HomeMy WebLinkAboutDoc 666 - Tetherow AmendmentDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of 12/17/12
DATE: 1217112
FROM: Will Groves. CDD 388-6518
TITLE OF AGENDA ITEM:
Consideration and Signature of Document No. 2012-666, Amending Deschutes County Contract No.
2008-237 to Extend the Tetherow Phase V Improvement Agreement and Consent to Assignment to and
Assumption by the New Owner of the Subdivision.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
Oil June 18, 2012, the Board signed an amendment to the Improvement agreement to extend the time
for constructing the roads and utilities for the Tetherow Phase V subdivision (TP-06-973) within the
Tetherow destination resort (CU-04-94, M-05-2). That amendment will expire on January 23, 2013.
Since that time, SFI Cascade Highlands LLC ("SFI") aquired the subdivision from TD Cascades
Highlands LLC through a trustees deed. This Improvement Agreement extends the time of construction
to five years from the date of all signature on the improvement agreement amendment. SFI is
substituting a new financial assurance (bond) in its name for $2,222,744.40.
Attached to this agenda request is the draft amendment with the changes shown in a redline version. As
of yet, County staffhas not been provided with a proposed form of the bond rider. Before the
amendment is provided to the applicant for signature, the applicant will provide a completed and signed
rider in order for a copy to be attached to the amendment for recording and the original placed in the
County Clerk's safe.
FISCAL IMPLICATIONS:
With this amendment, the County is choosing not to exercise its right to call on the bond and begin
building the roads and utilities in a subdivision in which no lots have been sold. Also, the amendment
includes a provision specifically stating that the County has not reviewed the cost estimate closely to
assure that it is sufficient but that the owner is responsible for any difference in the amount.
RECOMMENDATION & ACTION REQUESTED:
Motion: Approve signature of Document 2012-666 subject to legal review of an original bond and
inclusion of the Bond number in the amendment.
ATTENDANCE: Will Groves, Legal
DISTRIBUTION OF DOCUMENTS:
Original to Will Groves who will work with the applicant for recording in the Clerk's records and
placing the original bond rider in the Clerk's safe.
REVIEWED
~--LEGAL COUNSEL
For Recordin
DOCUMENT NO. 2012-666
AMENDING DESCHUTES COUNTY CONTRACT NO. 2008-237
(Amendment No.2)
THAT CERTAIN AGREEMENT, Deschutes County Contract No. 2008-237 dated May 14, 2008, and recorded in
the Deschutes County Official Records at 2008-23841 by and between DESCHUTES COUNTY , a political
subdivision of the State of Oregon ("County") and TD Cascades Highlands, LLC, an Oregon Limited Liability
Corporation ("Owner"), as amended on July 23,2012 by Document No. 2012-287 as Amendment No.1 , is
hereby further amended effective upon signing of all parties, as set forth below. SFI Cascade Highlands LLC, a
Delaware Limited Liability Company, ("New Owner") is added as a party to this Agreement. Except as provided
herein, all other provisions of the contract remain the same and in full force.
The above listed Agreement is amended as follows:
ADDITIONAL RECITALS:
WHEREAS, on September 17 , 2012, New Owner acquired ownership of the Real Property described in
Exhibit A through a Trustee's Deed recorded in the Deschutes County Official Records at 2012-036730;
WHEREAS, the parties agree to the assignment of all of Owner's rights and responsibilities under
Deschutes County Contract No. 2008-237 as amended by Document No. 2012-287 to New Owner,
WHEREAS, new financial security must be provided to the County from New Owner because the
financial security attached as Exhibit F to Document No. 2012-287 expires January 5, 2013 ;
WHEREAS, New Owner assumes and agrees to perform the Owner responsibilities in the original
Agreement and certifies that the representations, warranties and certifications contained in the original
Agreement are true and correct as of the effective date of this Amendment No.2 and with the same effect as
though made at the time of this Amendment No.2:
WHEREAS, the County consents to the assignment from Owner to and assumption by New Owner of
the above mentioned contract and amendment; now therefore,
IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES above mentioned, for and in consideration
of the mutual promises hereinafter stated, as follows:
3. Exhibits. The exhibits listed below and attached to the Agreement and Amendment No . 1 remain the same
and in place except Exhibit D to the original Agreement and Exhibit F to Amendment No.1 are replaced with
a new Bond attached hereto as Exhibit G. The new Exhibit G listed below and attached hereto~ together with
the Exhibits listed below~ are hereby incorporated herein by reference:
3.1 . Exhibit A -Legal description of Real Property.
3.2. Exhibit B --List of Roads and Utilities Required Improvements and cost estimates -submitted by the
Owner.
3.3. Exhibit C -Deschutes County Tentative Plat approval, File No . TP-06-973 .
PAGE 1 OF 4 -DOCUMENT NO . 2012-666, AMENDMENT NO.2 TO DESCHUTES COUI\JTY DC CONTRACT
NO. 2008-237
3.4. Exhibit D -Security Bond No 7860325 (replaced by Exhibit G).
3.5. Exhibit E -Contractor List per DCC 17.24.120(A)(1).
3.6. Exhibit F -Security -eBH::lo>ttnd\:l--flR<*idH:eH-F-PONteo",=,============:::::(replaced by Exhibit G).
3.7 Exhibit G -Security -Bond No. ________
5. Construction of Roads and Utilities Required Improvements.
5.1. The Roads and Utilities Required Improvements shall be installed and completed in accordance with
the plans and construction specifications related thereto and to any additional County and/or State of
Oregon specifications.
5.2. Owner shall promptly repair any damage to existing and new facilities, within and without the Real
Property, which occurs during installation of the Roads and Utilities Required Improvements.
5.3. Owner shall cause the Required Improvement to be inspected by and receive final written
construction approval from County and/or the State of Oregon not later than three (3) YSafS-five (5)
years from the recording of the Tetherow Phase 5 Final Plat File No. FPA 08-7 Improvement
Agreement Amendment No.2. Deschutes County Document No. 2012-666 ("Completion Date").
17, Shortfall in Security.
17.1. If the amount available to be drawn from the Security is less than the costs and expenses
anticipated to be incurred, or actually incurred, by County to complete the Roads and Utilities
Required Improvements. County may apply the proceeds of the Security to the anticipated or
actual costs and expenses of completion of the Roads and Utilities Required Improvements.
17.2. The County has not conducted an in-depth review or secured an independent review of Exhibit
B -List of Roads and Utilities Required Improvements and cost estimates submitted by the
Owner.
17.3. The County accepted the original bond and accepts the bond attached as Exhibit G solely for
purposes of compliance with Deschutes County Code 19.106.110 and allowing Owner to record
the subject subdivision plat and the County does not know if Exhibit B contains an accurate
estimate of all the expenses needed to complete the the Roads and Utilities Required
Improvements.
17.,1. Owner shall be responsible and liable for the difference between the antiCipated or actual costs
and expenses of completion of the Roads and Utilities Required Improvements and the amount
of the remaining security.
OWNER:
DATED:
TD CASCADE HIGHLANDS, LLC
By: ______________
Print Name
Its:
~~~------------------------Print Title
PAGE 2 OF 4 -DOCUMENT NO. 2012-666, AMENDMENT NO.2 TO DESCHUTES COUNTY DC CONTRACT
NO. 2008-237
PAGE 3 OF 4 – DOCUMENT NO. 2012-666, AMENDMENT NO. 2 TO DESCHUTES COUNTY DC CONTRACT
NO. 2008-237
STATE OF______________ )
)
County of _____________ )
Before me, a Notary Public, personally appears _________________________ and acknowledged the
foregoing instrument as ___________________ of TD CASCADE HIGHLANDS, LLC.
DATED:____________________________
_______________________________________
Notary Public, State of ____________________
My Commission Expires ___________________
NEW OWNER:
DATED: ____________________
SFI CASCADE HIGHLANDS, LLC,
a Delaware Limited Liability Company
By:___________________________________
Print Name
Its:___________________________________
Print Title
STATE OF______________ )
)
County of _____________ )
Before me, a Notary Public, personally appears _________________________ and acknowledged the
foregoing instrument as ___________________ of SFI CASCADE HIGHLANDS, LLC.
DATED:____________________________
_______________________________________
Notary Public, State of ____________________
My Commission Expires ___________________
PAGE 4 OF 4 – DOCUMENT NO. 2012-666, AMENDMENT NO. 2 TO DESCHUTES COUNTY DC CONTRACT
NO. 2008-237
COUNTY:
Dated this _____ of ___________________, 2012
BOARD OF COUNTY COMMISSIONERS
______________________________________
ANTHONY DEBONE, CHAIR
______________________________________
ALAN UNGER, VICE CHAIR
ATTEST:
______________________________________
Recording Secretary
______________________________________
TAMMY BANEY, COMMISSIONER
STATE OF OREGON )
) ss.
County of Deschutes )
Before me, a Notary Public, personally appeared ANTHONY DEBONE, ALAN UNGER and TAMMY BANEY and
the above-named Board of County Commissioners of Deschutes County, Oregon and acknowledged the
foregoing instrument on behalf of Deschutes County, Oregon.
DATED:____________________________
_______________________________________
Notary Public, State of Oregon
My Commission Expires ___________________