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SC C1 --k I Vlk \ 1 C 0 A-0 Q- l(fX,PL.2-e<7 h ALi e__.t) 0 \ -'a---3 ap r \St- OtAkt- akt 1)41-(--t ‘-4:1 4-4/.°11:1-2-C - Qtv& P42,2_ vhctiv_c___‘.k • Dtz, , A v7,frwo 5L 1 vk,to LS..0 ,r) ALD -t- 140 Or 5- ‘1cc 116 Lk 4j0-tilci Li at \s- 0 at ‘I\ 11-2--- 0 C etAc--ce_-/RQ .9 sL )14 reastA (7 A. of\l' ofS -11-av-,) Iv C Y,L v Wki\-, LA IAA( 1,L (1-Q) yV\CCI-AV) (2 -Q -273-f 3 SV,„ te_c oTe 4,16x. nTAk k))2 t lat. ,S1A-pc)(3_14-- vv - 4,1 -4 <•e.,_SL4‘,(DAN2_, ()CCU/ ct o fJ_ kkcO r 2010-024, 2010-025 Destination Resort Re -mapping WITH FRIENDS LIKE THIS, WHO NEEDS ENIMIES? When I saw the Bulletin cover story in yesterday's paper on delinquent tax bills, and after reading the "In My View" piece by Mr. Shirtcliff in the June 25. 2010 Bulletin, I had that "I'm mad as hell, and I'm not going to take it anymore" moment from the 70's movie "Network". I have sbmitted both pieces with my comments. The "In My View" is so out of line, and so what's wrong with Deschutes County's system of directing land -use, and indeed ALL issues where planning commissioners shape County Commissioners opinions: they are selected by those SAME County officials. The blind leading the blind. Shirtcliff insinuates environmentalism is anti -growth, anti -God-fearing, anti -hardworking, dishonest, and anti -patriotic. My parents were environmentalists, and if Shirtcliff had charged either of them_both were Marines_with these accusations__weli, let's say there'd be blood spilled. I come from Wyoming, Mormon homesteaders who were told to come to the West with several ways to survive, because you weren't welcome if you dragged your community down being a deadbeat. I come from suffragettes who refused to be trampled upon. I'm proud of those bloodlines__trust me__my parents would be right in the middle of this land -use debacle if they were still alive. I own properties in Redmond, Bend, Sisters, and Tumalo. I'm a developer, a builder, a community leader, a farmer, and, yes, a tax payer. I'm not thrilled about how my property taxes are always spent; but, I PAY THEM. I would never say, well, things are rough, let everyone else cover Deschutes County's overhead. How can the County Commission EVER be trying to aid anyone who seeks a financial advantage in business, and doesn't comply with the basic requirements of doing business here? Do you not think every other development is going to not just request, but DEMAND, the same special treatment that you seem to be offering Aspen Lakes? Do you not think that they will begin the same process of telling Deschutes County that "it's normal business practice to let those (property taxes) ride in down years" as Matt Cyrus is quoted? Come on Deschutes County, can't you see all those law suits coming at you? I received the enclosed correspondance thru my ownership of a lot in Pronghorn Destination Resort. As you will note, we are being approached by groups advocating a successful lowering of assessed values in this destination resort. When is the Tight coming on for Deschutes County regarding the future (or non -future) of Destination Resorts? One last thing: It is hay season in Central Oregon. Why is it that all of us who put up hay (and indeed all of the farming going on in Deschutes County) actually work so hard at it? Because, it is a BUSINESS - an honorable proud business, that has allowed us to develop our land and yes, our houses on this land. Hey, guess what? That means there are increased property taxes generated and every year they go up. The County Commission needs to stop answering to the special interests of destination resort developers, and pay attention to those who work the land, are community advocates, are honest and ethical, help develop Deschutes County's financial foundation through ALL of our property taxes. Destination Resorts are not the cash cow they contend and the County Commission needs to represent the people of Deschtues County who are here NOW - not who might, or might not, be here in the future. Jim Guild 19845 JW Brown Bend, OR 97701 541-388-3569 3 Enclosures: The Bulletin In My View, The Bulletin Property Taxes (both laminated), email Property tax assessments on Pronghorn Properties Infinity Internet Mail 6/25/10 5:56 PA Current Folder: INBOX Sign Out Compose Addresses Folders Qptions Search Help Calendar Fetch Todo Notes SquirrelMail Message I:ist I Delete Subject: From: Date: To: Priority: Signature: Options: Previous 1 Next Forward I Forward as Attachment 1 Reply. I Reply All Property tax assessments on Pronghorn Properties "Richard Korowicki" <rkorowicki@pronghornclub.com> Mon, June 28, 2010 12:40 pm "Richard Korowicki" <rkorowicki@pronghornclub.com> Hi gh Unsigned View Full Header I View Printable Version I View Message details 1 View as HTML We've heard good feedback from Chris's service and we feel that it may be of value to you. Please see below... Richard Korowicki Property Advisor/ Broker Pronghorn 830 NW Wall Street Bend, OR. 97701 Office: 541-312-9424 Mobile: 541-771-2297 Fax: 541-312-3199 rkorowicki@pronghornclub.com www.pronghornclub.com <http://www.pronghornclub.com/> I recently concluded a successful appeal on behalf of one the lot owners on the 2009 assessments. In looking over the assessment history it appears that he has a very good basis to retroactively appeal the 2007 https://webmail.iinet.com/src/webmail.php 1 age 1 of Infinity Internet Mail 6/29/10 5:56 PA and 2008 assessments. Other owners may be in the same situation. It all depends upon what they paid and when and whether a club membership was included in their purchase. In order to challenge the 2007 assessment an appeal must be postmarked by June 30th. In my client's case 2007 was the first year that the county valued the individual lots. A successful appeal that lowers market value would reset the assessed or taxable value and therefore lowers the property taxes. Refunds are paid with 12% interest when the taxpayer is successful in getting a lower value in the same situation as my other client. If the lot has resold or been foreclosed on there still may be an opportunity for savings. Even if we are dealing with 2008 and 2009 assessments there is a real potential to obtain a value low enough to trigger refunds. If some of the lots on the market currently are bank owned then the REO person should really consider an appeal. I am available for any questions. I am traveling tomorrow. My cell phone is 503-858-5363. Email inquiries work even better. The opportunities are the same for improved lots with homes. Thank you for your interest. Our fees are contingent so in the event no refunds and/or savings are obtained though the appeal process there is no fee. Chris Robinson CHRISTOPHER K. ROBINSON, P.C. A Professional Law Corporation 1 Mount Jefferson Terrace, Suite 101 Lake Oswego, OR 97035 Tel 503-635-9330 Fax 503-635-9010 www.ckrobinsonlaw.com <http://www.ckrobinsonlaw.com/> This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address via regular postal service. https://webmail.iinet.com/src/webmail.php Page 2 of Infinity Internet Mail 6/, 9/10 5:56 Ph Attachments: untiticd- [21 Download this as a file 16 k [text/html ] Delete & Prev I Delete & Next Move to. Move Download I View https://webrnail.iinetcorn/src/webmail.php Page 3 of Message Page 1 of 1 Peter Gutowsky From: Alan Unger Sent: Tuesday, June 29, 2010 2:08 PM To: Nick Lelack; Peter Gutowsky Subject: FW: Aspen Lakes conversion to Destination Resort Attachments: Article XV Aspen Lakes CC&R's.pdf Alan Unger, Commissioner Deschutes County 1300 NW Wall St. Suite 200 Bend, OR. 97701 alanu@co.deschutes.or.us Office: 541-388-6569 Cell: 541-419-0556 From: Gary Barnett[mailto:gbsss@bendbroadband.com] Sent: Tuesday, June 29, 2010 1:05 PM To: Alan Unger Subject: Aspen Lakes conversion to Destination Resort Dear Alan We have lived at Aspen Lakes for the past nine years. When we moved to Aspen Lakes in 2001 we read the (C&R's in detail before purchasing our home. As you will see in the attached Article XV section 15.1 of the Aspen Lake! CC&R's it has always been the intent of the developer to include the Aspen Lakes development in an overall "Destination resort". Any person purchasing a lot was given a copy of the CC&R's to review prior to that purchase. As the CC&R's constitute a binding agreement, the act of purchasing the lot at Aspen lakes was in effect an approval of the future expansion of Aspen Lakes into a Destination Resort by those individuals. Therefore the developer has the approval of the residents of Aspen Lakes to proceed with the Destination Resort through annexation of additional properties to Aspen Lakes. It is our desire that you approve the request by the Cyrus family to remain on the Deschutes County resort m,ip. Gary and Barbara Barnett 16922 Royal Coachman Dr. Sisters, Oregon 97759 6; 29/2010 To: Deschutes County Commissioners From: Brenda Pace June 29, 2010 Concerning: Inclusions in the Destination Resort Overlay There is presently a question concerning whether the Aspen Lakes Golf Course and Subdivision should retain the Destination Resort Overlay. Other subdivisions are being excluded on the basis of the size of the lots. However, the Cyrus family is asking that the Aspen Lakes Golf Course and Subdivision retain its Destination Resort Overlay because it is a cluster development and includes a golf course and other destination resort -like amenities. I believe there are several problems with retaining a Destination Resort Overlay on these several properties. Others have cited a number of these problems including the following: Fairness --in that other destination resort projects were made to build or bond overnight housing in advance of selling lots whereas Aspen Lakes has not. State law --in that destination resorts are required to build overnight housing in advance of selling lots. The number of existing lot and home owners --in that the Cyrus family is representing all of the lot owners in making this request without necessarily having the lot owner's agreement. (The County refers to the Aspen Lake CC&R, however, the County has repeatedly said that it will not enforce CC&R.) However, I believe that there is yet another factor that particularly affects whether the lands first approved as a Cluster development should retain the Destination Resort Overlay. In the original approval, Tracts N, 0 and P were designated open space and were subject to an Open Space Management Plan. According to County Code concerning Cluster developments, the open space required as a condition of approval shall be covered by deed restrictions to "preclude all future rights to construct a residential dwelling on the lot, parcel or tract designated as open space". These deeds "shall also assure that the use of the open space shall be continued in the use allowed by the approved cluster development plan, unless the whole development is brought inside an urban growth boundary." The ordinance offers no exception. However, the county has been generous in its exceptions. The Cyrus family has apparently not recorded any deed restrictions on these properties in the many years since the approval of the cluster development. Indeed, in the agreement with the County, George Read signed away the open space saying that "Tracts N, 0 and P may be subject to future development in accordance with land use approvals relating to the Real A �q zz.1 Oi44 U O cd c4 0 E -'DE-; oE-x U~E CO Agri) m CT1�Q EF e dad' C0al s.� W _* 3 aN "al 2 ✓� a iJ SIIVISH VON X3012 �� 2M J es a W�0 �e fit 4' p0 CL A Qx . 1.. lec O z0dow� CO)1.. 44 E C14 0 W U tx 0 Sr"' o o � m N. • 0 .Y. U gzOO O 0 aE O IMR d x Q'" d S foo.orr] 0 41 tiibi 111 iIA foo ocrl -- - orr-- h•_ 0 q� G DIY V? ONV d Q� \ v "ON NDO19 oW i VW 2 0 S'oN b$ =ez J �a��. 01'rese 3..0.6.005 [,.r99z ;maces] ]Z9r99Z 1,0‘,116.0051 ort r 14fghrig na 4, —06'609 A.60. <061909 61.60.97.006D ettia urea s)fAirli SH)IVZ N3dSV ZV 1V INIIH �HZ a H / tp n . W: WV W E N a iR-aaa��x, id MUM Xi.Na. Op O$mm�`h p PAPS: a a 4 d1::NNtl WilWa WWW�o P7.-:m:°' Oregon 97701 ID m HNm="r*r m 6iitlu��+n-;,^^� O a t.-22 ne 6 6-4 On 0 U Tz �i�Ny��888888 vi U .,„mNiNA' a yea a 6 DESCHUTES rJBCOUNTY FARM BUREAU YOUR VOICE IP/ AGRICULTURE P.O. Box 2229, Sisters, OR 97759 June 29, 2010 Deschutes County Board of Commissioners Deschutes Service Center 1300 NW Wall Bend, OR 97701. Re: Destination Resort Remapping Dear Commissioners, The Deschutes County Farm Bureau would like to express its concern over the proposed resort mapping language and its adverse impact on irrigated agriculture in Deschutes County. Specifically, the prohibition against mapping resorts on EFU lands with more than 40 acres of contiguous irrigated or 60 acres of non-contiguous irrigated land will adversely impact farm land, irrigation districts, and agriculture in general. Since the implementation of the Deschutes Basin mitigation rules, any development that occurs on non -irrigated land impacts nearly triple the acres of land that would have been impacted had the development occurred on irrigated land. Deschutes County is the only county that prohibits siting resorts on irrigated EFU. The Thornburgh resort is a good example of why this provision does not make sense. Thornburgh is located on non -irrigated land and subject to the Deschutes Basin water mitigation rules. In order to obtain ground water permits, it must purchase 1.8 acres of surface water right (which is then transferred back in stream) for each acre of ground water it is granted. This drys up irrigated farm land and takes it out of production. The total land impacted includes that in the Thornburgh resort plus another 1.8 that will be dried up for each acre that is watered by the resort. if the Thornburgh resort were to water 1,000 acres it would require the water off an additional 1,800 acres for a total impact of 2,800 acres. On the other hand, Brasada is located on irrigated EFU and within an irrigation district. No farm land was dried up in order to develop the resort. Instead, it simply changed the way the water was used. No additional land was impacted and the irrigation district still delivers the same amount of water, only now to a single large customer with modem delivery systems. Had Brasada been developed in Deschutes County, it would have had to develop on dry land and purchase water from neighboring farms, thus creating a significant impact on the county's agricultural base and the irrigation district. On behalf of our members, we ask that you remove the proposed language in Chapter 23.84.030 3.c. 5 and 6 as it will have a detrimental impact on irrigated agriculture in Deschutes County. Thank you for your consideration on these two very important matters. Sincerely, Matt Cy President Deschutes County Faun Bureau Deschutes County Commissioners 117 NW Lafayette Avenue Bend, OR 97701-1925 RE: Destination Resort Map Amendment Procedures Commissioners My name is David A. Lee. I am one of the owners (David A. Lee, Karen R. Lee, Brian D. Lee, & Craig A. Lee) of Lot 12, Rim at Aspen Lakes, Deschutes County. The address is 70140 Camp Polk Road, Sisters, OR 97759. We purchased an Option on the property in the spring of 1989 and received a deed for the property in the spring of 1990. I also purchased a lot at the Golf Course Estates at Aspen Lakes in 1991. Prior to the initiation of Phase Two of Aspen Lakes there was no mention of the intent to convert this Rural Clustered Subdivision to a destination resort. There are a number of property owners within this development that will not be bound by the proposed amendment procedures. We strongly object to the inclusion of paragraph D in Chapter 22.23 -Destination Resort Map Amendment Procedures:It is clear that the inclusion of this paragraph is for the benefit of one developer and totally ignores the property rights of many citizens of the County. The Golf Course Estates at Aspen Lakes (Aspen Lakes) is a "completed subdivision". There is no land available for development as a destination resort. The property consists of developed land and open space. Since the open space is an amenity to the platted lots it cannot be developed without the concurrence of all the property owners. The County cannot transfer my property rights to another individual or entity without my consent. This provision is ill-conceived, ill-advised and ill -legitimate. Again we strongly urge the County to remove this paragraph from the ordinance before passage. We hereby reserve our right to appeal this ordinance to LUBA and the courts as necessary. pZe__ David A. Lee Toby Bayard • 20555 Bowery Lane • Bend, OR 97701 June 25, 2010 Tammy Baney, Deschutes County Commissioner Dennis Luke, Deschutes County Commissioner Allan Unger, Deschutes County Commissioner Deschutes County 1300 NW Wall St. Bend, OR 97701 Subject: Deschutes County's Destination Resort Remapping Rules and Procedures Dear Commissioners: In this letter, I am submitting written testimony with respect to the County's destination resort remapping process. I was away during the public hearings on this matter and could not give testimony, but I did read the December proposal made by planning staff online and agreed with the general policy direction . Along with many other County constituents, I was therefore stunned when on June 7, 2010, after lobbying by Matt Cyrus (which occurred after the public comments period ended) the Board of County Commissioners abruptly voted to add a new sub -section to the proposed amendment procedures. As you know, it is clearly and specifically aimed at the Aspen Lakes subdivision and would enable its developers to make a special application — on behalf of all residents of this cluster development — for destination resort land uses. I understand that at least some of you quickly regretted your vote. Thankfully, technicalities allowed the Board to withdraw and reconsider its ruling. For that I am grateful. I strongly oppose the amendment proposed and drafted by Aspen Lake's developers (subsection D) which gives an original subdivision's developer the right to apply on behalf of all individual lot owners to apply to remain on the destination resort eligibility map provided each lot in the subdivision has a deed restriction or CC&R that authorizes the original developer to apply for conversion of the subdivision to a destination resort. I ask that you remove this language from your approved policy. I personally hold your Commission in high regard and thank each of you for the fine work you have done on behalf of Deschutes County residents in the past. But why risk your reputations and the loss of public trust simply for the benefit of one party — Aspen Lakes and the Cyrus family? The manner in which this last-minute language was inserted smacks of back -room deal making and fuels the public hullabaloo (noted on multiple occasions by both the Bulletin and the Source) that surrounds Keith Cyrus, whose position as a member of the Planning Commission you, as a Board, recently extended for 60 days. While you may believe you are averting a theoretical Measure 49 claim (which if made, would be on a ludicrously tenuous legal footing) your decision creates an equally onerous set of legal land use issues that will very likely plague the County in the future. And, it Toby Bayard • 20555 Bowery Lane • Bend, OR 97701 invites other "specially situated" interests to attempt to influence public policy (during an election season, no less). I would hate to see the loss of another Board member at a time when experience is so critical to the future of the County. Further, is it appropriate to use deed restrictions or CC&Rs to authorize actions by a party other than a land owner? I live in a Deschutes County community governed by CC&Rs. The last thing I want to see is the original developer apply for land uses that were not openly contemplated when I bought my property. Who wants to buy land that could, at some future time, convert to a different use (including the addition of overnight lodging units) for the primary benefit of an original developer? And, does the County really want to be in the position of adjudicating if and when CC&Rs and deed restrictions might authorize land use changes imposed on land use owners by an original developer? Do you have the legal budget for this sort of activity? Is this a battle you really want to fight? In closing, the Board of Commissioners (all smart and experienced administrators), surely knows what is at stake as you approve Deschutes County's destination resort map. While it is true that you are taking a "first step" in a multi -step process and that issues can be resolved down the road when development applications are made, it is even more true that ambiguity is the enemy in land use planning. An old adage wisely states that "an ounce of prevention is worth a pound of cure". Clear policy that reflects the outcome of a lengthy public process can only help to avoid down -the -road conflicts, wasteful tying up of scarce planning staff time, unnecessary legal battles and more stingingly bad press for the County. Thank you in advance for your consideration, Sincerely, Toby Bayard 20555 Bowery Lane Bend, OR 97701-8850 Cc: Erik Kancler, Executive Director; Central Oregon Landwatch Robert W. Corrigan 69225 Hawksflight Dri, e rob@bendcable.com Sisters, OR 977`9 30 June 2010 Deschutes County Commissioners 117 NW Lafayette Avenue Bend, OR 97701-1925 re: File Numbers PA -09-3 and TA -09-6 Dear Commissioners: Thank you for allowing this opportunity for members of the public to speak on what the Bend Bulletin has dubbed "the Cyrus Amendment." Following the uproar over process, I am glad to now address than issue of fairness that is raised by the Cyrus Amendment. It has been noted that the Cyrus Amendment affects the county's Destination Resort mapping guidelines. Mapping guidelines are the broadest set of criteria that define Destination Resort eligibilit y. As such, it would be glaringly inconsistent to finely and narrowly carve into this broad -brush statemei Lt of high level policy an exception that so obviously applies to one developer and one development onl: It is even more jarring that such an exception would be based not on absolute and unequivocal criteria that could be easily assessed by staff or any interested private party (based on air miles, square miles, certain property designations, etc.), but on the possible existence of civil contracts between multiple private individuals which cannot be assessed in a straightforward way by anyone other than the developer himself. This approach seems certain to create further controversy and challenges, burn more staff time, and produce an ambiguous precedent at best. In the mapping guidelines, the commission should stick to broad brush policy, not entangle itself and county staff in civil contracts. Until the issue of the Cyrus Amendment was raised, based on extensive public input, staff time and deliberations at the Planr,.ing Commission and County Commission, you saw fit to exclude platted subdivisions from the Destination Resort map. This decision made good sense. The state has made clear (as staff acknowledged in the findings that accompany the draft text) that the purpose of Destination. Resorts is to stimulate new economic development, and that Destination. Resori s should have a particular focus on overnight lodging, explicitly not a focus on second home development. Platted subdivisions such as golf course communities embody the precise opposite of this intent. Further, the single development in Deschutes County that would be affected by the Cyrus Amendment is an already completed, clustered subdivision. At the time it was developed and lots were sold, its developers enjoyed the benefit of intensified development density in exchange for setting aside a larg area as perpetual open space, under guidelines that explicitly emphasized the goal of preserving "rura character." To provide encouragement (through the Cyrus Amendment) for the conversion of what i;• today a perpetual open space mitigation into hundred of second homes inside a gated golf course community does not preserve rural character, does not fulfill the intent: of a Destination Resort, has m Robert W. Corrigan 29 June 2010 Page -2- congruence with state or local planning goals, and makes absolutely no sense. You were right to exclude platted subdivisions, including the Cyrus's development, from the map. As the draft ordinance reads, "the purpose of the map is to provide greater certainty concerning destination resort siting." The county owes all citizens — developers, land -owners, potential and actual property purchasers, and county staff— clear, fair, and unambiguous direction. One interpretation of the more than twenty-year history of this development is that unclear and inconsistent direction from the county long ago has created a protracted waste of time, energy and money for all parties, based on the dream of a Destination Resort that should have been plainly ruled out in the first place. Please do not kick this can further down the road. Please make the map consistent with staff recommendations and state standards. Please be clear and consistent. Please treat all taxpayers and landowners in the county equally and fairly. Please uphold the integrity of a system at assures equal treatment of all. Please reject the Cyrus Amendment, and approve the Mapping Process and Guidelines as otherwise drafted. Thank you for your consideration. Robert WJ gan 69225 Hawksflight Drive Sisters, OR 97759 541-549-6006 Attachments: • "Deschutes Amends Its Resort Plan to Benefit of Aspen Lakes," Bend Bulletin, 8 June 2010. • "Officials to Revise Resort Amendment," Bend Bulletin, 9 June 2010. • "Hearing Set for Cyrus Amendment," Bend Bulletin, 10 June 2010. Cyrus land left on resort map; Deschutes commission makes last-minute decision to include land ... Page 1 of 2 bendbulletin.ccm The Bsitl+tin Deschutes amends its resort plan to benefit of Aspen Lakes By Hillary Borrud / The Bulletin Last rnodified:.4une 08. 2010 9:03AM FST A last-minute amendment by the Deschutes County Commission Monday could protect a Sisters -area family's resort development plans, but it is drawing criticism from some nearby residents The Cyruses stood to lose any chance of converting their existing Aspen Lakes golf course and subdivision into ,s destination resort if the County Commission approved ordinances to remove subdivisions from the county's resort zone map as ori ainaliy proposed. Land must be on the map in order for the owners to apply for a resort, and the county is in the midst of updating its resort zore map to remove lands ineligible for resorts. Instead, the County Commission voted unanimously Monday to amend one of the ordinances with an exception he commiss oners said was intended to help the Cyrus family's plans. Matt Cyrus met separately with each of the three county commissioners on Thursday morning, and explained to them the ordinances would prevent his family from keeping the subdivision they developed on the resort eligibility map, the three commissioners said. Later Thursday afternoon, Cyrus e-mailed the county's Planning Director. Nick Lelack, with a suggestior for specific language to amend the ordinances. The public comment period had passed by Monday. Matt Cyrus could not be reached for comment Monday afternoon. Malt's father, Keith Cyrus, is a Deschutes County planning commissioner. Keith Cyrus has recused himself from Planning Commission decisions cr the resort remapping ordinances and other issues that affect his interests, but he has also spoken with other commissioners about his development plans at rneetirigs and occasionally outside meetings. The County Commission recently granted Keith Cyrus a two-month extension of his term on the Planning Comrn•ssion. Famil ✓ members have said converting their developments to a resort would allow them to add overnight lodging units, expand the gclf course from 18 to 27 holes and build more homes. The commissioners adopted two ordinances Monday to begin remapping the resort zone, along with the amens rnent to one c f the ordinances. They did so by emergency, which allowed them to complete the first and second readings of the ord-nances at once, on the advice of planning staff to move the process forward. County officials want to send out notices to residents impacted by the remapping process in tax statements. Narrow scope The two ordinances the commission approved Monday set up a process to remove land that is ineligible for resorts from the county's resort zone map, because the county's current map includes land where it is unlikely resorts would be allowed. For example, state law requires resort properties to be at least 160 acres, more than 3 miles from any high-value crcp areas and outside of especially sensitive big -game habitat. The ordinances allow property owners who are currently in the resort zone to apply to keep that zoning, even if their land is ineligible for resort development due to other factors. http://www.bendbulletin.com/apps/pbcs.dll/article?AID=/20100608/NE W S01 /6080399&tempi ate... 6/. 9/2010 Cyrus land left on resort map; Deschutes commission makes last-minute decision to include laird ... Page 2 of 2 The amendment added Monday will allow the Cyruses and other subdivision developers to apply to keep their subdivisions in , he resort zone, even if they have already sold Tots. The catch is that the developers must have language on the deeds for those k is that authorizes the developer to convert the subdivision to a destination resort. Commissioner Tammy Baney said Aspen Lakes is the only subdivision she knows of with this language on property deeds. Be ney said she was uncomfortable with the commission voting on the amendment without public comments Monday, but ultimately v )ted for it. Commissioner Dennis Luke also said the amendment might only apply to Aspen Lakes. "It doesn't say Aspen Lakes, but it's the only (such subdivision) were aware of," Luke sa d. The commissioners told Community Development Director Tom Anderson at a Thursday meeting that they wanted county sta f to look into the issues Matt Cyrus raised, Lelack said. Commissioner Alan Unger, who e-mailed Lelack Monday morning to ask if county planners had produced an amendment, sai j in an interview later in the day that he originally thought the "grandfather clause" in one of the ordinances would have allowed th Cyruses to keep the land they developed in the resort zone. "And then to learn that no, that doesn't work with the Cyrus issue, it was like, 'Well, how do we deal with the issue that they hied there?"' Unger said. Neighbors upset Merry Ann Moore, secretary for the Sierra Club Juniper Group, lives in a neighborhood the Cyruses developed, near the subdivision and golf course the family wants to convert to a resort. Moore questioned why the commission amen Jed the ordir Bance so late in the process, after the public could no longer comment. "I think something smells bad when at the llth hour, a developer can go in after the record has been closed and no one else can comment, and get an amendment," Moore said. "1 thought the county was trying to move beyond applicant -driven land use p. rlicy making, but I guess I was wrong." Derek Cornforth, who lives in the same neighborhood by Aspen Lakes, has opposed the Cyrus resort plans and said he was disappointed by the commission's decision Monday. "We feel really strongly that this is not acceptable," Cornforth said. "(The Cyruses) want to go in and say they can act on behalf of all the homeowners and just give a blanket thing that they're in favor of it." Luke said that despite the commission's vote Monday, the Cyrus' resort plans remain a long shot. County staff and Oregon's land use agency staff have said previously the family cannot convert the golf course and subdivision to a resort, beca'jse they ha re already built on the land. "Our staff and the (county commissioners) have maintained there would have to be a change in state law to make Aspen Laces a resort," Luke said. Hillary Borrud can be reached at 541-617-7829 or at hborrud@bendbulletin.com. Published Daily in Bend Oregon by Western Communications, Inc. © 2010 www.bendbulletan.com http://www.bendbulletin.com/apps/pbcs.dll/article?AID=/20100608/NEWS01/6080399&itemp]ate... 6, 29/2010 Hearing set for Cyrus amendment; Deschutes Commission repealed change, now will hear comm... Page 1 of 2 benbbuUetin.com Hearing set for Cyrus amendment By Hillary Borrud / The Bulletin Published: June 10. 2010 4:00AM PST The n Residents will get a chance to comment later this month on a last- minute amendment to a Deschutes County resort ordinance, after commissioners repealed it and another ordinance Wednes, lay afternoon. When commissioners introduced and adopted the amendment on Monday, the public comment period had already ended, so people in the audience were not allowed to testify. The county is in the process of updating its destination resort zone eiigibilit ✓ map, which currently includes scme properties that do not meet qualifications for resort development. The ordinances the commission repealed Wednesday would remove ineligible lands from the zone, and one type of property :hey would remove is subdivisions. The amendment added Monday would allow subdivision developers, instead of property owner s, to apply to keep their subdivisions in the resort zone, but only if the developers have language on the deeds for those lots that authorizes the developer to convert the subdivision to a destination resort. Commissioners said the amendrnent was intended to protect the Cyrus family's resort development plans. Matt Cyrus spoke :o the three commissioners individually on June 3 about the need to change one of the ordinances. This, along with the introduction of the amendment after the public comment period ended, provoked cri}icism from some nei jhbors of the Aspen Lakes golf course and subdivision near Sisters, which the Cyrus family warts to convert to a resort. Keith Cyrus is a Deschutes County planning commissioner, and the County Commissior recently granted him a .wo•month extension of his term on the Planning Commission. Keith Cyrus has recused himself from Planning Commission decisions 01 the resort remapping ordinances and other issues that affect his interests. Yet he has also spoken with other commissioners abc ut his development plans at meetings and occasionally outside meetings. Family members have said in the past that converting their developments to a resort would allow them to build rr ore homes, add overnight lodging units and expand their golf course. Commissioners repealed the ordinances Tuesday afternoon after realizing that the way they adopted the legislation might hr-ve broken Oregon law. In this case, state statute requires an amendment to be read out loud, and the commissioners failed to co so when they adopted the amended ordinances Monday. Commissioner Tammy Baney, who voted for the amendment and the two ordinances, also said she was uncomfortable with the way the commission did not allow public comments on the amendment. Baney called the process the commission used to a nend and adopt the ordinances "broken" on Wednesday, and Commissioner Alan Unger also :laid he was uncomfortable with the process and wanted to allow public input on the amendment. The commission scheduled a public hearing on the amendment and the ordinances at 10 a.m. June 30. Hillary Borrud can be reached at 541-617-7829 or at hborrud@bendbulletin.com. http://www.bendbulletin.com/apps/pbcs.dll/article?AID=/20100610/NEW S01/6100383&temp ate... 6 29/2010 Hearing set for Cyrus amendment; Deschutes Commission repealed change, now will hear comm... Page 2 of 2 Published Daily in Bend Oregon by Western Communications, Inc. © 2010 www.bendbulletrn.com http://www.bendbulletin.com/apps/pbcs.dll/article?AID=/20100610/NEWS01/6100383 &template... 6/:.'9/2010 Commissioners plan a do -over; Deschutes officials made mistake in adopting resort amendment bendbulletin.com Officials to revise resort amendment By Hillary Borrud / The Bulletin Published: June 09. 2010 4:00AM PST Deschutes County officials apparently botched the adoption of an amendment to a resort ordinance Monday and will meet to address the problem this morning. The three commissioners voted unanimously Monday morning to amend one of two ordinances updating the county's resort eligibility zone. The ordinances aim to remove lands from the zone that do not meet qualifications to become resorts. ... Page 1 of 2 The Bulletin If you go What: Deschutes County Commission meeting When: 10 a.m. today Where: 1300 N W. Wall St., Bend Commissioners said the amendment was meant to protect the Cyrus family's resort development plans to convert their existir g subdivision and golf course near Sisters into a resort. But the County Commission did not read the amendment out loud when they adopted it, as required under state law, County Administrator Dave Kanner said Tuesday. The commission introduced the amendment at the last minute Monday, after the public comment period on the bvo ordinances had ended. The idea for the amendment came from conversations the commissioners had wth Matt Cyrus cn Thursday, in which Cyrus told them his family would likely lose the resort zoning they currently have if the ordinances were not changed, the commissic ners said. Commissioner Tammy Baney said Tuesday that she was bothered that the commissior ?ntroduced and adopted the amendrr ent after the public comment period had ended. So on Tuesday morning, when Baney went 'nto the county offices, she told Kanner she was upset about it. In particular, Baney said she was concerned the County Commission decided to add the amendment Monday based on conversations with Matt Cyrus, after the public record had closed. But it appears that despite Baney's concerns, that element of the decision was legally sound, Kanner said. "This is a legislative matter, not a land use matter, so any citizen can talk to (the County Commission) about this at any time " Kanner said. Baney said Tuesday she plans to suggest reopening the public record today, so people can comment on the amendment. "I'm going to request ... that we not re -read the ordinance in its entirety, that we go ahead and open the record again." Bane/ said. "We make mistakes and what happened yesterday (Monday) was not proper." If the commission decides to keep the amendment, the Cyruses still face an uphill battle to convert their develop Hent to a resort. Officials at Oregon's land use agency have stated their opposition to the Cyrus proposal in two separate letters, one of there from Department of Land Conservation and Development Director Richard Whitman. Developed subdivisions cannot convert to destination resorts unless at least 50 overnight lodging units, such as a hotel, have already been built, Whitman wrote. This is because state law requires resorts to build lodging before developers can sell lots. http://www.bendbulletin.com/apps/pbcs.dll/article?AID=/20100609/NEW S01/6090404&z.tempate... 6 29/2010 Commissioners plan a do -over; Deschutes officials made mistake in adopting resort amendment ... Page ? of 2 The Cyruses have not built ovemight lodging at their Aspen Lakes golf course and subdivision, but Matt Cyrus has said he wol Id like to do so as part of a destination resort. However, his family would probably need to build more homes to raise money to bt. ild the lodging, Cyrus has said. Hillary Borrud can be reached at 541-617-7829 or at hborrud@bendbulletin.com. Published Daily in Bend Oregon by Western Communications, Inc. © 2010 www.bendbu Iletin.c©m http://www.bendbulletin.com/apps/pbcs.d11/article?AID=/20100609/N EW SO 1 /6090404&template... 5/29/2010 Dear Commissioner, Destination Resort Map Amendment Issue I will be away from the county on June 30 and unable to attend the meeting. As president of The Rim at Aspen Lakes Association, and a board member since I purchased my lot in 1992, I have been able to follow the Aspen Lakes development almost from inception. The Aspen Lakes property was originally zoned RR -10. By agreeing to develop it as a cluster development, the county allowed the developer to increase the density of homesites by 33%. Therefore, the developer has already benefited greatly from the increased density and, in return, had agreed with the county to preserve larger tracts of open space than would have occurred under RR -10. Now that the cluster development is finished, the developer wants to take back a large area of open space and put hundreds of houses on it. This totally destroys the original concept of creating and preserving the open space. Should it be allowed, it would be extremely unfair to many of your constituents who bought their properties in this area in the belief that the open space land was to be preserved in perpetuity by the county. For the Cyruses, it would amount to `double-dipping' — first selling land on the basis of a restricted housing density, and then coming back to sell many more homesites on the supposedly protected land. I find it hard to believe that the county will even consider such an outrage. It is well-known to residents at The Rim, who frequently met and conversed with both Keith and Matt Cyrus (both were on The Rim Board through 1993) that there was never any mention of a destination resort ambition nor any mention of the existence of the Declarants Rights clauses within the revised CC&Rs until we learned about them in 2005. Up to that time, it was evident that they were not building something that could be converted into a destination resort no visitor lodging, homesites that were too large, and other noncompliance issues. People were buying and selling property in the surrounding areas with assurances that the open spaces of the two clustered subdivisions were being built with a strictly limited number of homesites to preserve the rural environment, and large, tracts of opCn spai;c that would remain so forever. As the representative of our Association, and also personally, I oppose this amendment because I can see no reason why an exception should be made for one cluster development when all others require unanimous consent. Furthermore, there has been so much secretiveness from the Cyrus family about their ambition to convert their development into a destination resort that to allow them to pursue it on a technicality is highly unfair to the many county residents who have moved into the periphery of Aspen Lakes with the understanding (from realtors and others) that this open space land was to remain permanently undeveloped_ For the record, I would like to summarize the events occurring in the early days that are relevant to this issue: 1988. Cyruses acquire an option to buy the property (1084 acres) from 1.C.Compton, a contractor. 1989. Conditional Use permit CU89/70 allows KMB Enterprises (KMB), a partnership of Keith, Matt, and Brian Cyrus to develop a clustered subdivision of 144 (maximum) lots on formerly RR -10 zoned land 1989 or 1990. KMB subdivides the property into The Rim at Aspen Lakes and Golf Course Estates at Aspen Lakes as separate subdivisions. Lots at The Rim were sold quickly. supposedly to provide the money needed to repay Compton and construct a golf course. Ownership of the open space at The Rim was kept by KMB, although it had been expected to be turned over to the homeowners association (as occurred at a similar clustered subdivision in Sisters). 1991. KMB files and records the first set of CC&Rs for Golf Course Estates with the county. It is understood that multiple lots of Phase I were sold in 1991/92 under these first set of CC&Rs 1992. County Destination Resort Map is published, showing both the land at The Rim and Golf Course Estates as eligible for destination resort development. 1993. KMB files and records a second set of CC&Rs for Golf Course Estates that allegedly gives the developer the right to convert the property into a destination resort at some future date (with no limitations) The document title is changed from `Golf Course Estates' in 1991 to `Aspen Lakes' in 1993. It also added the open space at The Rim (Tracts A and B) to the document although they are already covered by The Rim CC&Rs and clearly belong there as being an integral part of that separate subdivision. The above chronology shows that the developments at Aspen Lakes were under way years before there was any talk of a destination resort. The history of the CC&Rs is not clean or consistent. and this example should not be used to make County Code criteria. In closing, I urge you to ignore the `Declarants Rights' clauses in the CC&Rs. They are at odds with the objectives of a rural residential clustered development and should never have been inserted there m the first place. There is also a question as to whether the early buyers in 1991 are under an obligation to adhere to this amended set of CC&Rs. This is still a rural residential development operating under CU89/70 and the owners should be required to be polled individually on whether they wish to become part of a destination resort. Please strike out the amendment. Sincerely, Derek H. Cornforth Individually and as President,The Rim at Aspen Lakes Association, Inc Paul D. Dewey Attorney at Law JUN 2 3 2010 June 20, 2010 Deschutes County Commissioners 1300 NW Wall St. Bend, OR 97701 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 fax (541) 383-3470 pdewey@bendcable.com Re: EA -09-3 and TA -09-6 Destination Resort Remapping Rules and Procedures Dear Commissioners: I am writing on behalf of Central Oregon LandWatch to submit testimony for the hearing on June 30, as I will be out of town and unable to testify at the hearing. The Board of Commissioners added two elements to the proposed amendments late in the proceedings after the record had initially closed, one concerning allowing all public lands to be eligible for mapping and one specifically aimed at the Aspen Lakes development to allow its developers to make a special application for a destination resort. Neither of these proposed additions is appropriate. Provision for public lands to be mapped as eligible. During all of the proceedings in front of the Planning Commission and the Board no one advocated for this inclusion. The only concern had been expressed by the Department of State Lands for Common School Funds lands. This is too important of an issue with potential far- reaching implications for the Board to initiate significant amendments. It would be far more appropriate to remand these proceedings to the Planning Commission to address the issue of public lands since there are so many public lands administered by a number of different agencies in the County. No one knows what acreages are involved (certainly tens of thousands) and where they are located. LandWatch is particularly concerned about the creation of an incentative for federal land managers to trade away or sell federal lands, especially the BLM. Depending on what administration is in office, it may look attractive to add value to federal lands (due to the destination resort overlay) which would then make those lands look particularly appropriate for disposal. During the previous administration there was some controversy over the disposal of federal land near Las Vegas. This is a large subject with major implications that needs some investigation before the Board makes such a sweeping change in its policy. I have not heard of any counties mapping public land for destination resorts. Deschutes County Commissioners June 20, 2010 Page 2 We also do not see the need to do this where a private land owner can always make a mapping application for the land if it is transferred out of federal ownership into private ownership. Why take the risk of invoking the law of unintended consequences for a non-existent problem? DSL's only possible interest is in being able to possibly value its land higher to a potential buyer, but there is no evidence in the record showing that. In fact, from my review of DSL leases and discussions with Doug Parker, DSL would get the value of the land based on the use intended. They don't need to have the land mapped for destination resorts beforehand to get the most value possible. This potential change also makes more difficult the ongoing discussions between legal counsel for the County and others on potential amendments to state law regarding lot of record or legal parcels regarding transfer of federal lands. The possibility of facilitating development potential of federal lands by both easing these lot of record/legal lot rules and allowing mapping of destination resorts raises serious concerns. At the very least, the County procedures should not be changed to allow mapping of federal lands. Special proposal for Aspen Lakes. The Aspen Lakes developers proposed and the County drafted a potential amendment to DCC 22.23.010 to include a new subsection (D) which would allow the original developer of a subdivision to apply on behalf of all individual lot owners to seek to remain on the eligibility map if each lot in the subdivision has a deed restriction or CC&R that authorizes the original developer to apply for conversion of the subdivision to a destination resort. There are several problems with this proposed provision. First of all, it is inappropriate, both legally and as a matter of policy, for the County to be drafting legislation aimed at and for the benefit of one party. in this case Aspen Lakes, or the Cyrus family. Furthermore, it is not appropriate to utilize deed restrictions or CC&Rs as criteria in a code for determining whether a particular proceeding or application is appropriate. Clear and objective standards need to be utilized in a provision. and the reference to deed restrictions or CC&Rs that "authorize" actions by a party other than the current owner of a property is too ambiguous to be applied. It also puts the County in the position of having to resolve whether or not deed restrictions or CC&Rs actually "authorize" such an application. That determination properly belongs with the courts, not with the County. The Board in the past has made a special point that it should not treat certain entities or owners different from others, and it would be a violation of this principle to insert this special section (D). Let everyone utilize DCC 22.23.010(C) and do not create special rules for the Aspen Lakes or Cyrus situation. Finally, it is not correct as has been stated recently that the Board is "only" approving a map and that issues can be resolved later when there are applications. First of all, these destination resort Deschutes County Commissioners June 20, 2010 Page 3 maps predetermine much of what can happen in the future. Applications often determine how a destination resort development will occur, not whether it will occur. Second, the Board should do everything that it can to avoid setting up inevitable conflict in the future that could be resolved by clear rules at this point. Leaving things open and creating vague criteria will be expensive for the County and parties in the future. Thank you for your consideration. Very truly yours, PAUL DEWEY PD:ao cc: Board June 29, 2010 Dear Commissioners Baney, Luke & Unger: SIEiuRA CLuB Thank you for reopening the public record on the FOUNDED 1892 Deschutes County destination resort map ordinances. Sierra Club Juniper Group asks you to carefully consider these three issues as you make your decisions on these important policies. 1. Please ask yourselves if what you are doing is good government. 2. Please ask yourselves what precedents your decisions will create. 3. And please consider the special importance and fragility of Whychus Creek basin water supplies as you make your decision. As to good government, changes in land use ordinances should make interpretations of the law easier. The intent behind ordinances should be clear, so that future policymakers can follow this intent. This clarity then translates into efficiency for the taxpayer -funded work of our county, and perhaps even reduces --not prolongs --conflicts among neighbors. You set out in 2007 to make interpreting the destination resort map clearer. You stated you wanted to make the map reflect where resorts could actually be built. We hope that to some degree, you wanted to respond to abundant public testimony asking for better protection of the natural resources and landscapes that are being harmed by the new style of resorts. You no doubt would like to redirect staff time that is now being spent repeatedly rehashing the same issue to more productive projects. In our opinion, regrettably, parts of the ordinances before you do not meet these simple goals. As to precedents, your decisions on the current remapping ordinances will set broad precedents that someone in the future will seek to exploit. By adopting the Cyrus Amendment, are you saying that a subdivision developer has the unilateral right to rezone individual lot owners' property? Shouldn't rezoning require all landowners' consent, not just the former developer's consent? Here are some implications: 1. Landowners with property currently in the resort map that doesn't meet state or local criteria to qualify as a resort can apply to be grandfathered in on the new map. You may be creating new, false expectations or perceived new property rights that these properties can indeed be converted to resorts. For example, what if a Deschutes River Ranch decides to rewrite its CC&Rs and ask to be converted to a resort, just like Aspen Lakes? You will simply be perpetuating this drain on county resources as the same disputes get played out over and over. 2. Another precedent you will create is an expectation that a landowner or land use attorney can write amendments strictly benefitting a single commercial interest and get them adopted. As to Whychus Creek, we ask you to read the following one-page summary of some likely impacts of an Aspen Lakes resort on Whychus. Water rights to Whychus Creek are so overappropriated that approximately 210 cubic feet per second (cfs) in water rights are allocated for a stream that has a base flow of around 60 cfs. Water rights junior to 1895 can't be met except in late spring and early summer. (Deschutes Water Alliance assessment, Golden and Aylward 2006) As I have been stating since the proposal to convert Aspen Lakes Golf Estates was announced to my homeowners association in 2005, the talked -about resort would put a lodge, 300 to 500 more houses, water features, nine more golf holes and other amenities and a new population roughly the size of Sisters' as close as 300 yards from Whychus Creek. This population center would be situated within 1/4 mile of the prime spawning areas for reintroduced steelhead and salmon in the entire Deschutes Basin. The source of water would be groundwater that recharges Whychus. This is our chief concern about a resort at Aspen Lakes, or about ANY large-scale development that draws from the aquifer feeding the creek. The Cyrus Amendment is the first step towards a resort that will result in large groundwater withdrawals that will negatively impact Whychus Creek. If you start down this path, you may be creating new county liability under the Endangered Species Act, for allowing groundwater withdrawals that result in lower stream flow and takings of federally -listed threatened steelhead. We respectfully request the following actions to address these concerns. 1. Strip the grandfather provision allowing all property owners with land currently in the resort map to stay in the nidi vii request. Aiiow only lands that can meet both slate and county criteria for resorts to be included. 2. Strip the Cyrus Amendment so that all subdivisions are removed from the resort map. 3. Make decisions now. You've been considering revising the resort map since 2005. Thousands upon thousands of hours of county staff time, hearings officer time, DLCD time, Interagency Wildlife Working Group time, attorney time, developer time and citizen time have been invested in the two decisions before you: where resorts may be and whether a subdivision can become a resort. The way you decide will determine if you continue to spend county resources on matters that should have been decided long ago, or move forward with a clear policy Thank you for considering our views. Sincerely, Merry Ann Moore, Secretary, Sierra Club Juniper Group, P.O. Box 6376, Bend, OR 97708, 541.549.2468 3 Prospective Environmental Impacts of an Aspen Lakes resort on Whychus Creek Water rights to Whychus Creek are so overappropriated that approximately 210 cubic feet per second (cfs) in water rights are allocated for a stream that has a base flow of around 60 cfs. (Golden and Aylward 2006) An OWRD report states it will be difficult to mitigate groundwater withdrawals near Whychus Creek.' The Aspen Lakes resort footprint would come within about 300 yards of Whychus Creek. The source of water for a lodge, 500 more houses, water teatures, nine more golf holes and other amenities talked about as part of this resort is the aquifer which recharges Whychus, a federally -designated Wild & Scenic River upstream. The stretch of Whychus Creek in close proximity to Aspen Lakes is the site of native steelhead and salmon restoration projects to bring back anadromous fish into portions of their historic range. This effort spans many years, has cost over $100 million and involves more than 20 stakeholder groups including the Warm Springs Tribes and PGE. Whychus temperatures in the reach parallel to the proposed Aspen Lakes resort already "exceed the state temperature standard set to protect salmon and trout rearing and migration."' The state temperature standard for salmon and trout rearing and migration is 18 °C, but stream temperatures already reach nearly 26° C (about 64° F) near the resort site in the summer.' Consequently, this reach already qualifies as a water -quality impaired river under Oregon Department of Environmental Quality Section 303(d). An Aspen Lakes resort would be sited approximately 1116th of a mile from Camp Polk Meadow, historically the best steelhead trout spawning location on Whychus. Camp Polk represents one- third of the available spawning and rearing habitat in the upper Deschutes basin. A U.S. Forest Service watershed analysis says this reach of Whychus is "almost unique in its combination of gravel for spawning, room for the stream to slow and meander, and natural springs that refresh the stream.i' Detriment to these and other springs just upstream could damage efforts to keep creek surface water cold enough to support new fish. Large -volume groundwater pumping in the area will likely result in greater impairment, both increased water temperatures and lower flow, posing challenges to native fish sustainability. Fish populations would also be challenged by resort impacts such as: increased access to fragile riparian areas by new residents, anglers and recreational visitors; storm -water runoff from more streets, parking lots, rooftops, lawns and golf course acreage, resulting in more pollutants such as oil and grease, sediment, pesticides, herbicides and fertilizers, bacteria and heavy metals in the creek; and erosion from construction activity resulting in sedimentation offish habitat. 1 Deschutes Ground Water Mitigation Program, Five -Year Program Evaluation Report (February 29, 2008) Whychus Creek Watershed Project Temperature Monitoring Summary 2007 http://www.restorethedeschutes.org/CEDocuments/Downloads GetFile.aspx?id=250491&fd=0. 3http://www.nuggetnews.com/main.asp?SectionID=5&SubsectionID=5&ArticlelD=15466&TM=63960.67 4 Biography of a Place, by Martin Winch, 2006, p. 215. Nugget Newspaper - Sisters, Oregon News, Events, Classifieds 1 Study reveals Whychus ... Page 1 of 2 u et e\vs.corn ..1.1�= r're .� g`" e Nugget Newspaper Tuesday, February 10, 2009 Study reveals Whychus Creek warming By Craig Eisenbeis Tuesday, February 10, 2009 Reintroduction of salmon and steelhead runs to Whychus Creek has been a long-term goal since the fish were eradicated by dam construction in the 1960s. In addition to the passage of fish around the dams, another long -known impediment is that Whychus Creek has serious seasonal waterflow and temperature problems in the reach nearest Sisters. What hasn't been well known however - until discovered by a recent Oregon State University study - is that, temperatures during historic salmon and steelhead spawning times could be too warns to successfully sustain the fish reintroduction efforts that have already begun. According to Lesley Jones, Water Quality Specialist for the Upper Deschutes Watershed Council (UDWC), "Nobody had looked at January to May against a potential future steelhead spawning standard of 13 degrees (Celsius). What we found is that, if that standard were in place, the creek wouldn't meet that standard from Sisters on down." A section of Whychus Creek currently undergoing habitat restoration near Sisters. photo by Craig Eisenbeis Everyone knew that summer flows were too low and temperatures too high, but the high temperatures in winter and spring were a bit of a surprise. As a result; the IJDWC is interested in exploring how this issue could affect Whychus Creek restoration strategies. As it happens, there are two potential temperature standards. The spawning standard of 13 degrees Celsius (about 54 degrees Fahrenheit) is one. and the other is the salmon and trout rearing and migration standard of 18 degrees C (about. 61 degrees F). Whychus Creek could have problems with both. Although the salmon and steelhead restoration efforts that started in 2007 could he stymied by water temperatures in Whychus Creek, Ryan Houston, Executive Director of the UDWC, explains, "Steelhead trout are very resilient fish, well adapted to tough conditions. Although the high summer temperatures are well known problem, we don't know whether the winter and spring temperatures discussed in the OSU study will matter to the fish." Jones also commented. "Prior to their extirpation. the steelhead populations in Whychus Creek are approximated to be one thousand. At. that time, water was being diverted and water temperatures were likely waren. So, current conditions are likely to sustain the reintroduced steelhead despite the warm water temperatures_" Over the past three years, the UDWC has co -hosted an undergraduate internship with OSU-Cascades to monitor temperatures along the entire length of Whychus Creek from the Cascade crest to the creek's mouth where it empties into the Deschutes River 40 miles downstream. The creek's watershed drains approximately 178,000 acres (278 square miles). To no one's surprise, the creek is in distress most everywhere below the irrigation diversions a few miles south of Sisters. http://www.nuggetnews.com/print.asp'?Scction'D=5&SuhsectionID=5&ArticleID=15466 6/29/201( Nugget Newspaper - Sisters, Oregon News, Events, Classifieds 1 Study reveals Whychus ... Page 2 of 2 Some of the irrigation diversions have been in use since 1895 and siphon off nearly 90 percent of the water during the warmest months of the year. Further, irrigation begins in April, during a natural low-water period, before the snowmelt fully augments the stream capacity. Despite these daunting challenges, multiple agencies are cooperating to deal with the problem. For example, says Jones, "We are supporting the Deschutes River Conservancy's work with water users to move water back into the stream." Stream bank habitat restoration is another major effort that is being undertaken both north and south of Sisters by the UDWC and Wolftree, a science education organization. Three other projects currently in the ;: orks also hope to further mitigate the elevated temperatures.. One upgrade, at the site of the irrigation diversions, would help screen out fish from water headed into the irrigation systems and improve flow management. Two others, farther downstream, would physically alter the course of the creek to "reconnect" the stream flow to the groundwater and floodplain at Camp Polk Preserve and Rimrock Ranch. Together, the projects would help rehabilitate approximately three ]piles of Whychus Creek in the highly stressed mid -reaches below Sisters. Beginning this spring, the UDWC will work with the Deschutes Land Trust to implement a plan to reroute the streambed on its Camp Polk Meadow Preserve to reconstruct the natural meandering flow. The natural streambed was destroyed in the 1960s when the U.S. Army Corps of Engineers gouged out artificially straight channels to keep the creek from flooding the surrounding land. Mike Riehle, a fisheries biologist with the U.S. Forest Service, said, "The springs at Camp Polk - for whatever reason - seem to be more nutrient -rich than other springs in the area. The meadow complex associated with the springs was probably a spawning hot spot, historically." The Land Trust would like to see the creek flowing out across its floodplain again. "If the creek is connected to its floodplain and groundwater, it helps lower the temperature of the water," said Jones. When a large meadow. such as Camp Polk, is fully saturated with water, it acts as a giant reservoir. and that accomplishes two things. First, this residual water acts to stabilize the rate of water flow when precipitation declines in the summer months. Second, the mass of water saturating the soil system is "connected" to the underground water, hich typically has temperatures ranging far below that of the surface water, often around 7-11 degrees C (45-52 degrees F). Jones stressed the importance of cold groundwater entering Whychus Creek in that it may "offer refuge to the fish during periods of low flow and high temperatures...explaining why steelhead were able to have sustainable populations in the past despite challenging conditions." She also expressed concern over development of destination resorts "as a threat to the spring water contribution due to increased groundwater withdrawals." Regarding steelhead sensitivity to warmer water conditions, Riehle said. "It's not an on-off threshold, but the incidence of fish mortality due to disease and fungus increases as the temperature gets above 13 degrees C." So, despite the complexity of the issue, the temperature problem is being attacked from several angles by multiple organizations. While, at first glance, the new findings of the OSU study might appear to be a setback, Jones and others are taking it in stride. As Jones explains, "There are always a lot of unanswered questions in watershed restoration, and Whychus Creek is certainly no exception. We'll keep working to help assemble a clearer picture of what needs to be done to help Whychus Creek." Related Links= ">content © 2010 ">Software © 1998-2010 lop! Software, All Rights Reserved http://www.nuggetnews.com/print.asp?SectionID=5&SubsectionID=5&ArticleID=15466 6/29/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 1 of 11 Once -golden destination resorts face uncertain future Articles - July 2010 Oregon's once -golden destination resort industry is under fire and in flux and the future is anything hot clear. BY ROBIN 1)OITSS 1R}) 0 The expansive sales office at Remington Ranch in Powell Butte sits empty and shuttered, mostly bare inside except for a large relief map of what the 2,080 -acre destination resort entailed when it was approved in 2006 by Crook County: 800 homes, 400 overnight units, three golf courses, retail shops and several restaurants. That was the plan before the housing market began its freefall in 2007 and Remington shut down sales the same year. It was before Crook County voters in 2008 voted for a moratorium on large destination resorts. And it was before Remington Ranch filed for bankruptcy this January. But to Chris Pippin, the resort's youthful Stanford - educated project manager and son of James Pippin, Remington's managing member, the promise is still there. As he tours the scrubby high -desert landscape on a cold early -spring day, pointing out one golf course that is 75% complete, Pippin sees a future for Remington: Moneyed baby boomers will keep retiring, the Central Oregon sun wi]J I cep shining, and as luck would have it, Crook County "closed the door behind us." That door was shut after four resorts had been approved: Brasada Ranch, Hidden Canyon, Remington Ranch and Crossing Trails, a combined 7,700 acres and 6,500 overnight and home units. "In some ways it is a positive that we didn't get too far down the road with a product we couldn't sell," Pippin says, referring to the 800 unbuilt homes. He's looking for a big push in sales in spring 2011 once Remington comes out of bankruptcy reorganization. Pippin may or may not be right about the future of his property, which Winchester Development paid http://www.oregonbusiness.coni/articles/87-ju1y-2010/3702-once-golden-destination-resort... 6/29/201[ Once -golden destination resorts face uncertain future - Oregon Business Page 2 of 11 (TOP TO BOTTOM) PHOTO COURTESY SUNRIVER RESORT, OREGON BUSINESS PHOTO, PHOTO COURTESY BRASADA RANCH "Destination resorts are done in Oregon." $10 million to acquire. He could be the only upbeat developer left in Oregon. Maybe it is the required optimism of any developer talking to the press these days, much less one whose dad has skin in the game as one of the property's owners. But he does have one thing right. The door has closed — if not forever than at least for a good hile on the large resorts hotels, golf courses and homes that dot the state and blanket Central Oregon. It's a once -coveted business that's in trouble with regulators, residents, environmentalists and the development industry. It's a business under fire and in flux, and one with an uncertain future. Jerry Andres, president and CEO of Jeld-Wen Development, is blunt and unequivocal: The forensics find the patient suffering from multiple wounds, some self-inflicted: the housing collapse, the subsequent recession, greed. need. bad timing. poor planning, overbuilding, speculation and more than a bit of magical thinking. The law of unintended consequences plus the economic collapse has spared no one. Most of the state's destination resorts are in various stages of distress: slowed sales to no sales to foreclosures to bankruptcy. The landscape is littered with foreclosures (currently more than 6,000 in Deschutes County alone), and the housing market in Central Oregon is woefully oversupplied. "Just in Deschutes, you have 15,000 approved lots," says resort consultant Linda Swearingen. National housing expert John Mcllwain has seen i1 hetore: "( )ne of the things the development community is really good at is spotting an opportunity and then overbuilding it." And then there's the long-standing criticism that newer resorts are stealth subdivisions that circumvent land use rules and provide only low-paying jobs and few of the public amenities that create tourism, which is why they were allowed to build in rural areas in the first place. There is growing opposition from Oregonians, legislators, the environmental community, and increasing alarm from nearby cities, which have no say over the approval of resorts. Cities do not share in the tax rewards that go to the counties (in 2008-2009, Deschutes County resorts paid more than $35 million in taxes), which approve the resorts. But cities have to cope with the impact they have on their services, roads, infrastructure and housing stock. Redmond, for instance, is having difficulty attracting high-end housing because of the nearby resorts, which limits its property tax revenues, according to the League of Oregon Cities. http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 3 of 11 OREGON'S DE:S'TINAT.1014,4 RESORTS. }1E�tdESF MbME..: H�6i%. ESTINATED '•• A/MOVED BY CO WM, UNDER APPEAL AT THE .RATE LFiEL It will take Mears, if not decades, to soak up the current supply of real estate and recover prices. Residential property in Bend has fallen 75% from 2007 top prices, and comntcrcial property values are half off their peak. A federal housing study released in late May showed that Bend suffered the sharpest housing price drop in the nation over the past year. Roger Lee, executive director of rconomic Development for Central Oregon. has little sympathy. "The reset had to happen," he says. "Prices were too high." 1.v en the mighty Jeld-Wen, Oregon's largest privately held company, is hurting. A major player in the resort industry, the company has developed three destination resorts in Oregon: Eagle Crest near Rcil",E.nd. Brasad a Ranch in Powell Butte and Running Y Ranch in Klamath Falls. if Chris Pippin is a youthful player in the resort game, Jeld-Wen's Jerry Andres is the old dog who has been around for decades developing properties for a behemoth company. Andres is not shy about ticking off the problems facing his firm's Oregon resort properties: "We've cut services, we're not growing. We've had layoffs and things are not over yet." He says that Eagle Crest is about 65% built out, but at Brasada, "we're selling for less than what we have in it." Ile says only 29 homes out of 900 planned at Brasada have been built and of the couple hundred lots sold, more than 50 are in foreclosure. Public amenities that have been built include a restaurant, sports center, golf course and 80 overnight cabins. http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/20111 Once -golden destination resorts face uncertain future - Oregon Business Page 4 of 11 "When you factor in capital requirements to get [resorts l started," says Andres, "we wouldn't touch another one in this state." In addition to the bruising downturn, developers say state rules requiring them to put in an upfront investment of at least $10 million in recreational amenities such as overnight lodging and golf courses have forced thein into a large-scale Sunriver-type business model that is no longer viable. That likely is irrelevant to a county likes Deschutes, which partied the hardest with resorts. lts commission approved every resort that came before it and the county now has eight resorts totaling about 11,000 acres and almost 7,500 approved home sites. Central Oregon LandWatch, a conservation group, charges that "elected officials have shown little concern for the economic, social, environmental or energy-related impacts that these resorts bring that affect our landscape, our natural resources, our environments and our communities." The county is suffering from something of a resort hangover. Community meetings in 2008 and 2009 in Deschutes found residents wanting stronger efforts to offset resort -related impacts. Some wanted an outright ban on future resorts. "We may have made a mistake in Deschutes County with so many resorts," says Rep. Gene Whisnant, a Republican from Sunriver. "With the resorts that are here," says Deschutes County Commissioner Alan Unger, "we aren't going to be looking at another resort for many, many years." The debate over Oregon's large destination resorts has been swirling almost since the state in 1984 amended Goal 8, one of its statewide land -use goals, to allow them to be built outside urban growth boundaries. The exception was made in the hope that resorts would boost tourism and create jobs in struggling rural communities in the model of the successful Sunriver and Black Butte developments built in the 1960s. Black Butte has played a widely credited role in helping nearby Sisters thrive, and Sunriver provided a similar boost to pre -boom Bend. The other pre -Goal 8 resorts are Salishan, Bandon Dunes and Otter Crest on the Coast, and Inn of the Seventh Mountain outside of Bend. A dozen resorts statewide have since been approved by counties under Goal 8, nine of them in Crook and Deschutes counties. The approval rests with the counties after they have gone through a resort mapping process, and eight of Oregon's 36 counties have completed that process. http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 5 of 11 TOP: The successful Sunriver resort was built in the 1960s and helped define the state's large-scale destination resort industry. MIDDLE: The shuttered sales office at Remington Ranch, one of the casualties of the housing collapse that has hurt or stalled many resorts. BOTTOM: Property at Brasada Ranch near Prineville "is selling for less than what we have in it," says Jerry Andres of Jeld-Wen Development. (TOP TO BOTTOM) PHOTOS COURTESY EAGLE CREST RESORT, BRASADA RANCH, REMINGTON RANCH But now development experts reject the Sunriver- type model that Goal 8 requires, saying it takes too much upfront investment and the overnight market is glutted. Peterson Economics, a Washington Stale firm that does economic studies for the development industry, said in an April report that the large-scale conference hotel and golf resort model taitdatcd and that '`none of Oregon's new destination resorts, including Brasada Ranch, Pronghorn, Caldera Springs and Tetherow, have major hotel facilities" and none are likely to develop them anytime soon because of financial struggles. That gives resort opponents ammunition. The newer resorts "never were destination resorts," says Paul Dewey, an attorney for Central Oregon LandWatch. "They were always subdivisions fueled by residential sales. What concerned the conservation community was the evolution into pure subdivisions, which is antithetical to the land - use system of protecting the rural environment." Dewey for years has been battling the Thornburgh development for opponents of the resort, 2,000 acres at the base of Cline Butte in Tumalo. Approved in 2005, its plans call for about 1,000 homes, 350 cabins, a 100 -room lodge, 150 timeshares and three 18 -hole golf courses. Thornburgh is under appeal at the state level, and its CEO, Kameron DeLashmutt, and his partners are tangled in internal legal battles and foreclosure proceedings. "There are some developers who are trying to find a way to use the destination resort law to create a cheaper subdivision, not a resort," agrees Mike Hollern, CEO of Bend real estate development firm Brooks Resources, which developed Black Butte. "In many cases, the developers have circumvented the rules over time." "The new resorts were clearly geared to living there full-time, and not geared to the public," says Rep. Brian Clem, D -Salem. "I grew up in Coos Bay and 1 don't think the only option is to have to move to a city to get a job. I want to see tourism helped, and resorts may end up playing a role, but they cant be about permanent second homes. http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort_.. 6/29/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 6 of 11 "I tried to go to Pronghorn and the guard at the gate wouldn't let me in." The gated Pronghorn, located between Bend and Redmond, has become for some a prime example of resorts gone wrong. Sen. Jackie Dingfelder, D -Portland, said during a May resort work group meeting that Pronghorn hasn't met its requirements, including a hotel, and should never have been approved. Deschutes County planning director Nick LeLack says the development "met the letter of the law." Pronghorn, which was approved by the county in 2002, has two operating golf courses, 60 of its 374 homes built, and 48 of its required 192 overnight units completed. It has an extension by Deschutes County until 2013 to build its hotel. Managing partner Tom Hix says they will meet that timeline. "We don't survive unless we have a public component, but you can't build a hotel on day one," he says. "You can't finance it." He adds that Dingfelder's remarks are "short-sighted" because the local economy benefits from the resort's 85 year-round jobs, the $2.5 million it paid in taxes last year and the $700,000 its foundation has given to the community so far. And those gates that keep out Rep. Clem and presumably other members of the wandering public? Are they conducive to attracting tourism? "There are gated resorts all over the country, all over the world," Hix says. "Being gated is a natural situation because you have a lot of money invested." Alarm over the rapid proliferation of resorts reached a peak statewide and in the Legislature in 2009 when Jefferson County attempted to bring destination resorts to its economically beleaguered county. "They looked at their opportunities," says Mike McArthur, executive director of the Association of Oregon Counties, "and there were few." Jefferson approved two destination resorts in the Metolius River basin in 2006. One was developer Jim Kean's Metolian, located inside the basin, comprised of 450 homes and a 180 -unit lodge. The second, the Ponderosa, planned 2,500 homes and 1,000 overnight units. The fight to stop the resorts went all the way to the Legislature. It was an emotional, heated fight that called into question the motives of legislators with homes in the area. Thousands of Oregonians protested the resorts and the county sued the state, saying it had violated its own planning laws. In the end, the Legislature made the basin an area of critical concern, stopping the Metolian and downsizing the Ponderosa. In the same session, a resort reform effort that would have removed some regulations on resorts but overall tighten the rules was defeated. Sponsored by Rep. Mary Nolan, D -Portland, and supported by Jackie Dingfelder, the bill called for removing the current requirement for a large footprint, the $10 million for recreational amenities and the minimum number of overnight units. It also required developers to address workforce housing, emergency services and traffic impacts, and banned resorts in some irrigation districts (which would prevent water rights from farmland being transferred to developers) and wildfire areas. And it gave the state Land Conservation and Development Commission additional say in determining whether a resort was appropriate. Remington Ranch has completed 75(', of one gulf course. It had planned three golf courses, along with 800 homes and 400 overnight units. OREGON BUSINESS PHOTO http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/21/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 7 of 11 The Siena Club endorsed the bill saying it would "assure that the future resorts are built on the model of Sunriver and Black Butte Ranch, which are genuine visitor -serving facilities, instead of the Pronghorn model which is really a gated luxury golf community for second homeowners." There's a bit of irony in the reference to Black Butte, which was started before the state wrote its resort rules. "In 1960, we needed four governmental permits," remembers Mike Hollern of Brooks Resources. Among those who opposed the bill was Gene Whisnant, who says he supported it "until Nolan changed the bill and put [the Land Conservation and Development Commission] in charge of policy and made changes that would make it economically not viable." In testimony, he called the bill a "death sentence for rural resorts and the future of some of these rural areas." The 2009 bill was defeated, but resort reform came up again in the 2010 special session in a bill passed with bipartisan support that required, among other things, that developers provide an economic impact analysis of cities within certain distances of a proposed resort, along with a traffic analysis and mitigation plan. Spurred by the defeat of the 2009 resort reform effort, Dingfelder assembled the resort work group — a broad coalition of developers, environmentalists, city and county associations, and state and county leaders with the goal of creating a "new destination resort model that promotes economic development for local economies and is consistent with Oregon's resource values." They are working through this year to recommend changes to the existing state statue in the 2011 session. "I think there are a number of things outdated,'' says Dingfelder of current resort rules. "The requirement that there are a set number of acres; the golf course requirement. For instance, no eco - resort model would be allowed. It doesn't allow for innovation." Current standards for large resorts require at least 160 acres of farm or forest land (unless within two miles of ocean, then it's 40 acres); and resorts must spend at least $10 million on onsite recreation and visitor -oriented accommodations. including restaurants for at least 100 people and 150 separate rentable units. At least 50 of those overnight units must be constructed before the sale of any real estate — a 2007 court affirmation that Jeld-W en s Jerry Andres says put the dagger into the heart 01 the industry. "The hope of the work group and rural counties is to reform the law to match the vision of a different kind of resort: smaller, greener, leaner," says Brian Clem, a member of the group. "The law itself is a barrier to a different kind of resort." Linda Swearingen says she sees a possible new future not just for new resorts, but those already approved and sitting dead in the water. "I think we have an opportunity [during the downturn] to work with the entitled resorts and the older Goal 8 resorts and allow them the opportunity to downsize in exchange for some changes in how they develop," says Swearingen, who was on the development team for Crossing Trails, a 600 -acre resort approved by Crook County in 2008 that faced vocal opposition from residents and is being appealed. The plans for Crossing Trails called for 500 homes. http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 8 of 11 "My hope is to look at what's already on the ground, the existing entitled resorts, to make them more environmentally friendly, more economically feasible." "It's kind of ironic that now the industry wants a 'new kind of resort' that's really a subdivision," says Paul Dewey. "They want to build smaller resorts with no requirement of overnights or recreation ... The 2-1 ratio [of homes to overnight units] was fraudulent enough." To Hood River County Commissioner and developer Mani Meyer_ helping this stalled industry is not the point. "Lost in the discussion is will this help people living in rural communities have a better life? Does the grocery owner benefit? To the extent that you can make a living, not a killing, out of it, no one will begrudge resorts," he says. "But this is not a savior to the rural communities." Clem, the chief sponsor of the bill to ban resorts in the Metolius, says he wants to reform the laws to make resorts more economically viable and to mitigate impacts of resorts. "But my concern is not how to bail out resort developers. It is how to enhance the economy of rural economies." It's a critical question about destination resorts: Do they really help rural areas? But there isn't a definitive answer. Opposing developer and environmentalist camps do not trust each other's economic studies. After approving eight resorts, Deschutes County currently remaking its resort map — plans to produce its own "neutral" cost -benefit analysis of resorts for the first time. Supporters say they clearly help fill county coffers and provide many much-needed jobs (estimated at 2,000 in Central Oregon) without huge impacts on nearby communities. Opponents counter that the proliferation of resorts have huge negative impacts on nearby towns and the environment while creating mostly low-end jobs. In the case of Bend, some say the surrounding mass of resorts is hurting the very city that was supposed to be helped. Clem says the first resorts did help the economy by bringing a lot of people to Central Oregon "and then they explored Bend. The second wave of resorts I don't think has contributed positively to the economy. The resorts have become a competitor to Bend." Large or small, eco -minded or not, resorts will not drive rural economies, according to John ivicilwain, who authored a report this year on housing in America iii tide next decade for the Urban Land Institute. "This kind of tourist business does not produce high levels of economic growth," he says. "The jobs generated by tourism are low; businesses are modest." Along with changing demographics and changing housing needs, "The U.S. economy is changing," says Mcllwain. "It's an urban nation. We have to face the fact that rural areas will have modest economies. The reality is that you have limited options." Roger Lee, with Economic Development for Central Oregon. argues that the region has had successful job growth because of the resorts. "These resorts separate us from communities like Baker City," which struggles to build its tourism. "It does matter if they succeed." To Gene Whisnant, the destination resort is an option worth saving. "We don't have many industries left in Oregon. 1 think destination resorts — managed properly with the right guidance work." http://www_oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 9 of 11 Mike I-Iollern believes the resorts have been good for their communities but "what is the true impact? Those are unanswerable questions." Still, he says, resorts have "delivered on their promise to help rural Oregon." Whether they will continue to deliver on that promise is also a question. With Pronghorn and other so-called "stealth subdivisions fresh in the mind of some members of the Dingfelder work group at its May meeting in Salem, the controversial question of whether residential units should even be allowed at future destination resorts surfaced. The sentiment was an about-face from previous legislative actions. In 2003, the Legislature changed statutory requirements to allow developers to build more homes and fewer overnight accommodations (2.5 residential units for every rental unit). Gov. Ted Kulongoski signed the bill, but expressed worry that the change was "not focused on tourism." This was "before anyone had a clue as to what was coming," says Erik Kancler, executive director of Central Oregon LandWatch. It was a prescient concern. The Peterson report, which was presented to Dingelder's work group, says profits from lodging, dining, golf, and other amenities and recreation activities are "quite modest." Without robust home sales, developers say resorts aren't financially attractive enough. They want them still, even though it could take years to clear the current glut off the market. The Peterson report also says developers shouldn't be forced into building more resort lodges because the Northwest is oversupplied with those, too, and floats the idea to allow "ultra -low-density community with limited amenities and perhaps with no traditional lodging." "So what's the market? Overnights or second homes?" asked Jackie Dingfelder during the meeting. Linda Swearingen admitted she was stumped. "It's a combination. But this market is so funny right now, it's hard to tell what the future of a resort needs to look like." John Mcllwain's national study says that the second -home market will be weak for decades: younger boomers won't be able to afford one and older boomers increasingly are interested in living in urban settings. Generation Y, the group coming up behind the boomers, will have little money for first homes, inuch less second Homes. And other factors weigh in. In Deschutes County, ground zero for second -home saturation in the state, the City of Bend wants to expand its urban growth boundary by 8,400 acres, with 500 acres of land for second homes. That would leave less reason to continue building second homes in destination resorts. Jeld-Wen's Jerry Andres minces no words. "The future of the industry is not growth. It will be managing what's already on the ground," he says. "And if you're not already built," he adds, "it's not going to happen." The stalled Remington Ranch has every intention of building. In late May it filed its reorganization plan in U.S. Bankruptcy Court, seeking $35 million in new financing to finish phase one, which includes a golf course and 192 single-family homes. http://www.oregonbusiness.com/articles/87-ju1y-2010/3702-once-golden-destination-resort... 6/29/2011 Once -golden destination resorts face uncertain future - Oregon Business Page 10 of 11 Chris Pippin, project manager of Remington Ranch, near Redmond. Pippin hopes for a spring 2011 sales push after bankruptcy reorganization. OREGON BUSINESS PHOTO Of course, the court has to approve the plan, and the housing market by many accounts has not yet reached bottom, but Remington's Chris Pippin says his property is valuable and he's hoping to wait it out. "Remington is a 20- to 30 -year build -out," he says. "Regardless of what happens, this project will get developed." It is an unwinnable argument as to who is right. Ultimately the market will decide which of the already -approved resorts will survive and the Legislature will decide the shape of future ones. Dingfelder says she would like to find consensus in the work group about that future. Time will tell if that is even possible, given the dozens of different agendas and that the group's recommendations still have to face the onslaught of special interests in the 2011 legislative session. And after the legislators have decided and the developers have left, time will also tell if the rural grocery owner was helped or if rules and promises were again made to be broken. Email This Share on Facebook, Digg, etc. Comments (1)`,... ,,aSubscribe to this comment's feed And history repeats itself... written by A. Kirk , June 28, 2010 3:24:25 pm PDT This reminds me of a TV show I saw on OPB not long ago where Christmas Valley was going to be all divided up into a beautiful resort/subdivision, etc. The developer flew people from California to the middle of the desert in planes and the people who bought places to live just about died the first winter because there was a horrible storm. It's practically a ghost town now. Sad how these things go... of course we're a little more modern and educated these days but not always. http://www.opb.org/programs/or...g/book.php vote up vote down report abuse Votes: +1 Write comment title http://www.oregonbusiness.com/articles/87 july-2010/3702-once-golden-destination-resort... 6/29/2010 Once -golden destination resorts face uncertain future - Oregon Business Page 11 of 11 comment name email (will not be displayed) write the displayed characters smaller I bigger 3nc 1 have read and agree to the terms of usage. Add Comment http://www.oregonbusiness.com/articles/87-july-2010/3702-once-golden-destination-resort... 6/29/201 C History of Oregon Policy Decisions Affirming that Subdivisions Cannot be Resorts Feb. 25, 2010 Planning Commission proposes new criteria: • Existing "paper" platted subdivisions that were platted prior to 1992 must be allowed into the map. • Cluster subdivisions should be allowed into the map, if they meet the open space requirements of a resort. Formal motion by Planning Commission (http://bit.ly/bZUROm) May 26, 2010 BOCC reaffirms policy that subdivisions will not be included in resort eligibility map. Work session June 7, 2010 BOCC accepts Cyrus Amendment as part of resort map ordinances, allowing an exception to exclusion of subdivisions from resort map. June 9, 2010 BOCC repeals remapping ordinances including the Cyrus Amendment. June 30, 2010 Hearing & possible decision on county subdivision/resort remap policy. Proposed Ordinance 2010-001 Chapter 23.84.030 section 3c9 says no platted subdivisions will be included in map. EXCEPT for those where: Each lot in the subdivision states in its deed or CC&Rs that the original developer is authorized to apply for conversion of the subdivision to a resort. (DCC 22.23.0100) Prepared by Merry Ann Moore, Sierra Club Juniper Group 6/29/10 History of Oregon Policy Decisions Affirming that Subdivisions Cannot be Resorts DATE ACTION SOURCE/DOCUMENTS Fall 2007 Cyrus family requests approval of text amendment that would permit conversion of Aspen Lakes Golf Estates in Sisters, Oregon from a cluster subdivision to a resort. Text Amendment 07-07 January -February 2008 Deschutes County planning department staff, county legal counsel and state Department of Land Conservation and Development unanimously state a subdivision cannot convert to a resort. Staff report Attachment A, DLCD letter June 2008 Planning Commission votes no to allowing the text amendment/conversion. November 2008 County Commission votes no to allow the text amendment/ conversion. May 2009 County recommends • removing existing housing subdivisions and lands platted for subdivisions from map • removing parcels of land under 160 acres from map Presentation by county planning staff, Community Conversations July 6, 2009 County recommends unmapping of ineligible lands: • All platted subdivisions and parcels < 160 acre • Irrigated Farm Tracts (>40 acres of contiguous irrigation, under one ownership) Attachment A — Community Conversation Powerpoint http://bit.ly/9QR4n5 Prepared by Merry Ann Moore, Sierra Club Juniper Group 6/29/10 97ATt Cr OREGON ee. Cwnty of Ue3cha ley aftkit10110 lq 1991. the Le and tar said Count? and $tatIIr:,, q+ettrsrship hese ex Oa re that Ouch 237 * 1424 .Doclereelane, Restriction., RVotettivs Cbeenente 6 Conditt 0.4 Pegs 19 l6�VMYw+/wl• 2 37 - 14" IYn1ALT "A- Gots One (1) through to#ty- roe (44) snd Private Mays, iscluslae of COL, COOS= MATES AT AMPts LAM. Del/chutes County, Oregon, =Dm' "i' All the iollo.inp described property, or any di.;slon o3 nen m.pine toeeeot, Tracts A end $. 10c) wins of LAOLt COMMA TOTATAO AT Anent Watt$. $i.abut.a Aaym47 Oasgaa. Lots a*. (1) tit7)7ogh Tea (14} IS AIOOA loves (7). Loss Cin• (1) OArOne)S Anvon (Ti, is $IOOk (tqk! (e). Lot. gat. (1) th.00 h rt..ot(144)) .1n Il0CPCAk*1.. (S). /A01144440 01 FM* $0411* *MOW*. Lot. 000 (1) 0#0 4014 $1ast.ss (19). tracts A, C. sad C. inclusive al T1[: *14 Ax I Eb W.JU.= D.icbo144 Count},- Oram. 65 4? -1151 (TAO w *444911 1 yy amino a11G4un311 e4a „a91 J1#111;1H 9 16 , MART SUE PEIII LLO0? COUNTY CUR* ar. - .-- a an 14180411 41,444f art.maL 49[Mi4 S'Sti.Gn 7. ,U,..7114-5, 744 caption. ai each Article sod +Section hereof, ea to the Contents of each Article ono S ctie Ai. inverted only Ctr Conuantanca sod are to no ray to be con - 'trued as defining, limiting, extending, or otherviso e.xlttylivt or adding to the particular Article nr 6eotion to ohlch they refer, HaCt#sa 6. TRANSFER OF Ai+KINIST1taTie0 AOSP1NSIBILI1'Y.. On Jura 1S, 2000, or not later than 190 days after iota repreaenttsc seventy -11e, peream i71t3 of the ..Otos neve been convoyed, vhlciaver aha11 heat occur. D.clerent sis6ll call s **sting tax th* .t ae of tutning over aditnfatratfas raspossibifity for Odds =AU 6=166 At ASPEN LA66ii to the Aesectation. Notice .hall he .s Provided In the Hyla.... At the sooting. Declarant .hall turn e r to ilia Association the reaq,notbiliey for the adeinlatraticn of GOLF COLAS6 AlTATDS A? A$Y7.. [AXES end the heimedation shell *octet the Rkttnlet€etA.t rs.r.nPtbASity txoa the .SQiar.nt es provtd.1 111 011191 616. [lot later than the 60th dey altar the D .lerent Asa+;rcon..y.d th. tote re tInq fifty pstcant CSC1) of Cha rotes Lh COLA '. IMAM A! AT ASrL)l LAM.the 0•414044 *halt ca11 a ayietlriq Oft****** tar the purpose of salactirq s tranaitiana7. advitgoodvtooto aaetet inship USW** of A SIS4Otratiwa eu�lir IN W1TW[5S WHERFAF, the ar gs04 this Aentnlad Declaration thle art' pt Ino 6TAt6 OF OREGON County of i as. t hes executed i991. On Jett Pi 1991, the underalgned, a Notary Public Ln ani tier' said County and !tate, ptraonally appeared Fayr13 f uyr 3S , Roc .n to se to be a partner of the pertera p ttlet executed he within lnstrussnt anatkno,.1.41. to ee than sacs ccrparatlon eaanutad the tat.. Deciaratiana, ass fictions, arotesti4. uF i.daliiic: pubs c for orsson 1ea1an $.pica.. q�li uidba'cs Covenants f. Conditions TiOn Page lP :37 - 142 tenth, Tiro otfiurm and directors shall have no personal liabil- ity with respect to any cpntropt or Other Poeofte#Ot eaGe by thaw. In good faith, on behalf of the So•ooistlon laseept to rhe awtnnt that such officers or directors may also be Members of the Aeaociationj, end the Assoc latiOn ehp11 indemnify and forever hold each Such officer and director tree and harmless against any and ell liability to athero on eccoont of soy sash coettect or usinot■ant. Any right to Indemnification provided far herein ahan not be aacluedvt of any other r3414.0 to .Rich eny a#Meer er director, pr forest' officer or director*. asy be entitled. Th. /satieiatlorr shell, es a common •*pensee Oeftalo edpgupte 116"." 41"11"f liability and oftldara' and dtr.otora' liability tneurehce to fund thin, obligation, ie such insurance to reason- ably •vol/obla. S.t tion 4, EASplBNTS Fide Will.411ES. '71... le 1AIretry ;#eerAAA to lilts Aaaoci.ation blankiat e400.nt 9114ni liOroaa, lob. t. pal sodas ell prdp.rty within 001.? Mast OTAns. AS` **Pis Wits far SCOW. lovas*. *grass, inetrllartito air /ng, ra;Plaairyfi mad aal0tpining all *11111iaa t T e rA,+e$ iii 401t/4 WO* or ally Pox'Clon thrtraO1. ', Act soF ri+itat1 to q#11,. **tor. ssniton' i#wr. t1Cs *Sera dr.1111s and any *that $ .1orf' Aot s **ate* to eeilifen antenna a.corlty .germn mhioh the Meanie teetellod to servo 00LPT 4Gt1 .d€ to expra;aiy paatalagib/$ fes ;alae the case be. 10 fnstelt repafr. asthorlse t 2AItetipt3an, reoalr _ �. of such vire, dO+duit■. cebisa 4a4 441040 a vL .nt *stated to the prnrldifq of towh utility or aware.. <.. furnlehing Any euch utility -Or •1C.'pihbeat `p appsllL .1 1lcenee or aaaanniit by **Porn* recordable docaaa,it, akar Snood shat/ beva the right to grant *orb iingssent. Section d. &CNDC. AND GRAMMAR. The *legator, efherever used heroin, /Obeli be tAIOAIrued to *Oast the plurals -Then appILcsole. and the nee Of the meaeuline pronoun:ehall lnetuds the neuter and feeinisi.1 - . . se veli u 44atl ad tri etas, or *hell y Ort Eves,he111 'y. watteRer pae0Thler 5Ach pre+isiun of thi# Paoleratior shall be intarpestad SA Boal1* canner es to be effective arid velld, but if the appilceatlgn oe'atty provision of this dente reoten to erry pareoh or tO say property shall ha pro- hibited or haled lneali1, such prohibition or kneel/Oft), shall not effect any other provision or the attp1ieatien Of soy pruetaian which ran be given eruct oittott the irvaiid prOoleioa or appli- dstieh. and, to this and, the groviy/one of thte beelerstian are declared to to aovarabls. ,Declarations. Restri.ct:on.. ddtwu. U`.'run,w i.dmv. & PfruND rroreCttva Covenants E Condols.. o......,... -- Ptae 17 any sura ra ,ri.aments lama e rr inge,nt, tale Sec ca0 shall auto- eat/daily ba amended to reflect son changes. ARTICLE X. CBNERAL PROMISICOSPVI Section 1- Ogiter:.4_ The Cavananti end reatt,...tiOna of this Declaration shalt tun with and bind the Properties, and 'hall Snout* to the benefit of and shell be enforceable by rRa 31®ap;i- aticx or the 41s,nar of opy Propoot#ie rubtsst to t!ia Declaration, shots reapeetivs t gst reprsisetstlwu, hbira, sucoessora, and .feigns, -tor a tars of thirty (30) reeve fro* the date this beoleratitio is recorded, fatal' .hlcfi ties they shall be automat- ically *standard for successive peribda of tan 119; years, unlars an roarrint In wi r .-; l it n3_ a ead by s mayor/n `t � a., Owner*, has been toonrdol within the post pruaedfrurgthe beginning Of *Mb 10d0001110o ;.mired of too (101 Seers, atrreeint to chopoo sold cov.nfnte cad fsatriatictul. Iw whale Or 115 part, or to tsostnat the esus, Seot10n 8. NitHth1CNT. This ilaclsration may be an.andad vnilit.t., 1y Ot soy Otos end .COOS tl„s�}�as�-to also Of dement 4a) •uch .. if .nd'tlnt 0.0311iary to wrlhg SOYpr1Vtildn hereof 1,6%*nc eorplise with *of appl#oa41e til itetuto. rubs or regitlatlon or dwdlolal deteFa+f}s aibioh shs11 ba to conflict iduetvlw#thr Or (Di 11 inch ' Ya-siyotold by an t.ttitu- tl0ou1 pr xmal .110J a' of iOrtigsgi 1cane, #neled0f < j<'. Cul 1S the sfatl �p, tosno#ottlo osr l.d.r*) fold o so.blb evth loader er poretlassr to wake er parslsiss sl,rsysga /sen, on the Lata sobjint to -'3.0.18 f**24r64iia yrtiald.d, awtw es. soy such seend- ednt 'halt 31dt a ineraely aftoct '1O. lids to eny Owner's lot, un1st* Oni.r shall. -consent ttinitatO iia writinr.. 0 to the abowa, t0#s Declaration way be amended to arvtiifan innswnt, dx any rombini tlen retain (7511 at Che webers. aiee effective open Or goo records, emacs a )pan t0areaa, 01 at iso* ysinds.mti tD CO;ti::. sida0610'2410* later ef1rlvi dei., Section 3. :HLI N1t1C0 I094. lois ASoy i.ation *hail indem- nify •wary ..(Clear tn0 direc30r aQi30a4'. any afld -ail e+lpenaei, ir+c%tid.ing. 000tr+lt tees, rsusoeably #mestmd by or #mp©sad upon any officer ar dlrsotor Sh rannacttan atm any action, su1t, or otb■r procaedieg 410otod1ng settlonont of any salt or prrcaedina, If dirapporwd:by theit0.n '9"r4 ard ofe Drwhto10) 3.0ehichaha lor r ahs eyebtoo.pahobtIieaaof dmitra not be 131101.. for any .1 atEifi o(I aOAt, 01g1lgeat no otherlr1ss, accept lar s31a1r a+rn individual oil fol. misfeasance, mnlfgaace7+SRl, aisconduct, er Dad beclaretione, Restrict/one. Prot ectivet Mme,, 1:3 14,r, $(.41ROC is l Pt tuE> Covenants 1 Condi tions ...o. -,..a. ,._ Page Ia Section 1. SPECIAL rtfus: PRV`v351oh. So /beg a& rarjulied 4f the mortgage corporation, the folloving provisions apply in addi- tion to end not 1n iiau of the foregoing three Sadly,• of tai. Asttcle. gnleae two-th1r4t 11/3) of Ch* first mortgages or Owners give their consent, the Association shell not: !a) my act or Oaission seek to abandon, Partition, esbdivlde, encumber, tell or trahafsr the Canvey, Area .hien the Association owns, directly or indirectly (the granting of seeeneate torpadlic oerlittee or for other poblio purposes easaietent vita) the intended use of the Properties shall not ba dammed a trentfer)r 1b) chancy chit setnod af ^etnrmini the obJige- tlona, esseaesents, dues, or other charges which say be eg levied atne en 9wn+a)t. (c) Cheogm too rethod of determining the oblige - Crone. seesawrlte, duel... oT Other eh0r0ee 04140 soy 00 Iaviad fpOlnat ♦n *name _. (d) Fail to maintain tiro and ,1.00.0P4 aevarege insurance, oat ddmirsd by "this 000 1.000)1004 O (e) Ulm hatetd iusvrafes proceeds tar atsy 4000ext Area fdalae tom -Other than tKr rlpgir, zHplaesegtnt, or r tructiac art ,000 i, Iu as tlNk The provtetons of Ore .$ dt#on a shall not be donetroed to tedueo the: eeeeenteee vote Chat oust be obtetnwd Otto sortggesggea or owner, abet. a loner percent a vote Is ethetmles repaired for any of the 004040 dontu0.4 n )hie Section. rust sortgegaps way, jvinely or singly. Par terms or other cferees etfidh At* • , default and which may or have become e charge egafnet the Contawfi .Irma end say pay overdue premiums on csmarity inmarac&e- pa13o3aa., ar ..uure nen camnelty ihmvrancw 00eSeeQC a t4l 1e et of e:00404 ter the Ctisron Ares, be4 1400 °:fiFag, +sor .ak lig 40 nttn ghmli be entttli4 to L000400 mediate tridbO3COt Fpt 1r011 'Aeaoc(at.)„wf. tt is ]nafalareat"s intartian "that the development qualify far the gnaatble dela of eortge9ee anclpnberirxg ticts to the Faderai eietlons1 lottga1a Aasocietlon and/or the yadarel kerns boar. 1Wr't('AS(a COrpor4ti*'A, Tho rr uite me co.tainad int 4e bawdy, arm tin eitemtuats that pifrpoaa. $hO44 aith8t the padersi Home Wen Y t eqe �etion or that Federal wationa. iaottgega 4seeete4 r tr.beeigesntly doICt sfiy at -their r'aepeati+ve 'require- Meat* ehich necaabitete the provisions or thin tacuan cr ante noolarationS. Kastrletiona. iiurli✓_iiv t(tcltrsk,l .k rmtz, Protective ebvenenta 6 Conditions Parse 7: a.+•'.i .l�.:+1 rim'+V,`'+gti:+,eta (s) Th. ca;;anX Qf et least aevorx ty-five Parco.nt 1751) of rho ...hers and the approval of the ettglble holders of (fret mortgagee ars onft■ to .whish et least seventy -Slut percent (751) of the vote* of unite *abject to a mortgage appertain, *hall be faqutro4 to terminate tater Aaaociation. (bf The conoont of et least seventy -Elva portent (751) of the Asebora end the approval of eligible holders of !trot mortgages on Cots to w#leb as lest m:it-one percent (911) of the vete* of LOU abject to r .t+rtOdge appertain, *hall be required materially/ -to amend any ptovt.Lnns of the oar:tara ttnn, tytan., or Articles of In.,rparatt.n of the Asad et:nv. or add any eaterlal prtmielone tasrrnca ..�. oatabliah, provte'e fur, govern, or ragulata any of teo foliawingt (i) voting: {Si) laisreeenta, easeaasant Kanas.. or subordi- nation of Such liege/ (iii) P.eservse War 3asLnt P#nce. t.p.ir. ane replacement of tis Co..ofl ACOO1 (iv) Insurance er fidelity bonds; (Y) tights to ea et the Common. Areal (vi) eaaponaibillty Tor maintenance and repair of the prepattiae) (ri;) irpanwion ar cwntraction or tba Propsrtiee of the atdltion, arutoystfpn, or withdr'avai of Propacttee to and from the aseocietion. (x311) Boundaries of any Cot; (lo) Loosing al Ldxs, (s) Impeaitipn of any right of first relueai or .Seiler reatrictiom of the right of any Owner to *ell, transfer, or otherwise convey hie or her reit: lei) eatabiishment of self-management by the Asoraolotlon where prot0Sticnai management has bean required by an eligible ha dmf; or (*ii)- latyy praaviaiome included in ti.. 3eciaration. Byioos. Or article. of Incorporation union are for the exprsse benefit of hotdern, guarantors, or Saturate of first mortgagee on Cote. Declaration*, Restrictioata. M,aat,=It'ancien, ktillaOill a Pi111.1rr Protective Covenants i Conditions .nn.o.a+tum Paye 18 `rne:tlnn _, a T10E:5 Of AC71v^o. Au tnae(totto tai hold,,, insurer, or guarantor p( a first mortgage, rho provides written regueat to the Aseoclatlon both r►queat in *tat* the n and eddy*** of such holder, bewares, or guarantor sad the lot nuober), (tberetare becoming on eligible holder), rill be entitled to tieely written notice of; lea Any ;rebased terelnoticn of the Association; Ib) Any condemnation lose or any coetto ty lova wnl c^ effects • material portion of the Properties or which effects say wt On •dish teoire i. a 11p,,t e0r19090 boil, insured. or guaranteed by such sllg bls holder➢ Scl Any delinquency in that peyeent of Abno5nmant3 chs rgea cwe,i by an Owner or • int subject in t:'ha morcgac�a .�f� each eligible bolder. ineur.r. or 1Overantor. whore such Oldleieeoy hoe centtnr, 101 • period of ruts (E0) days; {d) Any tepee, C/nCODUOtion, or 00101311 modifica- tion Of Ing insurance go1i0y Or fldslity bond setntairad by rho ***ociatiOn1 Or (*) 3uly Ororosoft ictlen ooioO aa.id requir. the Consent of *001ie )older.. 1a rfguired 3i+ **ciao* 2 and 3 of flits Artieia. setea$00thoo 2. t $d**bib tr01*s dPlUNi0tS 101 MST 4.1$* MCt:BEPS. To the a _. (.) 0ny r.etOret100 0c ,rapalr of the Prcpart2sa offer a partl0l cond+e**110q Or d..... due.0 ee lnaurabia hs..r.2 .h411 0sub ..tlnsiaity focordanc. 4110 this oddlareti1n *04 t.0s origlniL, .000 end .Wciflcat#one unless tb* a oral of the ol&Clbt. re of tire* ea tgegea on P01. to *Alen at x.e.'t fifty ail. psrunt (tit) at IPI wise 01 toot*, subject to .drtddda. )aril by aagh eligible holders ere allocated, to ottaload. y .1.111011 10 t•rwtftets th. Aaawsiatian atter .gbrslntlll dsatllmttion or . atb taxcia1 taking in C040a- 310 eppt0Vtlt al the eligible holei.rs de ftsiet tortb*b. on lata to 3.(Pta1a at loser fifty -ons percent (lift) a1 rice,otsle iii€ !Gots, iaiis`Jbct to .ortgeg.a Plaid by such . 11101* holdaro do r.01 app 0000 Of' brdt4f Or .0la, ollawing provisions is or termi- b) In Vag) th Article 'J. DoClaratione, Aastirldtiitin•, M'.UJ ,O'&IJ1<.Ih.,1Ld r ri ?r Pauls- arntective a,7venent. E Coalitions Pogo 13 - 141i t.ta ,, nol,,d. vlthlo cion ataklny, _eo . ,ri:,1a V excavtion, grading, end other site work, an4 no plentings ro,ovol of plant._ trees, or Shrub* shall take p1aOe except :n ettiet compliance .1th this Section, until the tequitaearnts thereof have been tu111, met, and until the approval of the appropriate Comeittae has "bean obtelhed. Section 1-. ARCRITECTWIAL REVIEW Cgea{i7TEr. 1'04 Aso: -.Lt . ural Ssvi1' Committee {ARC) shall have aatleaiva jurisdiction over all original constrnctton nn any portion a# 014 pr^port3415 a .! jucla. diction over modifications, sddltldns, or alterations cade tan er to existing Aesidentlal Leta bed the Gasmen ams, ifany, spoor. tenant tn*raw, arta ARC shall praparn and. on behalf of tier & card of directors, shall promulgatedesignpuld'etinas and ecpil- caticn pr r:edoros, rho arandards end prae4uraa email be t(, Gra of the ond h4 ARC ehall have sola and f.,ils uthvr- icy to prepare and to amend the -standards and prof duresIt Shall a.ke beth avnllabis to .P -4..o. betideeS, and dUo.lopere who *soh to 0.0090 In days101000irt of Or ron.treetion upon ail or any portl.00 of thea Prop*rtiaa .isd aria .pail conduct their oPerations strictly in acoordanc. thereeith. Until all, Clic Propartlas Contained in E*Mbit x®" haus been nOits*y.d to ytlrchaa.ra in the n ar.ol comaa of daialoeseaat i44 aoL.. or anattl the right of tA.. rmant retains thibrbbt . rl t.- ayiwi..bare Ofthe P.F.C.ip t 0 1 *rt - ishish shill conalst of at least three i3l. twist no more than live (5) p.raon.. Stara shell ba no Aer1. des sit chi, tl.,t prior to that tis.. +nawpt in a o.I.t,a tratil/ai.nb illi telae na.rart•d by Cacla,ant. Won tris .*pilaus&! 4#.Soak Directors *hail *iµil oppoint the .0.1.r.. t shnlL arts* t*teeen the PRC and airy peairaxty sonar Sri Subdivision and it the Vaal oannot b. cssola>*d-by nip pet eom CAnt pestle*, oath petty *grans to ininsit suCh rl1Wetr to binding arbitration Pursuant to the rule* of the Pasf Ptbltratisn *..,dalton. If the parties rennet agnea upon e singly arbltretor, *soh .hail chcwea On arbitrator and ties two so ,+sown shall select a third. Tho daciaion of any two shall he binding upon the parties. aka amort app.a1 of sok' such Soots -ion tondo -rod pursuant to arbitration sh.l1 b. permuted. ARTICLE lA. esgRTCAO1t Aldus the following provisions ars fpr Lias benefit of holders. (nostrum or gvartnturs of first mgttqa1,S on lot. in GOLF COURSE E STATES AT ASPEN LAKES. To the. estoot applicable. necessary, or proper. the provisloaa of this Article It apply to both this 6aolaration and to the aylses of SS -SO Win WOME WERE A$ScCSATI0N. where lndic.t.d. these provision. apply only to aligibienote,.,. as hor.inattar 401itaod. Dotlarationa, Restrictions, Pro :active Rrin4.� ', Cnvenanta k Conditions Page 12 143? 46 Section S. SOpopOi1ATl.14 OP TNA; LIEN TO P1RST DSEos OF 7n1;5T AK; FIRST HOFT AUS, The lien Of the aaaeesments, lneiudiny tataraat, lath d+arge4, coot* (toCIOdltul attorney * fae1l provided for hereto, *ball be eobordinete to the lien of coy ',rat Mnrtpaga upon any tot. rue eel* or trenefer of any Lot shell not ofdeet the es514sseuent 11.14. 11O..ve3. the Sala or tr.nafer At any Oat pursuent tO Judicial Or oo*Jodlciol fore- closure of . Lirvt MotSpeO, Shell eatiaguieh the Ilan of anon e.sesa+oents as to payeenta whin became due prior to such sake o. transfer. 10 cele or SteneS1414 sheSt re14 tv..uch tat tree lien rata, for any ssiei;s4ete hsr.a1t.r bedewing due, Where the Mort141ee of * first t,arteog. et reeerd er other perc?4nr of s tot obtains title, hSi4 or her 5hic0000ra and aaai1ae .hall nub be Ila''1 .le for the Sham of the common t axpenpea or a...doents oy c e Aeacxletian t:harpeaCle to much L. x .hdch became due ptdor cU cha ecquisltlon of title to IoCl4 pat by 14,..x!4 ecg4ir.r. Such unpaid ells. of c14T.0P-141pena4s 0f 4kulscOont4 Oben fro deemed to 014 inn •ops a C0x11.Cttitl. mat, 411'0* Wu, Lnclnding such ag eltl:'.c.'tlls' or h*r 1440404c*4A4 4!1!1481.. 1134740.1 or AS140Clllf3IN. Upon ai }ui.itt¢pn .,4 0 r **Oh 94ne% 4M7 3 aontrs- but. tot n°..gent •lstb (1/6 4t'L 9 4sotlnt ill h. g.n.r.alafw.seSn 3*, t.amt tot 4s d.rsrslaad t} a 1lao.r0. sbXe .S..Oant .baXl Ae .ileal by tea �14 1Rte••tha Per loo. end M411r. 15514 1. 5144 d1a,.. cad tlpare- heli t1D *34. f .gct.tL reoat404 10 441 shah` 5" 1411 a- OnCe of able In a Ida. T! the Oat* be th. date Tho 4 4, ARCl4St5C711AAG STANDARPe1 Streeter* *hell h4» the authority end 1 of tits--Ae+actattxn. to enforce In courts of ono dSCS*ioni of the Comeittee estottished in 11!.514 ±n.y 14pt be amended without the ant. w 16ag 5* tie Qeclar4414 owns way a 14144. 144 Seretion or subject tb annexation to this oecletatlons. neatlluLfUne, b1i4iSl.u,9W014 b{a1ircaa 4 rrao Protective C0venenta t Condition, ..roonaw *m: 41t, ,ball ba d."' Nuent, hry n e snperiod cat delinquent for a peri mc�.e than ten (10) days shad,. incur a lets b,,t . in unt�a the Roprd spy (roe time to t.ea determine. The *ssoctettou small cease a ashes 331 4a1inpuency to be given to any member s.ho lyse we Dead within ten (10) days !alloying the due dere. It the *settlement ia prat pall .1 thin thirty (lin days a lien, as herein Drs.-tied. shell attachT and, in eddit}en, the lien *hell include the late charge. interest not to exceed the esxiau. legal rate DA the principal amount duo, etw1 ell }etc bargee frtn the data drat 444 444 payable. all coats of collection. rae.dnable ettorney'e feat actually incurred, end .y' other amount* ptoelda1 or permitted by Sax, In the event that the era•ra ant raeain* unpaid after *baty (a0) deye. the A.*ocfation **y, as, tba Board hall determine, ihbtlt .ate t"it to collect ouch amount, end to foreclose its lien. Each r by acceptance of a dart: -r d, a party To any name: ty90 0( 4 tonyayence. sect* in the ameoclat101 or Ste * the rtght end Motif to briig *1. alabtsa s1.toot hi* or her' p*raonaily for the delleatfo. of each uherpee ea a debt or to foreeloae the store*aid lien in ties items manner ae 0thlr lisps tot the laprovam*nt Of Seal property. Th* liar pt^o- vid.d for in this artiols *haI1 be in favor of -(11. a*coatis€imus 0134 thaii be for ti, benefit Of 4(1 0t10r' QoPata. Theo as 001,- tier. cat ng on beheik of tfue df+nu a. **It *SO the, paver to 1134 on 1.11. tot *t spy fataosososs ails or to atqulr*. held, lees*, mortgage, or w0vsy the tot. an awtesr say naive .or othatelee asoept 1.1.bJlit}r tot the aegaseasnte p000eida4 for **rain, o r b ..y of illu.trattoa"but hat' i tteti*n. .bendanment obeli be +Welled first to teat* end ettornay'a fees, thaii Cv late charge*, then tis inters*t. than to delieg*ant easasasanaal, then to any unpaid.in*10110ente of t}ml .onus( aasteseaMe nr (laectal assessments sshrrn eta oat the sub9*ct Matter GI Boit in the Order of thole ca.(ng data, and than to any unsaid installments of the annual aasesaaent or *penial 0o4001- e.nts which are the subject setter of suit in the order of their caning due. Ssation 7. MEM *cmnsT AND C01TA1.8.Y(lba. The board mi *iron*** ***Ii. annually proper• * capital budget which shall tak. lata *taunt she member and nature of rep1eneehie areats. t1s eapeotsd lite of aaah assets, and the sepeotod repair or replapeeent chat. The 80mrd *hall sett the requited capital con- tribution. if any, in en amount sufficient to permit meeting the prejacted capital need* of the ae*o0laticur, ae *hewn on the capital iudpet, with taap0ct to Dodi 10eunt and tinting by annual *0aeeee*0(0 0Ver the Porto* of the budget. /ha capital 000111Du- tiois r*quirsd **OA h. fixed by mho Boor* and ibeluded within the neaget quo.eseeeemonta, Me gtevt*** le section 1 of (0133 0ntac1t t, copy o1. the reserve ec:C0utt budget shall be distributed to each member to the mein* 'rennet as the operating budget_ becl stn tion.. Raa cr1Cttena. 1♦urt;t. i'3�;;nrr k«;3.r.w.f h Paou::r 9rn tectlee %reonante 1 Condittono Pegg Liz 237 - ldl ; Section ]. CO,M T*T:i..N or AS5£$S.E;T. it shall he the O.,/ of the Beard Co prepare n budget covering the a.tlmetrd coats of operating the Aseoci.tian during the i0-Ing year, which .hall include • Capital contribution or ...rum in accordance with capital budget separately prepared. she Board shall c*erns the budget *rad the aaae*wants to be levied *palest each Lot for the following year to ha delivered to each number st least thirty (10) Maya prigs to the and of the current fiscal year. The budget sad tea **sediment .holt torn** effective unless disagerassd et s *rioting by a MaicrltY Of the Owners. Notvith- etandlog the foregoing, however, In the event the escberehip disapproved the propoimel budget or the Board'fetle for any reason et to deemnine ttw burr„et '.cr the ewt,mwding peer than and tri eotn t? -s au ]b.,,:-Jazstallw e . do tRrrinn4, ne Provided herein, the budget In effect forthe than current year shell Continue for the *uaceeding peer. £cation 4. SPECIAL Asstesmorre. fn aatdLtitm to Lha other I.aesea*nt. s*thori ad herein. ties Xlsoalet1an *41 levy •Padtal ea.440ants In any pear. So Iong at the total Imesett of apsrolel •�stturrla*A.stte olOottoto to sada Lot +� altt nd # }+ Mund�red 13*NL.r a 4$1.041. 1 in any ane *Leg* SO sdard +way- tew the *006101 ao.00.o.nt. Any epatriai aeras Nett- wflicia WW1* *SOSO 'the i*apun c ap*Ciai aeseealentu eliacabi�t tc Ir,�r,iot o e ek' ale 13e0etton *hail be •fteatly* only WO* 410o*- X. *saber.. Sp•cL.t .a.***don deterby the shard, and' the *air' eeSit sash, to be p.)4 In inetal.lmants eetensftilg In 'Alai the spacial eft assent la Unwind. Section S. LIES POR ASStSESSl4TS. X11 Imes eaaeeeed egalaat any Lot pvreuant to ells OocloratiOn, together with tete charges, i.nteraatr Watt. rea6onebie et'totheyrk Ea** actually incurred, ea provided herein, *hall bo *soured b a Ileo on ouch tot in favor of the Aa*octat1nn. Such lied shall be Importer to all other liana end eneowbrancas on such tat, escape for (4) liens for AA velemn tease, or ib) Bens for ell IMLs unpaid an a first Mortgage or. on soy Mortgage to Declarant duly rerxirdad in teen send-t c xda of Deschutes COunty, Oregon, and all eaamnta advanced psrseeet to such Mortgage end seduced Charlet), in .ceer- dane. with the hares of such Inatru*ant. Ail other paraon”, acquiring liana or encambranon on any Lot peter thle diaration shall hove bean recorded in such record, ;hell be aleesad tO Orneent that such Bens or eittiAtIntOttt shall be Interior to future liens for eeseessent... a* provided, herein, shatter or loot prior coneent it spaaiticelly tet forth in the Instruments createno ouch Ilene or encuahron000. Section B. trt'ECt or oonrarMSNT of A.9114SttEHT5: t6*1EPIES Cr SEC ASS'Ocfa11IN any esitcsaents which are not paid wham due oclaratinna_ rage 9 Rartoictinne, Orb tattive HftNLL0SttLP ,e 9i-4404 y e"L;E;ISe� Covenants t ^;.m)) t i cine .,.,*. +e,i. 23 - 1,1 3 Suction 5. SELF-HEF.P. in addition to any othar remedtaa provl9es t,r terrain. the aescciexlun or 330 duly ourh.rEr.4 ape,:- *ball have the power to enter upon a Lot or any portion of the Gown prtpert1 to *bete or tannins, using such force ea may be reasonably nec*esary. tiny *radion, thing er condition which violate* th1* Deolaretion. the Bylaws, the rules and regulations. Cr the sae 7* triCtiona. Unita an energeocT eitoottOn e.,ltet4, the 3oard .ball glwa the violating Lot Owner ton t 1O) day. r.ri t.en notice of its intent tc teerolae self-help. All 1..3313 ,s saifaMlp, iraslu4in9 reesonatls ettarney'a to*s setua31y thew -reed. shall be easeaaod egeinet vlolatinq Lot Owner and *hall be collected as provided tar herein tar the collection of aesea*aents. * 1C: E. RICHT or rrzH Aaco.larlc,a 1 ,.. right,Sn addition to and not in liaftaticn of all the rights it y hi`I., to 0aitsr auto loin Z. aasrgaocy, security, or sefety purposes, -htch right may be searbised by the rseocietlon's *tiara Of Dlractoca. o(f1ouo•*, agents. eaploya.o. *onager* end all Pta11cy Iffeene. fireffghtere, aabvianoa 9enaonnel. and similar 40 *L Y 9etabeebe in the pottoratoota 03 chair raspea11r0 490100.,,,,,1900***** eawrgaacy sitoatiOn. antsy shall only be Shirial¢ i°;a1e4 1 1A- holit3 tied alter raalanabie flO!Sxns to the umber ter as 0*ot Df the tot. MTICLB til: 1. filbedee or edbeeenelrit. Der hareln'aball be uaad fol -fhb ottoot71 purges*. 0f proasitln9 the setifut, lwatth, Well. waltats. cin b*r aittaltaltlt all the er* and Ocatyenta of Lpte. including the ,. tnt*f6AG of Teal' and **mune! aroPO 3y, 4111 as say ba sora ap*.€flca[ly .a,Ioorixad focus tics to that by 1117 *Card df Director*. Section 2, CREATION Or ASSS1SFROITS. Each Ovnar of any Lot, b Oo0*l40000 02 a diad theoe.tor. whether or not it shell be so espreeeed to swch demi. covenant* end egtO*a to peg to the eeeedihtianc tel annual eases seats or chattlao: tat apactai ab}awiwsnas. Pact as******ntO to be estobl€abed ,and colloct*d as hereinafter pf dedi *ad tct ebeci3Lc. *0segsaenca agalnet any Particular tat finch era *stahlishad..puxavant to the terms of 'thin O*olaa'at€snn. .t:ncludiriq but not liaised to reasonable fines as slay ba thaoct11 In accordant* *Ith the teras of this Oealeretion. A.11 emelt easaeossote. together with late cherg.es. feted****, : 11011 110 *1.120ed the aactauw legal sato. costa. ens Ta0a01.331* 0ttor0*1,4# tans ac"tuAlly 1 orrad, shall he onargue ,on the lalat and n8011`bo a cantipuinl lien upon the Let against which *unit Oesesemant is made. ¢$Clettitona, enstriciions. ProteCtivs ROW, 4':l dk n71F .i i'23333L3 Covenants a. Conditions .,.r..wt.. . -140.11 • L 14 'A' or 'b' which upon conveyance ar dedlcatian shall be accepted ty the association end thereafter *holt be •aiP*etntd by the Association et its expanse for the benefit of all its Renters. Section b. AMENDMENT. This Article shill not bo amended aithest the written aoneenr of flec.larent, eonorg Ds the Declarant owns any property described e in Exhibits A' or 'b'. ARTICLE VI, RIGHTS AND OBLIGATIONS Of THE ASSOCIATION Section 1. COMMON AREA. The Aseoolation, *object to toe rights of she Owners est forth in this Declaration, shall be rospenalhle for the a.C?,alve e nsgee.nt entl control of the Ccvaenov, Are., one .li isv,,vaad::_a therein, e,d shall keep it t, good, clean, attractive, end aenitery Condition, order, and repair. pursuant to the tants and conditions of Shia Declaration and the Ryles*, Sector 1. SERVICES. The Aseociatibn say obtain std pay tar the aerviCee at any parson or entity to *a its WO*. of ,PY past tiMreot, to the *stent it dam! eidviee e. 'a. wIi **Woo other per.anaai es the Aa.oaisttee *hail d,t.reeteet t be 110003.- IMO eo..-nary or desirebie for the proper operetioa of the Propertt.a, another ouch personnel era farnteh*d Or eePloyed denote -. Association cc by airy person or anttty Otet dOntrecta. The Aseadiation eey Obtstn end, *accenting eervio.e n.ceea.ry or da*iirebitt Altaconn.ot on rith tt�i operation of the Proper'tied, or the enlerotaant O tion, The heeeciation ray, but shelltoot b. redidn a* an Ateotietion aspens* vtth third pertiee to fetaieh ve trseh collection. serer service. and Other cocoon service* to each Got. Section A. PERSONAL PROPERTY MD REAL PROPERTY TO GSE. The Association, through action of its Hosni of Dirt aey eopuise. hold, sod dispose of tangible and intangibbe personae property end reel property. The Baird. acting On behalf of the Aeaociat#on, *hall accept enY reel Or pereanel prePereY. i..eehoid, or other property interest. located within the properties described In Earhibit 'A- or */* conveyed to it by the Declarant. O Section i, THRUM RIGHTS, Thi Association Say paarCiaa any other right or privilege given to it sspresely by Iiia Peeisra tlon or the Bylaws, and every other right or privilege reasonably to be implied fro* the tautense of rosy right or privilege given to it herein or reasonably necessary to effectuate any ouch right or privilege. Declerstlana, tootr?ctl.uns, Prot eCtrva ,aAddlcm&PEimo, covenants 6 Conditions Page Gf the improved a .mprove4 reel propafty described in "b" attached hereto and by reference nada a pert hereof by fill, 4r: the Peicrntbe Cosncy, Gragon ragorda, an amendment annexing much property. Such amendment to thla Declaration shall not rle4Nlre tA4 vote or aamba.`a. Ai1y such annexation shall be effective oboe the filing for record of suCit seea+doent unless otherwise provided therein. P*Clarant shall have the unilateral right to transfer tG any other parson the right, privilege. end option to anllaa additional property ohlch 44 herein reserved to Declarant. Section 1. The rights reversed way Declarant to subject additional Iand to the Declaration shalt net be tmpliat or nstrved an as to impsesrlf '1I.. tl „c+ _ -� • _. eableet any of arch additional 1an4 tq thio Declaration or to tn:a jurladitstlon of ttot Association OOt soy obligetlon, if sub acted, to build ***fog of the saw type design, of eeterlsi•. ft such adefttunal lend la hot sebJeotad to thin Deotaretien. bsclarent'a rwearvid rights shall not ism any ob1Ly attic en Deolarent to impose any ooveneets end restrictiane eiotlsr to these contained hero 'eSoh e4dttfeneX assdr �'_� .t wch tight n any *mill e t ar reteriet the 404 to vhf surds additional and *at« bs pet by DacleVont or any 60$4.0406616 annex thereof, whether such uses` ars oana%etant with the C00enente and restrictions tapnaed hereby or not. Swat -tan 3. AnhtfAY1O$ ittTN heenoVAL. of Mtn *R3xie. Sobiect to the OenSent Of the *veer theeeo1s epon the Written coneant or eff1rootfve Vote of a eajority of the Heebere. the Association •ay *Anon Waal prtopp►rty ether then that *hewn on Exhibit '8", and toll�+ing tha'e7lpiretion of the right in Section 1, the proper- ties sbasin on Exhibit =s" to the pannfe1ona of this aectaretion and the jutiediotLon of the Aesoctettan by filing of record in the Orfiefei Records of the Deonty of Desohotae. Oregon, a $obvegoent Punnndeent in respect to the properties being annexed. Any s:Ch Subeequnnt felendasnt obeli be signed by the sreslesstt end the deeretairy of the A04Ocfatioh, end the wmer of the prppartles 100. 60 unman, nod any such enneastLoo shallbe effective upon Oiling oniees otlnervian provided therein. Tile tial 01ths4 whim and the asnner in vh1Ch notice of any such Heating -Of the Kembers of the 4aeCeietlon, called for the purpcae of detertddin0 xhether additional property shall be annexed, and the quorssah r*001 ed for the tranaactlon of a sinasa at any such meatfrg, *hail be4a specified in the. Bylaws of the A►soeietion for regular or 1pse141 casting,. es the case ally be. Section 4. AG0li0SITION or A110ITIONAL =mice taro. Declarant may =aver to the Aaaoe1atlo0 addltitnal real estate, improved or uniapruved, located within the properties described in Exhiurts DAc'laratlofla_ Rel I t i diene, P t-ntectiva MurdL(tsAbIiaitirtr1+a4�:?ir/W. Covenants 1 COnditions ..,. .i.,,.. Page 6 I4, Owner, rtisthoc c e gvt tc+ne (1) membership per Lot oohed- In the Aora then ens petato At entity, votes enjoyment 0411 be s.■ provided herein. of aeteberehie, including the right to fwber or th* Member's. *Poo**, tet In ons (1) vote be east for *doh Lot. .37 - 'a 47 �raa;1 novo xare *Ment the Daher of a Lot Is and rights of ose and Tho rights sad privilag4q vote, may be exeroisad by a no avant shall more then Section 1. VOTiNC, Slob Owner shall be a member and aeon ember .hall be entitled 00 all issues to one (1) vote for each Lot in which Shay hold the lots -veer re -solved for es■berahip by Seoticn t berepti there *hall bo only one (1) vote per bot: prodded, b0,avr. no gats *hail be coot or coantad for any bot mit *object to Oases.aaant. When 'ore than ono person or entity holds such intermet in any Lot, the vote for ruch Lot shall be exercised as those persona or &otitis,* thereeives determine nr) sdvt.P ter S*gtatery of the Agegulstfon prior to any *meting. In the 10490,1000140 ouch *Qvic.. the Choi'S vat* ah.d he suspended in the avant am* tb* t DAs Doreen or entity Soil's to exercilo ft. Aly- ***Pt Pt *thee WSJtt111}'__ that *Wit th to lsve1stied which ars loaned soy, in the limes or t..0.59n the voting right .ppurtennnt to tded the0 * DopySadb In.tt'ussont Y prtor to airy see Ann. CA.A IV. MASMTSNA0ICS S $SSP tfm,ITY. TM Aeaociottan o'ipmtt the Coaeon Ate,. sock ^inefter provided. This ..elnte— t*itad to, heirit*pasha, coheir 'rano* then th affect, of all and 1tensoveatnts situ - Stiction 2. bootian 1 of this Pert of the *tots On.r, 844,110*.. property :and sera( Iei¢$POSSIOILIrs. *ootipt es provided in ler ell mointenance of the lot and all n shall th* r sp nwtbility of the latero end keep in good repair ouch ANTICS.* V. AVMS71AySON OP ADDITIONAL PPDPEATY Section 1. ANNERATION WITHOUT APPROVAL I'O CLASS A MEMBEPSN[P As the Owner tMr*of or. It not the ovnar. eith the consent of the owner tne Csclarent *hell hewn the unilatarat 1Sgnt, pprl0t1tig* 0 tlmn, ire*<tin* to time of any time until December 31. 2.100. 10 aobjatt to the provisions of this coolera- tidn and the juri,dl>xtian of the Aesoctation e11 or any portion Declarations, aeetriCtione, Protective Covenants 4 Conditivne MPUL. trILILN ti KV AISint & iTh,o.' Pogo 5 Articls tl, See -22:m, 151+1 say not Car saeoded without the written consert of r?e,larant_ P.Clara.t shall ,toevey the Ccv 3.1 Afoa 50 the A0s0Cdatios up,o recordation of 5010 Declaration. De0larent dos. not t:aotem- plata .akin any improvements to the COACH Arae_ Section d, OWNER'S PI0RT TO INGA>PS5, E?RESS, AND SIPPPORT. Ee00 Ovner shat; have the tight i;4' ingreae and ogress over, upon, and acres.. the Common Area nacsastry for access to hit or h9.r tot sed shall knee ttsa tight to lateral .uproot let hie or bar Lot. and Hoch rights shall be appurtenant tO end pees with the title to each Lot. ._ -aka c.af Lv t,. L,ioa e�p�ass:y providedLn this Declaration, shah Lot shall be vend for residen- tial p.rsenee only; no trod, or beelneee of !OW king sty 0. conducted. testa or rental of a Let or any building thar.cn for residential purposes 01.11 not be Considered to be r violation of Otis cfweaaot, as long s■ the its.0 is in fytanpitanow Pith rals5Ct-. &MA rule* and regalstiane ea the hoard of tilt tete wap 0rc.s.1- ,.ts, Any ieeaaa or tenant shall. iA .1i re.;.CO. 0. **jot to %4 the urea and conditions o! Ibis DeOlaratianl the ayiewS4 end the rates and regulations adopted hereunder, t- 51..05 AND RectlLATlt1nt. The hoard at Dis5Gtare eaf ata noble ivied Gild relalatiena tees ser0i th. ttaa 5t et, fareili#tan-5aceted ihist'.on, end ilvidu..t el sump regatetien$ mad 4040400040 thereto *hell be the Associetien to ell Ovners prior lot the rate's EiontLoa data. 5uch regulaStOhe a1rnil Ise bifud ng aeon the owners. thglr Isallies, tenants, -quilts, toe/thee, and amts until and unless yvnh regulatlen. rete, ar requ,#rawent shell bs apectii-ttsllyoverruled, cancelled, or Codified by the Iward or the A.eaciation to a tegufar or .peal.5 netting by obs velio of ***here holding a asjority of the total eaten in the Aaeriai- ation_ Tice Rooth elan have the authority to legacy, r'eesOnable eoaat.ry fines ard other enn.ticne, and monetary Alnea Say Te. col,eoted by lion and foreolssere to pi,,oIded in Article 'a12. ARTICLE IFI. WEDBARSAIP AND VOTING RIt:WTS Section 1, MEMBERSHIP. Every person or entity who ie the record 23M1hiar of a Pea 3ntarva,. or contract vendee, In any Lot that io aubjeot to this Declaration shall be deemed to have e membership in the Association. fietabe€ship shall be appurtenant to and may fiat be separated from Mush osn.r.hip. YAe iar.gfsing is not istendee to include pereene wit* brad an iota kat Merelya* security fortheperformance of an obligation, end the giving of a eecurlty Interest shall not tor+eineta the Owner's membership. oeciaratlana, sage Restrictions, Ria salt len keiltl:_.l tccr,ur_1S,,4t LAwdOant0 & Conditi3.. ...c,.a+s.- •t.,�wa«i+J• Section 11. 'Owner' shell mnsn end refer to the record o-nec, vhether one o m• e paraoa. or entitles, of any Lot .hick la part Of the Properties, but excluding any party holding the fee simple title merety as security for the performance 01 en otllgarion. Owner shah include the Declarant. Section 15. 'Person' aeons a natural person, a corporation, a partnership, trustee, or other loge/ entity. Section 16. 'Property or Propertle;' eha11 mean and refer to the real property described onpageone of this Decloration Ond ouch additional real property e• may be added in OCCordan0a with Article V. Section l7. •vbsequen1 i,cnnd0ent' ohall .a0,, fraaduatIL this Declaration which adds additional property to that covered by this DeolaretiOn. Such Subsequent Amendment say. but is not required to appose: espreeely eo by reference, additional restrictions and -obligation. on the lend Submitted by that luoendnant 14 the provisions of this deOleretion" Ae7:cLE 11. PROPYPTY e1cUTS Section 1. OWNER'S KASEMein OF BN]OYMENr. Every Owner shall have a right and ease00010 Of Lhgpeea and agrees, use and enjoy- ment -Ln end to the Con.00. Area vhiCR shall be appurtenant to and ohell-page with the title to aVery let, subject to the fa110wing provibione: (a) The right of the Declarant. with regard to the Properties which may ba nand for the poi -pose of development, to granteasementsin end to the Common Ares c0atalhed within ih0 respect;va Properties to any public nen*, authority, or utility for touch purposes as benefit. only the Properties or portions thereof and Owner. or Lot. contained therein; (b) The tight of the As00014tloo to dedicate or transfer all or. any portion of the Common Area to any public agency, authority, or utility for mute purposes and suh;ect to ouch conditions as may be agreed to by the members of the Asaociatton. No such Cedlcarlon or transfer he effective unless on Instrument agreeing to such dedication or rren$:er has bean approved by et Ieast two-tnlyds (2/3) of the Class A mombere Of t1C Association which are Praeent or represented by proxy are entlelsd to cast at a meeting duly Called for such purpose. Declarations, Peetrictions, Protective gnilL7S55111N, SiIE & PmvLs Page 3 COoenente 0 CCI:dLt1Claa .m... ......;.J %37 - :407 S-etinn shall rater to to.; Bylaws of A5ltll ufe, H06,COwSE1S 1550E_A^101. Section 4. 'C moron Aree Shell mean ell reel and personal property now or heranfter awned by rhe Aceocierlcn for the co mor. use end enjoyment of tete Owners. Section 5- 'Common Expenses" shall mean and include the actual end estimated expenses of operating the a$SOCtatlon, including any r eeonable reeemee, all ea way ha found to be neceeenry end appropriate by the Board pursuant to the Declara- t10n, the Bylaws, end the Artial0a ofIncorporation of the Aaao- cietion. ., ._t:cr, 6. ,:5!ble nortgaga xolder' shall mean a l:nidar, .....,__ , Cr „ sGf a firit mortgage onuolb who has requested noticeofV certain matter.: from the Aaaoci_ation de here- inafter end 1n the Association'. aylawe providld. Sactlon 7. '001gible votes' shell mean those sotee available to be test on the issue at hand- A vote which. 1s for any reason suspended Ss not available to be teat. Section B. "'Lot" shell mean a portion o; the Properties other then the Common Area intended for any type of independent owner- ship end wee as nay be set out in This Declaration and as shall be shown on the plats filed witn'tbtr Deo_Saretion or amendments thereto. 'there the context indicates or requitae, the Cerin tot includes any structure on the Cot, Section 9. 'Member' %hall mean and refer to a person or entity entitled to membership in the Asaoctetton, is provided heroin. The Association shall have one clave of member. Class A. Section 10. "Mortgage' means any mortgage. deed t0 secure debt, end any and all other simper instruments used for the purpose of conveying or encumbering real property 51 eecurtty fcr the payment or satisfaction c2 an 0611gnt/on_ 6a0tlon 11. "Mortgagee' shall include a beneficiary Or holder of a deed of trust, es well ss a mortgagee. Section 12. 'Mortgagor shall include the trustor of a deed :r2 trust. as well ay a mortgagor. Section 13. "Open Space" - That property asshown In the recorded plat of Golf CourseEstetn5 at Aspen Lakes as "open epaoe" which Carl be used in the same manner ea "open apace' 19 defined 1n the Deschutes County Zoning Crdinence under 6.090 eithsc an a direct or con.lttlonal 050. beclaretlnne, m,� Ras tcLctione' 11 uQ'�n u'11� .k:Nl55t_2f^_iil'- PrOCCtIVO Covenants c Conditions Page 2 91 Golf Course Estates CCRs 2? -fi DECLARATIONS. NESTfi IOnS, Pe f ortc� PROTECTIVE COVINA:NTSS AND CONDITIONS ra COLT C®UASI ESTATL$ AT ?,$fl$ LA ES Cow..? 311.'t. 17 199 _ 165.4'1MEREA . the Geclarar. !MD lnte priaem, p _.<, r Tip, f_ '. tea, RPa L: Lit Ga, 709%P "slYs GMMP!IPi.• A444d CnedLtlaas for SAL$ COVRSL ESTATES AT ABPBN LAMES. CO r3Yil9C In Voboa.; s P.. OrllctaL WO�I r4d Of XISOI etll. Clued'. Or..Dn.): SOO Osailrant is *tiff tha o/i.r of ell tho rrsi ty-dssoribsd to *whibits A .nd 78 htthhhinSttnetnd Asd0 l o1 slid hottlarst14it3 -_ .. scant 1a the owner 'A• .ttechsd'h iCLt i, ui S.ction I. *A4 40041 Land"" shalt oven ani rs:4Cr to additional rsai propetty **blast to Daclara#t'■ wulaplrsl right of annanatton it pri.tdsd •t,s*hssa in this. iststiin, arltch property is more particularly dasaribsd in B.lxibi:t TO", sttronnd hereto and lnOosOtated throudnoht this OrnIArArinn Ery rsisxtncs, Section 1. 'Board. shell refer to the Board of Olractors of the ASPEN LAKES ad`SPAsiNERS ASSOCIATION. Declaration', Restrlcslone. Pro t*Oti va 7d11A17.d$II raw.11Atinu i pram), Gavendo Cs e Cor.dLtixnn Pact 1 Matt Cyrus 16925 Green Drake Ct Sisters, OR 97759 June 29, 2010 Deschutes County Board of Commissioners 1300 NW Wall St. Bend, OR 97759 Re: Resort Remapping - 2010-24 and 2010-25 Dear Commissioners, More than 20 years ago and before the county had adopted its Destination Resort Ordinances, our family purchased an existing subdivision and began the long process to develop it into a destination resort. On the advice of a county planner, we applied for and received numerous approvals for a whole series of conditional use permits. We have invested millions of dollars in construction of the golf course, a lodge with dining facilities, and homesite infrastructure. This considerable investment was done to comply with resort requirements that have been implemented over the years. Aspen Lakes is currently mapped. The only component left to complete in order to become a full fledge resort is lodging. There are a number of different ways in which we can meet this requirement should a resort application be approved. As a matter of fairness (and the county's possible exposure to Measure 49 claims), we ask that we be allowed to remain on the resort map. We believe the county has attempted to address this issue through the grandfather clause that allows lands being proposed for removal to "opt in" and remain on the map. Under this option, a landowner simply has to ask that their land remain on the map. As a platted subdivision, we are slated for removal from the map. We are afforded the opportunity to opt in under the grandfather provision, but there seems to be confusion as to how this would be handled procedurally. Planning staff has suggested that each individual lot owner may have to make application to opt in and remain on the map. If this is the case, will the failure of a single lot owner to make application cause the entire subdivision to be dropped from the map? In our case, we had the foresight when the CC&R were created to include a provision alerting our potential buyers to the intent to eventually convert to a resort. Article 15.1 of the Aspen Lakes CC&Rs provides in part; "By purchasing a Unit in ASPEN LAKES each Owner expressly consents to such conversion to Resort status and to such additional or substitute restrictions and no further consent shall be required from any Owner." It is possible that should Aspen Lakes be removed from the map, each of our 100 plus homeowners might qualify for Measure 49 compensation. I would offer three possible solutions; 1. The first would be to simply leave existing platted subdivisions on the map. This would not reduce the mapped acreage as much as may be desired, but it would have little impact on what properties could practically be developed because few, if any, other platted subdivisions could meet the requirements of a resort. 2. The second option would be to allow platted subdivisions with at least 50% open space to remain on the map. This would remove most platted subdivisions, but would leave those that already meet the 50% open space as is required of resorts. 3. The third option would be to allow the developers of platted subdivisions to act on behalf of the entire subdivision when choosing to remain on the map. Thank you for your consideration in this important matter. Sincerely, Matt Cyi>is/d DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES ("Declaration") is made this 8th day of March, 1993, by KMB Enterprises, an Oregon partnership ("Declarant"). Declarant filed the Declarations, Restrictions, Protective Covenants and Conditions for GOLF COURSE ESTATES AT ASPEN LAKES, recorded in Book #237, Page #1406, in the Official Records in the Office of the County Clerk, Deschutes County, Oregon; Declarant is still the owner of the real property described in Exhibit "A" and "B" attached to and made part of said Declaration. Declarant, hereby, amends and replaces in its entirety, all language in aforementioned filing, including the title, with this DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES. Declarant is the owner of the real property described in Exhibit "A", which is attached and incorporated by reference. This Declaration imposes upon the Properties (as defined in Article I) mutually beneficial restrictions under a general plan of improvements for the benefit of the owners of each portion of the Properties, and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Properties. Declarant hereby declares that all of the property described in Exhibit "A" and any additional property subjected to this Declaration by Supplemental Declaration (as defined in Article I) shall be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirablility of and which shall run with the real property subject to this Declaration. This Declaration shall be binding on and shall inure to the benefit of all parties having any right, title, or interest in the Properties or any part thereof, their heirs, successors, successors -in - title, and assigns. 1.17 "Master Plan": The Master Plan for the Development of ASPEN LAKES as approved by CU -89-79 on the 8th day of August, 1989, as it may be amended, which plan includes the property described on Exhibit "A" and the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. The Master Plan may also include subsequent plans approved by Deschutes County for the development of all or a portion of the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. Inclusion of property on the Master Plan shall not, under any circumstances, obligate Declarant to subject such property to this Declaration nor shall the exclusion of property described on Exhibit "B" from the Master Plan bar its later annexation in accordance with Article IX. It is anticipated by the Master Plan that declarant may decide in the future to convert the Properties described in this Section to a "Destination Resort" as that term is defined in the Deschutes County Zoning Ordinance. Article XV DECLARANT'S RIGHTS 15.1 Transfer. Any or all of the special rights and obligations of the Declarant set forth in this Declaration or the By - Laws may be transferred to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration or the By -Laws. No such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Office of the County Clerk. Nothing in this Declaration shall be construed to require Declarant or any successor to develop any of the property set forth in Exhibit "B" in any manner whatsoever. So long as construction and initial sales of Units shall continue, the Declarant and Builders authorized by Declarant may maintain and carry on upon portions of the Common Area such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of such Units, including but not limited to business offices, signs, model units, and sales offices. The Declarant's or Builder's unilateral right to use the Common Area for the purposes stated in this paragraph shall not be exclusive and shall not unreasonably interfere with use of such Common Areas by Owners unless leased pursuant to a lease agreement with the Association providing for payment of reasonable rent. No Person shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Properties without Declarant's review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by recorded consent signed by the Declarant. The Declarant, in its sole discretion, may convert all or part of the Properties in Exhibits "A" and/or "B" to a "mini destination resort" or "destination resort" ("Resort") as those terms are now or hereafter defined in the Deschutes County Zoning Ordinance or any other applicable ordinance. If additional or substitute restrictions are appropriate or required under the Resort designation, the Declarant shall have sole discretion in making those changes. By purchasing a Unit in ASPEN LAKES each Owner expressly consents to such conversion to Resort status and to such additional or substitute restrictions and no further consent shall be required from any Owner. However, these additional or substitute restrictions shall not apply to those Units in Section 1, Township 15 South, Range 10 East, of the Willamette Meridian, except as may be necessary to establish Neighborhoods as described in Section 1.23 of this Declaration. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) 40 years after the conveyance of a Unit to a Retail Owner, or (b) upon recording by Declarant of a written statement that all sales activity has ceased. Thereafter, the Declarant or Builders may continue to use the Common Areas for purposes stated in this Section only pursuant to a rental or lease agreement between the Declarant or such Builder and the Association which provides for rental payments based on the fair market rental value of any such portion of the Common Areas. 2 DECLARATION of COVENANTS, CONDITIONS, AND RESTRICTIONS for ASPEN LAKES Article I DEFINITIONS 1 TABLE OF CONTENTS Page 1.1 "ASPEN LAKES" 1 1.2 "Area of Common Responsibility" 1 1.3 "Articles of Incorporation" 1 1.4 "Association" 1 1.5 "Base Assessment" 1 1.6 "Board of Directors" or "Board" 1 1.7 "Builder" 1 1.8 "Business" and "Trade" 1 1.9 "By -Laws" 2 1.10 "Class "B" Control Period" 2 1.11 "Common Area" 2 1.12 "Common Expenses" 2 1.13 "Community -Wide Standard" 2 1.14 "Declarant" 2 1.15 "Design Guidelines" 2 1.16 "Golf Course" 2 1.17 "Master Plan" 2 1.18 "Maximum Units" 2 1.19 "Member" 2 1.20 "Mortgage" 2 1.21 "Mortgagee" 2 1.22 "Mortgagor" 2 1.23 "Neighborhood" 2 1.24 "Office of the County Clerk" 2 1.25 "Open Space" 3 1.26 "O.R.S" 3 1.27 "Owner" 3 1.28 "Person" 3 1.29 "Phase" 3 1.30 "Private Amenities" 3 1.31 "Properties" 3 1.32 "Retail Owner" 3 1.33 "Special Assessment" 3 1.34 "Specific Assessment" 3 1.35 "Supplemental Declaration" 3 1.36 "Unit" 3 1.37 "Voting Member or Members" 3 Article II PROPERTY RIGHTS 3 2.1 Common Area 3 2.2 Private Amenities 4 Article III ASSOCIATION FUNCTION, MEMBERSHIP AND VOTING RIGHTS 4 3A Function of Association 4 3 .2Membership 4 3.3 Voting 5 Article IV RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 5 4.1 Common Area 5 4.2 Personal Property and Real Property for Common Use 5 4.3 Enforcement 6 4.4 Implied Rights; Board Authority 6 4.5 Governmental Interests 6 4.6 Indemnification 6 4.7 Dedication of Common Areas 4.8 Security 6 Article V MAINTENANCE 6 5.1 Association's Responsibility 6 5.2 Owner's Responsibility 7 5.3 Standard of Performance 7 5.4 Party Walls and Similar Structures 7 Article VI INSURANCE AND CASUALTY LOSSES 8 6.1 Association Insurance 8 6.2 Owners Insurance 9 6.3 Damage and Destruction 9 6.4 Disbursement of Proceeds 9 6.5 Repair and Reconstruction 9 Article VII NO PARTITION 10 Article VIII CONDEMNATION 10 Article IX ANNEXATION AND WITHDRAWAL OF PROPERTY 1.0 9.1 Annexation Without Approval of Membership 1D 9.2 Annexation With Approval of Membership 1.0 9.3 Withdrawal of Property 1.1 9.4 Additional Covenants and Easements 11 9.5 Amendment 11 Article X ASSESSMENTS 11 I0.1 Creation of Assessments 11 10.2 Capitalization of Association 12 10.3 Date of Commencement of Assessments 12 ii 10.4 Computation of Base Assessment 12 10.5 Reserve Budget and Capital Contribution 12 10.6 Special Assessments .12 10.7 Specific Assessments 12 10.8 Limitation of Increases of Assessments 12 10.9 Failure to Assess 13 10.10 Lien for Assessments 13 10.11 Exempt Property 13 Article XI ARCHITECTURAL STANDARDS 13 11.1 General 13 11.2 Architectural Review 14 11.3 Guidelines and Procedures 14 11.4 Submission of Plans and Specifications 14 11.5 No Waiver of Future Approvals 15 11.6 Variance 15 11.7 Limitation of Liability 15 11.8 Enforcement 15 11.9 Building Site 15 Article XII USE GUIDELINES AND RESTRICTIONS 15 I2.1 Plan of Development; Applicability; Effect 15 12.2 Board Power 16 12.3 Members' Power .16 12.4 Owners' Acknowledgment .16 12.5 Rights of Owners .16 12.6 Initial Use Guidelines and Restrictions 17 Article XIII EASEMENTS 19 13.1 Easements of Encroachment 19 13.2 Easements for Utilities, Etc 19 13.3 Easements to Serve Additional Property 19 13.4 Easements for Golf Course 19 13.5 Easements for Cross -Drainage 20 13.6 Right of Entry 20 13.7 Maintenance 20 Article XIV MORTGAGE PROVISIONS 20 14.1 Notices of Action 20 14.2 Special FHLMC Provision 21 14.3 Other Provisions for First Lien Holders 21 14.4 Amendments to Documents 21 14.5 No Priority 22 14.6 Notice to Association 22 14.7 Amendment by Board 22 14.8 Applicability of Article XIV 22 iii 14.9 Failure of Mortgagee to Respond 22 Article XV DECLARANT'S RIGHTS 22 15.1 Transfer 22 15.2 Ownership and Operation of Golf Course 23 15.3 Right To Use 23 15.4 View Impairment 23 15.5 Limitations on Amendments 23 15.6 Jurisdiction and Cooperation 23 Article XVI DISPUTE RESOLUTION AND LIMITATION ON LITIGATION 24 16.1 Agreement to Avoid Costs of Litigation and to Limit Right to Litigate Disputes 24 16.2 Exempt Claims 24 16.3 Mandatory Procedures For All Other Claims 24 16.4 Allocation of Costs of Resolving Claims 25 16.5 Enforcement of Resolution 25 Article XVII GENERAL PROVISIONS 25 17.1 Term 25 17.2 Amendment 2.5 17.3 Severability 26 17.4 Perpetuities 26 17.5 Litigation 26 17.6 Use of the Words "ASPEN LAKES" 26 17.7 Compliance 26 17.8 Attorneys' Fees 26 17.9 Enforcement of Bonded Obligations 27 iv EXHIBIT "A" EXHIBIT "B" EXHIBIT "C" EXHIBIT "D" TABLE OF EXHIBITS Land Initially Submitted Land Subject to Annexation By -Laws of Aspen Lakes Estate Owners, Inc Rules of Arbitration Page First Appearing 1 2 2 25 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES ("Declaration") is made this day of , 1993, by KMB Enterprises, an Oregon partnership ("Declarant"). Declarant filed the Declarations, Restrictions, Protective Covenants and Conditions for GOLF COURSE ESTATES AT ASPEN LAKES, recorded in Book #237, Page # 1406, in the Official Records in the Office of the County Clerk, Deschutes County, Oregon; Declarant is still the owner of the real property described in Exhibit "A" and "B" attached to and made part of said Declaration. Declarant, hereby, amends and replaces in its entirety, all language in aforementioned filing, including the title, with this DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ASPEN LAKES. Declarant is the owner of the real property described in Exhibit "A", which is attached and incorporated by reference. This Declaration imposes upon the Properties (as defined in Article I) mutually beneficial restrictions under a general plan of improvements for the benefit of the owners of each portion of the Properties, and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Properties. Declarant hereby declares that all of the property described in Exhibit "A" and any additional property subjected to this Declaration by Supplemental Declaration (as defined in Article I) shall be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirablility of and which shall run with the real property subject to this Declaration. This Declaration shall be binding on and shall inure to the benefit of all parties having any right, title, or interest in the Properties or any part thereof, their heirs, successors, successors -in -title, and assigns. Article I DEFINITIONS The Terms used in this Declaration shall generally be given their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be defined as set forth below. 1.1 "ASPEN LAKES": The Properties as described in Section 1.31. 1.2 "Area of Common Responsibility": The Common Area, together with those areas, if any, which by the terms of this Declaration, any Supplemental Declaration or other applicable covenants, or by contract become the responsibility of the Association. 1.3 "Articles of Incorporation" or "Articles": The Articles of Incorporation of ASPEN LAKES ESTATE OWNERS, INC. as filed with the Secretary of State, Corporation Division of the Business Registry for the State of Oregon. 1.4 "Association": ASPEN LAKES ESTATE OWNERS, INC. an Oregon nonprofit mutual benefit corporation, its successors and assigns. 1.5 "Base Assessment": Assessments levied on all Units to fund Common Expenses for the general benefit of all Units, as more particularly described in Sections 10.1, 10.3, and 10.4. 1.6 "Board of Directors" or "Board": The body responsible for administration of the Association, selected as provided in the By -Laws and generally serving the same role as the board of directors under the Oregon Nonprofit Corporations Act and the Oregon Planned Community Act. 1.7 "Builder": Any Person which purchases one or more, Units for the purpose of constructing improvements for later sale to consumers, or parcels of land within the Properties for further subdivision, development, and/or resale in the ordinary course of such Person's business. 1.8 "Business" and "Trade": Shall be construed to have their ordinary, generally accepted meanings, and shall 1 include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to Persons other than the provider's family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (a) such activity is engaged in full or part-time, (b) such activity is intended to or does generate a profit, or (c) a license is required. 1.9 "By -Laws": The By -Laws of ASPEN LAKES ESTATE OWNERS, INC. attached as Exhibit "C" and incorporated by reference, as they may be amended. 1.10 "Class "B" Control Period": The period of time during which the Class "B" member is entitled to appoint a majority of the members of the Board of Directors as provided in Section 3.3 of the By -Laws. 1.11 "Common Area": All real and personal property which the Association owns, leases or otherwise holds possessory or use rights in for the common use and enjoyment of the Owners. 1.12 "Common Expenses": The actual and estimated expenses incurred or anticipated to be incurred by the Association for the general benefit of all Units, including any reasonable reserve, as the Board may find necessary and appropriate pursuant to this Declaration, the By -Laws, and the Articles of Incorporation. Common Expenses shall not include any expenses incurred during the Class "B" Control Period for initial development, original construction, installation of infrastructure, original capital improvements, or other original construction costs unless approved by Voting Members representing a majority of the total Class "A" vote of the Association. 1.13 "Community -Wide Standard": The standard of conduct, maintenance, or other activity generally prevailing throughout the Properties. Such standard may be more specifically determined by the Board of Directors and the Design Review Committee. 1.14 "Declarant": KMB ENTERPRISES, an Oregon partnership, or any successor, successor -in -title, or assign who has or takes title to any portion of the property described on Exhibits "A" or "B" for the purpose of development and/or resale in the ordinary course of business and who is designated as the Declarant in a recorded instrument executed by the immediately preceding Declarant. 1.15 "Design Guidelines": The architectural guidelines and procedures adopted by the Design Review Committee pursuant to Article XI and applicable to all Units within the Properties. 1.16 "Golf Course": Any parcel of land adjacent to or within the Properties which is privately owned by KMB Enterprises, an Oregon partnership, its successors, successors -in -title, or assigns, and which is operated as a golf course, and all related and supporting facilities and improvements operated in connection with such golf course. 1.17 "Master Plan": The Master Plan for the Development of ASPEN LAKES as approved by CU -89-79 on the 8th day of August, 1989, as it may be amended, which plan includes the property described on Exhibit "A" and the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. The Master Plan may also include subsequent plans approved by Deschutes County for the development of all or a portion of the property described on Exhibit "B" which Declarant may from time to time anticipate subjecting to this Declaration. Inclusion of property on the Master PIan shall not, under any circumstances, obligate Declarant to subject such property to this Declaration nor shall the exclusion of property described on Exhibit "B" from the Master Plan bar its later annexation in accordance with Article IX. It is anticipated by the Master Plan that declarant may decide in the future to convert the Properties described in this Section to a "Destination Resort" as that term is defined in the Deschutes County Zoning Ordinance. 1.18 "Maximum Units": The units approved for development under the Master Plan approved by CU -89-70 on the 8th day of August, 1989, plus the maximum number of Units which may be developed in the property described on Exhibit "B" under the zoning designation of such property from time to time. 1.19 "Member": A Person entitled to membership in the Association, as provided in Section 3.2. 1.20 "Mortgage": A mortgage, a deed of trust, a deed to secure debt, or any other form of security deed. 1.21 "Mortgagee": A beneficiary or holder of a Mortgage. 1.22 "Mortgagor": Any Person who gives a Mortgage. 1.23 "Neighborhood": Two or more Units which share interests other than those common to all Units. By way of illustration and not limitation, a condominium, townhome development, cluster home development, or single-family detached housing 2 development might each be designated as separate Neighborhoods, or a Neighborhood may be comprised of more than one housing type with other features in common. In addition, each parcel of land intended for development as any of the above shall constitute a Neighborhood, subject to division into more than one Neighborhood upon development. 1.24 "Office of the County Clerk": The Office of the County Clerk of Deschutes County, Oregon. 1.25 "Open Space": Privately owned land designated as "Open Space" and further regulated as such by Deschutes County Zoning Ordinances. Such designation may be placed on parcels within the Properties of Aspen Lakes. 1.26 "O.R.S.": The Oregon Revised Statutes. 1.27 "Owner": One or more Persons who hold the record title to any Unit, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Unit is sold under a recorded contract of sale, then upon recording of such contract, the purchaser (rather than the fee owner) will be considered the Owner, if the contract specifically so provides. 1.28 "Person": A natural person, a corporation, a partnership, a trustee, or any other legal entity. 1.29 "Phase": All Units simultaneously subjected to this Declaration by the Declarant by its execution and recordation of this Declaration and each Supplemental Declaration in the Office of the County Clerk. The property described in Exhibit "A" of this Declaration shall constitute the first Phase ("Phase I"). 1.30 "Private Amenities": Certain real property and any improvements and facilities thereon located adjacent to, in the vicinity of, or within the Properties, which are privately owned and operated by Persons other than the Association for recreational and related purposes, on a club membership basis, use fee basis, or otherwise, and shall include, without limitation, the Golf Course, if any. 1.31 "Properties": The real property described in Exhibit "A", together with such additional property as is subject to this Declaration in accordance with Article IX. Exhibit "A" and the Supplemental Declaration which subject additional property to the Declaration shall provide a legal description of the Common Area, if any. I.32 "Retail Owner": An Owner other than the Declarant or Builder. 1.33 "Special Assessment": Assessments levied in accordance with Section 10.6. 1.34 "Specific Assessment": Assessments levied in accordance with Section 10.7. 1.35 "Supplemental Declaration": An amendment or supplement to this Declaration filed pursuant to Article IX which subjects additional property to this Declaration, and identifies the Common Area within the additional property, if any, and/or imposes, expressly or by reference, additional restrictions and obligations on the land described therein. 1.36 "Unit": A portion of the Properties, whether improved or unimproved, which may be independently owned and conveyed and which is intended for development, use, and occupancy as an attached or detached residence for a single family. The term shall refer to the land, if any, which is part of the Unit as well as any improvements thereon. The term shall include, by way of illustration but not limitation, condominium units, townhouse units, cluster homes, patio or zero lot line homes, and single-family detached houses on separately platted lots, as well as vacant land intended for development as such, but shall not include Common Areas or property dedicated to the public. In the case of a building within a condominium or other structure containing multiple dwellings, each dwelling shall be deemed to be a separate Unit. In the case of a parcel of vacant land or land on which improvements are under construction, the parcel shall be deemed to contain the number of Units designated for residential use for such parcel on the Master plan or the site plan approved by Declarant, whichever is more recent, until such time as a subdivision plat or condominium plat is filed of record on all or a portion of the parcel. Thereafter, the portion encompassed by such plat shall constitute a separate Unit or Units as determined above and the number of Units on the remaining land, if any shall continue to be determined in accordance with this paragraph. 1.37 "Voting Member or Members": Any Owner, Member, or Declarant representative selected formally or informally as appropriate to represent his/her Unit through signature on petitions, or voice or written ballot, including proxy, according to the provisions of Section 3.3. Article II 3 PROPERTY RIGHTS 2.1 Common Area. Every Owner shall have a right and nonexclusive easement of use, access, and enjoyment in and to the Common Area, subject to: (a) This Declaration, the By -Laws and any other applicable covenants; (b) Any restrictions or limitations contained in any deed conveying such property to the Association; (c) The right of the Board to adopt rules regulating the use and enjoyment of the Common Area, including rules restricting use of recreational facilities within the Common Area to occupant of Units and their guests and rules limiting the number of guests who may use the Common Area; (d) The right of the Board to suspend the right of an Owner to use recreational facilities within the Common Area (i) for any period during which any charge against such Owner's Unit remains delinquent, and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation of the Declaration, any applicable Supplemental Declaration, the By -Laws, or rules of the Association after notice and a hearing pursuant to Section 3.23 of the By -Laws; (e) The right of the Association, acting through the Board, to dedicate or transfer all or any part of the Common Area pursuant to Section 4.7; (f) The right of the Board to impose reasonable membership requirements and charge reasonable membership admission or other fees for the use of any recreational facility situated upon the Common Area; (g) The right of the Board to permit use of any recreational facilities situated on the Common Area by persons other than owners, their families, lessees and guests upon payment of use fees established by the Board; (h) The right of the Association, acting through the Board, to mortgage, pledge, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, subject to the approval requirements set forth in Section 14.2. Any Owner may extend his or her right of use and enjoyment to the members of his or her family, permitted lessees, and social invitees, subject to reasonable Board regulation. An Owner who has the right to and does lease his or her Unit shall be deemed to have assigned all such rights to the lessee of such Unit. The initial Common Area as identified in Exhibit "A" shall be conveyed to the Association prior to or in concurrence with the conveyance of a Unit to a Retail Owner. 2.2 Private Amenities. Access to and use of the Private Amenities is strictly subject to the rules and procedures of the respective Owners of the Private Amenities, and no Person gains any right to enter or to use those facilities by virtue of membership in the Association or ownership or occupancy of a Unit. All Persons, including all Owners, are hereby advised that no representations or warranties, either written or oral, have been or are made by the Declarant or any other Person with regard to the nature or size of improvements to, or the continuing ownership or operation of the Private Amenities. No purported representation or warrant, written or oral, in conflict with this Section shall be effective without an amendment to this Declaration executed or joined into by the Declarant or the owner(s) of the Private Amenity(ies) which are the subject thereof. The ownership or operation duties of and as to the Private Amenities may change at any time and from time to time by virtue of, but without limitation, (a) the sale to or assumption of operations by an independent entity, (b) conversion of the membership structure to an "equity" club or similar arrangement whereby the members of a Private Amenity or an entity owned or controlled thereby become the owner(s) and/or operator(s) of the Private Amenity, or (c) the conveyance of a Private Amenity to one or more affiliates, shareholders, employees, or independent contractors of the Declarant. No consent of the Association or any Owner shall be required to effectuate such a transfer or conversion. Rights to use the Private Amenities will be granted only to such person, and on such terms and conditions, as may be determined by their respective owners. Such owners shall have the right, from time to time in their sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of their respective Private Amenities and to terminate use rights altogether. 4 Article III ASSOCIATION FUNCTION, MEMBERSHIP AND VOTING RIGHTS 3.1 Function of Association. The Association shall be the entity responsible for management, maintenance, operation and control of the Area of Common Responsibility. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Properties as the Board may adopt. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration and in the Design Guidelines. The Association shall perform its functions in accordance with this Declaration, the By -Laws, the Articles, and Oregon law. 3.2 Membership. Every Owner shall be a Member of the Association. There shall be only one membership per Unit. If a Unit is owned by more than one Person, all co -Owners shall share the privileges of such membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 3.3 and in the By -Laws, and all such co -Owners shall be jointly and severally obligated to perform the responsibilities of Owners. The membership rights and privileges of an Owner who is a natural person may be exercised by the Member or the Member's spouse. The membership rights of an Owner which is a corporation, partnership or other legal entity may be exercised by any individual designated from time to time by the Owner in a written instrument provided to the Secretary of the Association. 3.3 Voting. The Association shall have two classes of membership, Class "A" and Class "B". (a) Class "A": Class "A" Members shall be all Owners except the Class "B" Member, if any. Class "A" Members shall have one equal vote for each Unit in which they hold the interest required for membership under Section 3.2; there shall be only one vote per Unit. (b) Class "B": Class "B" Members shall be the Declarant and any Builder who are Owners. Class "B" Members shall be entitled to three votes for each Unit owned. Unless otherwise specified in this Declaration, the By -Laws, or an agreement between Declarant and a Builder, the vote for each Unit owned by Builders shall be exercised by the Declarant. The Class "B" membership shall cease and be converted to Class "A" membership upon the earlier of the following: (i) When 75% of the Maximum Units are owned by Retail Owners; (ii) 15 years from the anniversary date of closing of escrow for the first Unit after the first sale to a Retail Owner; provided that the 15 -year period for conversion shall be extended an additional five years unless a majority of the Voting Members representing Class "A" Members at a special meeting held for such purpose at least 30 days, but not more than 90 days, prior to expiration of the 15 -year period, vote not to extend the 15 -year period. Furthermore, if the additional five-year extension occurs under the preceding sentence, the 20 -year period for conversion shall be extended an additional three years unless a majority of the Voting Members representing Class "A" Members at a special meeting held for such purpose, at least 30, but not more than 90, days prior to expiration of the 20 -year period, vote not to extend the 20 year -year period; or (iii) when, in its discretion, the Declarant so determines. From and after the happening of these events, whichever occurs first, the Class "B" Member shall be deemed to be a Class "A" Member entitled to one vote for each Unit in which it holds the interest required for membership under Section 3.2. The Declarant shall have a right to disapprove actions of the Board and committees as provided in Section 3.18 of the By -Laws. In the event Class "B" membership has not terminated when more than 50% of the Maximum Units are owned by Retail Owners, the Association shall form a "Transitional Advisory Committee" in accordance with O.R.S. 94.604 and Section 5.3 of the By -Laws. No later than when 75% of the Maximum Units are owned by Retail Owners, the Declarant shall call a meeting for the purpose of turning over administration responsibilities to the Association in accordance with O.R.S. 94.609 and 94.616. (c) Exercise of Voting Rights. Except as otherwise specified in this Declaration or the By -Laws, the vote for each Unit owned by a Class "A" Member shall be exercised by Voting Member, as described within Section 1.37 and this Section. In any situation in which a Member is entitled personally to exercise the vote for his or her Unit and there is more than one Owner of a particular Unit, the vote for such Unit shall be exercised as such co -Owners determine among themselves and advise the secretary of the Association in writing prior to any meeting. Absent such advice, the Unit's vote shall be suspended if more than one Person seeks to exercise it. Article IV RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 5 4.1 Common Area. The Association, subject to the rights of the Owners set forth in this Declaration, shall manage and control the Common Area and all improvements thereon (including, without limitation, furnishings, equipment, and common landscaped areas), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, consistent with this Declaration and Community -Wide Standard. 4.2 Personal Property and Real Property for Common Use. The Association may acquire, hold, and dispose of tangible and intangible personal property and real property. Declarant may convey to the Association improved or unimproved real estate located within the properties described in Exhibits "A" or "B", personal property and leasehold and other property interests. Such property shall be accepted by the Association and thereafter shall be maintained as Common Area by the Association at its expense for the benefit of its Members, subject to any restrictions set forth in the deed. The Declarant shall convey the initial Common Area to the Association prior to or concurrent with the conveyance of a Unit to a Retail Owner. 4.3 Enforcement. The Association may impose sanctions for violations of this Declaration, the By -Laws, or rules in accordance with procedures set forth in the By -Laws, including reasonable monetary fines and suspension of the right to vote and to use any recreational facilities within the Common Area. In addition, in accordance with Section 3.23 of the By -Laws, the Association may exercise self-help to cure violations, and may suspend any services it provides to the Unit of any Owner who is more than 30 days delinquent in paying any assessment or other charge due the Association. The Board may seek relief in any court for violation or to abate nuisances. The Association, by contract or other agreement, may enforce county ordinances, if applicable, and permit Deschutes County to enforce applicable ordinances on the Properties for the benefit of the Association and its Members. 4.4 Implied Rights; Board Authority. The Association may exercise any other right or privilege given to it expressly by this Declaration or the By -Laws, or reasonably implied from, or reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in this Declaration, the By -Laws, Articles, or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership. 4.5 Governmental Interests. So long as the Declarant owns any property described on Exhibits "A" or "B", the Declarant may designate sites within the Properties for fire, police, utility facilities, public schools and parks, and other public facilities. The sites may include Common Areas. 4.6 Indemnification. The Association shall indemnify every officer, director, and committee member against all expenses, including counsel fees, reasonably incurred in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board) to which he or she may be a party by reason of being or having been an officer, director, or committee member. The officers, directors, and committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers and directors shall have no personal liability with respect to any contract or other commitment made or action taken in good faith on behalf of the Association (except to the extent that such officers or directors may also be Members of the Association). The association shall indemnify and forever hold each such officer, director and committee member harmless from any and all liability to others on account of any such contract, commitment or action. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any present or former officer, director, or committee members may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available. Pursuant to O.R.S. 65.784, if the Association indemnifies or advances expenses pursuant to this Section or O.R.S. 65.391- 65.401, the Association shall report the indemnification or advance in writing to the Members with or before the notice of the next meeting of the Members. 4.7 Dedication of Common Areas. The Association may dedicate portions of the Common Areas to Deschutes County, Oregon or to any other local, state, or federal governmental entity, subject to such approval as may be required by Section 14.2. 4.8 Security. The Association may, but shall not be obligated to, maintain or support certain activities within the Properties designed to make the Properties safer than they otherwise might be. NEITHER THE ASSOCIATION, THE DECLARANT, NOR ANY SUCCESSOR DECLARANT SHALL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHIN THE PROPERTIES, NOR SHALL ANY OF THEM BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR OF INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN. NO REPRESENTATION OR WARRANTY IS MADE THAT ANY FIRE PROTECTION SYSTEM, BURGLAR ALARM SYSTEM OR OTHER SECURITY SYSTEM CANNOT BE COMPROMISED OR CIRCUMVENTED, NOR THAT ANY SUCH SYSTEMS OR SECURITY MEASURES UNDERTAKEN WILL IN ALL CASES PREVENT LOSS OR PROVIDE THE 6 DETECTION OR PROTECTION FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. EACH OWNER ACKNOWLEDGES, UNDERSTANDS AND COVENANTS TO INFORM ITS TENANTS THAT THE ASSOCIATION, ITS BOARD OF DIRECTORS AND COMMI FILES, DECLARANT, AND ANY SUCCESSOR DECLARANT ARE NOT INSURERS AND THAT EACH PERSON USING THE PROPERTIES ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO PERSONS, TO UNITS AND TO THE CONTENTS OF UNITS RESULTING FROM ACTS OF THIRD PARTIES. Article V MAINTENANCE 5.1 Association's Responsibility. The Association shall maintain and keep in good repair the Area of Common Responsibility, which shall include, but need not be limited to: (a) all landscaping and other flora, parks, signage, structures, and improvements, including any private streets, bike and pedestrian pathways/trails, situated upon the Common Area; (b) landscaping, sidewalks, street lights and signage within public rights-of-way within or abutting the Properties, and landscaping and other flora within any public utility easements and conservation easements within the Properties (subject to the terms of any easement agreement relating thereto); provided, however, that it shall be the responsibility of each Owner to landscape, irrigate, and maintain any area within public rights of way between such Owner's Unit and the paved roadway located in rights of way adjacent to such Owner's Unit from the date a certificate of occupancy is issued with respect to improvements on such Unit. (c) such portions of any additional property included within any Area of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration, or any contract or agreement for maintenance thereof entered into by the Association; and (d) any property and facilities owned by the Declarant and made available, on a temporary or permanent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from the Declarant to the Association and to remain a part of the Area of Common Responsibility and be maintained by the Association until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association. There are hereby reserved to the Association, easements over the Properties as necessary to enable the Association to fulfill such responsibilities. The Association shall maintain the facilities and equipment within the Area of Common Responsibility in continuous operation, except for reasonable periods as necessary to perform required maintenance or repairs, unless Voting Members representing 75% of the Class "A" votes and the Declarant, as long as the Declarant owns any property described on Exhibits "A" or "B", agree in writing to discontinue such operation. The Association may maintain other property which it does not own, including without limitation publicly owned property, conservation easements held by nonprofit entities, and other property dedicated to public use, if the Board determines that such maintenance is necessary or desirable to maintain the Community -Wide Standard. Except as otherwise specifically provided herein, all costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a common expense to be allocated among all Units in the manner of and as part of the Base Assessment, without prejudice to the right of the Association to seek reimbursement from the Owner(s) of, or other Person responsible for, certain portions of the Area of Common Responsibility pursuant to this Declaration, other recorded covenants, or agreements with the Owner(s) thereof. 5.2 Owner's Responsibility. Each Owner shall maintain his or her Unit and all structures, parking areas, landscaping, and other improvements comprising the Unit in a manner consistent with the Community -Wide Standard and all applicable covenants unless such maintenance responsibility is otherwise assumed by or assigned to the Association pursuant to any Supplemental Declaration or other declaration of covenants applicable to such Unit. In addition to any other enforcement rights, if an Owner fails properly to perform his or her maintenance responsibility, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the unit and the Owner in accordance with Section 10.7(b). The Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation. 5.3 Standard of Performance. Maintenance, as used in this Article, shall include, without limitation, repair and replacement as needed, as well as such other duties, which may include irrigation, as the Board may determine necessary or appropriate to satisfy the Community -Wide Standard. All maintenance shall be performed in a manner consistent with the Community -Wide Standard and all applicable covenants. 7 Notwithstanding anything to the contrary contained herein, the Association, and/or an Owner, shall not be liable for property damage or personal injury occurring on, or arising out of the condition of, property which it does not own unless and only to the extent that it has been negligent in the performance of its maintenance responsibilities. 5.4 Party Walls and Similar Structures. (a) General Rules of Law to Apply. Each wall, fence, driveway or similar structure built as a part of the original construction on the Units which serves and/or separates any two adjoining Units shall constitute a party structure. To the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts of omissions shall apply thereto. (b) Sharing of Repair and Maintenance. All Owners who make use of the party structure shall share the cost of reasonable repair and maintenance of such structure equally. (c) Damage and Destruction. If a party structure is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the structure may restore it. If other Owners subsequently use the structure, they shall contribute to the restoration cost in equal proportions. However, such contribution will not prejudice the right to call for a larger contribution from the other users under any rule of law regarding liability for negligent or willful acts or omissions. (d) Right to Contribution Runs With Land. The right of an Owner to contribution from any other Owner under this Section shall be appurtenant to the land and shall pass to such Owner's successors -in -title. Article VI INSURANCE AND CASUALTY LOSSES 6.1 Association Insurance. The Association, acting through its Board or its duly authorized agent, shall obtain blanket "all- risk" property insurance, if reasonably available, for all insurable improvements on the Common Area and on other portions of the Area of Common Responsibility to the extent that it has assumed responsibility for maintenance, repair and/or replacement in the event of a loss. The Association shall have the authority to and interest in insuring any privately or publicly owned property for which the Association has maintenance or repair responsibility. Such property shall include, by way of illustration and not limitation, any insurable improvements on or related to parks, rights -of -ways, medians, easements, and walkways which the Association is obligated to maintain. If blanket "all-risk" coverage is not generally available at reasonable cost, then the Association shall obtain fire and extended coverage, including coverage for vandalism and malicious mischief. The face amount of the policy shall be sufficient to cover the full replacement cost of the insured property. The cost of such insurance shall be a Common Expense to be allocated among all Units subject to assessment as part of the annual Base Assessment. The Association shall have no insurance responsibility for any part of any Private Amenity property. The Association also shall obtain a public liability policy on the Area of Common Responsibility, insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members, employees, agents, or contractors while acting on its behalf. If generally available at reasonable cost, the public liability policy shall have at least a $1,000,0000.00 combined single limit as respects bodily injury and property damage and at least a $3,000,000.00 limit per occurrence and in the aggregate. Premiums for all insurance on the Area of Common Responsibility shall be Common Expenses and shall be included in the Base Assessment. The policies may contain a reasonable deductible which shall not be subtracted from the face amount of the policy in determining whether the insurance at least equals the required coverage. In the event of an insured loss, the deductible shall be treated as a Common Expense in the same manner as the premiums for the applicable insurance coverage. However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with Section 3.23 of the By -Laws, that the loss is the result of the negligence or willful conduct of one or more Owners or occupants, then the Board may specifically assess the full amount of such deductible against the Unit of such Owner or occupant, pursuant to Section 1 0.7(b). All insurance coverage obtained by the Association shall: (a) be written with a company authorized to do business in Oregon which holds a Best's rating of A or better and is assigned a financial size category of IX or larger as established by A.M. Best Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating which is available; 8 (b) be written in the name of the Association as trustee for the benefitted parties. Policies on the Common Area shall be for the benefit of the Association and its Members; (c) vest in the Board, exclusive authority to adjust losses; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related to the loss; (d) not be brought into contribution with insurance purchased by individual Owners, occupants, or their Mortgagees; and (e) have an inflation guard endorsement, if reasonably available. If the policy contains a co-insurance clause, it shall also have an agreed amount endorsement. The Association shall arrange for an annual review of the sufficiency of insurance coverage by one or more qualified persons, at least one of whom must be in the real estate industry and familiar with construction in the Deschutes County, Oregon area. The Board shall use reasonable efforts to secure insurance policies containing endorsements that: (a) waive subrogation as to any claims against the Association's Board, officers, employees, and its manager, the Owners and their tenants, servants, agents, and guests; (b) waive the insurer's rights to repair and reconstruct instead of paying cash; (c) preclude cancellation, invalidation, suspension, or nonrenewal by the insurer on account of any one of more individual Owners, or on account of any curable defect of violation without prior written demand to the Association to cure the defect or violation and allowance of a reasonable time to cure; (d) exclude individual Owners' policies from consideration under any "other insurance" clause; and (e) require at least 30 days prior written notice to the Association of any cancellation, substantial modification, or nonrenewal. The Association shall also obtain, as a Common Expense, worker's compensation insurance and employer's liability insurance, if and to the extent required by law; directors' and officers' liability coverage, if reasonably available, and flood insurance, if advisable. The Association also shall obtain, as a Common Expense, a fidelity bond or bonds, if generally available at reasonable cost, covering all persons responsible for handling association funds. The Board shall determine the amount of fidelity coverage in its best business judgment but, if reasonably available, shall secure coverage equal to not less than one-sixth of the annual Base Assessments on all Units plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and shall require at least 30 days prior notice to the Association of any cancellation, substantial modification, or nonrenewal. 6.2 Owners Insurance. 13y virtue of taking title to a Unit, each Owner covenants and agrees with all other Owners and with the Association to carry blanket "all-risk" property insurance on its Unit(s) and structures thereon providing full replacement cost coverage less a reasonable deductible, unless the Association carries such insurance (which they are not obligated to do hereunder). Each Owner further covenants and agrees that in the event of damage to, or destruction of, structures on or comprising his or her Unit, he or she shall proceed promptly to repair or to reconstruct in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article XI of this Declaration. Alternatively, the Owner shall clear the Unit of all debris and ruins and maintain the Unit in a neat and attractive, landscaped condition consistent with the Community - Wide Standard. The Owner shall pay any costs which are not covered by insurance proceeds. 6.3 Damage and Destruction. (a) Immediately after damage or destruction to all or any part of the Properties covered by insurance written in the name of the Association, the Board or its duly authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, allowing for changes or improvements necessitated by changes in applicable building codes. (b) Any damage to or destruction of the Common Area shall be repaired or reconstructed unless the Members representing at least 75% of the total class "A" votes and the Declarant, as long as the Declarant owns any property described in 9 Exhibits "A" or "B" of the Declaration, decide within 60 days after the loss not to repair or reconstruct. No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Area shall be repaired or reconstructed. If either the insurance proceeds or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not available to the Association within such 60 -day period, then the period shall be extended until such funds or information are available. However, such extension shall not exceed 60 additional days. (c) If determined in the manner described above that the damage or destruction to the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, the affected property shall be cleared of all debris and ruins and maintained by the Association in a neat and attractive, landscaped condition consistent with the Community -Wide Standard. 6.4 Disbursements of Proceeds. Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association and placed in a capital improvements account. This is a covenant for the benefit of Mortgagees and may be enforced by the Mortgagee of any affected Unit. 6.5 Repair and Reconstruction. if insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board shall, without a vote of the Voting Members, levy Special Assessments against those Unit Owners responsible for the premiums for the applicable insurance coverage under Section 6.1. Article VII NO PARTITION Except as permitted in this Declaration, there shall be no judicial partition of the Common Area. No Person shall seek any judicial partition unless the Properties or such portion thereof have been removed from the provisions of this Declaration. This Article shall not prohibit the Board from acquiring and disposing of tangible personal property nor from acquiring and disposing of real property which may or may not be subject to this Declaration. Article VIII CONDEMNATION If any part of the Common Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board acting on the written direction of Voting Members representing at least 66 2/3% of the total Class "A" votes in the Association, and of the Declarant, as long as the Declarant owns any property described on Exhibits "A" or "B" of the Declaration) by any authority having the power of condemnation or eminent domain, each Owner shall be entitled to written notice. The award made for such taking shall be payable to the Association as trustee for all Owners to be disbursed as follows: If the taking involves a portion of the Common Area on which improvements have been constructed, the Association shall restore or replace such improvements on the remaining land included in the Common Area to the extent available, unless within 60 days after such taking, the Declarant, so long as the Declarant owns any property described in Exhibits "A" or "B" of this Declaration, and Voting Members representing at least 75% of the total Class "A" votes in the Association shall otherwise agree. Any such construction shall be in accordance with plans approved by the Board. The provisions of Section 6.4 and 6.5 regarding funds for the repair of damage or destruction shall apply. If the taking does not involve any improvements on the Common Area, or if a decision is made not to repair or restore, or if net funds remain after any such restoration or replacement is complete, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall determine. Article IX ANNEXATION AND WITHDRAWAL OF PROPERTY 9.1 Annexation Without Approval of Membership. Prior to the sale of the first Unit to a Retail Owner, Declarant may unilaterally subject to the provisions of this Declaration all or portions of the real property described in Exhibit "B" until all property described on Exhibit "B" has been subjected to this Declaration or 30 years after the recording of this Declaration, whichever is earlier. After the sale of the first Unit to a Retail Owner, Declarant may unilaterally subject to the provisions of this Declaration all or any portion of the real property described in exhibit "B", until the earlier of (a) the date on which all property described on Exhibit "B" has been subjected to this Declaration, or (b) the later of (i) four years from the most recent sale to a Retail Owner, or (ii) four years from the date of recording of the most recent Supplemental Declaration to annex additional property. 10 Declarant may transfer or assign this right to annex property, provided that the transferee or assignee is the developer of at least a portion of the real property described in Exhibits "A" or "B" and that such transfer is memorialized in a written, recorded instrument executed by Declarant. Nothing in this Declaration shall be construed to require the Declarant or any successor to annex or develop any of the property set forth in Exhibit "B" in any manner whatsoever. Such annexation shall be accomplished by filing a Supplemental Declaration in the Office of the County Clerk describing the property to be annexed and specifically subjecting it to the terms of this Declaration. Such Supplemental Declaration shall not require the consent of Members, but shall require the consent of the Owner of such property, if other than Declarant. Any such annexation shall be effective upon the filing for record of such Supplemental Declaration unless otherwise provided therein. 9.2 Annexation With Approval of Membership. The Association or the Declarant may subject any real property to the provisions of this Declaration with the consent of the owner of such property, the affirmative vote of Voting Members representing 66 2/3% of the Class "A" votes of the Association represented at the meeting duly called for such purpose, and the consent of the Declarant so long as Declarant owns property subject to this Declaration or which may become subject to this Declaration in accordance with Section 9.1. Such annexation shall be accomplished by filing a Supplemental Declaration in the Office of the County Clerk describing the property to be annexed and specifically subjecting it to the terms of this Declaration. Any such Supplemental Declaration shall be signed by the President and the Secretary of the Association, and by the owner of the annexed property. Any such annexation shall be effective upon filing unless otherwise provided therein. 9.3 Withdrawal of Property. The Declarant reserves the right to amend this Declaration so long as it has a right to annex additional property pursuant to this Article, without prior notice and without the consent of any Person, for the purpose of removing property then owned by the Declarant, its affiliates, or the Association from the coverage of this Declaration, to the extent originally included in error or as a result of any changes in the Declarant's plans for the Properties, provided such withdrawal is not unequivocally contrary to the overall, uniform scheme of development for the Properties. 9.4 Additional Covenants and Easements. The Declarant may unilaterally subject any portion of the property submitted to this Declaration initially or by Supplemental Declaration to additional covenants and easements, including covenants obligating the Association to maintain and insure such property on behalf of the Owners and obligating such Owners to pay the costs incurred by the Association. Such additional covenants and easements shall be set forth in a Supplemental Declaration filed either concurrent with or after the annexation of the subject property, and shall require the written consent of the owner(s) of such property, if other than the Declarant. 9.5 Amendment. This Article shall not be amended without the prior written consent of Declarant so long as the Declarant owns any property describe in Exhibits "A" or "B". Article X ASSESSMENTS 10.1 Creation of Assessments. The Association is hereby authorized to levy assessments against each Unit for Association expenses as the Board may specifically authorize from time to time. There shall be three types of assessments for Association expenses: (a) Base Assessments to fund Common Expenses for the general benefit of all units; (b) Special Assessments as described in Section 10.6; and (c) Specific Assessments as described in Section 10.7. Each Owner, by accepting a deed or entering into recorded contract of sale for any portion of the Properties is deemed to covenant and agree to pay these assessments. All assessments (except as otherwise provided in Section 10.7(b)), together with interest from the due date of such assessment at a rate determined by the Association (not to exceed the highest rate allowed by Oregon Law), late charges, costs, and reasonable attorney fees, shall be a charge and continuing lien upon each Unit which the assessment is made until paid, as more particularly provided in Section 10.10. Each such assessment, together with interest, late charges, costs, and reasonable attorney fees, also shall be the personal obligation of the Person who was the Owner of such Unit at the time the assessment arose. Upon a transfer of title to a Unit, the grantee shall not be liable for any assessments and other charges due at the time of conveyance unless expressly assumed by him or her. No first Mortgagee who obtains title to a Unit by exercising the remedies provided in its Mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title. Assessments shall be paid in such manner and on such dates as the Board may establish. lfthe Board so elects, assessments may be paid in two or more installments. Unless the Board otherwise provides, the Base Assessment shall be due and payable in advance on the first day of each fiscal year. If any Owner is delinquent in paying any assessments or other charges levied on his or her Unit, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately. 11 The Association shall, upon request, furnish to any Owner liable for any type of assessment a certificate in writing signed by an officer of the Association setting forth whether such assessment has been paid. Such certificate shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such certificate. No Owner may exempt himself or herself from liability for assessments, by nonuse of Common Area, abandonment of his or her Unit, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes. After the commencement of assessment payments as to any Unit, Declarant, if any, covenants and agrees to pay the full amount of any applicable assessment for each occupied Unit it owns; notwithstanding anything contained herein to the contrary, the Declarant shall not be required to pay Base, Special, or Specific Assessments for unoccupied units that it owns. Notwithstanding anything to the contrary herein, the Declarant may contribute assessments due from it in services and/or materials ("In -Kind"), rather than in money. The amount by which monetary assessments shall be decreased as a result of any In -Kind contribution shall be the fair market value of the contribution. If the Declarant and the Association disagree as to the value of any contribution, the Declarant shall supply the Association with a detailed explanation of the service performed and material furnished, and the Association shall acquire bids for performing like services and furnishing like materials from three (3) independent contractors approved by the Declarant who are in the business of providing such services and materials. If the Association and the Declarant are still unable to agree on the value of the contribution, the value shall be deemed to be the average of the bids received from the independent contractors. 10.2 Capitalization of Association. Upon acquisition of record title to each Unit by its first Retail Owner, a contribution shall be made by, or on behalf of, the purchaser to the working capital of the Association in an amount equal to one-sixth of the annual Base Assessment per Unit for that year. For purposes of this Section, the term "Base Assessment" shall be deemed to include the amount assessed against each Unit plus a pro rata allocation of any amounts (values) the Association received through any subsidy, maintenance agreement, or In -Kind services or materials, if any. This amount shall be in addition to, not in lieu of, the annual Base Assessment and shall not be considered an advance payment of such assessment. This amount shall be deposited into the purchase and sales escrow and disbursed therefrom to the Association for use in covering operation expenses and other expenses incurred by the Association pursuant to the terms of this Declaration and the By -Laws. 10.3 Date of Commencement of Assessments. Subject to Section I0.1, the obligation to pay the assessments provided for herein shall commence as to all Units on the earlier of: (a) the first day of the month following the first conveyance of a Unit to a Retail Owner; or (b) the first day of the month following conveyance of the Common Area to the Association. The first annual Assessment shall be adjusted according to the number of days remaining in the fiscal year at the time assessments commence on the Unit. 10.4 Computation of Base Assessment. The Board shall prepare a budget covering the estimated Common Expenses during the coming year pursuant to the terms and provisions set forth in Section 3.20(f)(i) of the By -Laws. The budget shall include a capital contribution to establish a reserve fund in accordance with a budget separately prepared as provided in Section 10.5 The Base Assessment shall be levied equally against all Units subject to assessment and shall be set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses, including reserves. In determining the level ofassessments, the Board, in its discretion, may consider other sources of funds available to the Association. In addition, the Board shall take into account the number of Units subject to assessment under Section 10.7(b) on the first day of the fiscal year for which the budget is prepared and the number of Units reasonably anticipated to become subject to assessment during the fiscal year. The Board shall send a copy of the budget and notice of the amount of the Base Assessment for the following year to each Owner not less than 45 nor more than 60 days prior to the beginning of the fiscal year for which it is to be effective. 10.5 Reserve Budget and Capital Contribution. The Board shall annually prepare a reserve budget which takes into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost and in accordance with O.R.S. 94.595. The Board shall set the required capital contribution in an amount sufficient to permit meeting the projected needs of the Association, as shown on the budget, with respect both to amount and timing by annual Base Assessments over the budget period. 10.6 Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted expenses or expenses in excess of those budgeted subject to the limitations set forth in Section 10.8. 12 Such Special Assessment may be levied against the entire membership, if such Special Assessment is for common expenses. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the fiscal year in which the Special Assessment is approved. 10.7 Specific Assessments. The Board shall have the power to levy Specific Assessments against a particular Unit or Units constituting less than all Units within the Properties as follows: (a) to cover the costs, including overhead and administrative costs, of providing benefits, items, or services to the Unit or occupants thereof upon request of the Owner pursuant to a menu of special services which the Board may from time to time authorize to be offered to Owners (which might include, without limitation, landscape maintenance, handyman service, pool cleaning, pest control, etc.), which assessments may be levied in advance of the provision of the requested benefit, item or service as a deposit against charges to be incurred by the Owner; and (b) to cover costs incurred in bringing the Unit into compliance with the terms of this Declaration, any applicable Supplemental Declaration, the By -Laws or rules, or costs incurred as a consequence of the conduct of the Owner or occupants of the Unit, their licensees, invitees, or guests; provided, the Board shall give the Unit Owner prior written notice and an opportunity for a hearing before levying a Specific Assessment under this subsection (b). 10.8 Limitation of Increases of Assessments. Notwithstanding any provision to the contrary, and except for assessment increases necessary for emergency situations or to reimburse the Association pursuant to Section 10.7, the Board may not impose a Base Assessment or Specific Assessment that is more than 20% greater than each of those assessments for the immediately preceding fiscal year nor impose a Special Assessment which in the aggregate exceeds 5% of the budgeted Common Expenses for the current fiscal year, without a majority vote of a quorum of Voting Members representing the Members which are subject to the applicable assessment at a meeting of the Association. For purposes of this Section, "quorum" means the Voting Members representing more than 50% of the Members which are subject to the applicable assessment. For purposes of this Section, the term "Base Assessment" shall be deemed to include the amount assessed against each Unit plus a pro rata allocation of any amounts the Association received through any maintenance agreement, if any, in effect for the year immediately preceding the year for which the assessment is to be increased. An emergency situation is any one or more of the following: (a) an extraordinary expense required by an order of a court; (b) an extraordinary expense necessary to repair or maintain the Properties or any part of them for which the Association is responsible where a threat to personal safety on the Properties is discovered; or (c) an extraordinary expense necessary to repair or maintain the Properties or any part of them for which the Association is responsible which could not have been reasonably foreseen by the Board in preparing and distributing the pro forma budget pursuant to Section 10.4. However, prior to the imposition or collection of such an assessment, the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expenses involved and why the expense was not or could not have been reasonably foreseen in the budgeting process. Such resolution shall be distributed to the Members with the notice of such assessment. 10.9 Failure to Assess. Failure of the Board to fix assessment amounts or rates or to deliver or mail to each owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessment. In such event, each Owner shall continue to pay Base Assessments on the same basis as for the last year for which an assessment was made, if any, until a new assessment is made, at which time the Association may retroactively assess any shortfalls in collections. 10.10 Lien for Assessments. All assessments authorized in this Article shall constitute a lien against the Unit against which they are levied until paid, unless otherwise specifically precluded in this Declaration. The lien shall also secure payment of interest, late charges (subject to the limitation of Oregon law), and costs of collection (including attorney fees). Such lien shall be superior to all other liens, except (a) the liens of all taxes, bonds, assessments, and other levies which by law would be superior, and (b) the lien or charge of any first Mortgage of record (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for value. The Association may enforce such lien, when delinquent, by suit, judgment, and foreclosure. The lien shall be effective for a period of ten (10) years from the date of filing. The lien shall be filed with the "Office of the County Clerk". The lien shall be foreclosed pursuant to Chapter 88 or O.R.S. The Association may bid for the Unit at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Unit. While a Unit is owned by the Association following foreclosure: (a) no right to vote shall be exercised on its behalf; (b) no assessment shall be levied on it; and (c) each other Unit shall be charged, in addition to its usual assessment, its equal pro rata share of the 13 assessment that would have been charged such Unit had it not been acquired by the Association. The Association may sue for unpaid Common Expenses and costs without foreclosing or waiving the lien securing the same. The sale or transfer of any Unit shall not affect the assessment lien or relieve such Unit from the lien for any subsequent assessment. However, the sale or transfer of any Unit pursuant to foreclosure of the first Mortgage shall extinguish the lien as to any installments of such assessments due prior to such sale or transfer. A Mortgagee or other purchaser of a Unit who obtains title pursuant to foreclosure of the Mortgage shall not be personally liable for assessments on such Unit due prior to such acquisition of title. 10.11 Exempt Property. The following property shall be exempt from payment of Base Assessments and Special Assessments: (a) All common Areas; (b) Any property dedicated to and accepted by any governmental authority or public utility; and (c) Unoccupied lots owned by Declarant. In addition, the Declarant shall have the right, but not the obligation, to grant exemptions to certain Persons qualifying for Section 501(c) status under the Internal Revenue Code so long as such Persons own property subject to this Declaration for purposes listed in Section 501(c). Article XI ARCHITECTURAL STANDARDS 11.1 General. No structure shall be placed, erected, or installed upon any Unit, and no improvements (including staking, clearing, excavation, grading and other site work, exterior alteration of existing improvements, planting or removal of landscaping materials, and installation or removal of an irrigation system) shall take place except in compliance with this Article and the Design Guidelines and upon approval of the appropriate committee under Section 11.2. Any Owner may remodel, paint or redecorate the interior of structures on his or her Unit without approval. However, modifications to the interior of screened porches, patios, and similar portions of a Unit visible from outside the structures on the Unit shall be subject to approval. No approval shall be required to repaint the exterior of a structure in accordance with the originally approved color scheme or to rebuild in accordance with originally approved plans and specifications. All dwellings and landscaping constructed or placed on any portion of the Properties shall be designed by and built in accordance with the plans and specifications of a licensed architect or licensed building designer. This Article shall not apply to the activities of the Declarant, nor to improvements to the Common Area by, or on behalf of the Association. This Article may not be amended without the Declarants written consent so long as the Declarant owns any land subject to this Declaration or subject to annexation to this Declaration. 11.2 Architectural Review. Responsibility for administration of the Design Guidelines, as defined below, and review of all applications for construction and modifications under this Article shall be handled by the committee as described herein. The Members of the committee need not be members of the Association or representatives of Members, and may, but need not, include architects, engineers or similar professionals, whose compensation, if any, shall be established from time to time by the Board. The Board may establish and charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review. The Design Review Committee (DRC) shall consist of at least three, but not more than five persons. So long as Declarant, any affiliate of the Declarant, or any Builder owns any Unit primarily for development and/or sale, the Declarant retains the right to appoint all members of the DRC, who shall serve at the discretion of the Declarant. There shall be no surrender of this right prior to that time, except in a written instrument in recordable form executed by Declarant. Upon surrender of such right, the Board of Directors may appoint the members (Attie DRC, who shall serve and may be removed at the discretion of the Board of Directors. The DRC shall have exclusive jurisdiction over all original construction on or any modifications, additions, or alterations made to any Units owned by Declarant, any affiliates of Declarant, any Builder, or Units owned by Retail Owners. l4 11.3 Guidelines and Procedures. The Declarant shall prepare the initial design and development guidelines and application and review procedures ("Design Guidelines") which shall apply to all construction activities within the Properties. The Design Guidelines may contain general provisions applicable to all of the Properties, as well as specific provisions which vary from one portion of the Properties to another depending upon the location, unique characteristics, and intended use. The DRC shall adopt such Design Guidelines at its initial organizational meeting and thereafter shall have sole and full authority to amend them. Any amendments to the Design Guidelines shall apply to construction and modifications commenced after the date of such amendment only and shall not apply to require modifications to or removal of structures previously approved once the approved construction or modification has commenced. The DRC shall make the Design Guidelines available to Owners and Builders who seek to engage in development or construction within the Properties and all such Persons shall conduct their activities in accordance with such Design Guidelines. At the Declarant's discretion, such Design Guidelines may be recorded in the Office of the County Clerk, in which event the recorded version, as it may unilaterally be amended from time to time, shall control in the event of any dispute as to which version of the Design Guidelines was in effect at any particular time. 11.4 Submission of Plans and Specifications. (a) No construction or improvements shall be commenced, erected, placed or maintained on any Unit, nor shall any exterior addition, change or alteration be made thereto, until the plans and specifications ("Plans") showing site layout, structural design, exterior elevations, exterior materials and colors, signs, landscaping, drainage, lighting, irrigation, utility facilities layout, and screening therefor shall have been submitted to and approved in writing by the DRC. The Design Guidelines shall set forth the procedure for submission of the Plans. (b) In reviewing each submission, the DRC may consider visual and environmental impact, ecological compatibility, natural platforms and finish grade elevation, harmony of external design with surrounding structures and environment, and location in relation to surrounding structures and plant Life. The committee may require relocation of native plants within the construction site or the installation of an irrigation system for the landscaping, including the natural plant life on the Unit, as condition of approval of any submission. The DRC shall, within 45 days after receipt of each submission of the Plans, advise the party submitting the same in writing at an address specified by such party at the time of submission of (i) the approval of Plans, or (ii) the segments or features of the Plans which are deemed by such committee to be inconsistent or not in conformity with the Declaration and/or the Design Guidelines, the reason for such finding and suggestions for the curing of such objections. In the event the committee fails to advise the submitting party by written notice within the time set forth above, of either the approval or disapproval of the Plans, approval shall be deemed to have been given. Notice shall be deemed to have been given at the time the envelope containing such notice, properly addressed, and postage prepaid, is deposited with the U.S. Postal Service, registered or certified mail, return receipt requested. Personal delivery of such written notice shall, however, be sufficient and shall be deemed to have been given at the time of delivery. (c) If construction does not commence on a project for which Plans have been approved within 12 months of such approval, such approval shall be deemed withdrawn and it shall be necessary to resubmit the Plans to the DRC for reconsideration. 11.5 No Waiver of Future Approvals. Each Owner acknowledges that the members of the DRC will change from time to time and that interpretation, application and enforcement of the Design Guidelines may vary accordingly. Approval of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval. 11.6 Variance. The DRC may authorize variances from compliance with any of its guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic or environmental considerations require, but only in accordance with duly adopted rules and regulations. Such variances may only be granted, however, when unique circumstances dictate and no variance shall (a) be effective unless in writing; (b) be contrary to this Declaration; or (c) estop the DRC from denying a variance in other circumstances. For purposes of this Section, the inability to obtain approval of any governmental agency, the issuance of any permit, the cost of compliance, or the terms of any financing shall not be considered a hardship warranting a variance. 11.7 Limitation of Liability. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only and the DRC shall not bear any responsibility for ensuring the structural integrity or soundness of approved construction or modifications, nor for ensuring compliance with building codes and other governmental requirements. Neither the Declarant, the Association, the Board, any committee, or member of any of the foregoing shall be held liable for any 15 injury, damages, or loss arising out of the manner or quality of approved construction on, or modifications to, any Unit. 11.8 Enforcement. Any structure or improvement placed or made in violation of this Article shall be deemed to be nonconforming. Upon written request from the Board or the Declarant, Owners shall, at their own cost and expense, remove such structure or improvement and restore the land to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as required, the Board or its designees shall have the right to enter the property, remove the violation, and restore the property to substantially the same condition as previously existed. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefited Unit and collected as a Specific Assessment unless otherwise prohibited in this Declaration. Any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to comply with the terms and provisions of this Article and the Design Guidelines may be excluded by the Board from the Properties, subject to the notice and hearing procedures contained in the By -Laws. In such event, neither the Association, its officers, or directors shall be held liable to any Person for exercising the rights granted by this paragraph. In addition to the foregoing, the Association shall have the authority and standing to pursue all legal and equitable remedies available to enforce the provisions of this Article and the decision of the DRC. 11.9 Building Site. The DRC may establish building areas for each Unit. If so established, construction of a residence shall be restricted to said area, unless the DRC, upon good cause shown by the Unit Owner, shall select another suitable building area upon a Unit. Constructing on such alternate site shall not interfere with the view of any adjacent Unit nor shall it encroach upon any established Unit setback requirement. Article XII USE GUIDELINES AND RESTRICTIONS 12.1 Plan of Development; Applicability; Effect. Declarant has created ASPEN LAKES as a residential and recreational development and, in furtherance of its and every other Owner's interests, has established a general plan of development for ASPEN LAKES as a master planned community. The Properties are subject to land development, architectural, and Design Guidelines as set forth in Article XI. The Properties are subject to guidelines and restrictions governing land use, individual conduct, and uses of or actions upon the properties as provided in this Article XII. This Declaration and resolutions of the Board may establish affirmative and negative covenants, easements, and restrictions ("Use Guidelines and Restrictions"). All provisions of this Declaration and of any Association rules shall also apply to all occupants, tenants, guests, and invitees of any Unit. Any lease on any Unit shall provide that the lessee and all occupants of the leased Unit shall be bound by the terms of this Declaration, the By -Laws, and the rules of the Association. Declarant promulgates ASPEN LAKES' general plan of development in order to protect all Owners' quality of life and collective interests, the aesthetics and environment within the Properties, and the vitality of and sense of community within ASPEN LAKES all subject to the Board's and the Members' ability to respond to changes in circumstances, conditions, needs, and desires within the master planned community. Declarant has prepared initial Use Guidelines and Restrictions which contain general provisions applicable to all of the Properties, as well as specific provisions which may vary within the Properties depending upon the location, characteristics, and intended use. Such initial Use Guidelines and Restrictions are set forth in Section 12.6. Based upon these Use Guidelines and Restrictions, the Board shall adopt the initial rules at its initial organizational meeting. 12.2 Board Power. Subject to the terms of this Article XII and to its duty of care and undivided loyalty to the Association and its Members, the Board shall implement and manage the Use Guidelines and Restrictions through rules which adopt, modify, cancel, limit, create exceptions to, or expand the Use Guidelines and Restrictions. Prior to any such action, the Board shall conspicuously publish notice of the proposal at least five business days prior to the Board meeting at which such action is to be considered. Owners shall have a reasonable opportunity to be heard at a Board meeting prior to action being taken. The Board shall send a copy of any proposed new rule or amendment to each Owner at least 30 days prior to its effective date. The rule shall become effective unless disapproved at a meeting by Voting Members representing at least 66 2.3% of the total Class "A" votes and by the Declarant so long as the Declarant owns property subject to this Declaration, or which may become subject to the Declaration. The Board shall have all powers necessary and proper, subject to its exercise of sound business judgment and reasonableness, to effect the powers contained in this Section 12.2. 16 The Board shall provide, without cost, a copy of the Use Guidelines and Restrictions and rules then in effect to any requesting Member or Mortgagee. 12.3 Members' Power. The Voting Members, at a meeting duly called for such purpose as provided in Section 2.4 of the By -Laws, may adopt, repeal, modify, limit, and expand Use Guidelines and Restrictions and implementing rules by a vote of 66 2/3% of the total Class "A" votes and the approval of the Declarant so long as the Declarant owns property subject to this Declaration or which may become subject to the Declaration. 12.4 Owners' Acknowledgment. All Owners are subject to the Use Guidelines and Restrictions and are given notice that (a) their ability to use their privately owned property is limited thereby, and (b) the Board may add, delete, modify, create exceptions to, or amend the Use Guidelines and Restrictions in accordance with Sections 12.2, 12.3, and 17.2. Each Owner by acceptance of a deed acknowledges and agrees that the use and enjoyment and marketability of his or her property can be affected by this provision and that the Use Guidelines and Restrictions and rules may change from time to time. 12.5 Rights of Owners. Except as may be specifically set forth in Section 12.6, the Board may not adopt any rule in violation of the following provisions: (a) Equal Treatment. Similarly situated Owners and occupants shall be treated similarly. (b) Household Composition. No rule shall interfere with the freedom of occupants of Units to determine the composition of their households, except that the Association shall have the power to require that all occupants be members ofa single housekeeping unit and to limit the total number of occupants permitted in each Unit on the basis of the size and facilities of the Unit and its fair share use of the Common Area, including parking. (c) Activities Within Unit. No rule shall interfere with the activities carried on within the confines of Units, except that the Association may prohibit activities not normally associated with property restricted to residential use, and it may restrict or prohibit any activities that create monetary costs for the Association or other Owners, that create a danger to the health or safety of occupants of other Units, that generate excessive noise or traffic, that create unsightly conditions visible outside the Unit, that block the views from other Units, or that create an unreasonable source of annoyance. (d) Pets. No rule prohibiting the keeping of ordinary household pets shall be adopted over the objection of any affected Owner expressed in writing to the Association. The Association may adopt reasonable regulations designed to minimize damage and disturbance to other Owners and occupants, including regulation requiring damage deposits, waste removal, leash controls, noise controls, occupancy limits based on size and facilities of the Unit, and fair share use of the Common Area. Nothing in this provision shall prevent the Association from requiring removal of any animal that represents an actual threat to the health or safety of residents or from requiring abatement of any nuisance or unreasonable source of annoyance. (e) Allocation of Burdens and Benefits. The initial allocation of financial burdens and rights to use Common Areas among the various Units shall not be changed to the detriment of any Owner over that Owner's objection expressed in writing to the Association. Nothing in this provision shall prevent the Association from changing the Common Areas available, from adopting generally applicable rules for use of Common Areas, or from denying use privileges to those who abuse the Common Area, violate rules of this Declaration, or fail to pay assessments. This provision does not affect the right to increase the amount of assessments as provided in Article X. (f) Rights to Develop. No rule or actions by the Association or Board shall unreasonably impede Declarant's right to develop in accordance with the Master Plan. 12.6 Initial Use Guidelines and Restrictions. (a) General. The Properties shall be used only for residential, recreational, and related purposes (which may include, without limitation, offices for any property manager retained by the Association or business offices for the Declarant or the Association consistent with this Declaration and any Supplemental Declaration). (b) Restricted Activities. The following activities are prohibited within the Properties unless expressly authorized by, and then subject to such conditions as may be imposed by, the Board: (i) posting of signs of any kind except those required by law, including posters, circulars and billboards, provided that the Declarant shall be entitled to post signs consistent with the development concept; 17 (ii) parking of commercial vehicles, recreational vehicles, mobile homes, boats or other watercraft, or other oversized vehicles, stored vehicles or inoperable vehicles in places other than enclosed garages; (iii) subdivision of a Unit into two or more Units after a subdivision plan including such Unit has been approved and filed with the appropriate governmental authority, or changing the boundary lines of any Unit, except that the Declarant shall be permitted to subdivide or change the boundary lines of Units which owns; (iv) active use of lakes, ponds, streams, or other bodies of water within the Properties or within any Golf Course, except that the owner of the Golf Course and its agents, successors and assigns, shall have the exclusive right and easement to retrieve golf balls from bodies of water within the Common Areas which are within range of golf balls hit from the Golf Course. The Association shall not be responsible for any loss, damage, or injury to any person or property arising out of the authorized or unauthorized use of lakes, ponds, streams or other bodies of water within or adjacent to the Properties; (v) operation of a fraction -sharing program exceeding five Owners whereby the right to exclusive use of the Unit rotates among participants in the program on a fixed or floating time schedule over a period of years, except that Declarant and its assigns may operate such a program with respect to Units which it owns; (vi) occupancy of a Unit by more than a single family. For purposes of this restriction, a single family shall be defined as any number of persons related by blood, adoption, or marriage living with not more that one person who is not so related as a single household unit, or no more than three persons who are not so related living together as a single household unit; (vii) capturing, trapping or killing wildlife within the properties, except in circumstances posing an imminent threat to the safety of persons using the Properties, and raising, breeding or keeping animals, livestock, or poultry of any kind, except that a reasonable number of dogs, cats, or other usual and common household pets may be permitted in a Unit. However, those pets which are permitted to roam free, or, in the sole discretion of the Board, make objectionable noise, endanger the health or safety of, or constitute a nuisance or inconvenience to the occupants of other Units shall be removed upon request of the Board. If the pet owner fails to honor such request, the Board may remove the pet; (viii) activities which materially disturb or destroy the vegetation, wildlife, or air quality within the properties, or which use excessive amounts of water, or which result in unreasonable levels of sound or light pollution; (ix) any construction, erection, or placement of ornamentation or other objects or equipment, permanently or temporarily, on the outside portions of the Unit, whether such portion is improved or unimproved; (x) the discharge of firearms within the Properties is prohibited. The term "firearms" includes B -B guns, pellet guns, bows and arrows, and other firearms of all types, regardless of size. Notwithstanding anything to the contrary contained herein, or in the By -Laws, the Association shall not be obligated to take action to enforce this provision; and (xi) Any business, trade, garage sale, moving sale, rummage sale, or similar activity, except that an Owner or occupant residing in a Unit may conduct business activities within the Unit so long as (a) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside the Unit; (b) the business activity conforms to all zoning requirements for the Properties; (c) the business activity does not involve regular visitation of the Unit by clients, customers, suppliers, or other business invitees or door-to-door solicitation of residents of the Properties; and (d) the business activity is consistent with the residential character of the Properties and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Properties, as may be determined in the sole discretion of the Board. This subsection shall not apply to any activity conducted by the Declarant or a Builder approved by the Declarant with respect to its development and sale of the Properties or its use of any Units which it owns within the Properties, including the operation of a timeshare or similar program. The leasing of a Unit shall not be considered a business or trade within the meaning of this subsection. "Leasing", for purposes of this Declaration, is defined as regular, exclusive occupancy of a Unit by any person other than the Owner, for which the Owner receives any consideration or benefit, including but not limited to a fee, service, gratuity, or emolument. Units may be leased only in their entirety. No fraction or portion may be leased. No structure on Unit other than the primary residential dwelling shall be leased or otherwise occupied for residential purposes. There shall be no subleasing of Units or assignment of leases unless prior written approval is obtained from the Board. All leases shall be in writing. No transient tenants may be accommodated in a Unit and all leases shall be for an initial term of no less than 30 days, except: (a) with the prior written consent of the Board, or (b) as initially authorized by Declarant in Exhibit "A" or a Supplemental Declaration for Units located within certain areas. The Owners may not amend this provision to prohibit leasing of Units within certain areas authorized by Declarant for rental to transient tenants and for a term less than 30 days until: (a) 75% of the Units within 18 a particular area are owned by Retail Owners, and (b) with approval of 75% of the Class "A" Members, other than the Declarant, within that particular area. Notice of any lease, together with such additional information as may be required by the Board, shall be given to the Board by the Unit Owner within ten (10) days of execution of the lease. The Owner must make available to the leasee copies of the Declaration, By -Laws, and the rules and regulations. The Board may adopt reasonable rules regulating leasing and subleasing. (c) Prohibited Conditions. The following shall be prohibited within the Properties: (i) exterior antennas, aerials, satellite dishes, or other apparatus for the transmission or reception of television, radio, satellite, or other signals of any kind unless completely contained within the dwelling on the Unit so as not to be visible from outside the dwelling or otherwise approved pursuant to Article XI; provided the Declarant and the Association shall have the right, without obligation, to erect or install and maintain such apparatus for the benefit of all or a portion of the Properties; (ii) sprinkler or irrigation systems or wells of any type which draw upon water from creeks, streams, ponds, or other ground or surface waters within the Properties; except that Declarant, the Association and the Golf Course shall have the right to collect and divert storm water runoff from streets and other hard surfaces for irrigation and other purposes; (iii) hedges, walls, dog runs, animal pens, or fences of any kind on any Unit except as approved in accordance with Article XI; (iv) open garage doors. Garage doors shall remain closed at all times except when entering and exiting the garage; and (v) excessive exterior lighting on any Unit. The Board shall in its sole discretion determine whether any exterior lighting is excessive. Exterior lighting shall be screened as set forth in the Design Guidelines. Article XI11 EASEMENTS 13.1 Easements of Encroachment. There shall be reciprocal appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between each Unit and any adjacent Common Area and between adjacent Units due to the unintentional placement or settling or shifting of the improvement constructed, reconstructed, or altered thereon (in accordance with the terms of these restrictions) to a distance of not more than three feet, as measured from any point on the common boundary along a line perpendicular to such boundary. However, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, an Owner, occupant, or the Association. 13.2 Easements for Utilities, Etc. There are hereby reserved unto Declarant, so long as the Declarant owns any property described on Exhibits "A" or "B" of this Declaration, the Association, and the designees of each (which may include, without limitation, Deschutes County, Oregon and any utility) access and maintenance easements upon, across, over, and under all of the Properties to the extent reasonably necessary for the purpose of replacing, repairing, and maintaining cable television systems, master television antenna systems, security and similar systems, roads, walkways, bicycle pathways, trails, ponds, wetlands, irrigation systems, drainage systems, street lights, signage, and all utilities, including, but not limited to, water, sewers, meter boxes, telephone, gas, and electricity, and for the purpose of installing any of the foregoing on property which it owns or within easements designated for such purposes on recorded plats of the Properties. This easement shall not entitle the holders to construct or install any of the foregoing systems, facilities, or utilities over, under or through any existing dwelling on a Unit, and any damage to a Unit resulting from the exercise of this easement shall promptly be repaired by, and at the expense of, the person exercising the easement. The exercise of this easement shall not unreasonably interfere with the use of any Unit and, except in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or occupant. Declarant specifically grants to the local water supplier, electric company, telephone company, cable TV company, and natural gas supplier easements across the Properties for ingress, egress, installation, reading, replacing, repairing, and maintaining utility meters and boxes. However, the exercise of this easement shall not extend to permitting entry into the dwelling on any Unit, nor shall any utilities be installed or relocated on the Properties, except as approved by the Declarant. 13.3 Easements to Serve Additional Property. The Declarant hereby reserves for itself and its duly authorized agents, representatives, employees, successors, assigns, licensees, and mortgagees, an easement over the Common Area for the purposes of 19 enjoyment, use, access, and development to the property described in Exhibit "B", whether or not such property is made subject to this Declaration. This easement includes, but is not limited to, a right of ingress and egress over the Common Area for construction of roads and for connecting and installing utilities on such property. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Area as a result of vehicular traffic connected with development of such property. Declarant futher agrees that if the easement is exercised for permanent access to such property and such property or any portion thereof is not made subject to this Declaration, the Declarant, its successors or assigns shall enter into a reasonable agreement with the Association to share the cost of maintenance of any access roadway serving such property. 13.4 Easements for Golf Course. (a) Every Unit and the Common Area are burdened with an easement permitting golf balls unintentionally to come upon such Common Area and Units and for golfers at reasonable times and in a reasonable manner to come upon the Common Area or the exterior portions of a Unit to retrieve errant golf balls; provided, however, if any Unit is fenced or walled, the golfer shall seek the Owner's permission before entry. The existence of this easement shall not relieve golfers of liability for damage caused by errant golf balls. Under no circumstances shall any of the following Persons be held liable for any damage or injury resulting from errant golf balls or the exercise of this easement: the Declarant; the Association or its Members (in their capacity as such); KMB Enterprises, its successors, successors -in -title to the Golf Course, or assigns; any successor Declarant; any Builder or contractor (in their capacities as such); any officer, director or partner of any of the foregoing, or any officer or director of any partner. (b) The Owner of the Golf Course, its respective agents, successors and assigns, shall at all times have a right and non-exclusive easement of access and use over those portions of the Common Areas reasonably necessary, with or without the use of maintenance vehicles and equipment, for the operation, maintenance, repair and replacement of the Golf Course. (c) The Properties immediately adjacent to the Golf Course are hereby burdened with a non-exclusive easement in favor of the Golf Course for overspray of water from any irrigation system serving the Golf Course. Under no circumstances shall the Association or the Owners of the Golf Course be held liable for any damage or injury resulting from such overspray or the exercise of this easement. (d) The Owner of the Golf Course, its respective agents, successors and assigns, shall have a perpetual, exclusive easement of access over the properties for the purpose of retrieving golf balls from bodies of water within the Common Areas lying reasonably within range of golf balls hit from the Golf Course. (e) The Owner of the Golf Course, its respective agents, successors and assigns, as well as its guests, invitees, employees, and authorized users of the Golf Course, shall at all times have a right and non-exclusive easement of access and use over all roadways and golf cart paths, if any, located or to be located within the Properties at reasonable times before, during and after golf tournaments and other similar functions held at the Golf Course. (f) The Owner of the Golf Course, its respective agents, successors and assigns, shall have a perpetual non- exclusive easement, to the extent reasonably necessary, over the Properties, for the installation, operation, maintenance, repair, replacement, monitoring and controlling of irrigation systems and equipment, including without limitation wells, pumps and pipelines, serving all or portions of the Golf Course. (g) The owner of the Golf Course, its respective agents, successors and assigns, shall have a perpetual, non- exclusive easement to the extent reasonably necessary, over the Properties for the installation, maintenance, repair, replacement and monitoring of utility lines, wires, drainage pipelines and pipelines, serving all or portions of the Golf Course. (h) The Properties are hereby burdened with easements in favor of the Golf Course for natural drainage of storm water runoff from the Golf Course. (i) The properties are hereby burdened with easements in favor of the Golf Course for golf cart paths serving the Golf Course. Under no circumstances shall the Association or the Owners of the Golf Course be held liable for any damage or injury resulting from the exercise of this easement. (j) The Owner of the Golf Course, its respective agents, successors and assigns, as well as its guests, invitees, employees, and authorized users of the Golf Course, shall at all times have a right and non-exclusive easement to access and use over the golf cart paths located within the Properties. 13.5 Easement for Cross -Drainage. Every Unit and the Common Area shall be burdened with easements for natural drainage of storm water runoff from other portions of the Properties, provided no person shall alter the natural drainage on any Unit so as to materially increase the drainage of storm water onto adjacent portions of the Properties without the consent of the Owner of the affected 20 property. 13.6 Right of Entry. The Association shall have the right, but not the obligation, to enter upon any Unit for emergency, security, and safety reasons, to perform maintenance pursuant to Article V hereof, and to inspect for the purpose of ensuring compliance with this Declaration, any Supplemental Declaration, By -Laws, and rules, which right may be exercised by any Member of the Board, the Association, officers, agents, employees, and managers, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the right of the Association to enter upon any Unit to cure any conditions which may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure the condition within a reasonable time after requested by the Board, but shall not authorize entry into any single family detached dwelling without permission of the Owner, except by emergency personnel acting in their official capacities. 13.7 Maintenance. Some lots in this development are located adjacent to the Golf Course located within the Properties. Owners shall recognize that the proper maintenance of the Golf Course requires the use of mechanized equipment such as tractors, lawn mowers, fertilizer and/or pesticide applicators, and sprinkler systems, etc.. Some of this equipment must be operated in the early morning hours or late in the evening when the Golf Course is not in use. By acquiring a Unit which is located near the Golf Course, each such Person consents to the use of such equipment in a manner which is customary in the operation of Golf Courses in the Central Oregon area. Proper golf course maintenance requires adequate pest management. The golf course operator shall be allowed to take any actions necessary to control pests on the Golf Course or adjacent Properties without any interference. Article XIV MORTGAGE PROVISIONS The following provisions are for the benefit of holders, insurers and guarantors of first Mortgages on Units in the Properties. The provisions to this Article apply to both this Declaration and to the By -Laws, notwithstanding any other provisions contained herein. 14.1 Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage who provides written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the street address of the Unit to which its Mortgage relates, thereby becoming an "Eligible Holder"), will be entitled to timely written notice of: (a) any condemnation loss or any casualty loss which affects a material portion of the Properties or which affects any Unit on which there is a first Mortgage held, insured, or guaranteed by such Eligible Holder; (b) any delinquency in the payment of assessments or charges owed by a Unit subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of 60 days, or any other violation of the Declaration or By -Laws relating to such Unit or the Owner or occupant which is not cured within 60 days. Notwithstanding this provision, any holder of a first Mortgage is entitled to written notice upon request from the Association of any default in the performance by an Owner of a Unit of any obligation under the Declaration or By -Laws which is not cured within 60 days; (c) any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or (d) any proposed action which would require the consent of a specified percentage of Eligible Holders. 14.2 Special FHLMC Provision. So Iong as required by the Federal Home Loan Mortgage Corporation, the following provisions apply in addition to and not in lieu of the foregoing. Unless at least 66 2/3% of the first Mortgagees or Members representing at least 66 2/3% of the total Association entitled to vote, consent, the Association shall not: (a) by act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer all or any portion of the real property comprising the Common Area which the Association owns, directly or indirectly (the granting of easements for public utilities or other similar purposes consistent with the intended use of the Common Area shall not be deemed a transfer within the meaning of this subsection); (b) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner of a Unit; (c) by act or omission change, waive, or abandon any scheme of regulation or enforcement pertaining to 21 architectural design, exterior appearance or maintenance of Units and the Common Area (the issuance and amendment of architectural standards, procedures, rules and regulations, or use restrictions shall not constitute a change, waiver, or abandonment within the meaning of this provision); (d) fail to maintain insurance, as required by this Declaration; or (e) use hazard insurance proceeds from any Common Area losses for purposes other than the repair, replacement, or reconstruction of such property. First Mortgages may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against the Common Area and may pay overdue premiums on casualty insurance policies or secure new casualty insurance coverage upon the lapse of an Association policy, and first Mortgagees making such payment shall be entitled to immediate reimbursement from the Association. 14.3 Other Provision for First Lien Holders. To the extent possible under Oregon Law: (a) any restoration or repair of the Properties after a partial condemnation or damage due to an insurable hazard shall be performed substantially in accordance with this Declaration and the original plans and specification unless approval is obtained from the Eligible Holders of the first Mortgages on Units to which at least 51% of the votes of Units subject to Mortgages held by such Eligible Holders are allocated. (b) any election to terminate the Association after substantial destruction or a substantial taking in condemnation shall require the approval of the Eligible Holders of first Mortgages on Units to which at least 51% of the votes of Units subject to Mortgages held by such Eligible Holders are allocated. 14.4 Amendments to Documents. The following provisions do not apply to amendments to the constituent documents or termination of the Association made as a result of destruction, damage, or condemnation pursuant to Section 14.3(a) and (b), or to the addition of land in accordance with Article IX. (a) The consent of Voting Members representing at least 66 2/3% of the Class "A" votes and of the Declarant, so long as it owns any land subject to this Declaration, and the approval of the eligible holders of first Mortgages on Units to which at least 66 2/3% of the votes of Units subject to a Mortgage appertain, shall be required to terminate the Association. (b) The consent of Voting Members representing at least 66 2/3% of the Class "A" votes and of the Declarant, so long as it owns any land subject to this Declaration, and the approval of Eligible Holders of first Mortgages on Units to which at least 51% of the votes of Units subject to a Mortgage appertain, shall be required to materially amend any provisions of the Declaration, By -Laws, or Articles of Incorporation, or to add any material provisions thereto which establish, provide for, govern, or regulate any of the following: (i) voting; (ii) assessments, assessment liens, or subordination of such liens; (iii) reserves for maintenance, repair, and replacement of the Common Area; (iv) insurance or fidelity bonds; (v) rights to use the Common Area; (vi) responsibility for maintenance and repair of the Properties; (vii) expansion or contraction of the Properties or the addition, annexation, or withdrawal of Properties to or from the Association; (viii) boundaries of any Unit; (ix) leasing of Units; (x) imposition of any right of first refusal or similar restriction of the right of any Owner to sell, transfer, or otherwise convey his or her Unit; (xi) establishment of self-management by the Association where professional management has been required by an Eligible Holder; or (xii) any provisions included in the Declaration, By -Laws, or Articles of Incorporation which are for the express benefit of holders, guarantors, or insurers of first Mortgages on Units. 14.5 No Priority. No provision of this Declaration or the By -Laws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Unit in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to, or a taking of, the Common Area. 22 14.6 Notice to Association. Upon request, each Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner's Unit. 14.7 Amendment by_Board. Should the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation subsequently delete any of its respective requirements which necessitate the provisions of this Article or make any such requirements less stringent, the Board, without approval of the Owners, may record an amendment to this Article to reflect such changes. 14.8 Applicability of Article XIV. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, By -Laws, or Oregon law for any of the acts set out in this Article. 14.9 Failure of Mortgagee to Respond. Any Mortgagee who receives a written request from the Board to respond to, or consent to, any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within thirty (30) days of the date of the Association request, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested. Article XV DECLARANTS RIGHTS 15.1 Transfer. Any or all of the special rights and obligations of the Declarant set forth in this Declaration or the By -Laws may be transferred to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration or the By -Laws. No such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Office of the County Clerk. Nothing in this Declaration shall be construed to require Declarant or any successor to develop any of the property set forth in Exhibit "B" in any manner whatsoever. So long as construction and initial sales of Units shall continue, the Declarant and Builders authorized by Declarant may maintain and carry on upon portions of the Common Area such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of such Units, including but not limited to business offices, signs, model units, and sales offices. The Declarant's or Builder's unilateral right to use the Common Area for the purposes stated in this paragraph shall not be exclusive and shall not unreasonably interfere with use of such Common Areas by Owners unless leased pursuant to a lease agreement with the Association providing for payment of reasonable rent. No Person shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Properties without Declarant's review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by recorded consent signed by the Declarant. The Declarant, in its sole discretion, may convert all or part of the Properties in Exhibits "A" and/or "B" to a "mini destination resort" or "destination resort" ("Resort") as those terms are now or hereafter defined in the Deschutes County Zoning Ordinance or any other applicable ordinance. If additional or substitute restrictions are appropriate or required under the Resort designation, the Declarant shall have sole discretion in making those changes. By purchasing a Unit in ASPEN LAKES each Owner expressly consents to such conversion to Resort status and to such additional or substitute restrictions and no further consent shall be required from any Owner. However, these additional or substitute restrictions shall not apply to those Units in Section I, Township 15 South, Range 10 East, of the Willamette Meridian, except as may be necessary to establish Neighborhoods as described in Section 1.23 of this Declaration. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) 40 years after the conveyance of a Unit to a Retail Owner, or (b) upon recording by Declarant of a written statement that all sales activity has ceased. Thereafter, the Declarant or Builders may continue to use the Common Areas for purposes stated in this Section only pursuant to a rental or lease agreement between the Declarant or such Builder and the Association which provides for rental payments based on the fair market rental value of any such portion of the Common Areas. 15.2 Ownership and Operation of Golf Course. All Persons, including all Owners, are hereby advised that no representations or warranties have been or are made by the Declarant or any other Person with regard to the continuing existence, ownership or operation of the Golf Course, if any, and no purported representation or warranty in such regard, either written or oral, shall ever be effective without an amendment to this Declaration executed or joined into by the Declarant. Further, the ownership and/or operation of the Golf Course, if any, may change at any time and from time to time by virtue of, but without limitation, (a) the sale to, or assumption of operations of the Golf Course by an independent entity or entities; (b) the creation or conversion of the ownership and/or operating structure of the Golf Course to an "equity" club or similar arrangement whereby the Golf Course or the rights to operate it are transferred to an entity which is owned or controlled by its members; or (c) the transfer of ownership or control 23 of the Golf Course to one or more affiliates, shareholders, employees, or independent contractors of the Declarant. No consent of the Association or any Owner shall be required to effectuate such transfer or conversion. 15.3 Right to Use. Neither membership in the Association nor Ownership or occupancy of a Unit shall confer any ownership interest in or right to use the Golf Course. Rights to use the Golf Course will be granted only to such persons, and on such terms and conditions, as may be determined from time to time by the owner of the Golf Course. The owner of the Golf Course shall have the right from time to time in its sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of the Golf Course, including without limitation eligibility for and duration of use rights, categories of use and extent of use privileges, and number of users, and shall also have the right to reserve use rights and to terminate use rights altogether, subject to the provisions of any outstanding membership documents. 15.4 View Impairment. Neither the Declarant, the Association nor the owner or operator of the Golf Course guarantees or represents that any view over and across the Golf Course from adjacent Units will be preserved without impairment. The owner of the Golf Course, if any, shall have no obligation to prune or thin trees or other landscaping, and shall have the right, in its sole and absolute discretion, to add trees and other landscaping to the Golf Course from time to time. In addition, the owner of the Golf Course may, in its sole and absolute discretion, change the location, configuration, size and elevation of the tees, bunkers, fairways and greens on the Golf Course from time to time. Any such additions or changes to the Golf Course may diminish or obstruct any view from the Units and any express or implied easements for view purposes or for the passage of light and air are hereby expressly disclaimed. Declarant may choose to, but is not required to, construct a Club House facility to service the Golf Course. To enable that facility to enjoy a view of the Cascade Mountain Range, it may be necessary to remove or prune certain trees and vegetation on Common Area, Units numbered 1 through 3, 19 through 23, and 35 through 43 on plat no. 90-727 "Golf Course Estates At Aspen Lakes" Deschutes County, Oregon. Builders or Owners of said lots hereby agree to the removal of or pruning of such trees and vegetation on said lots as may be necessary for operator of said Golf Course to obtain and preserve views of the Cascade Range from Club House facility. 15.5 Limitations on Amendments. In recognition of the fact that the provisions of this Article are for the benefit of the owner of the Golf Course, no amendment to this Article, and no amendment in derogation of any rights reserved or granted to the owner of the Golf Course by other provisions of this Declaration, may be made without the written approval of the owner of the Golf Course. The foregoing shall not apply, however, to amendments made by the Declarant. 15.6 Jurisdiction and Cooperation. It is the Declarant's intention that the Association and the owner of the Golf Course shall cooperate to the maximum extent possible in the operation of the Properties and the Golf Course. Each shall reasonably assist the other in upholding the Community -Wide Standard. The Association shall have no power to promulgate rules and regulations affecting activities on or use of the Golf Course. Article XVI DISPUTE RESOLUTION AND LIMITATION ON LITIGATION 16.1 Agreement to Avoid Costs of Litigation and to Limit Right to Litigate Disputes. The Association, Declarant, Owners, all Persons subject to this Declaration, and any Person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, "Bound Parties"), agree to encourage the amicable resolution of disputes involving the Properties, and to avoid the emotional and financial costs of litigation if at all possible. Accordingly,each Bound Party covenants and agrees that all claims, grievances or disputes between such Bound Party and any other Bound Party involving the Properties, including without limitation claims, grievances or disputes arising out of or relating to the interpretation, application or enforcement of this Declaration, the By - Laws, the Association rules, or the Articles of Incorporation (collectively "Claim"), except for those claims authorized in Section 16.2, shall be subject to the procedures set forth in Section 16.3. 16.2 Exempt Claims. The following Claims ("Exempt Claims") shall be exempt from the provisions of Section 16.3: (a) any suit by the Association against any Bound Party to enforce the provisions of Article X; (b) any suit by the Association to obtain a temporary restraining order (or equivalent emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Association's ability to enforce the provisions of Article XI and Article XII; and 24 (c) any suit between Owners (other than Declarant) seeking redress on the basis of a Claim which would constitute a course of action under the law of the State of Oregon in the absence of a Claim based on the Declaration, By -Laws, Articles or rules of the Association, if the amount in controversy exceeds $5,000.00. Any Bound Party having an Exempt Claim may submit it to the alternative dispute resolution procedures set forth in Section 16.3, but there shall be no obligation to do so. 16.3 Mandatory Procedures For All Other Claims. Any Bound Party having a Claim ("Claimant") against any other Bound Party ("Respondent"), other than a Claim exempted from this provision by Section 16.2, shall not file suit in any court or initiate any proceeding before any administrative tribunal seeking redress or resolution of such Claim until it has complied with the following procedures: concisely: (a) Notice. The Claimant shall notify each Respondent in writing of the Claim ("Notice"), stating plainly and (i) the nature of the Claim, including date, time, location, persons involved, Respondents's role in the Claim and the provisions of this Declaration, the By -Laws, the rules, the Articles of Incorporation or other authority out of which the Claim arises; (ii) the basis of the Claim (i.e., the provisions of the Declaration, By -Laws, rules or Articles triggered by the Claim); (iii) what Claimant wants Respondent to do or not do to resolve the Claim; and (iv) that Claimant wishes to resolve the Claim by mutual agreement with Respondent, and is willing to meet in person with Respondent at a mutually agreeable time and place to discuss in good faith ways to resolve the Claim. (b) Negotiation. (i) Each Claimant and Respondent ("Parties") shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. (ii) Upon receipt of a written request from any Party, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in resolving the dispute by negotiation, if in its discretion it believes its efforts will be beneficial to the Parties and to the welfare of the community. (c) Mediation. (i) If the Parties do not resolve the Claim through negotiation within 30 days of the date of the Notice (or within such other period as may be agreed upon by the Parties) ("Termination of Negotiations"), Claimant shall have 30 additional days within which to submit the Claim to mediation under the auspices of the Neighborhood Mediation Center in Portland,Oregon, or such other independent agency providing similar services upon which the parties may mutually agree. (ii) If Claimant does not submit the Claim to mediation within 30 days after Termination of Negotiations, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons not a Party to the foregoing proceedings. (iii) If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation process, the mediator shall, within five days of the termination of the mediation proceedings, provide the Parties with a written non-binding recommendation for resolution of the Claim ("Mediator's Recommendation"). (d) Final and Binding Arbitration. (i) If the Parties do not agree in writing to accept the Mediator's Recommendation within 10 days after receipt of notice thereof, the Claimant shall have 30 additional days to submit the Claim to arbitration in accordance with the Rules ofArbitration contained in Exhibit "D" or the Claim shall be deemed abandoned, and Respondent shall be released and discharged from any and all liability to Claimant arising out of such Claim; provided nothing herein shall release or discharge Respondent from any liability to Persons not a Party to the foregoing proceedings. (ii) This subsection (d) is an agreement of the Bound Parties to arbitrate all Claims except Exempt Claims and is specifically enforceable under the applicable arbitration law of the State of Oregon. The arbitration award (the "Award") shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Oregon. 25 16.4 Allocation of Costs of Resolving Claims. (a) Each Party shall bear all of its own costs incurred prior to and during the proceedings described in Section 16.3 (a), (b), and (c), including the fees of its attorney or other representative. Each Party shall share equally all charges rendered by the mediator(s) pursuant to Section 16.3(c). (b) Each Party shall bear all of its own costs (including the fees of its attorney or other representative) incurred after the termination of mediation under Section 16.3(c) and shall share equally in the costs of conducting the arbitration proceeding (collectively, "Post Mediation Costs"), except as otherwise provided in this subsection; provided, however, if the Claim is rejected in whole or in part, the Claimant shall pay all Post Mediation costs, including the costs incurred by the Respondent. 16.5 Enforcement of Resolution. If the Parties agree to resolve any Claim through negotiation or mediation in accordance with Section 16.3 and any Party thereafter fails to abide by the terms of such agreement, or if the Parties agree to accept the Award following arbitration and any Party thereafter fails to comply with such Award, then any other party may file suit or initiate administrative proceedings to enforce such agreement of Award without the need to again comply with the procedures set forth in Section 16.3. In such event, the Party taking action to enforce the agreement or Award shall be entitled to recover from the non- complying Party (or if more than one non -complying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including without limitation attorney fees and court costs. Article XVII GENERAL PROVISIONS 17.1 Term. This Declaration shall run with and bind the Properties, and shall inure to the benefit of, and shall be enforceable by the Association or any Owner, their respective legal representatives, heirs, successors, and assigns, for a term of 40 years from the date this Declaration is recorded. After such time, this Declaration shall be automatically extended for successive periods of 10 years, unless an instrument in writing, signed by a majority of the the Owners, has been recorded within the year preceding each extension, agreeing to amend, in whole or in part, or terminate this Declaration, in which case this Declaration shall be amended or terminated as specified therein. 17.2 Amendment. (a) By Declarant. (1) Prior to the conveyance of the first Unit to a Retail Owner, Declarant may unilaterally amend this Declaration. After the conveyance of any Unit, the Declarant may unilaterally amend this Declaration if such amendment is; (i) necessary to bring any provision into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (ii) necessary to enable any reputable title insurance company to issue title insurance coverage on the Units; (iii) required by an institutional or governmental lender, purchaser, insurer or guarantor of Mortgage loans, including for example the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable it to make, purchase, insure or guarantee Mortgage loans on the Units; or (iv) otherwise necessary to satisfy the requirements of any governmental agency for approval of this Declaration. This Declaration may be amended in accordance with Section 17.2(b). (2) Declarant may at any time amend this Declaration without consent of Owners, Board, or Association in connection with any conversion of the property to a Destination Resort as allowed in Section 15.1 herein. (b) By Owners. Unless the Declarant has the right to amend this Declaration in accordance with Section 17.2(a), this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Voting Members representing 75% of each class of Members. After conversion of the Class "B" membership to Class "A" membership, the Declaration may be amended by the vote or written consent of the Voting members representing at least (a) 75% of the Members; and (b) 75% of the Members other than the Declarant. [n addition, the approval requirements set forth in Article XIV hereof shall be met ifapplicable. Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. 26 (c) Validity and Effective Date of Amendments. Amendments to this Declaration shall become effective upon their being recorded in the Office of the County Clerk unless a later effective date is specified therein. Any procedural challenge to an amendment must be made within one year of its recording or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration. If an Owner consents to any amendment to this Declaration or the By -Laws, it will be conclusively presumed that such Owner has the authority to so consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment. No amendment may remove, revoke, or modify any right or privilege ofthe Declarant without the written consent of the Declarant or the assignee of such right or privilege. 17.3 Severability. Invalidation of any provision of this Declaration, in whole or in part, or any application of a provision of this Declaration by judgment or court order shall in no way affect other provisions or applications. 17.4 Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of the Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. 17.5 Litigation. No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by Voting Members representing at least a majority of a quorum of the Class "A" Members. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); (b) the impositions and collection of assessments as provided in Article X; (c) proceedings involving challenges to ad valorem taxation; or (d) counterclaims brought by the Association in proceedings instituted against it. This Section shall not be amended unless such amendment is approved by the percentage of votes, and pursuant to the same procedures, necessary to institute proceedings as provided above. This provision shall apply in addition to the provisions of Article XVI, if applicable. 17.6 Use ofthe Words "ASPEN LAKES". No Person shall use the words "ASPEN LAKES" or any derivative, or any other term which Declarant may select as the name of this development or any component thereof, in any printed or promotional material without the Declarant's prior written consent. However, Owners may use the words "ASPEN LAKES" in printed or promotional matter solely to specify that particular property is located within the Properties and the Association shall be entitled to use the words "ASPEN LAKES" in its name. I7.7 Compliance. Every Owner and occupant of any Unit shall comply with this Declaration, the By -Laws, and the rules of the Association. Failure to comply shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, by the Association or, in a proper case, by an aggrieved Unit Owner(s). 17.8 Attorneys' Fees. In the event of an action instituted to enforce any of the provisions contained in this Declaration, the Articles of Incorporation or the By -Laws, the party prevailing in such action shall be entitled to recover from the other party thereto as part of the judgment, reasonable attorneys' fees and costs of such suit. In the event the Association is a prevailing party in such action, the amount of such attorneys' fees and costs shall be a Special Assessment with respect to the Unit(s) involved in the action. 17.9 Enforcement of Bonded Obligations. In the event improvements to the Common Area have not been completed as may be required according to approval provisions covering the Properties by Deschutes County or other government entity authorizing the commencement of Unit sales (Commencement of Sales) and the Association, as a result of such lack of completion, is an obligee under a bond or other arrangement ("Bond") to secure performance of the commitment of the Declarant or a Builder to complete such improvements, the following shall apply: (a) The Board shall consider and vote upon the question of action by the Association to enforce the obligations under the Bond with respect to any improvements for which a "Notice of Completion" has not been filed within 60 days after the completion date specified for such improvement in the "Planned Construction Statement" appended to the Bond. if the Association has given an extension in writing for the completion of any Common Area improvement, the Board shall consider and vote on the aforesaid question if a "Notice of Completion" has not been filed within 30 days after the expiration of such an extension. (b) In the event the Board determines not to initiate action to enforce the obligation under the Bond or in the event the Board fails to consider and vote upon such question as provided above, the Board shall call a special meeting of the Owners for the purpose of voting to override such decision or such failure to act by the Board. Such meeting shall be called according to the provisions of the By -Laws dealing with special meetings, but in any event, such meeting shall be held not less than 35 nor more than 45 days after receipt by the Board of a petition for such meeting, signed by Voting Members representing not less than 5% of the Members of the Association. 27 (c) Voting Members, other than the Declarant, shall be entitled to vote at such a meeting. A vote at such meeting of a majority of the Voting Members, other than Declarant, to take action to enforce the obligations under the Bond shall be deemed to be the decision of the Association, and the Board shall thereafter implement such decision by initiating and pursuing appropriate action in the name of the Association. IN WITNESS WHEREOF, the undersigned Declarant has executed this Amended Declaration this day of , 1993. KMB ENTERPRISES, an Oregon Partnership 17204 Hwy 126 Sisters, OR 97759 By: By: By: STATE OF OREGON, County of Deschutes, ss: On , 1993, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be a partner of the partnership that executed the within instrument and acknowledged to me that such partnership executed the same. Notary Public for Oregon My Commission Expires STATE OF OREGON, County of Deschutes, ss: On , 1993, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be a partner of the partnership that executed the within instrument and acknowledged to me that such partnership executed the same. Notary Public for Oregon My Commission Expires STATE OF OREGON, County of Deschutes, ss: On , 1993, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be a partner of the partnership that executed the within instrument and acknowledged to me that such partnership executed the same. Notary Public for Oregon My Commission Expires 28 EXHIBIT "A" Lots One (1) through Forty-three (43), rights of way for private roads designated as Brian Drive, Joseph Court, Matthew Drive, and Pamela Drive, inclusive of GOLF COURSE ESTATES AT ASPEN LAKES, Deschutes County, Oregon. EXHIBIT "B" All of the following described property, or any division of, or new mapping thereof: (1) Tracts A and B, inclusive of GOLF COURSE ESTATES AT ASPEN LAKES, Deschutes County, Oregon; (2) Tracts A and B, inclusive of THE RIM AT ASPEN LAKES, Deschutes County, Oregon; (3) Lots One (1) through Ten (10) in Block Seven (7), Lots One (1) through Seven (7) in Block Eight (8), Lots One (1) through Fourteen (14) in Block Nine (9), inclusive of WILD HORSE MEADOWS, Deschutes County, Oregon; (4) any real property now owned or hereafter acquired by Declarant within One (1) mile of the perimeter boundary of the above described property. Such property, if not now owned, must be acquired within Ten (10) years of the date of recording of these restrictions. EXHIBIT "D" Rules of Arbitration 1. Claimant shall submit a Claim to arbitration under these Rules by giving written notice to all other Parties stating plainly and concisely the nature of the Claim, the remedy sought and Claimant's desire to submit the Claim to arbitration ("Arbitration Notice"). 2. Each Party shall select an arbitrator ("Party Appointed Arbitrator"). The Party appointed Arbitrators shall, by agreement, select one or two neutral arbitrators ("Neutral(s)") so that the total arbitration panel ("Panel") has an odd number of arbitrators. If any Party fails to appoint Party Appointed Arbitrator within 20 days from the date of the Arbitration Notice, the remaining arbitrators shall conduct the proceedings, selecting a Neutral in place of any missing Party Appointed Arbitrator. The Neutral arbitrator(s) shall select a chairperson ("Chair"). 3. If the Panel is not selected under Rule 2 within 45 days from the date of the Arbitration Notice, Claimant may notify the Oregon chapter of The Community Association Institute, which shall appoint one Neutral ("Appointed Neutral"), notifying the Appointed Neutral and all Parties in writing of such appointment. The Appointed Neutral shall thereafter be the sole arbitrator ("Arbitrator"), and any Party Appointed Arbitrators or their designees shall have no further duties involving the arbitration proceedings. 4. No person may serve as a Neutral in any arbitration under these Rules in which that person has any financial or personal interest in the result of the arbitration. Any person designated as a Neutral shall immediately disclose in writing to all Parties any circumstances likely to affect impartiality, including any bias or financial or personal interest in the outcome of the arbitration ("Bias Disclosure"). If any Party objects to the service of any Neutral after receipt of that Neutral's Bias Disclosure, such Neutral shall be replaced in the same manner in which that Neutral was selected. 5. The Arbitrator or Chair, as the case may be, ("Arbitrator") shall fix the date, time, and place for the hearing. The place of the hearing shall be within the Properties unless otherwise agreed by the Parties. hearings. 6. Any Party may be represented by an attorney or other authorized representative throughout the arbitration proceedings. 7. All persons who, in the judgement of the Arbitrator, have a direct interest in the arbitration are entitled to attend 8. There shall be no stenographic record of the proceedings. 9. The hearing shall be conducted in whatever manner will, in the Arbitrator's judgement, most fairly and expeditiously permit the full presentation of the evidence and arguments of the Parties. 10. The Parties may offer such evidence and material as is relevant to the Claim, and shall produce such additional evidence as the Arbitrator may deem necessary to reach an understanding and determination of the Claim. The Arbitrator shall be the sole judge of the relevance and materiality of any evidence offered, and conformity to the legal rules of evidence shall not be necessary. The Arbitrator shall be authorized, but not required, to administer oaths to witnesses. 11. The Arbitrator shall declare the hearings closed when satisfied the record is complete. 12. There will be no posthearing briefs. 13. The Award shall be rendered immediately following the close of the hearing, if possible, and no later than 14 days from the close of the hearing, unless otherwise agreed by the Parties. The Award shall be in writing, shall be signed by the Arbitrator and acknowledged before a notary public. If the Arbitrator believes an opinion is necessary, it shall be in summary form. 14. If there is more than one arbitrator, all decisions of the Panel and the Award shall be by majority vote. 15. Each Party agrees to accept as legal delivery of the Award the deposit of a true copy in the mail addressed to that Party or its attorney at the address communicated to the Arbitrator at the hearing. PROPERTY TAXES Paying on time is a taxing issue for a few local officials Most are up to date; city, county planning commissioners are among the exceptions By Hillary Bomid, Patrick Cliff, Scott Hammers and Cindy Powers The Bulletin ' Government officials in Des- chutes County are paying their property taxes on time, with a couple of small exceptions and one large one. A Bend planning commis- sioner owed about $3,000 until contacted by The Bulletin earlier this week, while one Deschutes County planning commissioner owes approximately $2,800 and another commissioner's compa- ny owes nearly $200,000, accord- ing to county property records. Deschutes County Planning Commissioner Keith Cyrus owed the most — $199,441 — pri- marily for property he owns through Wildhorse Meadows LLC. He owns 40 percent of the company, his daughter Pam Mitchell owns 20 percent and his son Matt Cyrus owns 40 percent, Matt Cyrus said. The property is Aspen Lakes Golf Course, which the Cyruses have said they want to convert to a destination resort, along with other land they own. The Bulletin examined the property tax records of city councilors, planning commis- sioners, county commissioners, city managers, the county ad- ministrator and other positions such as treasurer and justice of the peace. The search included companies owned by these pub- lic officials. The examination did not turn up any property tax delinquen- cies for officials in La Pine, Redmond or Sisters. See Taxes /A6 1416 Tuesday, June 29, 2010 •• THE BULLETIN Taxes Continued from Al Deschutes County collects tax- es owed to itself, as well as taxes for schools, cities, road districts, park districts, fire districts and other entities. Keith Cyrus said Friday he was unaware he owed so much in property taxes. Asked whether he was concerned that he owed a large amount, Cyrus said, "No." "I really don't know anything about that," he said. "That's not my end of the business." He referred questions about the tax delinquency to Matt Cyrus, who said his family has not paid the property taxes be- cause their golf course and de- velopment businesses have suf- fered financially for the past four years. "It's the nature of the develop- ment business," Matt Cyrus said. "There are a lot of assets that are subject to a lot of property taxes every year. It's normal business practice to let those ride in down years, and pay them up in good years." As for the benefit of not pay- ing those property taxes, Cyrus said it comes down to preserv- ing the cash flow for the family's businesses. Wildhorse Meadows defaulted on approximately $4.5 million in loans and interest secured to the golf course when it failed to make monthly payments from August 2009 through February, according to documents. PremierWest Bank began the foreclosure process in March and in addition to the loan prin- cipal and interest, the bank wants the Cyruses to, pay their delinquent taxes. The property is scheduled to go up for sale in late July, but Matt Cyrus said he has been working with the lender to obtain more time to repay the loan. "We're confident that won't be an issue," Cyrus said. The other Deschutes Counfy planning commissioner with un- paid property taxes is Ed Criss, who owes approximately $2,900, according to county property records. Criss said he has been unable to pay those taxes because the last year and a half have been difficult financially. "Just because I volunteer with the Planning Commission doesn't mean I'm wealthy," he said. "It's tough for a lot of folks, and it's tough for me." Criss added that he believes tax delinquencies are personal information on which it is in- appropriate for newspapers to report. Bend officials settle tax bills Among Bend city officials, only one had more than a nomi- nal property tax delinquency What happens to tax scofflaws Deschutes Courty property owners who fail to pay their property taxes are charged interest on the delinquent .amount The county begins forecjosure.:proceedings after threeypars' o tli of taxes go t tai. oouroei eentiutel County` Deputy Tait CotleC Qr Dave tinny COVER STORY when contacted by The Bulletin last week. Bend City Planning Commis- sioner Doug Knight had paid the majority of a $9,100 tax bill for a downtown property he plans to develop through one of his busi- nesses. But Knight said Tuesday that expenses for design consul- tants on the project held up his ability to pay the rest. "I have three years to pay," Knight said in response to ques- tions about the delinquency. While Deschutes County property owners can pay their taxes in installments, the taxes are considered delinquent when a payment is not made on time. When property taxes are three years delinquent, the county has the right to foreclose. County property records show Knight paid the balance of $3,119 on Wednesday. An inadvertent error left Bend City Manager Eric King unwit- tingly owing the county $5.40 on his 2009 property taxes. Rush- ing to pay the bill, King didn't realize the numerals in the box on his property tax check didn't match what was written out on the "amount" line. When he got a letter from the county noting the discrepancy, King paid the difference. Tax scofflaws face interest, fees Deschutes County charges interest on delinquent taxes and begins tax foreclosure after three years go unpaid, said Deputy Tax Collector Dave Lilley. "There really is no benefit to not paying," Lilley said. "The only reason to do that is if you don't have the funds to pay it, or if the cost of your funds else- where are higher than 9 percent or 16 percent." The county charges 16 percent interest on delinquent property taxes until the property goes into foreclosure, then it imposes a fee and switches to 9 percent interest on the amount in foreclosure. Property owners can avoid tax foreclosure by paying off one year of delinquent taxes annu- ally, to stay below the three-year limit. But once they are approxi- mately one month into tax fore- closure, their only option is to pay off the entire amourt, Lilley said. This year, the county will ini- tiate tax foreclosures against property owners who owe taxes going back to the 2006 tax year. Wildhorse Meadows' delin- quent taxes begin in 2007, so the Cyruses have a year before they would face tax foreclosu:^e. Hillary Borrud can be reached at 541-617-7829 or at hborrud@ bendbulletin.com. Patrick Cliff can be reached at 541-633-2161. Scott Hammers can be reached at 541-383-0387 or shammers@ bendbulletin.com. Cindy Powers can be reached at 541-617-7812 or at cpowers@bendbull?tin. corn. a,•88' •c 2 cd 0 cam. •��. �+°, ° r�S"•i • tu 4.▪ 1 ae;'c4 r •� -� cu o a 3QU : ) : I °. , . . . ti .,ti )> . c;.,C L ) II; ; ) i :_ia )1 " 1 C:3;) :0= , r ,t) I .. - i 41 6. ,y _ . . . n c 14 .) ; , a).• �5�i-'0a)ovi0a,cao )..a3 U�ca� o . ° a^� 0>-,-0 0 3 0 °0'007 0 0° o U �.o > 0 c 03 c`-,4.' •°c CI �.�:0 . i-4 a3.�.� ■ R. Mike Shirtciiff lives in Redmond. �30 0 Oaa, mIa �c� aO 0on 2 0 8 ai CaEoo'0 >,4[ 4,a,0ocaw 'Uoaa ca o� ildr c0 y_.O�^'°,o = OOC• cnaaa)..4zov)'ty�a0 vi = c. GL .� p ,.. 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