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Home My WebLink AboutAmend Assignment - Improv Agrmt - PronghornDeschutes 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 November 3, 2008 Please see directions for completing this document on the next page. DATE: October 23, 2008 FROM: Paul Blikstad Department CDD Phone #6554 TITLE OF AGENDA ITEM: Consideration of Board Signature of Document No. 2008-587, a First Amendment to Assignment of Developer's Interest in Trust Account Under Improvement Agreement for Pronghorn Resort. PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: Pronghorn has requested an amendment to the assignment of developer's interest in the trust account under the Improvement Agreement for the resort. FISCAL IMPLICATIONS: No fiscal implications for the County. RECOMMENDATION & ACTION REQUESTED: Staff recommends Board approval of the amendment. ATTENDANCE: Laurie Craghead, County Counsel; Paul Blikstad, CDD DISTRIBUTION OF DOCUMENTS: Staff will provide copies to the parties, and will record one original with the Clerk's Office. er ' ecor• ing, ' ease ' e urn to: Ball Janik LLP 15 SW Colorado Ave., Suite 3 Bend, OR 97702 For Recording Stamp Only FIRST AMENDMENT TO ASSIGNMENT OF DEVELOPER'S INTEREST IN TRUST ACCOUNT UNDER IMPROVEMENT AGREEMENT THIS FIRST AMENDMENT TO ASSIGNMENT OF DEVELOPER'S INTEREST IN TRUST ACCOUNT UNDER IMPROVEMENT AGREEMENT (this "Amendment"), executed to be effective as of June 10, 2008, is made and entered into by and among GERALD S. CASILLI and JEANNE L. CASILLI, TRUSTEES OF THE CASILLI REVOCABLE TRUST UTA dated October 15, 1996 ("Lender"), PRONGHORN DEVELOPMENT COMPANY, INC., an Oregon corporation ("PDC"), and PRONGHORN INVESTORS LLC, a Delaware limited liability company and successor -in -interest to HIGH DESERT DEVELOPMENT COMPANY LLC, an Oregon limited liability company ("Pronghorn Investors"). Collectively, PDC and Pronghorn Investors are hereinafter referred to as "Developer"). RECITALS: A. Pronghorn Investors and Deschutes County previously entered into Improvement Agreement (Clubhouse, Visitor -Oriented Overnight Lodging, Dining/Meeting Facilities), DC Contract No. 2002-451 (as amended, the "Original Improvement Agreement"), which Original Improvement Agreement, as amended and extended, includes an obligation on Developer to complete the construction of certain overnight lodging units by May 1, 2008. B. Lender and Developer are the parties to that certain Assignment of Developer's Interest in Trust Account Under Improvement Agreement (the "Assignment") executed on April 13, 2004 and consented to by Deschutes County (the "County") on April 7, 2004 and recorded on April 22, 2004 in the real property records of Deschutes County at 2004-22791. By the Assignment, Developer granted a security interest to Casilli in Developer's contingent interests in the Trust Account (as defined in the Assignment), subject to the terms of the Original Improvement Agreement. C. Pursuant to that certain Amendment to Improvement Agreement recorded May 21, 2008 and recorded in the real property records of Deschutes County, Oregon at 2008- 022062 (the "Amendment to Improvement Agreement"), Developer and County are amending the terms of the Original Improvement Agreement, which Original Improvement Agreement governs the Trust Account held by the County. D. Developer has requested Lender's consent to the Amendment to Improvement Agreement, and Lender has consented, provided Developer agrees and County consents that such Amendment to Improvement Agreement will not affect the Assignment, and Developer and County have so agreed. PORTLAND -4621171 -v2-Revised_ Amendment_ to_Assignment.DOC—2..DOC 8/6/2008 AGREEMENT: NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby declared, understood, and agreed as follows: 1. The security interest granted to Casilli in Developer's contingent interest in the Trust Account by the Assignment shall continue to be subject to the Original Improvement Agreement. as amended by the Amendment to Improvement Agreement. 2. The Assignment remains in full force and effect. All references in the Assignment to the "Improvement Agreement" shall refer to the Original Improvement Agreement as amended by the Amendment to Improvement Agreement. 3. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 4. In the event of litigation under the provisions of this Amendment, the prevailing party shall be entitled to recover its attorney's fees and costs of suit, including any fees and costs incurred upon appeal. The parties agree that as Deschutes County is not a party to this Agreement, this Section 4 shall not apply to the County. 5. This Amendment may be executed in counterparts, each of which shall be an original and all of which, then taken together, shall constitute one and the same instrument. IN WITNESS HEREOF, the parties hereto have executed this Amendment as of the day and year first above written. Dated this /cV- of , 2008 CASILLI RTRUST Dated this Gerald S. Casilli, Trustee of The Casilli Revocable Trust UTA dated October 15, 1996 eanne L. Casilli, Trustee of The Casilli evocable Trust UTA dated October 15, 1996 , 2008 PRONGHORN DEVELOPMENT COMPANY, INC., an Or co.%11 tion resident & Secretary Dated this / 7 of a , 2008 PRO GHORN NVESTORS LLC, a De .ware ited liability company By: Pronghorn Holding Company, LLC: , a Delaware limited liability company, its sole member By: High Desert Development Partners, LLC, a California limited liability company, its Administrator By: Northwest Resort Development, Inc., a C • nia corporation, it Na Ti sole e: e: aging Member STATE OF OREGON County of Deschutes ) ) ) ss Before me, a Notary Public, personally appeared Thomas C. Hix and acknowledged the foregoing instrument on behalf of Pronghorn Development Company, LLC, as President of Northwest Resort Development, Inc., the sole managing member of High Desert Development Partners, LLC, the administrator of MS -Pronghorn Holding Company, LLC, the sole member of Pronghorn Investors LLC, the sole member of Pronghorn Development Company, LLC. DATED this) gtL'day of C'%* 1 e'r , 2008. OFFICIAL SEAL ou443„Y A WI(zLESWORTN NOTARY RY PUBLIC -OREGON NO. 41020 STATE OF OREGON County of Deschutes ) ) ) ss , State of on Expires: Before me, a Notary Public, personally appeared Thomas C. Hix and acknowledged the foregoing instrument on behalf of Pronghorn Investors LLC as President of Northwest Resort Development, Inc., the sole managing member of High Desert Development Partners, LLC, the administrator of MS -Pronghorn Holding Company, LLC, the sole member of Pronghorn Investors LLC. ++ DATED this I7th // day of ( 110 L1 - , 2008. -qCIAL SEAL bli State of 0 o mission Expires: 2/1 q/2c /1 STATE OF CALIFORNIA ) ) ss. COUNTY OF Mykk-t-v ) r On August 1 1-1-�- , 2008 before me, a� (ti die r� ol,) a Notary Public, personally appeared c j e -ct l S- C a. c; t who proved to me on the basis of satisfactory evidence to be the person,(s'J whose name{; is/Are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/he Itheir authorized capacity), and that by his/her/ttTeir-signature() on the instrument the personfrer or the entity upon behalf of which the personX) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 9 a OFFICIAL SEAL MAYRA I. HERMOSILLO NOTARY PUBLIC - CALIFORNIA CO MIS ION #1656726 otart @'?it, Alameda My Commission expires April 7, 2010 0 OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the documents. ❑ Individual ❑ Corporate Officer(s) — Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Attorney In Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: STATE OF CALIFORNIA ) ^ l ) ss. COUNTY OF ) On August a8 , 2008 before me, �'(%i/2 C a Notary Public, personally appeared t/Ca-k.-,'94.(11 who proved to me on the basis of satisfactory evidence to be the person* whose name(s is/ate subscribed to the within instrument and acknowledged to me that 1)e/she/they executec the same in hither/their authorized capacity( s), and that by hither/t)ir signature{) on the instrument the person(61, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and officialseal. NANCY BURGER '"'`•' COMM. # 1776007 'n NOTARY PUBLIC•CALWORNIA VI SAN MATEO COUNTY — ' E:L.1 no . I^'"-irkSdIM. 23, 2011" N OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the documents. Individual Corporate Officer(s) — Title(s): Partner - ❑ Limited 111 General ❑ Attorney In Fact [jf rustee ❑ Guardian or Conservator 111 Other: Signer Is Representing: Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: County is not a party to the foregoing Amendment. However, County acknowledges said Amendment. DESCHUTES COUNTY, OREGON, a political subdivision of the State of Oregon Dated this ATTEST: of , 2008 BOARD OF COUNTY COMMISSIONERS DENNIS R. LLIKE, CHAIR TAMMY (BANEY) MELTON, VICE -CHAIR Recording Secretary MICHAEL M. DALY, COMMISSIONER