Private Community Sewer System, shall be held, transferred, sold, conveyed and occupied subject to the following obligations, covenants, conditions, charges and liens, which shall run with the land, which shall be binding upon all parties having or acquiring any right, title or interest in the Property or any part thereof. and which shall inure to the benefit of the Association and of each Owner. ARTICLE I DEFINITIONS 1.1 "Additional Property" shall mean and refer to any Lot or Parcel, as defined in Article 1.8 below that connects to the Private Community Sewer System defined in Article 1.12 below and becomes subjected to this Declaration. 1.2 "Articles" shall mean the Articles of Incorporation for the nonprofit corporation, Tumalo Property Owners Association, as filed with the Oregon Secretary of State. 1.3 "Association" shall mean and refer to Tumalo Property Owners Association, its successors and assigns. 1.4 'Board" or "Board of Directors" shall mean the Board of the Association. 1.5 "Bylaws" shall mean and refer to the Bylaws of the Association. 1.6 '`Declaration" shall mean the covenants, conditions, obligations, and all other provisions set forth in this Declaration. 1.7 "Declarant" shall mean Kine. LLC and "Tumalo Investments, LLC 1.8 "Lot" and "Parcel" shall mean and refer to each and any piece of real property whether legally described as a platted lot, or portion thereof or with a metes and bounds description, now located within the Property, or which may be subsequently served by the Private Community Sewer System. 1.9 "Members" shall mean and refer to the Owners of any property that connects to the Private Community Sewer System and thereby, becomes a member in the Association subject to this Declaration. 1.10 "Owner" shall mean and refer to the currently recorded owner, whether one or more persons or entities, of the fee simple title to any Lot or Parcel or a purchaser in possession of a Lot or Parcel under a land sale contract. The foregoing does not include persons or entities that hold an interest in any Lot or Parcel merely as security for the performance of an obligation. 1.11 "Private Community Sewer System" shall mean and refer to that community sewer system constructed by the Declarant to serve the Property and any Additional Property, which system will be owned and maintained by the Association. 1.12 "PropertX" shall have the meaning attributed to such term in the Recitals of this Declaration. 1.13 "Reserve Account(s)" shall mean and refer to an account set up by the Board to hold funds for construction, improvements or maintenance of the Private Community Sewer System, and any other property for which the Association assumes responsibility for maintenance, repair or replacement obligations. 1.14 "Turnover Meeting" shall be the meeting called by the Declarant to turn over control of the Association to the Members. ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION 2.1 Initial Development. The Property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is located in Deschutes County, Oregon, and depicted on the township plat entitled "Map of the Township of Laidlaw, Crook County, Oregon (now within Deschutes County)-. The initial development consists of the Lots and other associated property described in Exhibit A. 2.2 Additional Property. Additional Property may be connected to the Private Community Sewer System at the designation of the Declarant or Board of Directors for the Association. Provided, however, such Additional Property and the Owners of said property must agree to be obligated under the provisions of this Declaration and record an Acknowledgment to that effect, substantially in the form attached to this Declaration as Exhibit B, in the real property records of Deschutes County. 2.2.1 Voting Rights of Additional Lots. Upon connecting to the Private Community Sewer System and recording the Acknowledgment, additional property shall be entitled to voting rights as set forth in Section 6.6 below. 2.2.2 Additional Lot Owners as Members. After complying with the procedures for connecting to the Private Community Sewer System, Owners of Lots or Parcels in the Additional Property shall be Members and shall be subject to this Declaration. The Association shall reallocate the regular assessments to assess each Owner of a Lot or Parcel a share of the total expenses of the Association, based upon the number of Equivalent Dwelling Units ("EDUs") assigned to their properties. ARTICLE 3 OWNERSHIP AND EASEMENTS 3.1 Non-Severability, The Private Community Sewer System serving each Lot or Parcel will be within an easement under which the Association will be the Grantee. The interest of each Owner in the use and benefit of the Private Community Sewer System shall be appurtenant to the Lot or Parcel owned by the Owner. Subject to an Owner's right to terminate their membership in the Association as provided in Section 6.3, no Lot or Parcel shall be conveyed by the Owner separately from the interest in the Private Community Sewer System. Any conveyance of any Lot or Parcel shall automatically transfer the right to use the Private. Community Sewer System without the necessity of express reference in the instrument of conveyance, provided that upon any conveyance of property and transfer of the right to use the system, the Association shall be entitled to collect the greater of a $350.00 transfer fee per EDU (equivalent dwelling unit) or lot or portion of a lot if no structures are built. Subject to the Associations right to adjust the transfer fee as provided for in Section 4.3, the transfer fee shall increase by 3% beginning in the year 2020 and each year thereafter. The Declarant shall not be subject to any transfer fee upon conveying any property that is connected to or that may connect to the Private Community Sewer System. During the period of Declarant control, the Declarant may waive any transfer fee at its sole discretion. 3.2 Additional Property. Upon the recordation of the Acknowledgment of this Declaration against any Additional Property that connects to the Private Community Sewer System, the Owners of Additional Property shall have the benefit and use of all the easements specified in this Article in the same manner and to the sarne degree as existing Owners of the Property. 3.3 Additional Easements. To allow for expansion of the Private Community Sewer System, the Declarant, and/or the Association has the authority to enter into additional easements. In addition, notwithstanding anything expressed or implied to the contrary, this Declaration shall be subject to all easements granted by the ruling jurisdiction for the installation and maintenance of utilities and drainage facilities necessary for the development of the Property. ARTICLE 4 OWNERSHIP AND MAINTENANCE OF COMMUNITY SEWER SYSTEM 4.1 Description of System. The Property and any Additional Property subject to this Declaration will be served by a privately owned and maintained community sewer system. That system will include the following improvements and facilities/equipmen.t: tanks, pipes, a control building and associated equipment and utilities. 4.2 Association's Authority to Borrow Money. The Association will oven the community sewer system and be responsible for all maintenance, repair and replacement of the improvements and facilities/equipment that are part of the system. The Association will acquire and Construct the Private Community Sewer System, including all of its improvements and facilities/equipment using a loan from the Declarant. The Association shall have authority to expand the Private Community Sewer System to add capacity to meet, accommodate, and add property to the system. The Association shall have authority to borrow money from Declarant to fund any such expansion using a loan agreement. Any loan from the Declarant shall be pursuant to a separate loan agreement and promissory note, which shall include a provision stating that the Association is obligated to repay the loan only to the extent that it obtains connection fees from Additional Properties or transfer fees from existing or additional Properties that become subject to the terms of this Declaration, or receives interest payments on any funds held. 4.3 Future Connection/Expansion. The Association shall have the right and authority to allow additional properties to connect to and use the Private Community Sewer System provided the properties become subject to the Declaration and pay a connection fee and/or transfer fee. The fee shall be established by the Declarant if moneys are still owed to the Declarant. All connection and transfer fees collected, and interest earned by the Association from properties that connect to the Private Community Sewer System shall be paid by the Association to the Declarant as repayment of any Declarant Loans, until those loans from the Declarant are repaid in full. Upon full repayment of all Declarant Loans, including all principal and interest, the Association may adjust the connection fee and transfer fee at its discretion. The Association shall keep records of all connection or other fees it collects from properties and make those records available to the Declarant upon a request. ARTICLE 5 EASEMENT PROPERTY 5.1 Condemnation of Easement Property. if all, or any, portion of any Easement Property is taken for any public or quasi -public use under any statute, by right of eminent domain or by purchase in lieu of eminent domain, and there is a separate award to the Association, the entire award shall be received by and expended by the Board in a manner that, in the Board's discretion, is in the best interest of the Association and the Owners. The Association shall represent the interest of all Owners in any negotiations, suit, action or settlement in connection with such matters. 5.2 Damage or Destruction of Easement Property. If all or any portion of any Easement Property is damaged or destroyed the Association is obligated to repair such damage first, using any insurance proceeds that may be available and then, using funds available as provided in Article 7. The reasonable costs incurred in connection of such repairs shall become a special assessment upon the Lot and against the Owner who caused or is responsible for such damage. ARTICLE 6 MEMBERSHIP IN THE ASSOCIATION; MANAGEMENT 6.1 Organization. Declarant has organized an Association of Owners, consisting of properties that will be served by the Private Community Sewer System. The Association has been organized under the name of Tumalo Property Owners Association, as a nonprofit Oregon corporation with the recording of this Declaration, the Bylaws and the Articles of Incorporation. The Association shall have property, powers, and obligations as set forth in this Declaration and the Association Bylaws for the benefit of the Property, including any Additional Property, and the Members. The Articles of Incorporation of the Association provide for its perpetual existence. In the event the Association is at any time dissolved, whether inadvertently or deliberately, it shall automatically be succeeded by an unincorporated association of all Owners of the same name. In such event, all of the property, powers, and obligations of the incorporated Association existing immediately prior to its dissolution shall thereupon automatically vest in the successor unincorporated association, and such vesting shall, thereafter, be confirmed and evidenced by appropriate conveyances and assigmnents. To the greatest extent possible, any successor unincorporated association shall be governed by the Articles of Incorporation and the Bylaws of the Association as if they had been made to constitute the governing documents of the unincorporated association. The Articles of Incorporation and Bylaws of the Association adopted and duly amended shall be deemed covenants running with the ownership of the Lots, and shall be binding upon the Owners as if recited verbatim herein. The Association shall be governed by a Board of Directors elected in the mariner set forth in the Bylaws. 6.2 Members. Each Owner of any Lot or Parcel that connects to the Private Community Sewer System shall be a member of the Association. Membership in the Association shall be appurtenant to, and may not be separated from, ownership of any such property. Transfer of ownership of such property shall transfer automatically membership in the Association. Without any other act or acknowledgment, Occupants and Owners shall be governed and controlled by this Declaration, the Articles, Bylaws, and the Rules and Regulations offne Association and any amendments thereof. 6.3 Termination of Membership/Termination Fee. The Association constructed the Private Community Sewer System using financial projections based upon the assumption that each Lot and Parcel in the Initial Development would remain members of the Association and pay assessments to defray the cost of constructing and operating the system. Thus, it is essential to the Association's ability to continue operating the system, to receive assessments from each Lot or Parcel in the Initial Development. If the Owner(s) of any Lot or Parcel in the Initial Development elects to not connect to the Private Community Sewer System, they may terminate their membership in the Association only upon the payment to the Association of a Termination Fee, to be determined by the Association based upon the anticipated revenues the Association would have received from that Lot or Parcel over a 15 year period of time accounting for the value of money at 3% per annum. 6.4 Control of !Affairs of Association. The Declarant shall appoint the Board of Directors and control the Association until administrative responsibility for the Association, is turned over to the Owners. Recognizing Declarant's substantial investment in the Private Community Sewer System, and the loans it makes to the Association for the construction and future expansion of the system, Declarant shall retain administrative control over the Association until all loans it provided to the Association are repaid and until it no longer owns any property subject to this Declaration. 6.5 Control After Turnover. After Turnover, the affairs of the Association shall be controlled by its Board of Directors elected pursuant to the provisions of the Bylaws. The Board of Directors shall have the powers and duties set forth in the Bylaws. 6.6 Proxv. Each Owner may cast such Owner's vote in person, by written ballot or pursuant to a proxy executed by such Owner. An Owner may not revoke a proxy given pursuant to this Section 6.5 except by actual notice of revocation to the person presiding over a meeting of the Association. A proxy shall not be valid if it is undated or purports to be revocable without notice. A proxy shall terminate one (1) year after its date, unless the proxy specifies a shorter term. 6.7 Voting Rights. The Association shall have two (2) classes of voting members: (a) Class "A" Membership: Shall include all owners of Lots or Parcels subject to this Declaration other than the Declarant and each Class A members is entitled to one (1) vote for each Lot owned with respect to all matters upon which Owners are entitled to vote. (b) Class "B" Membership: Shall include only the Declarant, its successors and assigns, The Class B member is entitled to ten (10) votes for each Lot or Parcel owned that is subject to this Declaration. Class "B" member shall cease and be converted to Class A membership upon the earlier of: (1) When one hundred (100%) percent of the Lots or Parcels owned by Declarant or an affiliate that are subject to this Declaration have been sold and conveyed to owners other than the Declarant or an affiliate ("termination date") or (ii) At such earlier time as Declarant may elect in writing to terminate Class B membership When more than one (1) person or entity owns a Lot or Parcel, the vote for such Lot or Parcel may be cast as they shall determine, but in no event shall fractional voting be allowed. Fractional or split votes shall be disregarded, except for purposes of determining a quorum. 6.8 Procedure. All meetings of the Association, the Board, and any other Association Committees shall be conducted using Robert's Rules of Order. 6.9 Professional Management. The Declarant or Board may employ a professional manager to manage the affairs of the Association. Any agreement for professional management shall provide that the management contract may be terminated for any reason with no more than thirty (30) days notice. ARTICLE 7 FUNDS AND ASSESSMENTS 7.1 Right to Assess and Purpose of Assessments; Expenses. In addition to charging connection and transfer fees as provided in Article 4.3, the Association shall have the authority to assess members for (1) operating expenses of operating the Private Community Sewer System; (ii) regular maintenance of the system; (iii) repairs to the system components; (iv) reserves and/or replacement of components of the system and other capital improvements; (v) for the administration and operation of the Association; and (vi) for property and liability insurance. 7.2 Covenants to Pay. Each Owner covenants and agrees to pay the Association the assessments and any additional charges levied pursuant to this Declaration or the Bylaws. All assessments for operating expenses, repairs and replacement and reserves shall be allocated among the properties connected to the Private Community Sewer System and their Owners as set forth in Section 7.4.3. 7.2.1 Funds Held in Trust. The assessments collected by the Association shall be held by the Association for and on behalf of each Owner and shall be used solely as set forth in Section 7.1. Upon the sale or transfer of any Lot or Parcel, the Owner's interest in such funds shall be deemed automatically transferred to the successor in interest to such Owner. All funds labeled as Reserve Funds shall be maintained in an interest bearing account or the equivalent. 7.2.2 Offsets. No offsets against any assessment shall be permitted for any reason, including, without limitation, any claim that the Association is not properly discharging its duties. 7.2.3 Right to Profits. Association profits, if any, shall be the property of the Association and shall be contributed to the Current Operating Account. 7.3 Basis of Assessment/Commencement of Assessments. Assessments for operating expenses, regular maintenance and routine repairs shall be based upon each connecting property's determined level of use of the system as determined by the Board at the time the property connects to the system using Equivalent Dwelling Units ("EDUs"). The Board shall make adjustments to assessments on any property if the Owner of any property changes the uses on the property in a manner that either increases or decreases the level of use of the system. The Board shall include within the assessments an amount to be allocated to a Reserve Fund for the repair and replacement of the major components of the Private Community Sewer System as provided for in Section 7.4.2. 7.3.1 Commencement of Operating Assessments. The date of commencement of the assessments for additional properties shall be the date the first property connects to the Private Community Sewer System and has a certificate of occupancy. For the Lots and Parcels within the Initial Development, as identified in Section 2.1 and Exhibit A, the date of commencement of the assessment shall be the first day after the Lot or Parcel is conveyed by the Declarant to a third party, whether in a consensual sale or a condemnation. The Declarant or Board shall have the sole discretion to delay the date of any assessment. 7.4 Annual Assessments. The Board shall determine the assessments against each property on an annual basis. Annual assessments for each fiscal year shall be established when the Board approves the budget for that fiscal year. The initial annual assessment shall be determined by the Board and shall be prorated on a monthly basis at the time of the first property connects to the Private Community Sewer System. For prorating purposes, any portion of a month shall count as a full month. Annual assessments shall be payable monthly. The fiscal year shall be the calendar year unless another year is adopted by vote of the Association members. 7.4.1 Budgeting. Each year the Board shall prepare, approve and make available to each member of the Association a pro forma operating statement (budget) containing: (i) estimated revenue and expenses on an accrual basis; (ii) the amount of the total cash reserves of the Association currently available for replacement or major repair of the Private Community Sewer System and for contingencies; (iii) an itemized estimate for the remaining life of; and the methods of funding to defray repair, replacement or additions to major components of such improvements as provided in Section 7.4.2; and (iv) a general statement setting forth the procedures used by the Board in the calculation and establishment of reserves to defray the costs of repair, replacement or additions to major components of Private Community Sewer System. Notwithstanding that budgeting shall be done on an accrual basis, the Association's books shall be kept on a cash basis and the Association shall be a cash basis taxpayer, unless applicable governmental regulations require otherwise. For the first fiscal year, the budget shall be approved by the Board no later than the date on which annual assessments are scheduled to commence. Thereafter; the Board shall annually prepare and approve the budget and distribute a copy or summary thereof to each Member, together with written notice of the amount of the annual assessments to be levied against the Owner's Lot or Parcel, within thirty (30) days after adoption of such budget. If any Additional Property connects to the Private Community Sewer System and becomes subject to this Declaration, the Board shall approve a new budget for the remainder of the current fiscal year. 7.4.2 Reserve Fund. The Board shall determine on an annual basis that portion of the assessments that will be allocated to a reserve fund to be used for the repair and/or replacement of major components of the Private Community Sewer System. All Reserve Funds shall be held in an interest bearing account or the equivalent. 7.4.3 Allocation of Assessments. The total amount in the budget shall be charged prorate based upon EDU against all Lots or Parcels as annual assessments. 7.4.4 Nonwaiver of Assessments. If before the expiration of any fiscal year the Association fails to fix annual assessments for the next fiscal year, the annual assessments established for the preceding year shall continue until a new annual assessment is fixed. 7.5 Special Assessments. The Board and/or the Owners shall have the power to levy special assessments against an Owner or all Owners in the following manner for the following purposes: 7.5.1 Correct Deficit. To correct a deficit in the operating budget, by vote of a majority of the Board; 7.5.2 Special Obligations of an Owner. To collect amounts due to the Association from. an Owner for breach of the Owner's obligations under this Declaration, the Bylaws, or the Rules and Regulations, by vote of a majority of the Board; 7.5.3 Repairs. To collect additional amounts necessary to make repairs or renovations to the Private Community Sewer System if sufficient funds are not available from the operating budget or replacement reserve accounts, by vote of a majority of the Board; or 7.6 Accounts. 7.6.1 Types of Accounts. Assessments collected by the Association shall be deposited into a federally insured banking institution. The Association will maintain two (2) accounts, one for operating funds and one for money held in reserve for all items included within the annual reserve study, which shall be in an interest bearing account or the equivalent. 7.6.2 Additional Accounts. Nothing in this Declaration shall restrict the Association or the Board from creating a Reserve Account for the purpose of funding capital projects or additional existing repairs and maintenance. 7.6.2.1 Special Reserves. Other special reserve funds may be set up by the Board by special assessments of the Owners who benefit thereby as may be required by the Declaration or otherwise determined by the Association to be appropriate. 7.6.2.2 Refunds of Assessments. Assessments paid into the Operating or other additional accounts are the property of the Association and are not refundable to sellers or Owners of Lots or Parcels. Sellers or Owners of Lots and Parcels may treat their outstanding share of any account balance as a separate item in the sales contract providing for the conveyance of their Lot or Parcel. 7.7 Default in Payment of Assessments, Enforcement of Liens. 10 7.7.1 Personal Obligation. All assessments properly imposed under this Declaration or the Bylaws shall be the joint and several personal obligations of all Owners of the Lot or Parcel to which such assessment pertains. In a voluntary conveyance (that is, one other than through foreclosure or a deed in lieu of foreclosure), the grantees shall be jointly and severally liable with the grantors for all Association assessments imposed through the recording date of the instrument effecting the conveyance. A suit for a money judgment may be initiated by the Association to recover such assessments without either waiving or foreclosing the Association's lien. 7.7.2 Association Lien. The Association shall have a lien against each Lot or Parcel for any assessment (of any type provided for by this Declaration or the Bylaws) or installment thereof is delinquent. Such lien shall accumulate all future assessments or installments, interest, late fees, penalties, fines, attorneys' fees (whether or not suit or action is instituted), actual administrative costs, and other appropriate costs properly chargeable to an Owner by the Association, until such amounts are fully paid. Recording of the Declaration constitutes record notice and perfection of the lien. Said lien may be foreclosed at any time. The Association shall record a notice of a claim of lien for assessments and other charges in the deed records of Deschutes County, Oregon, before. any suit to foreclose may be filed. The lien of the Association shall be superior to all other liens and encumbrances except property taxes and assessments, any first mortgage, deed of trust or land sale contract recorded before the Association's notice of lien and any mortgage or deed of trust granted to an institutional lender that is recorded before the Association's notice of lien. ARTICLE ICLE a GENERAL PROVISIONS 8.1 Records. The Board shall preserve and maintain minutes of the meetings of the Association, the Board and any committees. The Board also shall keep detailed and accurate financial records, including individual assessment accounts of Owners, the balance sheet, and income and expense statements. Individual assessment accounts shall designate the name and address of the Owner or Owners of the Lot or Parcel, the amount of each assessment as it becomes due, the amounts paid upon the account, and the balance due on the assessments. The minutes of the Association, the Board and Board committees, and the Association's financial records shall be maintained in the state of Oregon and reasonably available for review and copying by the Owners. A reasonable charge may be imposed by the Association for providing copies, including charges for administrative time. 8.2 Indemnification of Directors, Officers, Employees and Agents. The Association shall indemnify the Declarant, and any Director, officer, employee or agent who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by the Association) by reason of the fact that such person is or was a Director, officer, employee or agent of the Association or is or was serving at the request of the Association as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by said person in connection with such suit, action or proceeding if such person acted in good faith and in a manner that such person reasonably believed to be in, or not opposed to, the best interest of the Association, and, with respect to any criminal action or proceedings, had no reasonable cause to believe that such person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or with a plea of nolo contendere or its equivalent, shall not of itself create a presumption that a person did not act in good faith and in a manner which such person reasonably believed to be in, or not opposed to, the best interest of the Association, and, with respect to any criminal action or proceedings, had reasonable cause to believe that such person's conduct was unlawful. Payment under this clause may be made during the pending of such claim, action, suit or proceeding as and when incurred, subject only to the right of the Association to reimbursement of such payment from such person, should it be proven at a later time that such person had no right to such payments. All persons who are ultimately held liable for their actions on behalf of the Association as a Director, officer, employee or agent shall have a right of contribution over and against all other Directors, officers, employees or agents and members of the Association who participated with or benefited from the acts which created said liability. 8.3 Enforcement,• Attorneys' Fees. The Association and the Owners and any mortgagee holding an interest on a Lot or Parcel shall have the right to enforce all of the covenants, conditions, restrictions, reservations, easements, liens and charges now or hereinafter imposed by any of the provisions of this Declaration as may appertain specifically to such parties or Owners by any proceeding at law or in equity. Failure by either the Association or by any Owner or mortgagee to enforce any covenant, condition or restriction herein contained shall in no event be deemed a waiver of their right to do so thereafter. In the event suit or action is commenced to enforce the terms and provisions of this Declaration (including without limitations, for the collection of assessments), the prevailing party shall be entitled to its actual administrative costs incurred because of a matter or event which is the subject of the suit or action, attorneys' fees and costs in such suit or action to be fixed by the trial court, and in the event of an appeal, the cost of the appeal, together with reasonable attorneys' fees, to be set by the appellate court. In addition thereto, the party bringing such action shall be entitled to its reasonable attorneys' fees and costs incurred in any enforcement activity or to collect delinquent assessments, together with the Association's actual administrative costs, whether or not suit or action is filed. 8.4 Severability. Invalidation of any one of these covenants, conditions or restrictions by judgment or court order shall not affect the other provisions hereof and the same shall remain in full force and effect. 8.5 Duration. The covenants, conditions and restrictions of this Declaration shall run with and bind the land for a term of thirty-five (35) years from the date of this Declaration being recorded, after which time they shall be automatically extended for successive periods of ten (10) years, unless rescinded by a vote of at least ninety percent 12 (90%) of the Owners and ninety percent (90%) of the first mortgagees; provided, however, that if any of the provisions of this Declaration would violate the rule against perpetuities or any other limitation on the duration of the provisions herein contained imposed by law, then such provision shall be deemed to remain in effect only for the maximum period permitted by law or, in the event the rule against perpetuities applies, until twenty-one (21) years after the death of the last survivor of the now living descendants of Ex -President George Bush. 8.6 Amendment. Except as otherwise provided in Section 8.6, and the restrictions set forth elsewhere herein, this Declaration may be amended at any time by an instrument approved by not less than seventy-five percent (75%) of the total votes of each class of members that are eligible to vote. Any amendment must be executed, recorded and certified as provided by law.. provided, however, that no amendment of this Declaration shall effect an amendment of the Bylaws or Articles without compliance with the provisions of such documents, and the Oregon Nonprofit Corporation Act. 8.7 Resolution of Document Conflicts. In the event of a conflict among any of the provisions in the documents governing the Property, such conflict shall be resolved by looking to the following documents in the order shown below: 1. Declaration; 2. Articles; 3. Bylaws; 4. Rules and Regulations. 13 IN WIT E 'S WHEREOF, the Board has executed this instrument this 0 C.to , 2018. KINE, LLC, Declarant An Oregon Limi % 'I.LAbW S3H1dXS NOISSIWW00 AN 66SR6 "ON NOISSIIN1NOO N003a0.onand ,kHVION By: A31ND13W 3NNOAA 3NILSINH dNIVIS 1d101d:30 STATE OF OREGON ) ss. County of�� Member day of 2018 Personally appeared Larry Kine, who, being duly sworn, did say that he/she is the Member of Kine, LLC, an Oregon Limited Liability Company, and that the foregoing instrument was signed in behalf of said company/corporation; and acknowledged said instrument to be its voluntary act and deed. IN W 11 N JS W ',E 11E-1V1, the Board has executed this ittati'rrriieilt flni' I_ uay of , 2018. Tumalo Investments, LLC, Declarant An Oregon 6W DAM S38[dX3 NOISSIMOD AIN 668856'ON NOISSIM400 NOID980`0118nd XHVION A31NINOW 3NN0A k 3NUSIUND By dINVIS lb'101dd0 STATE OF OREGON ) County of ,2018 Personally appeared Larry Kine, who, being duly sworn, did say that he/she is the Member of Kine, LLC, an Oregon Limited Liability Company, and that the foregoing instrument was signed in behalf of said company/corporation; and acknowledged said instrument to be its voluntary act and deed. 14 EXHIBIT A PROPERTY LEGAL DESCRIPTION All of Block twenty' -seven (27) of I.AIDLAW. recorded August I, 1918 in Cabinet A, Pagte 38. Deschutes Count,. Oregon. EXCIiPTING THEREFROM that portion dedicated to the public by instrument Recorded September 27, 2001 in Instrument No. 2001-47427. Lots 1, 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. and 12 in Block 28 ol'LAIDLAW. recorded August 1. 1918 in Cabinet A. Page 38, Deschutes County, Oregon, lying West of the I lighv aN. Lots I and 2 in Block 34 and hots 9, 10. 11 and 12 in Block 35 of'LAIDLAW. recorded August I. 1918 in Cabinet A. Page 39. Deschutes Counp. Oregon. t-;XCITYINC'I THEREFROM that portion deeded to Deschutes County-, a political subdivision of the State of Oregon. by instrument Recorded l`ebruary 6. 2002. Instrument No. 2002-07266. fOCi[:THER WITH those portions of the vacated alleys and streets inuring thereto Blocks 27, 28. 34 and 35. ALSO TOGLTIII:R WITH a portion of Blocks 35, 36 and 37 and the vacated alleys and streets vested in said Blocks 35.36 and 37 of the 1904 plat of Laidlavy in Section 31. Township 16 South. Range 12 Last of the Willamette Meridian, Deschutes County. Oregon. and being more particularly described as follows: Commencing at the #5 rebar kith a 2" aluminum cap stamped "LS 2390" in the pavement of Bailey Road monumenting the northwest comer of I.ot 1. Block 36 of the plat of Laidlaw. the Point of Beginning; thence along the south 69111-01'-kNay, line of8th Street N 89° 58' 34" E a distance of405.23 feet to the 45 rebar With a 2" alinnlltum Cap Stamped "L5 2390" mPllgnnentin<! 111c i»t<9'Sgt'tipn of said south right-of=Way line with the centerline of the x acatcd alley in Block 35: thence Ieacin.g. said south right -of -%Nay line and along said alley centerline S 00° 04' 18" Fa distance of 166.47 feet: thence leayiniz said alley centerline S 61 ° 05' 34" W a distance of' 7.80 feet: thence 457.83 feet along the are of a curve to the left with a radius of 640.00 foot and a long chord which hears S 40° 35' 57" W 448.13 to the prolongation of the south line of Lot 3_ Block 37: thence along said south line S 89' 57' 55" W a distance of 1.23 feet to a i 5 rebar with a 2" aluminum cap ;tamped 'TS 2390" monumenting the southeast comer of said Lot 3_ Block 37: thence continuing along said south line S 89° 57' 55" W a distance of 105.13 feet to the east right-of-way line of Strickler Avenue: thence leaving said south line and along said east right-of-way line N 00' 04' 14" W a distance of 179.95 feet to a P5 rebar with a 2" aluminum cap stamped "I-S, 2390" monumenting the intersection ofsaid cast right-of-W, line with the centerline of vacated 9th Street: thence leap ing said east ridmi-of-way fine and alon{a said rarated street centerline N 89" 56 15" E a distance of` 115.06 ti:ct to a R5 rebar with an aluminum cap stamped LS 2390 monumenting the intersection of said vacated street centerline kith the centerline of the vacated alley in Block 36: thence leaving said vacated street centerline and along said alley centerline N 00" 04' 06" W a distance of 80.00 feet to a .P5 rebar with an aluminum cap stamped LS 2390 monumenting the intersection of said alley centerline With the prolongation of the north line of Lot 6. Block 36. thence leaving said alley centerline and slung said north line S 89' 58' 14" W a distance of 1 15.06 feet to a 45 rebar with an aluminum cap stamped LS2390 monumenting the nortimest comer of said Lot 6. Block 36, thence along the cast right-ol-way line oi' Strickler Avenue N OW 04' 14" W a distance of 250.37 feet to the Point of Beginning. ALSO TOGFTI IF,IZ WITH that portion of that portion vacated by instrument recorded March 28, 2002. Instrument No. 2002-17234. 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