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Doc 714 - Improv Agrmt - Bolken Acres
Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of December 20, 2010 Please see directions for completing this document on the next page. DATE: December 16, 2010 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Board discussion and possible approval of Document No. 2010-714, an Improvement Agreement for the Roads and Utilities for the Bolken Acres subdivision plat. PUBLIC HEARING ON THIS DATE? No. BACKGROUND AND POLICY IMPLICATIONS: Olaf Bolken received approval of a 5 -lot subdivision in the Exclusive Farm Use Zone under Measures 37/49. His original design included a new local road connecting to Highway 97. The Oregon Department of Transportation has worked with Mr. Bolken to redesign the subdivision lots and have the access to the subdivision come from an extension of NW 12th Street in Terrebonne. Approval was granted by the County Planning Division for the redesigned subdivision. The road will be constructed by ODOT in 2011, and the applicant desires to record the subdivision plat prior to the road construction. An Improvement Agreement is thus needed to accomplish this. FISCAL IMPLICATIONS: None, except that the County will be receiving the funds for the road improvements from ODOT, and will be holding the funds until the road is completed. RECOMMENDATION & ACTION REQUESTED: Staff recommends that the Board approve the Improvement Agreement, subject to the money being deposited with the County for the road improvements. The Improvement Agreement and the subdivision plat will not be recorded until the money has been received. ATTENDANCE: Paul Blikstad, CDD DISTRIBUTION OF DOCUMENTS: The Improvement Agreement will be returned to the applicant, to be recorded with the Final Plat for the Bolken Acres subdivision. DESCHUTES COUNTY DOCUMENT SUMMARY (NOTE: This form is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board agenda, the Agenda Request Form is also required. If this form is not included with the document, the document will be returned to the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form electronically to the Board Secretary.) Please complete all sections above the Official Review line. Date: 12/15/10 Department: CDD Contractor/Supplier/Consultant Name: N/P Contractor Contact: N/AI Contractor Phone #: N/P Type of Document: Improvement Agreement for the Bolken Acres Subdivision. Goods and/or Services: N/A Background & History: Please reference agenda request form. Agreement Starting Date: 12/27/10 Ending Date: 12/27/11 Annual Value or Total Payment: ODOT is depositing funds with the County for the road improvements in the subdivision. ❑ Insurance Certificate Received check box) Insurance Expiration Date: Check all that apply: ❑ RFP, Solicitation or Bid Process ❑ Informal quotes (<$150K) ❑ Exempt from RFP, Solicitation or Bid Process (specify — see DCC §2.37) Funding Source: (Included in current budget? ❑ Yes ❑ No N/A If No, has budget amendment been submitted? ❑ Yes ❑ No Is this a Grant Agreement providing revenue to the County? ❑ Yes ® No Special conditions attached to this grant: Deadlines for reporting to the grantor: If a new FTE will be hired with grant funds, confirm that Personnel has been notified that it is a grant -funded position so that this will be noted in the offer letter: ❑ Yes ❑ No Contact information for the person responsible for grant compliance: Name: Phone #: 12/17/2010 Departmental Contact and Title: Paul Blikstad Phone #: x 6554 Department Director Approval: Signature Date Distribution of Document: Who gets the original document and/or copies after it has been signed? Include complete information if the document is to be mailed. The applicant (Mr. Bolken) will be required to record the Improvement Agreement with the final approved plat. Official Review: County Signature Required (check one): El BOCC El Department Director (if <$25K) El Administrator (if >$25K but <$150K; if >$150K, BOCC Order No. ) Legal Review Date Document Number 2010-714 12/17/2010 REVIEWED LEGAL COUNSEL For Recordin• Stam• On After Recording Return to: Deschutes County Community Development Department 147 NW Lafayette Street Bend, OR 97701 IMPROVEMENT AGREEMENT (Roads and Utilities) This Improvement Agreement (Agreement), relating to the construction and installation of certain required improvements (the "Roads and Utilities Required Improvements," as defined below in Section 4) for the Bolken Acres subdivision, ("Subdivision"), as required in the subdivision approval in File # TP-07-1000/MC-10-2 ("Tentative Plat"), by and between DESCHUTES COUNTY, OREGON, a political subdivision of the State of Oregon, ("County"), and Olaf and Jannis Bolken (together "Owner"). RECITALS: WHEREAS, Owner is the subdivider of the Subdivision in the approval granted under TP-07-1000/MC-10-2; and WHEREAS, the Roads and Utilities Required Improvements required under the approval have not been completed; and WHEREAS, Owner has filed an application for a final subdivision plat for the subdivision, File No. FPA 10-13, prior to the completion of the Roads and Utilities Required Improvements; and WHEREAS, Deschutes County Code (DCC) Section 17.24.120 provides that Owner may, in lieu of completing Roads and Utilities Required Improvements, enter into an agreement with the County for the completion of the Roads and Utilities Required Improvements and provide a good and sufficient form of security, to provide for the completion of the Roads and Utilities Required Improvements; and WHEREAS, this Agreement is contingent upon the recording of the Subdivision Final Plat approved in File No. FPA -10-13 and that plat stating that it is subject to this agreement; and WHEREAS, Roads and Utilities Required Improvements under this Agreement do not constitute a Public Improvement as the term is defined in ORS 279A.010(1)(cc); and WHEREAS, the subdivision approval in The real property subject to this Agreement, hereinafter the "Subdivision real property" is described on the attached Exhibit "A" is exempt from ORS 92.305 to 92.945 for the reason that the County's Comprehensive Land Use Plan and implementing ordinances are acknowledged under ORS 197.251; now, therefore, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES above mentioned, for and in consideration of the mutual promise hereinafter stated, as follows: Page 1 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 DC 2010 n 7 1. 4 1 Recitals. The Recitals to this Agreement set forth above are hereby incorporated herein as if fully set out, shall constitute contractual provisions and are not mere recitals. 2. Real Property Description. The real property subject to this Agreement, hereinafter the "Subdivision real property" is described on the attached Exhibit "A". 3. Exhibits. The exhibits listed below and attached to the Agreement are hereby incorporated herein by reference: 3.1. Exhibit A — Legal description of Real Property. 3.2. Exhibit B -- List of Roads and Utilities Required Improvements and cost estimates — submitted by the Oregon Department of Transportation. 3.3. Exhibit C — Deschutes County Tentative Plat Approval Notice of Decision, File Nos. MC-10-2/TP-07-1000/RD-10-1. The real property subject to this Agreement, hereinafter the "Subdivision real property" is described on the attached Exhibit 3.4. Exhibit E — Intergovernmental Agreement - Deschutes County and the Oregon Department of Transportation. 4. Identification of Roads and Utilities Required Improvements. 4.1. Owner shall install and complete, or cause to be installed and completed, the improvements listed in Exhibit B and required by the land use approval in set forth in Exhibit C to the extent that same remain to be completed ("Roads and Utilities Required Improvements"). 4.2. These improvements consist of roads, utilities and other necessary facilities referred to in this agreement as "Roads and Utilities Required Improvements." 4.3. The final plat shall note and be subject to this Agreement. 5. Construction of Roads and Utilities Required Improvements. 5.1. The Roads and Utilities Required Improvements shall be installed and completed in accordance with the plans and construction specifications related thereto and to any additional County and/or State of Oregon specifications. 5.2. Owner shall promptly repair any damage to existing and new facilities, within and without the Real Property, which occurs during installation of the Roads and Utilities Required Improvements. 5.3. Owner shall cause the Required Improvement to be inspected by and receive final written construction approval from County and/or the State of Oregon not Tater than one (1) year from the recording of the Subdivision Final Plat in File No. FPA -10-13 ("Completion Date"). 6. Warranty of Improvements. Page 2 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 6.1. Owner hereby warrants that the Roads and Utilities Required Improvements shall remain free from defects in materials or workmanship and that the Roads and Utilities Required Improvements continue to meet County and/or State of Oregon standards for twelve (12) months following the Completion Date and any corrections ("Warranty Period"). 6.2. Upon completion and approval of any portion of the Roads and Utilities Required Improvements, Owner shall obtain a bond or other security in favor of, and reasonably acceptable to, the County in the amount of ten -percent (10%) of the construction costs of such improvements to secure the warranty obligations under this Section. 7. License to Enter and Remain on Property. 7.1. Owner hereby grants County and County's employees, engineers, consultants, agents, contractors, subcontractors and suppliers license to come onto and remain on the Real Property as necessary to make inspections of the Roads and Utilities Required Improvements. 7.2. If County determines that any portion of the Roads and Utilities Required Improvements have not been completed to County's satisfaction by the Completion Date, County or its employees, engineers, consultants, agents, contractors, subcontractors and suppliers may enter onto and remain on the Real Property and may cause the applicable portion of the Roads and Utilities Required Improvements to be installed and completed. 8. Right to Draw on Security. 8.1. Upon failure of the Owner to complete the Roads and Utilities Required Improvements to County's satisfaction by the Completion Date, County shall notify Owner in writing of such failure. 8.1.1. Owner shall then have thirty (30) days to complete the Roads and Utilities Required Improvements or that portion which is incomplete or unsatisfactory. 8.1.4. Should Owner fail to complete the Roads and Utilities Required Improvements within the time period referred to in Section 8.1.1., then County may cause incomplete or unsatisfactory Roads and Utilities Required Improvements to be completed. 8.1.5. If County completes the Roads and Utilities Required Improvements, County may draw upon the Security for any and all costs and expenses anticipated or incurred by County, as determined by County in the completion of the Roads and Utilities Required Improvements. 8.2. For the purposes of this Agreement and access to any security offered and accepted to secure Owner's performance, Owner's failure to complete the Roads and Utilities Required Improvements shall include failure to install or have installed any portion of the Roads and Utilities Required Improvements to County specifications, approved plans or applicable building specialty codes and failure to complete any required inspections by the Completion Date. Page 3 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 9. No County Guarantee. County does not guarantee that any of the Roads and Utilities Required Improvements referred to in this Agreement will be constructed, maintained or operated. 10. License to Use Permits, Specifications and Plans. 10.1. If County determines that any portion of the Roads and Utilities Required Improvements have not been satisfactorily completed as specified by the applicable Completion Date, Owner shall, upon request of the County, license and assign to County all of Owner's, applicable Permits, plans, specifications, shop drawings, instruments, permits and approvals, and other documents necessary or useful in the completion of or related in any manner to the applicable Roads and Utilities Required Improvements. 10.2. Owner shall be responsible for providing within any contracts for supply of labor and materials used in connection with constructing Roads and Utilities Required Improvements, that such contract rights are assignable by Owner. 10.3. Upon such request, Owner shall deliver physical possession of such Permits, plans, specifications, shop drawings, instruments, permits, approvals, and other documents to the County. 10.4. County may sub -assign or license the rights referred to in this Section 10 for any purpose without further approval from Owner. 11. No Third Party Beneficiaries. 11.1. County and Owner are the only parties to this Agreement and are the only parties entitled to enforce its terms. 11.2. Nothing in this Agreement gives or provides any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name in this Agreement and expressly described as intended beneficiaries of this Agreement. 12. Restoration of Monuments. Owner shall restore any monument erected or used for the purpose of designating a survey marker or boundary of any town, tract, plat or parcel of land which monument is broken, damaged, removed or destroyed, during the course of work provided for or anticipated by this Agreement, whether intentional or otherwise, by the Owner or Owner's agents, employees or independent contractors. 13. Costs of Inspection. Owner shall pay to County the actual costs incurred by County in the inspection of the completed Roads and Utilities Required Improvements plus any fees, such as plan check fees and structural, electrical, plumbing and other specialty codes inspection fees normally associated with the review and inspection of any improvements on the Real Property. 14. Security for Roads and Utilities Required Improvements. Page 4 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 14.1. Owner shall provide a cashier's check deposited with the County Treasurer in the amount of Six Hundred Eighty Thousand Dollars ($680,000). attached hereto as Exhibit D (the "Security"). 14.2. The amount of the Security represents one hundred and twenty percent (120%) of the estimated costs, as set forth in Exhibit B, of completing the Roads and Utilities Required Improvements to County standards, as applicable. 15. Owner's Obligation For Costs. 15.1. Owner expressly acknowledges, understands, and agrees that this Agreement shall not relieve Owner from the obligation to complete and fully pay for the Roads and Utilities Required Improvements and other costs and fees set forth in this Agreement. 15.2. Should Owner fail to perform its responsibilities under this Agreement in any manner, Owner agrees to compensate County for all costs related to Owner's failure to perform its obligation to complete and warrant the Roads and Utilities Required Improvements and pay costs and fees. 16. Release of Security or Obligation. 16.1. After the Roads and Utilities Required Improvements have been inspected and approved by the County, County shall release the Bond or other security within fifteen (15) calendar days provided Owner has procured the warranty security required pursuant to Section 6 of this Agreement. 16.2. In addition, the County may release portions of the security when appropriate. 16.3. Upon written request of Owner, County may release any of Owner's obligations under the terms and conditions of this Agreement in writing upon Owner's completion and County inspection and approval of any portion of the Roads and Utilities Required Improvements, provided County, in its sole discretion, determines that adequate security remains in place for Owner completion of Roads and Utilities Required Improvements in accordance with this agreement. 16.4. County's partial release of any portion of the Security shall not be construed as a waiver of County's right to require full compliance with this Agreement and Owner's obligation to satisfy any costs and expenses incurred in completion of the Roads and Utilities Required Improvements. 16.5. If Owner has not yet obtained a bond or other security to guaranty its warranty obligations pursuant to Section 6, then County Treasurer shall withhold from such funds an amount equal to ten percent (10%) of the construction costs of completing the Roads and Utilities Required Improvements. 17. Shortfall in Security. 17.1. If the amount available to be drawn from the Security is less than the costs and expenses anticipated to be incurred, or actually incurred, by County, County may apply the proceeds of the Security to the anticipated or actual costs and expenses of completion of the Roads and Utilities Required Improvements Page 5 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 17.2. Owner shall be responsible and liable for the difference between the anticipated or actual costs and expenses of completion and the amount of the remaining security. 18. Incidental Costs. Without limiting the generality of the foregoing, if upon County's written notice to Surety of Owner's failure to complete Roads and Utilities Required Improvements, the proceeds of the Security are not remitted to County within ten (10) days of demand for funds by the County, or the Roads and Utilities Required Improvements is not installed within a reasonable time period determined by County after notice to the Surety, then County's costs of obtaining the proceeds of the surety Security and/or completing the Roads and Utilities Required Improvements and all incidental costs to the extent not covered by the Security, shall be added to the amount due County from the Owner, and shall be paid to County by Owner, in addition to and with all other amounts due hereunder. 19. Substandard Improvements. 19.1. Should the Roads and Utilities Required Improvements prove to be substandard or defective within the twelve (12) month warranty period in Section 6 of this Agreement, County shall notify Owner and/or the Surety of the warranty obligation in writing of such substandard or defective Roads and Utilities Required Improvements. 19.2. Owner and/or the Surety shall then have sixty (60) days to complete repair or replacement of the Roads and Utilities Required Improvements. 19.3. In the event that the repair or replacement per Section 19.1. cannot reasonably be completed within sixty (60) days, then the same shall be extended by such period of time as is reasonably necessary so long as Owner and/or the Surety promptly commence and thereafter diligently prosecute such repair or replacement. 19.4. Should Owner and/or the Surety fail to complete repair or replacement of the Roads and Utilities Required Improvements within the required time period, County may remedy the defects and demand payment for such from Owner and/or the Surety. 20. Successors in Interest. 20.1. The original of this Agreement shall be recorded with the Deschutes County Clerk and shall be a condition and covenant that shall run with the Real Property. 20.2. It is the intent of the parties that the provisions of this Agreement shall be binding upon the parties to this Agreement, and subject to the terms contained in Section 21, their respective successors, heirs, executors, administrators, and assigns, and any other party deriving any right, title or interest in or to the Real Property, including any person who holds such interest as security for the payment of any obligation, including a mortgagee or other secured party in actual possession of said Real Property by foreclosure or otherwise or any person taking title from such security holder. Page 6 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 20.3. Upon completion of the Roads and Utilities Required Improvements, and the expiration of the Warranty Period, County, upon request by Owner or any person or persons owning a lot in the Tentative Plat, shall release a lot from the condition and covenant subsisting under this Agreement. 21. Residential Lot Purchasers. Notwithstanding the terms of Section 20, the terms of this Section shall apply to each residential lot ("Residential Lot") created from the Real Property or platted in the subdivision and sold or transferred to a third party (each such buyer or transferee and his or her successors and assigns is a "Residential Buyer") and: 21.1. Each such Residential Lot is conveyed free of any obligation to pay money or complete the Roads and Utilities Required Improvements that may arise out of this Agreement; 21.2. Each Residential Buyer or Transferee is under no obligation or burden to complete the terms and conditions of this Agreement; 21.3. The recordation of this Agreement is for the purpose of putting Residential Buyer or Transferee on notice of the Agreement's terms and that the County has no obligation to construct the Roads and Utilities Required Improvements or any portion of the Roads and Utilities Required Improvements nor does the Agreement in anyway guarantee that any of the Roads and Utilities Required Improvements will be constructed; and 21.4. The Agreement conveys no right or right of action by any Residential Buyer or Transferee against the County for any act or omission of the County, including but not limited to, the County decisions or acts which result in the Roads and Utilities Required Improvements, or any part of the Roads and Utilities Required Improvements, not being constructed. 22. Binding Authorization. By signature on this Agreement, each signatory, signing in a representative, capacity certifies that the signer is authorized to sign the Agreement on behalf of and bind the signer's principal. 23. Expiration. 23.1. Unless otherwise extended, this Agreement shall expire at the conclusion of the Warranty Period or upon expiration of the Permits, whichever is earlier, or by the express written release of Owner by County from this Agreement granted as part of an approval for a change of use of the Real Property. 23.2. Upon expiration, County shall provide Owner with a document in recordable form, formally evidencing such expiration and the parties agree to execute such document with fourteen (14) days of receipt of such document by the other party. 24. Survival. County's rights under this Agreement, including County's right to draw upon Owner's security in whole or in part to pay the full costs and expenses of completing the Roads and Utilities Required Improvements and repairs or replacements required herein along with any licenses granted in this Agreement and any costs of enforcement of this Agreement, shall survive the expiration of this Agreement. 25. No Agency. Page 7 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 25.1. It is agreed by and between the parties that Owner is not carrying out a function on behalf of County, and County does not have the right of direction or control of the manner in which Owner completes performance under this Agreement nor does County have a right to exercise any control over the activities of the Owner. 25.2. Owner is not an officer, employee or agent of County as those terms are used in ORS 30.265. 26. No Joint Venture or Partnership. County is not, by virtue of this Agreement, a partner or joint venturer with Owner in connection with the Site plan or the Real Property, and shall have no obligation with respect to Owner's debts or other liabilities of each and every nature. 27. Liens. 27.1. Owner shall pay as due all claims for work done on and for services rendered or material furnished to the Real Property and shall keep the Real Property free from liens. 27.2. If Owner fails to pay any such claims or to discharge any lien, County may do so and collect the cost from the Owner or Surety. 27.3. Such action by County shall not constitute a waiver of any right or remedy that County may have on account of Owner's failure to complete the Roads and Utilities Required Improvements or failure to observe the terms of this Agreement. 28. Indemnification. Owner shall be responsible for any and all injury to any and all persons or property caused directly or indirectly by reason of any and all activities of Owner under this Agreement and on the Real Property; and further agrees to defend, indemnify and save harmless County, its officers, agents and employees from and against all claims, suits, actions, damages, costs, losses and expenses in any manner resulting from, arising out of, or connected with any such injury. 29. Limitation of Liability. This Agreement is subject to the Oregon Tort Claims Act, ORS 30.260 to 30.300. 30. Attorney Fees and Costs. In the event an action or suit or proceeding, including appeal therefrom, is brought by any party arising directly and/or indirectly out of the provisions of this agreement or the interpretation thereof, for Owner's failure to complete the Roads and Utilities Required Improvements or to observe any of the terms of this Agreement or the interpretation thereof, County shall be entitled to recover, in addition to other sums or performances due under this Agreement, reasonable attorney's fees and costs as the court may adjudge in said action, suit, proceeding or appeal. 31. Waiver. 31.1. Waiver of the strict performance of any provision of this Agreement shall not constitute the waiver of any other provision or of the Agreement. Page 8 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 31.2. No waiver may be enforced against the County unless such waiver is in writing and signed by the County. 32. Compliance with provisions, requirements of Federal and State laws, statutes, rules, regulations, executive orders and policies. Debt Limitation. 32.1. This Agreement is expressly subject to the debt limitation of Oregon counties set forth in Article XI, Section 10, of the Oregon Constitution. 32.2. Any provisions herein, which would conflict with the law, are deemed inoperative to that extent. 32.3. Additionally, Owner shall comply with any requirements, conditions or limitations arising under the any Federal or State law, statute, rule, regulation, executive order and policy applicable to the Roads and Utilities Required Improvements. 32.4. If this Agreement is in any manner construed to constitute the lending of the County's credit or constitute a debt of County in violation of Article XI, Section 10, of the Oregon Constitution, this Agreement shall be void. 33. No Inducement. No representations, statements, warranties have induced the making and execution of this Agreement, or Agreements other than those herein expressed. 34. Governing Law. 34.1. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. 34.2. Any claim, action, suit or proceeding (collectively, "Claim") between County and Owner that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Deschutes County for the State of Oregon; provided, however, if a Claim shall be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon in Eugene, Oregon. 34.3. TD Cascade Highlands, LLC by signing below, hereby consent to the in personam jurisdiction of said courts. The parties agree that the UN Convention on International Sales of Goods shall not apply. 35. Severability. If any term or provision of this Agreement is declared by a court of competent jurisdiction to be void, invalid or unenforceable, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular term or provision held void, invalid unenforceable. 36. Counterparts. 36.1. This Agreement may be executed in several counterparts, all of which when taken together shall constitute one Agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. 36.2. Each copy of this Agreement so executed shall constitute on original. Page 9 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 36.3. If this Agreement is signed in counterpart, each counterpart shall be recorded as provided herein for the recording of this Agreement and each counterpart shall be noted on the recorded plat map. 37. Notice. 37.1. Expect as otherwise expressly provided in this Agreement, any communications between the parties hereto or notices to be given hereunder shall be given in writing to Owner or County at the address or number set forth below or to such other addresses or numbers as either party may hereafter indicate in writing. 37.2. Delivery may be by personal delivery, facsimile, or mailing the same, postage prepaid. 37.3. Communication or notice by personal delivery shall be deemed delivered when actually given to the designated person or representative. 37.4. Any communication or notice sent by facsimile shall be deemed delivered when the transmitting machine generates receipt of the transmission. To be effective against County, such facsimile transmission shall be confirmed by telephone notice to County's Director of Administrative Services. 37.5. Any communication or notice mailed shall be deemed delivered five (5) days after mailing. Any notice under this Agreement shall be mailed by first class postage or delivered as follows: To Owner: Olaf Bolken 9721 N. Highway 97 Terrebonne, Oregon 97760 To County: County Administrator Deschutes County Administration 1300 NW Wall Street, Ste 200 Bend, Oregon 97701 Fax No. 541-388-4752 38. Time is of the Essence. Time is of the essence of each and every provision of this Agreement. 39. Captions. 39.1. The captions contained in this Agreement were inserted for the convenience of reference only. 39.2. Captions do not, in any manner, define, limit, or describe the provisions of this Agreement or the intentions of the parties. 40. Merger Clause. 40.1. This Agreement and the attached exhibits constitute the entire agreement between the parties and supersede any and all prior or contemporaneous negotiations and/or agreements among the parties, whether written or oral, Page 10 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 concerning the subject matters of this Agreement which are not fully expressed herein. 40.2. All understandings and agreements between the parties and representations by either party concerning this Agreement are contained in this Agreement. 40.3. This Agreement shall bind all parties and its terms may not be waived, altered, modified, supplemented, or amended in any manner except by written instrument signed by all parties. 40.4. Except as otherwise expressly provided herein, any written waiver, consent, modification or change shall be effective only when in writing and signed by the parties in the specific instance and for the specific purpose given. [SIGNATURES CONTINUED ON NEXT PAGE] Page 11 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 DATED this _ day of , 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, Chair ATTEST: ALAN UNGER, Vice -Chair Recording Secretary STATE OF OREGON County of Deschutes ) ss TAMMY BANEY, Commissioner Before me, a Notary Public, personally appeared DENNIS R. LUKE, ALAN UNGER and TAMMY BANEY the above-named Board of County Commissioners of Deschutes County, Oregon and acknowledged the foregoing instrument on behalf of Deschutes County, Oregon. DATED this day of , 2010 Notary Public, State of Oregon My Commission Expires: DEVELOPER: OLAF AND JANNIS BOLKEN Dated this of , 2010 Olaf Bolken Jannis Bolken STATE OF OREGON, County of Deschutes ) ss. Before me, a Notary Public, personally appeared Olaf and Jannis Bolken and acknowledged the foregoing instrument as Developer for Bolken Acres. DATED this day of , 2010. Notary Public, State of Oregon My Commission Expires: Page 12 of 12 — Bolken Roads and Utilities Improvement Agreement — Deschutes County Document No. 2010-714 EXHIBIT A PROPERTY DESCRIPTION: A PARCEL OF LAND LOCATED IN THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE 1/4 SW 1/4) OF SECTION 9, TOWNSHIP 14 SOUTH, RANGE 13 EAST WILLAMETTE MERIDIAN, DESCHUTES COUNTY, OREGON DESCRIBED AS FOLLOWS: BEGINNING AT THE INITIAL POINT, BEING A 5/8" X 30" IRON ROD WITH YELLOW PLASTIC CAP MARKED "KERN LS 1081" AT THE SOUTHWEST CORNER OF SAID SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE 1/4 SW '/4) OF SECTION 9; THENCE N 00 04'33" E, ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE '/4 SW 1/4) OF SECTION 9, A DISTANCE OF 1308.57 FEET TO THE NORTHWEST CORNER THEREOF; THEN N 89 58'55" E, ALONG THE NORTH LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE 1/4 SW 1/4) OF SECTION 9, A DISTANCE OF 1287.59 FEET TO THE WESTERLY RIGHT-OF- WAY LINE OF THE DALLES-CALIFORNIA HIGHWAY 97; THENCE S 00 02'57" W, ALONG SAID WESTERLY RIGHT-OF-WAY LINE, 893.22 FEET; THENCE N 89 59'20" W, PARALLEL WITH THE SOUTH LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE '/4 SW '/4) OF SECTION 9, AND 416.00 FEET NORTHERLY THEREFROM, 763.62 FEET; THENCE S 00 08'36" W, 416 FEET TO SAID SOUTH LINE OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE 1/4 SW 1/4) OF SECTION 9; THENCE N 89 59'20" W, ALONG SAID SOUTH LINE, 523.90 FEET TO THE TRUE POING OF BEGINNING. CONTAINING 31.4 ACRES MORE OR LESS EXHIBIT B Estimate 17211 Estimated Cost:$221,585.22 Contingency: 3.50% Estimated Total: $229,340.70 US97 CROOKED RIVER BR-REDMOND UNIT 2 (12TH ST EXT) Base Date: 11/08/10 Spec Year: 08 Unit System: E Work Type: ASPHALT Highway Type: ASPHALT Urban/Rural Type: URBANIZED Season: SUMMER County: DESCHUTES Midpoint of Latitude: 442149 Midpoint of Longitude: 1211052 District: 4 Federal/State Project Number: Estimate Type: Advance Prepared by Brian Paslay on 11/08/10 Checked by Allen Hart on 11/29/10 Estimate: 17211 Line # Item Number Description Supplemental Description Quantity Units Unit Price Group 0200: TEMPORARY FEATURES AND APPURTENANCES 0010 0210-0100000A 1,000 = LS - $16,757.17120 MOBILIZATION 0020 0225-0100000A 1.000 LS $1,969.64640 TEMPORARY PROTECTION AND DIRECTION OF TRAFFIC 0030 0280-0100000A` 1.000. LS ;$800.00000; EROSION CONTROL 0040 0290-0100000A POLLUTION CONTROL PLAN Group 0300: ROADWORK 0050; 0305=0100000A CONSTRUCTION SURVEY WORK 0060 0310-0103000J REMOVAL OF SURFACINGS 0070 0310-0106000A REMOVAL OF STRUCTURES AND 0080 0320-0100000A CLEARING AND GRUBBING 0090 ` 0330.0101000K. DITCH EXCAVATION 0100 0330-0123000K EMBANKMENT IN PLACE 0110 0331-0108000) 15 INCH SURGRADE STABILIZATION 16 INCH SUBGRADE STABILIZATION 0120 0340-01000000 WATERING 0130 030105000) SUBGRADE GEOTEXTII_E 0140 0390-0139000E RIPRAP BASINS 1.000 LS 1.000 $500.00000 110.000 SQYD Extension $15,757.17 $1,969.65 $800.00 $500.00 Total for Group 0200:$19,026.82 5,908.93920 $15.00000 OBSTRUCTIO 1:000 NS L$ $984;82320 $3,000.00000 $35.00000 $16.00000 2.700 ACRE 9,000 CUYD 2,100.000 CUYD 50.000 MGAL $25.00000 6,100.000. SIYD .45000 $5,908.94 $1,650.00 $984.82 $8,100.00 $315.00 $33,600.00 $4,500.00 $1,250.00 ,845.00 $700.00 Total for Group 0300:$65,853.76 1.000 EACH $700.00000 Group 0400: DRAINAGE AND SEWERS 0150 0445=052008AF 8 INCH PVC PIPE, 5 FT DEPTH 0160 0445-052012AF 12 INCH PVC PIPE, 5 FT DEPTH 0170 0445-060018AF : 40.000 18 INCH DUCTILE IRON PIPE,'5 FT DEPTH. 4.000. FOOT :; $27.46000 30.000 FOOT $44.00000 Group 0600: BASES 0180 0640-0100000M AGGREGATE BASE FOOT $75.00000 2,900.000 TON $17.00000 Group 0700: WEARING SURFACES 0190 0745-0222000M 760.000 TON LEVEL 2.1/2:INCH'DENSE LIME TREATED HMAC 10:13:05AM Monday, November 29, 2010 $2,306.64 $1,320.00 $3,000.00 Total for Group 0400:$6,626.64 $49,300.00 Total for Group 0600:$49,300.00 :00000 $44,080.00 Page 2 of 3 Estimate: 17211 Line # Item Number Description Supplemental Description 0200 0745-0622000M PG 64-28 ASPHALT IN HMAC 0210 0749.0100000E 10:000 EACH '$200,00000 EXTRA FOR ASPHALT APPROACHES' Quantity Units Unit Price 48.000 TON $630.00000 Extension $30,240.00 $2,000,00 Total for Group 0700:$76,320.00 Group 0800: PERMANENT TRAFFIC SAFETY AND GUIDANCE DEVICES 0220 0840-0102000E 24.000 EACH $38.00000 DELINEATORS, TYPE 2 $912.00 Total for Group 0800:$912.00 Group 0900: PERMANENT TRAFFIC CONTROL AND ILLUMINATION SYSTEMS 0230 0905-0100000A 1.000 LS $50.00000 $50:00 REMOVE EXISTING SIGNS 0240 0910-0100000K 120.000 FBM $8.00000 $960.00 WOOD SIGN POSTS 0250 0940-0134000J 22.000 SOFT - $18.00000 $396.00 TYPE "Y1" SIGNS IN PLACE Total for Group 0900:$1,406.00 Group 1000: RIGHT-OF-WAY DEVELOPMENT AND CONTROL 0260 1030-0108000R PERMANENT SEEDING 0270 ` 1070-0.02000E : 2,000 ..EACH $120.00000 MAILBOX CONCRETE COLLARS 0280 1070-0103000E 2.000 EACH $200.00000 REMOVE AND REINSTALL MAILBOX SUPPORTS 0.500 ACRE $3,000.00000 Group 9800: -- CONSTRUCTION ENGINEERING -- $1,500.00 $240.00 $400.00 Total for Group 1000:$2,140.00 0290 9000-0000150A 0:000 LS $19,696.46400.. • ENGINEERING $0.00 Total for Group 9800:$0.00 10:13:05AM Monday, November 29, 2010 Page 3 of 3 ......................... EXHIBIT C Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ NOTICE OF DECISION The Deschutes County Planning Division has approved the land use applications described below: FILE NUMBERS: MC-10-2/RD-10-1 LOCATION: 9721 N. Highway 97, Terrebonne; County Assessor's map 14-13- 9, tax lot 1400 for the Bolken property; and 9720 and 9491 NW 12th Street for the property identified on County Assessor's map 14-13-16, as tax Tots 101 and 106. APPLICANT: Olaf and Janis Bolken for the Modification, and the Oregon Department of Transportation for the Road Dedication SUBJECT: The Deschutes County Planning Division has approved a Modification to an approved tentative plat (TP -07-1000) for a 5 - lot subdivision on a 31.4 -acre parcel in the Exclusive Farm Use Zone (EFU-TE), to allow a revised road location and lot configuration. Additionally, a Road Dedication for an extension of NW 12th Street from it's current location to the south boundary of the Bolken property has been approved. STAFF CONTACT: Paul Blikstad, Senior Planner (541) 388-6554; Email address: paulb@co.deschutes.or.us APPLICABLE CRITERIA: These applications were reviewed for compliance against criteria contained in sections 18.66.030, 18.66.070, and 18.116.230 of Title 18 of the Deschutes County Code (DCC), the Deschutes County Zoning Ordinance, and sections 17.08.030, 17.16.080, 17.16.100, 17.16.105, 17.16.115, 17.36.020, 17.36.040, 17.36.060, 17.36.070, 17.36.080, 17.36.100, 17.36.110, 17.36.120, 17.36.130, 17.36.140, 17.36.150, 17.36.160, 17.36.170, 17.36.180, 17.36.190, 17.36.200, 17.36.210, 17.36.220, 17.36.260, 17.36.280, 17.36.290, 17.44.010, 17.44.020, 17.48.050, 17.48.100, 17.48.130, 17.48.160, 17.52.010, 17.52.030, 17.52.040, 17.52.050, 17.52.060, 17.52.090 and 17.52.100 of Title 17 of the Deschutes County Code, the County Subdivision/Partition Ordinance, as well as against the procedural requirements of Title 22 of the DCC, including Chapter 22.36, Limitation on Approvals, section 22.36.040, Modification of Approval. DECISION: Staff finds that the applications satisfy all applicable criteria, and approval is being granted subject to the following conditions: Quality Services Performed with Pride 1. Approval is based upon the creation of five (5) lots in the modified plan submitted. Any substantial change to the approved plan shall require a new application. The final plat review and road dedication shall require up-to-date title reports. All persons with an ownership interest in the Bolken property, and in the road dedication properties, shall sign the final plat (or consent to subdivision) or the road dedications. 2. The applicant shall obtain a site evaluation for each undeveloped lot from the Deschutes County Environmental Health Division prior to final plat approval. Any septic permit required for the developed lots as part of the subdivision shall be completed prior to final plat approval. 3. The dwellings shall be limited to 30 feet in overall height, unless a height exception is approved under section 18.120.040 of Title 18. 4. The applicant shall have a licensed surveyor prepare a subdivision plat that conforms to Oregon Revised Statutes Chapter 92 and Title 17 of the Deschutes County Code. The final plat shall show the exact sizes for each lot. 5. The final plat shall be in compliance with the criteria of Central Oregon Irrigation District regarding easements, removal of water rights or approval of a Developer Irrigation Plan (DIP). The final plat shall contain a statement of water rights and be signed by an authorized representative from the irrigation district. 6. All ad valorem taxes, fees and other charges that have become a lien upon the entire parcel shall be paid. The final plat shall be signed by the County Assessor and County Tax Collector. 7. All easements of record shall be shown on the final plat. 8. The applicant (Bolken) shall be required to provide a 60 foot wide dedicated public right - of way from the south property line to the north property line. This dedication shall include any areas for the turnaround locations that require approval by the Redmond Fire Department at the north end of the property. 9. The applicant/property owner (Bolken) shall sign and record the waiver listed under DCC 18.16.050 for adjacent farm and forest uses, prior to final plat approval. 10. The subdivision name shall require review and approval by the County Surveyor. 11. The road name shall be NW 12th Street, and be included on the final plat. 12. The front yard and rear yard setback distances shall be a minimum of 50 feet in accordance with the criteria of PL -2. Side yard setbacks distances shall meet the minimum setbacks under section 18.16.070, excluding the 100 -foot setback for nonfarm dwellings adjacent to farm use. 13. All lot frontage distances shall be a minimum of 150 feet. 14. The applicant will be required to provide for any signage required as a result of this application. MC-10-2/RD-10-1 Page 2 of 4 15. The applicant shall construct all road improvements under the inspection and approval of the Deschutes County Road Department Director. The director may accept certification of improvements by a professional engineer consistent with ORS 92.097. 16. Road design and construction shall be in accordance with Deschutes County Code Chapter 17.48. All road construction plans shall be approved by the County Road Department prior to commencement of construction. 17. The applicant (Bolken) shall be responsible for the maintenance of NW 12' Street within the subdivision. The applicant shall record a Road Maintenance Agreement (RMA) with the County Clerk outlining the maintenance responsibilities for NW 12' Street. 18. The domestic water system for the subdivision shall be provided by drilled wells or a community water system. The applicant shall provide written authorization and approval from the State Health Department and Watermaster District 11 for any proposed community water system and submit the written document to the Planning Department prior to issuance of any building permits. 19. Prior to final plat approval, the applicant shall obtain documentation from telephone and electrical power providers serving the subject property detailing what, if any, utility easements existing or will be required on the subject property. All required and existing easements must be shown on the final plat. 20. Prior to final plat approval, the applicant shall provide written documentation to the Planning Department that the Redmond Fire District #1 has inspected and approved the cul de sac length and turnaround construction for the NW 12' Street extension. 21. Prior to issuance of a building permit for a new single-family dwelling on Lots 3, 4 or 5, the applicant shall provide written documentation to the Planning Department that the Redmond Fire District #1 has approved any onsite water supply or residential sprinklers for fire flow in accordance with NFPA 1142. CONDITION OF APPROVAL — ROAD DEDICATION 22. The right-of-way for the NW 12" Street extension though lots 1 and 5 of the Crawford's Corner subdivision, and the road construction for this right of way, shall be completed prior to final plat approval of the subdivition. This land use permit shall be subject to the timeline established under TP -07-1000. This decision becomes final twelve (12) days after the date mailed, unless appealed by a party of interest. To appeal, it is necessary to submit a Notice of Appeal, the appeal fee of $250.00 and a statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue. Copies of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost. Copies can be purchased for 25 cents per page. MC-10-2/RD-10-1 Page 3 of 4 EXHIBIT E Misc. Contracts & Agreements No. 27055 INTERGOVERNMENTAL AGREEMENT US97: Crooked River Br -Redmond Unit 2 (12th Street) Deschutes County THIS AGREEMENT is made and entered into by and between the STATE OF OREGON, acting by and through its Department of Transportation, hereinafter referred to as "State", and DESCHUTES COUNTY, acting by and through its elected officials, hereinafter referred to as "Agency," collectively hereinafter referred to as the "Parties." RECITALS 1. By the authority granted in ORS 190.110, state agencies may enter into agreements with units of local government for the performance of any or all functions and activities that a party to the agreement, its officers, or agents have the authority to perform. 2. By the authority granted in ORS 374.425 and 374.310, State may regulate construction of any approach onto the state highway and require mitigation for approaches that the State determines to be in the best interest of the traveling pu blic. 3. The Dalles-California Highway (US 97) is a part of the state highway system under the jurisdiction and control of the Oregon Transportation Commission, and the existing section of NW 12th Street is part of the county road system under the jurisdiction and control of Agency. 4. State and Agency are partnering under this Agreement to include, as part of the development of Bolken Acres, a private subdivision, the improvement and extension of NW 12`" Street in order to provide access for the subdivision and alternative access for current and future properties that abut US 97. State will then be able to close current accesses onto US 97, thus increasing the safety of the highway. 5. Per Deschutes County Code 17.24.130, Agency requires surety bonds, deposits of money or an irrevocable letter of credit as the security instrument to insure the performance of work on Agency roadways when private property is being developed. 6. The US 97: Crooked River Bridge -Redmond Unit 2 (12th Street) Project was amended into the 2008-2011 Statewide Transportation Improvement Program (STIP) as Key number 17211 on August 11, 2010. This Key number provides funding for preservation, access management, alternative local roads, shoulder widening and safety upgrades. Key 17211 REffewcst 1 _� LEGAL CGUNSIC Deschutes County/State Agreement No. 27055 NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is agreed by and between the Parties hereto as follows: TERMS OF AGREEMENT 1. In order to provide improved safety by providing alternative public road access for local traffic, State intends to construct improvements on an extension of and extend NW 121h Street, from the intersection of NW 12th Street with NW Lower Bridge Way to NW 12'h Street's northern teminus, hereinafter referred to as 'Project'. The location of Project is shown on the map attached hereto, marked Exhibit A, and by this reference made a part hereof. As a result of building the Project, State plans to move property owner accesses from US 97 to the new extension of NW 12th Street. 2, Project will be financed at an estimated cost of $680,000 in State funds. The estimate for the total Project cost is subject to change. State shall be responsible for any costs beyond the estimate. In order to provide assurance to Agency that the Project will be completed, State shall deposit the Project funds with Agency and be reimbursed by Agency from Project funds as the work is accomplished. 3. Under the authority of OAR 734-035-0005 and OAR -051-0520. State and Agency agree upon completion of State's Project to transfer State's right, title interest in Project to Agency through a future Jurisdictional Transfer agreement. 4. The term of this Agreement shall begin on the date all required signatures are obtained and shall remain in effect for the purpose of ongoing maintenance responsibilities for the useful life of the facilities constructed as part of the Project. The useful life is defined as twenty (20) calendar years. AGENCY OBLIGATIONS 1. Agency hereby grants State and its contractor, the right to enter onto and occupy Agency right of way within the Project limits for the performance of field work and Project construction. 2. Agency shall, upon execution of this Agreement, forward to State a letter of request for an advance deposit or an irrevocable letter of credit in the amount of $680,000, minus the amount State has already spent on preliminary engineering. (State's Project Manager will provide the correct amount.) Agency shall hold the Project funding as security for Project completion and understands that the funding cannot be used for any other purpose. 3. During the period Agency holds State's Project funds, Agency shall pay to State interest earned on the funding. Interest rate shall be 0.55% per annum and shall accrue based on the end of the day balance of the account, times the rate for that day, divided by the number of days in the year. Accrued interest shall be paid to State per the milestones described in STATE OBLIGATIONS, Paragraph 3(a)(b). 2 Deschutes County/State Agreement No. 27055 4. Upon receipt of invoices submitted by State as called for in STATE OBLIGATIONS, Paragraphs 3(a) & (b) Agency shall pay from the funds deposited per paragraph 2 of STATE OBLIGATIONS the amounts invoiced as calculated per paragraph 3 of AGENCY OBLIGATIONS. . Said payments shall be made within 30 days of receipt of State's requests. 5. If State does not complete the Project, Agency shall use the advance deposit to finance the completion. 6. Upon completion of the Project, Agency shall return to State any portion of the advance deposit that is in excess of the total costs of the Project. 7. Upon State's completion of the Project, Agency agrees to accept from State the transfer of that portion of the Project to be dedicated to the Agency via Plat No. TP- 07-1000/MA-07-13. The property transfer will be accomplished through a future Jurisdictional Transfer agreement. 8. Upon completion of State's Project, Agency Agrees to assume all responsibilities for Project consistent with Agency's local access road policies. 9. Upon completion of State's Project, Agency agrees to accept all of State's right, title, and interest in and to jurisdiction and control of Project. Further details surrounding the transfer of property between State and Agency shall be included in the future Jurisdictional Transfer agreement. 10.Agency acknowledges the effect and scope of ORS 105.755 and agrees that all acts necessary to complete construction of the Project, which may alter or change the grade of existing county roads are being accomplished with Agency's approval. 11.Agency acknowledges and agrees that State, the Oregon Secretary of State's Office, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of Agency which are directly pertinent to the specific Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period of six (6) years after final payment. Copies of applicable records shall be made available upon request. Payment for costs of copies is reimbursable by State. 12.Agency shall, to the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, indemnify, defend, save, and hold harmless the State of Oregon, Oregon Transportation Commission and its members, Department of Transportation, its officers and employees from any and all claims, suits, and liabilities, which may occur in the performance of Agency's obligations under this Agreement. Agency's total liability shall not exceed the tort claims limits provided in Oregon Tort Claims Act, ORS 30.260 to 30.300, for 'local public bodies'. 13. Notwithstanding the foregoing defense obligations under the paragraph above, neither Agency nor any attorney engaged by Agency shall defend any claim in the 3 Deschutes County/State Agreement No, 27055 name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. The State of Oregon may, at anytime at its election assume its own defense and settlement in the event that it determines that Agency is prohibited from defending the State of Oregon, or that Agency is not adequately defending the State of Oregon's interests, or that an important governmental principle is at issue or that it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it may have against Agency if the State of Oregon elects to assume its own defense. 14.Agency's Project Manager is George Kolb — County Engineer, 61150 SE 27th Street, Bend, OR 97702, (541) 388-6581, george_kolb@co.deschutes.or.us or assigned designee upon individual's absence. Agency shall notify State in writing of any contact information changes during the term of this Agreement. STATE OBLIGATIONS 1. State shall, as a project expense, perform all engineering and design work required to produce final plans and specifications, acquire all right of way needed for the construction of the Project, advertise for construction bid proposals, award all contracts, furnish all construction engineering, materials testing, technical inspection and project management services for administration of the contract. Project will be developed in conformance with the 2001 AASHTO Guidelines for Geometric Design of Very Low Volume Local Roads. 2. State shall, upon receipt of a fully executed copy of this Agreement and a subsequent letter of request from Agency, forward to Agency an advance deposit or an irrevocable letter of credit, in State funds, of $680,000, minus the amount already spent by State on preliminary engineering. All Project costs shall be borne by the State. Any portion of said advance deposit that is in excess of State's total costs for Project will be refunded to State. 3. State shall submit to Agency invoices for reimbursement of State's deposit as follows: a. 50% of deposit plus accrued interest up to the date that Project is let. b. 50% of deposit plus accrued interest up to the date that final billing is received from contractor. 4. Upon completion of the Project, State shall transfer to Agency ownership of all right of way acquired for the Project. Prior to the construction letting for the Project, State shall prepare a Jurisdictional Transfer agreement between State and Agency, which will describe in detail the property transfer. 4 Deschutes County/State Agreement No. 27055 5. State certifies, at the time this Agreement is executed, that sufficient funds are available and authorized for expenditure to finance costs of this Agreement within State's current appropriation or limitation of the current biennial budget. 6. State shall, to the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, indemnify, defend, save, and hold harmless Deschutes County, its officers, employees and agent from and against all claims, suits, and liabilities, which may occur in the performance of State's obligations under this Agreement.. 7. State's Project manager for this Agreement is Cari Charlton , Project Coordinator, 63030 O.B. Riley Road, Bend, OR 97701, (541) 388-6047, cari.charlton@odot.state.or.us or assigned designee upon individual's absence. State shall notify Agency in writing of any contact information changes during the term of this Agreement. GENERAL PROVISIONS 1. State and Agency agree that a mutual review of the construction plans will be conducted prior to advertisement for construction bid proposals. 2. This Agreement may be terminated by mutual written consent of both Parties. 3. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination. 4. This Agreement may be executed in several counterparts (facsimile or otherwise) all of which when taken together shall constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of this Agreement so executed shall constitute an original. 5. This Agreement and attached exhibits constitute the entire agreement between the Parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both Parties and all necessary approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of State to enforce any provision of this Agreement shall not constitute a waiver by State of that or any other provision. THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing representatives have read this Agreement, understand it, and agree to be bound by its terms and conditions. The Oregon Transportation Commission on December 29, 2008, approved Delegation Order No. 2, which authorizes the Director to approve and execute agreements for day- to-day operations. Day-to-day operations include those activities required to implement 5 Deschutes County/State Agreement No. 27055 the biennial budget approved by the Legislature, including activities to execute a project in the Statewide Transportation Improvement Program, On September 15, 2006, the Director of the Oregon Department of Transportation approved Subdelegation Order No, 2, Paragraph 1, in which authority is delegated to the Deputy Director, Highways; Deputy Director, Central Services and the Chief of Staff, to approve and sign agreements over $75,000 when the work is related to a project included in the Statewide Transportation Improvement Program or in other system plans approved by the Oregon Transportation Commission such as the Oregon Traffic Safety Performance Plan, or in a line item in the biennial budget approved by the Director. The Director may also delegate to other Administrators the authority to execute intergovernmental agreements over $75,000 for specific programs such as transportation safety, growth management and public transit. DESCHUTES COUNTY, by and through Its elected officials DA'I'F.D this L:..:.._ tiny ot'._VC.__y_..__ 2010. BOARD OP COU i'Y COMMISSIONERS OI' DESCI• U1ZE COUNTY, OREGON 5CI`;NIS R.EK1 , Char a„. ALAN- *1 Ii1 Vice Chaff ]'A41bTl.l� , Co iuni loner Recording Secretary APPROVED AS TO LEGAL SUFFICIENCY County Legal Counsel Date tO 7 - o ( STATE OF OREGON, by and through its ent of Transportation By Dighway revision Administrator ate //--/l,v--)t) MENDED Technical Services Mgr./Chief Engineer Date By eig S �r�f_.Rig t of Way S-.; '- Manager Date, /4/45 -- County / Agency Contact: George Kolb - County Engineer 61150 SE 271'' Street. Bend, OR 97702 (541) 388-6581 6 By Region 4 M a Date l ((/2./(0 By District 10 Manage Date // �� __//m B . Region 4 Right of Way Manager Date Deschutes County/State Agreement No. 27055 george_kolb©co.deschutes.or.us • State Contact: Cari Charlton — Project Coordinator 63030 O.B. Riley Road Bend, OR 97701 (541) 388-6047 can charllon a(�odot.state.or.us APPROD AS TO LEGAL SUFF CIgNCY By-ti':::�;� /� Assistant Attorney General /1 / Date t ...... _,.t_....r`-.!__: Misc. Contracts & Agreements No. 27055 EXHIBIT A 12TH STREET EXTENSION SUMMER 2011 Key 17211 8 Deschutes County/State Agreement No. 27055 EXHIBIT B Private Approaches from US 97 to be Closed (Listed in order from North to South) Engineering Station Number Property Owner 1031+70 Rt. Bain 1038+40 Rt. Bolken 1044+15 Rt. Bolken 1046+00 Rt. Bolken 1048+00 Rt. Donaldson 1052+00 Rt. Allen 9