Open Space Agreement for Golf Highlands

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Open Space Agreement for Golf Highlands Powered By Docstoc
					                                       June 9, 2005 DRAFT

                               LICENSE AND
               WATER AND SEWER SERVICE AGREEMENT BETWEEN
         CITY OF BEND AND CASCADE HIGHLANDS LIMITED PARTNERSHIP


The CITY OF BEND, an Oregon municipal corporation, hereinafter referred to as “CITY” and
CASCADE HIGHLANDS LIMITED PARTNERSHIP, hereinafter referred to as “USER” agree
as follows:

GENERAL CONDITIONS

1.      USER has received, read and understands CITY’s Water and Sewer Policies. The terms
used in this Agreement have the meanings assigned to them by CITY’s Water and Sewer
Policies unless specifically provided otherwise in this Agreement. The provisions of CITY’s
Water and Sewer Policies and CITY’s Standards and Specifications are incorporated into this
Agreement by reference.

        1.1    USER has received land use approval from Deschutes County to construct a
destination resort on USER’s real property (County File Nos. CU-04-94/RC-05-01, attached
hereto as Exhibit A; hereinafter referred to as the “Destination Resort Decisions”). USER’s real
property is described on Exhibit B (hereinafter referred to as the “Property”), which is attached
hereto and made part of this Agreement. USER desires CITY water and sewer service to
USER’s Property.

         1.2    CITY agrees to provide water and sewer service to USER’s Property to serve all
phases of the development approved in the Destination Resort Decisions. With the exception of
the improvements specified in this Agreement, CITY agrees that it shall not require USER to
construct any source, storage, or transmission improvements in exchange for the provision of
water and sewer service to the development approved in the Destination Resort Decisions, except
to the extent that such source, storage or transmission improvements may be eligible for SDC
reimbursement by CITY, and then, only to a maximum cost equivalent to the total water SDC’s
collected from the USER’s Property. City further agrees that it shall not require USER to
construct source, storage or transmission facilities on Forest Service lands or require USER to
construct source or storage improvements on USER’s Property. CITY water and sewer service
shall include potable water for standard domestic use and fire protection, including residential
irrigation, and wastewater systems to treat potable water. USER agrees that it will provide all
golf irrigation water, golf irrigation water facilities, common area water and common area water
facilities adjacent to the golf course(s). In common areas not adjacent to a golf course where it is
impractical to irrigate with USER’s golf course irrigation water, irrigation may be provided
through metered CITY water, with advance approval of the City Engineer.

     1.3    USER understands that CITY’s service to USER’s Property is conditioned upon
USER consenting to annexation because USER’s Property is outside of the CITY limits.

               (1)     USER hereby consents to the annexation of USER’s Property when
                       annexation shall be deemed appropriate by the CITY.



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           (2)   USER shall also provide CITY with a separate consent on a form prepared
                 by CITY and signed by USER (the “Consent to Annexation”). The
                 Consent to Annexation shall contain a statement that USER waives the
                 one-year provision of ORS 222.173. The Consent to Annexation shall be
                 recorded with the Deschutes County Clerk and shall be a condition and
                 covenant that shall run with USER’s Property. It is the intent of the
                 parties that the provisions of the Consent to Annexation shall be binding
                 upon USER and upon USER’s successors, heirs, executors, administrators,
                 and assigns, and any other party deriving any right, title or interest in or to
                 USER’s 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 USER’s Property by foreclosure or
                 otherwise or any person taking title from such security holder. Receipt of
                 CITY water service by the purchaser of any lot within USER’s destination
                 resort shall be deemed to be a continuing Consent to Annexation as a
                 condition of that property owner’s right to continue receiving water
                 service from CITY. This Consent to Annexation provided by the owner of
                 any lot within USER’s destination resort as a continuing condition of
                 receiving water service shall be deemed to waive the one year provisions
                 of ORS 222.173. If the owner of any lot within USER’s destination resort
                 objects to annexation or otherwise attempts to defeat annexation, then
                 CITY may, at its option, and upon written notice, discontinue water
                 service to that owner.

           (3)   CITY agrees that the Destination Resort Decisions and any subsequent
                 land use approvals, building permits, or other entitlements necessary for
                 construction of USER’s destination resort, shall continue to apply to the
                 development of USER’s Property following annexation.

           (4)   CITY agrees that any new zoning and/or comprehensive plan provisions
                 adopted to govern USER’s Property following annexation shall allow
                 USER to develop and modify USER’s destination resort consistent with:
                 (a) Title 19 of the Deschutes County Code (“DCC”); (b) The Destination
                 Resort Decisions; and (c) Any subsequent land use approvals, building
                 permits, or other entitlements necessary for construction of USER’s
                 destination resort.

           (5)   CITY agrees that any new zoning and/or comprehensive plan provisions
                 adopted to govern USER’s Property following annexation shall be
                 consistent with the provisions of DCC Title 19 to the maximum extent
                 practicable under existing laws.

           (6)   CITY agrees that USER’s destination resort shall not become a
                 Nonconforming Use, as that term is defined in DCC Section 19.04.040
                 and Bend Code Section 10-10.4, following annexation.



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       1.4     USER and CITY intend that all provisions of this Agreement shall constitute a
covenant running with the land, binding on the USER and the USER’s heirs, successors, or
assigns, including purchasers of individual lots, including residential lots.

        1.5     USER agrees to pay applicable water and sewer System Development Charges
(“SDCs”) in accordance with CITY laws, rules and regulations. If CITY adopts additional
SDCs, including a storm water SDC, USER agrees to pay such additional SDCs when the SDCs
become effective for all structures built after the effective date. USER further agrees to pay a
water SDC surcharge in the amount of $375 (three hundred seventy five dollars) per equivalent
single family dwelling for costs incurred by CITY for developing new groundwater water rights
necessary to expand the capacity of CITY’s water system to serve USER’s Property. CITY and
USER agree to review the water SDC surcharge each year on the anniversary of the date of
execution of this Agreement. If CITY’s actual cost of groundwater rights has changed during the
year, then future water SDC surcharge amounts will be adjusted accordingly as to any property
paying the SDC in the future. There shall be no obligation by either party to pay retroactive
adjustments for the water SDC surcharge as to properties that have previously paid the
surcharge. CITY shall collect all applicable SDC’s at the time water meters are installed. Water
meters shall only be installed by the CITY upon payment of all SDCs and other fees established
by CITY resolution. No water or sewer service shall be provided by CITY until a CITY water
meter is installed by CITY or a licensed contractor approved by the City for the installation of
CITY water meters. Prior to annexation by CITY, water and sewer SDCs shall be collected as a
condition of commencement of water and sewer service. Subsequent to annexation by CITY,
water and sewer SDCs shall be collected as provided by then-existing CITY policies and
procedures.

        1.6     USER agrees to pay applicable transportation SDCs, in accordance with CITY
laws, rules, and regulations, as follows:

              (1)     USER shall pay transportation SDCs at a rate of 100% of the maximum
                      allowable SDC for all individually-owned single-family dwellings,
                      townhomes, and cottages, both attached and detached.

              (2)     In lieu of paying transportation SDCs for all residential units qualifying as
                      Overnight Lodging Units as that term is defined by DCC Section
                      19.04.040, and for all resort-related commercial and recreational facilities,
                      including golf course facilities, USER agrees to the following terms:

                      (a)    Per Section 1.6(1) of this Agreement, USER agrees to pay 100% of
                             the maximum allowable SDC for all individually-owned single-
                             family dwellings, townhomes, and cottages, both attached and
                             detached. This constitutes a 20% increase over the standard SDC
                             rate for single-family dwellings set forth in the SDC ordinances
                             and policies in effect as of the date of adoption of this Agreement.

                      (b)    USER agrees to dedicate up to 100,000 square feet of USER’s
                             Property to the public to enable CITY to construct a roundabout at
                             the intersection of Century Drive and Skyline Ranch Road. USER

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                              and CITY agree to cooperate in good faith to finalize a roundabout
                              design that is generally centered on the existing right-of-way of
                              Century Drive and that is consistent with USER’s design for the
                              main entrance roadway alignment to the destination resort. Per
                              USER’s Destination Resort Decisions, any portion of USER’s
                              property at the intersection of Skyline Ranch Road and Century
                              Drive that is not dedicated to CITY for the roundabout shall
                              remain in open space, as defined by the Destination Resort
                              Decisions and DCC Title 19. USER agrees to grant CITY
                              appropriate easements necessary for utilities associated with the
                              roundabout on its property near the intersection of Skyline Ranch
                              Road and Century Drive.

                      (c)     USER agrees to construct Skyline Ranch Road and Metolius Drive
                              to the standards specified in Exhibit C. Although USER would be
                              eligible for SDC reimbursement for up to 80% of the cost of
                              construction of these Qualified Public Improvements, USER
                              agrees to forego SDC reimbursement for the construction of
                              Skyline Ranch Road and Metolius Drive.

                      (d)     USER agrees to construct a roundabout at the intersection of
                              Skyline Ranch Road and Metolius Drive. Although USER would
                              be eligible for SDC reimbursement for up to 80% of the cost of
                              construction of this Qualified Public Improvement, USER agrees
                              to forego SDC reimbursement for the construction of the
                              roundabout.

        1.7     USER shall be eligible for SDC reimbursement for Qualified Public
Improvements, as defined in ORS 223.304(3), in accordance with CITY laws, rules and
regulations and on the same terms as all other CITY users, subject to the exclusions set forth in
Section 1.6 of this Agreement. USER shall be eligible for SDC reimbursement prior to
annexation of USER’s Property.

PROVISION OF WATER AND SEWER SERVICES

2.      Services shall be supplied only through facilities constructed and installed to CITY
Standards and Specifications and owned by CITY, except that USER’s service connections shall
not be owned by CITY. All facilities except USER’s service connection lines shall be installed
within public rights-of-way or CITY easements. USER shall dedicate standard easements and
rights-of-way to CITY over USER’s Property for all water and sewer facilities, except USER’s
service lines. All easements and rights-of-way shall be granted to CITY free and clear of all
liens and encumbrances, according to CITY’s policies, standards and specifications for
easements and rights-of-way.

        2.1     USER shall not connect to CITY’s facilities until CITY accepts any facilities
installed by USER in writing. CITY’s acceptance shall not be unreasonably withheld. With the
exception of fire hydrants, standpipes, and related facilities necessary to enable USER to

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commence construction of the destination resort prior to completion of all water and sewer
facilities, CITY cannot accept facilities unless paved access and sufficient turnarounds are
provided for CITY maintenance vehicles so that maintenance vehicles have access to all parts of
the water and wastewater system. USER shall provide all plans for all facilities covered by this
Agreement to the City Engineer for approval prior to construction. Such plans shall demonstrate
that USER will provide paved access and turnarounds for CITY maintenance vehicles. CITY’s
approval of such facilities is a condition precedent to CITY’s obligation to provide water and
sewer service.

        2.2   USER shall promptly pay all charges for CITY water and sewer services when
due. Charges shall be as prescribed by the appropriate schedule and may be changed from time
to time.

        2.3    USER hereby grants CITY a license to enter and remain upon USER’s land for
the purpose of inspecting construction of USER’s water and sewer facilities that are subject to
this Agreement, and for the purpose of enforcing collection of water and sewer bills according to
CITY’s standard policy for termination of service on unpaid accounts, and as otherwise provided
herein.

       2.4     No other use of CITY services or CITY facilities shall be permitted without
express written consent of the CITY.

       2.5     USER shall comply with all applicable governmental laws, rules and regulations
including but not limited to CITY ordinances, resolutions and the provisions of CITY water and
sewer policies as they now exist and as they may be changed from time to time; provided,
however such policies treat all CITY users uniformly.

        2.6     Compliance with CITY ordinances and water and sewer policies shall include, but
not be limited to, compliance with CITY design review standards for sewer, irrigation systems
which deliver CITY water, and water facilities. USER shall submit to CITY whatever
information is required by CITY to determine that design review standards for the USER
constructed portion of the water and sewer facilities will be met by the USER. USER shall also
demonstrate that USER has obtained site plan approval for any commercial buildings to be
constructed on USER’s Property from Deschutes County consistent with DCC Title 19, or from
the appropriate local jurisdiction per any subsequent zoning ordinance.

EXTENSION OF WATER AND SEWER FACILITIES

3.     USER shall comply with the following conditions if service to USER’s Property requires
extension of water or sewer facilities.

         3.1     Except for water meters which will be provided by CITY, USER agrees to supply
all of the materials, and perform all work necessary for the construction of water and sewer
facilities required for development of USER’s Property (the “Work”) at USER’s sole expense
and in accordance with the CITY’s Standards and Specifications. This excludes source, storage,
and transmission improvements to be financed by CITY with funds generated by SDCs, per
CITY’s Water and Sewer Policies and CITY’s SDC Ordinance and Resolution. USER will
construct the Work in phases, as and when reasonably necessary to provide water and sewer

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services to the phases of its development. USER agrees that the Work shall include installation
of water service lines with meters and housings, as required by applicable law and/or CITY
policies. All water meters shall be provided by CITY personnel upon payment of all applicable
fees and charges established by CITY resolution, including, but not limited to SDCs, as provided
in Section 1.5.

        3.2     The person, firm or corporation hired by USER to perform the Work shall have
construction liability coverage. Coverage shall be in the amount of a one million dollar
combined single limit for bodily injury and property damage. CITY shall be named an
additional insured on the policy, and a certificate of insurance shall be provided to CITY. The
insurance may not be cancelled except upon 30 days’ written notice to CITY. USER shall hold
CITY harmless and indemnify CITY from any liability of any kind in connection with activities
resulting from this Agreement, except to the extent the same arises out of the negligence or
willful misconduct of CITY, its employees and agents.

       3.3   USER agrees to submit to the CITY a statement of all costs incurred on the Work
upon completion of the Work.

       3.4     CITY will charge its standard rates and fees, pursuant to the rate and fee schedule
and resolution applicable to water and sewer service users located outside the Bend Urban
Growth Boundary. In addition to rates and fees applicable to ongoing water and sewer service,
USER will pay all applicable SDCs, including the water SDC surcharge in addition to CITY’s
standard water SDC, as provided in Sections 1.5 and 1.6.

        3.5    USER shall obtain any necessary Oregon State Highway, CITY or County street
cut permit prior to any construction of the Work in right of ways. Upon request by USER, CITY
shall cooperate with USER in obtaining the same.

       3.6     Upon request of the CITY, USER agrees to deliver to CITY “As Built”
reproducible drawings of the completed Work, signed by an Oregon professional engineer prior
to acceptance of the Work by CITY.

       3.7    Commencing upon full execution of this Agreement and during the terms of this
Agreement, USER shall pay CITY inspection charges and plan review fees as applicable in
accordance with CITY city-wide policies in effect from time to time.

        3.8    CITY may terminate water service to the owner of any lot within USER’s
destination resort for a material breach of this Agreement. In the event of such breach, CITY
shall provide such owner with a written 30-day notice to cure the breach. If the breach is not
cured following the 30-day period, CITY may terminate water service without further notice or
hearing.

       3.9     Nothing in this agreement shall relieve USER of any obligation under its
conditions s of approval in the Deschutes County “Destination Resort Decisions.”

DATED this __________ day of _________________, 2005.



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                                         CASCADE HIGHLANDS LIMITED LIABILITY
                                         COMPANY


                                         BY:
                                         Title:


STATE OF OREGON            )
                           ) ss.
County of Deschutes        )

      This instrument was acknowledged before me on the _______ day of ____________,

2005 by _____________________________________ on behalf of CASCADE HIGHLANDS

LIMITED LIABILITY COMPANY.




NOTARY PUBLIC FOR OREGON
My Commission Expires:



                                         CITY OF BEND


                                         BY:
                                                  Harold A. Anderson
                                                  CITY Manager


STATE OF OREGON            )
                           ) ss.
County of Deschutes        )

      This instrument was acknowledged before me on the _______ day of ____________,

2005 by _______________________________________ as the City Manager for the CITY OF

BEND, an Oregon municipal corporation.




WATER AND SEWER SERVICE AGREEMENT
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NOTARY PUBLIC FOR OREGON
My Commission Expires:




WATER AND SEWER SERVICE AGREEMENT
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