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HomeMy Public PortalAboutTBP 2013-02-06 C OIL OR ADO Town Board Briefing February 6, 2013 Please note that the Town Board may dine together at 5:30pm. We will have a workshop discussion starting at 6:OOpm regarding the Snowball Music Festival. This will be an opportunity for staff to update the Board on operational plans for the event. The regular meeting will begin at 7:OOpm, and the meeting will consist primarily of two matters and the associated public hearings. Note that Ordinance 403 amends the Fraser Town Code in accordance with Amendment 64. The Special Event Liquor License for the Snowball Music Festival is outlined in the materials enclosed in the packet. The second hearing covers several matters related the annexation of Byers Peak Ranch. Relevant materials are enclosed in the packet. As always, feel free to contact me if you have any questions or need any additional information. Jeff Durbin PO Box 770.1 Fraser, CO 80442 oFfice 970 726 5491 laix 970 726 7718 FRASER BOARD OF TRUSTEES MINUTES DATE: Wednesday, January 30, 2013 MEETING: Board of Trustees Regular Meeting PLACE: Fraser Town Hall Board Room PRESENT Board: Mayor Peggy Smith; Mayor Pro-Tem Steve Sumrall; Trustees; Philip Naill, Eileen Waldow, Vesta Shapiro, Cheri Sanders and Adam Cwiklin Staff: Town Manager Jeff Durbin; Town Clerk, Lu Berger; Public Works Director Allen Nordin; Town Planner, Catherine Trotter; Town Attorney Rod McGowan; Special Counsel Boots Ferguson Others: See attached list Mayor Smith called the meeting to order at 6:07 p.m. 1. Workshop: 2. Regular Meeting: Roll Call 3. Approval of Agenda: Trustee Naill moved, and Trustee Waldow seconded the motion to approve the Agenda. Motion carried: 7-0. 4. Consent Agenda: a) Minutes —January 23, 2013 Trustee Waldow moved, and Trustee Naill seconded the motion to approve the consent agenda. Motion carried: 7-0. 5. Open Forum: 6. Executive Session: For a conference with Special Counsel for the purpose of receiving legal advice on specific legal questions under C.R.S. Section 24-6-402(4)(b) and for the purpose of determining positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators, under C.R.S. Section 24-6-402(4)(e) regarding a proposed annexation agreement and to include Town Manager Jeff Durbin; Town Clerk, Lu Berger; Public Works Director Allen Nordin; Town Planner, Catherine Trotter; Special Counsel Boots Ferguson. Open: 6:10 p.m. Page 2 of 2 Trustee Naill moved, and Trustee Sumrall seconded the motion to enter into executive session. Motion carried: 7-0. Exit: 9:40 p.m. Trustee Cwiklin moved, and Trustee Shapiro seconded the motion to exit executive session. Motion carried: 7-0. At As the attorney representing the Town of Fraser, I am of the opinion that the entire Executive Session, which was not recorded, constituted a privileged attorney-client communication. Boots Ferguson, Special Counsel 7. Other Business: Trustee Cwiklin moved, and Trustee Sanders seconded the motion to adjourn. Motion carried: 7-0. Meeting adjourned at 9:42 p.m. Lu Berger, Town Clerk TOWN OF FRASER ORDINANCE NO. 403 Series 2013 AN ORDINANCE AMENDING CHAPTER 10 ARTICLE 3 OF THE FRASER TOWN CODE, REGARDING POSSESSION OF MARIJUANA, AND THE POSSESSION OF DRUG PARAPHERNALIA WHEREAS, Colorado voters recently passed Amendment 64, which amended Article XVIII of the Colorado Constitution by the addition of a new section 16 regarding the personal use and regulation of marijuana; WHEREAS, Amendment 64 permits the possession, use, display, purchase or transportation of marijuana accessories and one ounce or less of marijuana by persons twenty- one (21) years of age and older; WHEREAS, Amendment 64 allows possessing, growing, processing, or transporting no more than six (6) marijuana plants, with three (3) or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale; WHEREAS, Amendment 64 allows local governments to prohibit the possession of marijuana and marijuana accessories by persons under the age of twenty-one (21) years and to prohibit the open and public consumption of marijuana by persons of any age; and WHEREAS, it is the desire of the Fraser Town Board to pass legislation reconciling the Fraser Municipal Code to the new state law. (Note: additions are shown in bold and Underlined print; deletions are shown as strikethrough print. NOW, THEREFORE, THE TOWN BOARD OF THE TOWN OF FRASER, COLORADO, ORDAINS: Chapter 10 Article 3 of the Fraser Municipal Code is hereby amended to read as follows: Sec. 10-3-10.Definitions. ---;;ke ORGapable Of geRniRatiE)R, of theSe OtR­MS Paxi-st apa. -..y other de-fined- _as, , alkaloid, it yatiyo pF aFatiOR MP9 IRGI Or v41 fro A-ati Ir-al er er a+�� ��sa,� e���ep��se r��� er �� GyRthociZed, of tetrahydFOGaRRabiR49 (a) MARIJUANA: All parts of the plant of the genus cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marijuana concentrate, but the term does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. (b) MARIJUANA PRODUCTS: Concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures. (c) MARIJUANA ACCESSORIES: Equipment, products, or materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, composting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana into the human body. (d) OPENLY OR PUBLICLY: The consumption or growing of marijuana in a place commonly or usually open to or accessible by the general public, or to which members of the general public may resort, including without limitation public ways, streets, sidewalks, alleys, bicycle paths, trails, golf courses, public buildings, parks, open spaces, parking lots, shopping centers, places of business usually open to the general public, and automobiles or other vehicles in or upon any such place or places, but excluding the interior or enclosed yard area of private homes, residences, condominiums or apartments. For purposes of this Section, 'openly or publicly" expressly includes the consumption or growing of marijuana in any place not used for residential purposes where individuals gather to consume or grow marijuana, regardless of whether such place calls itself private or public or charges an admission or membership fee. (e) As used in this Article, unless the context otherwise requires, drug paraphernalia means all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the laws of the State. Drug paraphernalia includes, but is not limited to: (1) Testing equipment used or intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances under circumstances in violation of the laws of the State. (2) Scales and balances used, intended for use or designed for use in weighing or measuring controlled substances. (3) Separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from or in otherwise cleaning or refining marijuana. (4) Blenders, bowls, containers, spoons and mixing devices used, intended for use or designed for use in compounding controlled substances. (5) Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances. (6) Containers and other objects used, intended for use or designed for use in storing or concealing controlled substances. (7) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as: a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; b. Water pipes; c. Carburetion tubes and devices; d. Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand; e. Miniature cocaine spoons and cocaine vials; f. Chamber pipes; g. Carburetor pipes; h. Electric pipes; i. Air-driven pipes; j. Chillums; k. Bongs; or I. Ice pipes or chillers. acrd. 307 Part 1, `�0 Sec. 10-3-20.Determ i nation; considerations. (a) In determining whether an object is drug paraphernalia, a court, in its discretion, may consider, in addition to all other relevant factors, the following: (1) Statements by an owner or by anyone in control of the object concerning its use; (2) The proximity of the object to controlled substances; (3) The existence of any residue of controlled substances on the object; (4) Direct or circumstantial evidence of the knowledge of an owner or of anyone in control of the object, or evidence that such person reasonably should know that the object could be used to facilitate the use of a controlled substance in violation of state statutes; (5) Instructions, oral or written, provided with the object concerning its use; (6) Descriptive materials accompanying the object which explain or depict its use; (7) The existence and scope of legal uses for the object in the community; and (8) Expert testimony concerning its use. (b) In addition to any other competent evidence identifying a substance as marijuana: (1) Results of the field test known as the "duquenois-Ievine reagent system" shall be admissible in evidence and shall be prima facie evidence of whether or not the substance tested was marijuana. (2) The qualitative result of a marijuana test performed by a Drug Recognition Expert (DRE), certified as such, or by persons otherwise certified under a "drugs that impair" certification, shall be admissible at the trial of any person charged with a violation of Subsection 10-3-30(b) below, and shall be prima facie evidence of whether the person charged has consumed, ingested or used marijuana. (3) Laboratory tests of marijuana shall be admitted in evidence pursuant to Section 16-3- 309, C.R.S. Sec. 10-3-30.Unlawful possession or use of marijuana; penalties. (a) It shall be unlawful for any person to P^°°°°° OF GpeRl y di6pla y ^R° (1` ^llp^° ^" '°°° of aRyWheFe ,^,i+h P- TOY use, display, purchase, transport, possess or transfer more than one ounce of marijuana. (b) , aRheFe TeI.YR It is unlawful for any person to possess, prow, process or transport more than six (6) marijuana plants, with three (3) or fewer being mature, flowering plants. A person may possess the marijuana produced by these plants, provided that such possession is limited to the premises where the plants were grown and further provided that the growing takes place in an enclosed locked space and is not conducted openly or publicly or made available for sale. (c) Est-ied as-piceved f4gr OP SHIP-sestiOR ( ') bek�lt is unlawful for any person under the age of twenty-one (21) to use, display, purchase, transport, possess or transfer marijuana, marijuana products or marijuana accessories anywhere within the Town. (d) It is unlawful for a person twenty-one (21) years of age or older to use, display, purchase, transport, possess or transfer marijuana, marijuana products or marijuana accessories for any reason other than personal use. (e) It is unlawful for any person twenty-one (21) years of age or older to purchase on behalf of, transfer to, or otherwise assist a person under the age of twenty-one (21) in obtaining marijuana, marijuana products or marijuana accessories. (f) It is unlawful for any person to openly or publicly consume or grow marijuana or to consume marijuana in a manner that endangers others. (g) Any person found guilty of a violation of this Section shall be punished as follows: ) For a neecin essieeA of ern+ mere +h-ei GRe 0) e6 1RGe of mar006 iar1+ and ieee� nne„iin+ine� +hereof shell he fie�erl ter, emn�ie�+ ec rle+ermie�erl h,i the [\��ie�inie�l I irlee' Ant tA excseed PAR h..A(drerl rlellars ($100.0g)-. Any person found guilty of a violation of this section shall be punished, upon conviction, by fine in the amount of one hundred dollars ($100.00). (2) For a yon-la+ieen neepnere�ie�e nne�s ime+ine� ie�ees+ine� er use of aRy amen Rt of marii� a44a Sze cn�n-r�i--wrr�am�pnvrr�n�ic�vrrvrcr�c and 1eee� n........... +hereef, shell he fi ped- 7e emeu At ec r-le+ermi,�erJ by the M „Rinie�l I �rve' Ant to Rxr_2edv PAR .iAdrRd dnnll;; ($100.00). /(lrrl 307 Der+ 1 20 Sec. 10-3-40.Unlawful possession of drug paraphernalia; penalties. (a) 4 eerseR nemmi+s eessessieR of drug paraphe Malia if he ex she eessesses dF ie It is unlawful for a person to possess drug paraphernalia if he or she knows or reasonably should know that the drug paraphernalia could be used to facilitate the use of a controlled substance in violation of state statute. Notwithstanding the foregoing, it shall not be a violation of this section for a person twenty-one (21) years of age or older to possess, use, display, purchase or transport marijuana accessories, as that term is defined in Code & 10-3-10. (b) For a yiele+ion ner,n ip� a f" ��e�� r, of r,erer,he li�� rl ir,er, eer,.,ie+ier, thereef, the viel-atel: -;hall be fined-all. " , to exseed—;e-kund-red dollars ($100.00). (Ord. 207 Der+ 1 2005) The penalty for a violation of this section, shall be a fine in an amount not to exceed one hundred dollars ($100.00). Sec. 10-3-50.Affirmative defense. It shall be an affirmative defense to a prosecution under this Article that a person is in possession of a valid registry identification card authorizing the medicinal use of marijuana issued by the State Health Agency, so long as the possession or use does not occur in a public place. (Ord. 307 Der+ 1 2005) SEVERABILITY. If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The Town of Fraser hereby declares that it would have adopted this Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional. EFFECTIVE DATE. This Ordinance shall take effect thirty (30) days after passage, adoption and publication thereof as provided by law. PUBLICATION. This Ordinance shall be published by title only. READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES AND SIGNED THIS 6th DAY of FEBRUARY, 2013. Votes in favor: BOARD OF TRUSTEES OF THE Votes opposed: TOWN OF FRASER, COLORADO Votes abstained: BY: Peggy Smith, Mayor ATTEST: ( SEAL ) Lu Berger, Town Clerk Published in the Middle Park Times on February 14, 2013. OFFICE OF THE SECRETARY OF STATE OF THE STATE OF COLORADO CERTIFICATE I, Scott Gessler, as the Secretary of State of the State of Colorado, hereby certify that, according to the records of this office, WINTER PARK CHAMBER OF COMMERCE is a Nonprofit Corporation formed or registered on 12/10/1973 under the law of Colorado, has complied with all applicable requirements of this office, and is in good standing with this office. This entity has been assigned entity identification number 19871266281. This certificate reflects facts established or disclosed by documents delivered to this office on paper through 01/30/2013 that have been posted, and by documents delivered to this office electronically through 01/31/2013 @ 13:15:22. I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated, issued, delivered and communicated this official certificate at Denver, Colorado on 01/31/2013 @ 13:15:22 pursuant to and in accordance with applicable law. This certificate is assigned Confirmation Number 8449305. u, g�lll�I fp I Ali Secretary of State of the State of Colorado End of Certificate Notice:A certificate issued electronically from the Colorado Secretary ofState's Web site is fully and immediately valid and effective. However, as an option, the issuance and validity of a certificate obtained electronically may be established by visiting the Certificate Confirmation Page of the Secretary of State's Web site, http://w-,nv.sos.state.co.us/biz/Cer•tificateSecmchCriter•ia.do entering the certificate's confirmation number displayed on the certificate, and following the instructions displayed. Confirming the issuance of a certificate is merely optional and is not necessary to the valid and effective issuance of a certificate. For more information,visit our YVeb site, http:// nv.sos.state.co.us/click Business Center and select"Frequently Asked Questions." CERT GSD Revised 08/20/2008 Print Form Special Event Permit Application Please complete each section,additional sheets may be used if necessary. C C1LOl-lAbK1 Name of Applicant: Winter Park&the Fraser Valley Chamber of Commerce Mailing Address of Applicant: PO Box 3236 Winter Park,CO 80482 Contact Name: Kristyna Nedele Contact Phone Number: 970.726.4221 ext 205 Contact Email: knedele @playwinterpark.com Type of Special Event(i.e.fundraiser,concert): SnowBall Music Festival Address of Special Event:[46 Market St Fraser CO 80482 Do you have written permission to use the premises? (6-Yes ("No List the exact dates and times of the event: March 8-10,2013 Number of expected attendees: 10,000 Describe the premises where the event will take place:(Attach site plan) Meadow at Grand Park What type of security will be provided? Hired security by SnowBall Ventures/Local Police Number of security personnel: 70 How will they be identified? Uniforms or ID Tags and credentials If the event is being held outdoors,how will the exterior boundaries of the premises be marked?(i.e.fencing,ropes,barriers). perimeter of venue will be fenced What type of entertainment will be provided at the event? Live Music How and where will attendees 21 years of age and older be identified(Le at the event entrance,at the alcohol service areas)?How will attendees under the age of 21 be identified(i.e.wristbands)? IDs will be checked at ID tent in the venue How will the conduct of attendees be monitored and by whom? Security personnel,Local Law Enforcement,Staff Have alcohol servers been trained in the sale/service of alcoholic beverages?If yes,please list type of training.(Servers are required to have attended an alcohol server training program prior to the evend. Yes,TIPS Certified What type of beverages,food and snacks will be available at the event? Food Vendors/Trucks,Beer/Liquor will be present at the event knede|e@p|aywinterpark.com Applicant Email Address 78841 US Hwy 4U Winter Park,[08O4O2 Applicant Physical Address 970.7I6/221ext 205 Applicant Phone Number |he,e6y certify,under penalty ofperjury,that the information provided to the Town of Fraser contained in this application is true and accurate tuthe best ofn`Vknowledge. Applicant Siqrfature Date DR 8439(06/28/06) �' Department Use Only COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET \® ®i° �A DENVER CO 80261 EVENTS PERMIT (303)205-2300 IN ORDER TO QUALIFY FOR A SPECIAL EVENTS PERMIT,YOU MUST BE NONPROFIT AND ONE OF THE FOLLOWING (See back for details.) ✓❑ SOCIAL ❑ ATHLETIC ❑ PHILANTHROPIC INSTITUTION ❑ FRATERNAL ❑ CHARTERED BRANCH,LODGE OR CHAPTER ❑ POLITICAL CANDIDATE ❑ PATRIOTIC ❑ OF A NATIONAL ORGANIZATION OR SOCIETY ❑ MUNICIPALITY OWNING ARTS ❑ POLITICAL ❑ RELIGIOUS INSTITUTION FACILITIES LIAR TYPE OF SPECIAL EVENT APPLICANT IS APPLYING FOR: DO NOT WHITE IN THIS SPACE 2110[j MALT,VINOUS AND SPIRITUOUS LIQUOR $25.00 PER DAY LIQUOR PERMIT NUMBER 2170[:] FERMENTED MALT BEVERAGE(3.2 Beer) $10.00 PER DAY 1. NAME OF APPLICANT ORGANIZATION OR POLITICAL CANDIDATE 71aa Tax Num ber(Required) Winter Park&the Fraser Valley Chamber of Commerce 5 2. MAILING ADDRESS OF ORGANIZATION OR POLITICAL CANDIDATE 3. ADDRESS OF PLACE TO HAVE SPECIAL EVENT (include street,city/town and ZIP) (include street,city/town and ZIP) P.O. Box 3236 46 Market St Winter Park, CO 80482 Fraser, CO 80442 NAME DATE OF BIRTH HOME ADDRESS(Street,City,State,ZIP) PHONE NUMBER 4. PRES./SEC'Y OF ORG.or POLITICAL CANDIDATE Catherine Ross P.O. Box 3236 Winter Park CO 80482 970.726.4221 5. EVENT MANAGER Kristyna Nedele P.O. Box 3236 Winter Park CO 80482 970.726.4221 6. HAS APPLICANT ORGANIZATION OR POLITICAL CANDIDATE BEEN 7. IS PREMISES NOW LICENSED UNDERSTATE LIQUOR OR BEER CODE? ISSUED A SPECIAL EVENT PERMIT THIS CALENDAR YEAR? NO -]YES HOW MANY DAYS? ®NO YES TO WHOM? 8. DOES THE APPLICANT HAVE POSSESSION OR WRITTEN PERMISSION FOR THE USE OF THE PREMISES TO BE LICENSED? ❑Yes ❑No LIST BELOW THE EXACT DATE(S)FOR WHICH APPLICATION IS BEING MADE FOR PERMIT Date March 8 Date March 9 Date March 10 Date Date Hours From 1 prn m. Hours From 1 pim m. Hours From 1 pim m. Hours From m. Hours From m. To 11:30 .m. To 11:30 m. To 11:30 m. To m. To m. OATH OF APPLICANT l declare under penalty of perjury in the second degree that l have read the foregoing application and all attachments thereto,and that all information therein is true,correct, and complete to the best of my knowledge. � 4•,� ,,, � .. �` TITLE DATE AT .. S G URE r.„., .,' ( REPORT AND APPROVAL OF LOCAL LICE SING AUTHORITY(CITY OR COUNTY) The foregoing application has been examined and the premises, business conducted and character of the applicant is satisfactory, and we do report that such permit, if granted, will comply with the provisions of Title 12, Article 48, C.R.S., as amended. THEREFORE,THIS APPLICATION IS APPROVED. LOCAL LICENSING AUTHORITY (CITY OR COUNTY) ❑ CITY TELEPHONE NUMBER OF CITY/COUNTY CLERK ❑ COUNTY SIGNATURE TITLE DATE DO NOT WRITE IN THIS SPACE- FOR DEPARTMENT OF REVENUE USE ONLY LIABILITY INFORMATION License Account Number Liability Bate State TOTAL. -750(999) (Instructions on Reverse Size) APPLICATION INFORMATION AND CHECKLIST THE FOLLOWING SUPPORTING DOCUMENTS MUST BE ATTACHED TO THIS APPLICATION FOR A PERMIT TO BE ISSUED: F-] Appropriate fee. F-1 Diagram of the area to be licensed(not larger that 8 1/2"X 11"reflecting bars,walls,partitions, ingress,egress and dimensions. Note: If the event is to be held outside, please submit evidence of intended control, i.e.,fencing,ropes,barriers,etc. F-1 Copy of deed,lease,or written permission of owner for use of the premises. ❑ Certificate of good corporate standing(NONPROFIT)issued by Secretary of State within last two years; or F-1 if not incorporated,a NONPROFIT charter;or F-1 If a political Candidate, attach copies of reports and statements that were filed with the Secretary of State. ❑ APPLICATION MUST FIRST BE SUBMITTED TO THE LOCAL LICENSING AUTHORITY(CITY OR COUNTY)AT LEAST THIRTY(30)DAYS PRIOR TO THE EVENT. F-1 THE PREMISES TO BE LICENSED MUST BE POSTED AT LEAST TEN(10)DAYS BEFORE A HEARING CAN BE HELD.(12-48-106 C.R.S.) F-] AN APPROVED APPLICATION MUST BE RECEIVED BYTHE LIQUOR ENFORCEMENT DIVISION ATLEASTTEN(10)DA YSPRIORTOTHE EVENT. F-] CHECK PAYABLE TO THE COLORADO DEPARTMENT OF REVENUE (12-48-102 C.R.S.) A Special Event Permit issued under this article may be issued to an organization,whether or not presently licensed under Articles 46 and 47 of this title,which has been incorporated under the laws of this state for the purpose of a social,fraternal, patriotic, political or athletic nature, and not for pecuniary gain or which is a regularly chartered branch, lodge or chapter of a national organization or society organized for such purposes and being non profit in nature, or which is a regularly established religious or philanthropic institution, and to any political candidate who has filed the necessary reports and statements with the Secretary of State pursuant to Article 45 of Title 1, C.R.S. A Special Event permit may be issued to any municipality owning arts facilities at which productions or performances of an artistic or cultural nature are presented for use at such facilities. If an event is cancelled, the application fees and the day(s) are forfeited. i i i - I i i i January 31, 2013 �I Lu Berger,Town Clerk Town of Fraser 153 Fraser Ave PO Box 370 Fraser, CO 80442 i Re: Permission for Special Event to be held at The Village at Grand Park i Dear Lu: I Grand Park Development, LLC grants permission for the special event to be held on March 8-10, 2013 (Snowball Music Festival) in The Village at Grand Park (46 Market Street, Fraser, CO 80442) and surrounding grounds. I Please contact us at 970-726-8600 with any questions. Sincerely, GRAND PARK DEVELOPMENT, LLC i i i (G-Cflark Lipscomb President I i i i i i i I I VP vt ��........... Awl JMA /41 urf/11, 0/0 '00 10 I n, aim ri ED "0 OFFICE OF THE SECRETARY OF STATE OF THE STATE OF COLORADO CERTIFICATE I, Scott Gessler, as the Secretary of State of the State of Colorado, hereby certify that, according to the records of this office, WINTER PARK CHAMBER OF COMMERCE is a Nonprofit Corporation formed or registered on 12/10/1973 under the law of Colorado, has complied with all applicable requirements of this office, and is in good standing with this office. This entity has been assigned entity identification number 19871266281. This certificate reflects facts established or disclosed by documents delivered to this office on paper through 01/30/2013 that have been posted, and by documents delivered to this office electronically through 01/31/2013 @ 13:15:22. I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated, issued, delivered and communicated this official certificate at Denver, Colorado on 01/31/2013 @ 13:15:22 pursuant to and in accordance with applicable law. This certificate is assigned Confirmation Number 8449305. u, g�lll�I fp I Ali Secretary of State of the State of Colorado End of Certificate Notice:A certificate issued electronically from the Colorado Secretary ofState's Web site is fully and immediately valid and effective. However, as an option, the issuance and validity of a certificate obtained electronically may be established by visiting the Certificate Confirmation Page of the Secretary of State's Web site, http://w-,nv.sos.state.co.us/biz/Cer•tificateSecmchCriter•ia.do entering the certificate's confirmation number displayed on the certificate, and following the instructions displayed. Confirming the issuance of a certificate is merely optional and is not necessary to the valid and effective issuance of a certificate. For more information,visit our YVeb site, http:// nv.sos.state.co.us/click Business Center and select"Frequently Asked Questions." CERT GSD Revised 08/20/2008 Clerks Update February 6, 2013 The Board packet contained the Winter Park & the Fraser Valley Chamber of Commerce Snowball Music Festival Special Event permit applications for the State and the Town of Fraser along with supporting documentation. All the documents are in order; I would recommend approval of Resolution 2013-02-01 approving the Special Event permit. The Chamber has asked for a fee waiver of the $100.00 per day fee. As you may recall these types of permits are generally done at the administrative level but due to the size and length of the event we chose to bring it to the local Licensing authority. If you have any questions on the application or the process, feel free to give me a call. Lu Print Form Special Event Permit Application Please complete each section,additional sheets may be used if necessary. C C1LOl-lAbK1 Name of Applicant: Winter Park&the Fraser Valley Chamber of Commerce Mailing Address of Applicant: PO Box 3236 Winter Park,CO 80482 Contact Name: Kristyna Nedele Contact Phone Number: 970.726.4221 ext 205 Contact Email: knedele @playwinterpark.com Type of Special Event(i.e.fundraiser,concert): SnowBall Music Festival Address of Special Event:[46 Market St Fraser CO 80482 Do you have written permission to use the premises? (6-Yes ("No List the exact dates and times of the event: March 8-10,2013 Number of expected attendees: 10,000 Describe the premises where the event will take place:(Attach site plan) Meadow at Grand Park What type of security will be provided? Hired security by SnowBall Ventures/Local Police Number of security personnel: 70 How will they be identified? Uniforms or ID Tags and credentials If the event is being held outdoors,how will the exterior boundaries of the premises be marked?(i.e.fencing,ropes,barriers). perimeter of venue will be fenced What type of entertainment will be provided at the event? Live Music How and where will attendees 21 years of age and older be identified(Le at the event entrance,at the alcohol service areas)?How will attendees under the age of 21 be identified(i.e.wristbands)? IDs will be checked at ID tent in the venue How will the conduct of attendees be monitored and by whom? Security personnel,Local Law Enforcement,Staff Have alcohol servers been trained in the sale/service of alcoholic beverages?If yes,please list type of training.(Servers are required to have attended an alcohol server training program prior to the evend. Yes,TIPS Certified What type of beverages,food and snacks will be available at the event? Food Vendors/Trucks,Beer/Liquor will be present at the event knede|e@p|aywinterpark.com Applicant Email Address 78841 US Hwy 4U Winter Park,[08O4O2 Applicant Physical Address 970.7I6/221ext 205 Applicant Phone Number |he,e6y certify,under penalty ofperjury,that the information provided to the Town of Fraser contained in this application is true and accurate tuthe best ofn`Vknowledge. Applicant Siqrfature Date i i i - I i i i January 31, 2013 �I Lu Berger,Town Clerk Town of Fraser 153 Fraser Ave PO Box 370 Fraser, CO 80442 i Re: Permission for Special Event to be held at The Village at Grand Park i Dear Lu: I Grand Park Development, LLC grants permission for the special event to be held on March 8-10, 2013 (Snowball Music Festival) in The Village at Grand Park (46 Market Street, Fraser, CO 80442) and surrounding grounds. I Please contact us at 970-726-8600 with any questions. Sincerely, GRAND PARK DEVELOPMENT, LLC i i i (G-Cflark Lipscomb President I i i i i i i I I TOWN OF FRASER RESOLUTION NO. 2013-02-01 A RESOLUTION OF THE FRASER BOARD OF TRUSTEES, ACTING AS THE LOCAL LIQUOR LICENSING AUTHORITY FOR THE TOWN OF FRASER, APPROVING THE APPLICATION OF WINTER PARK& THE FRASER VALLEY CHAMBER OF COMMERCE FOR A SPECIAL EVENTS LIQUOR LICENSE FOR THE PREMISES AT 46 MARKET STREET, FRASER, COLORADO. WHEREAS, Winter Park & The Fraser Valley Chamber Of Commerce (the "Applicant") filed an application with the Town of Fraser for a Special Events Liquor License for the premises located at 46 Market Street, Fraser, Colorado; and WHEREAS, the Board of Trustees, as the Local Liquor Licensing Authority, has carefully considered said application and the evidence presented, and hereby enters the following decision regarding the application. THE BOARD OF TRUSTEES MAKES THE FOLLOWING FINDINGS: 1. Application was submitted to the local authority at least 30 days prior to the event. 2. Appropriate fees have been paid. 3. A diagram of the area to be licensed reflecting intended control, fencing ropes and barriers was submitted. 4. The Applicant has submitted evidence that it is or will be entitled to possession of the premises where the license is proposed to be exercised. 5. Certificate of good standing (NONPROFIT) or NONPROFIT charter was attached. 6. Property was posted at least 10 days prior to the public hearing date. BASED UPON THESE FINDINGS, THE BOARD OF TRUSTEES, AS THE LOCAL LICENSING AUTHORITY, HEREBY ORDERS that the application of Winter Park & The Fraser Valley Chamber Of Commerce, for a Special Events Liquor License for the premises at 46 Market Street, Fraser, Colorado be and is hereby APPROVED. DULY MOVED, SECONDED, AND ADOPTED THIS 6th DAY OF FEBRUARY, 2013. TOWN OF FRASER BOARD OF TRUSTEES AND LIQUOR LICENSING AUTHORITY BY: Peggy Smith, Mayor ATTEST: Lu Berger, Town Clerk CERTIFICATE OF SERVICE I hereby certify that I served the above and foregoing Resolution and decision of the Local Licensing Authority upon the Applicant named therein by mailing the same by certified mail, postage prepaid, this 7th day of February, 2013, addressed as follows: Winter Park & The Fraser Valley Chamber Of Commerce P.O. Box 3236 Winter Park, CO 80482 Lu Berger, Town Clerk and Secretary to the Local Liquor Licensing Authority - 2 - DR 8439(06/28/06) �' Department Use Only COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET \® ®i° �A DENVER CO 80261 EVENTS PERMIT (303)205-2300 IN ORDER TO QUALIFY FOR A SPECIAL EVENTS PERMIT,YOU MUST BE NONPROFIT AND ONE OF THE FOLLOWING (See back for details.) ✓❑ SOCIAL ❑ ATHLETIC ❑ PHILANTHROPIC INSTITUTION ❑ FRATERNAL ❑ CHARTERED BRANCH,LODGE OR CHAPTER ❑ POLITICAL CANDIDATE ❑ PATRIOTIC ❑ OF A NATIONAL ORGANIZATION OR SOCIETY ❑ MUNICIPALITY OWNING ARTS ❑ POLITICAL ❑ RELIGIOUS INSTITUTION FACILITIES LIAR TYPE OF SPECIAL EVENT APPLICANT IS APPLYING FOR: DO NOT WHITE IN THIS SPACE 2110[j MALT,VINOUS AND SPIRITUOUS LIQUOR $25.00 PER DAY LIQUOR PERMIT NUMBER 2170[:] FERMENTED MALT BEVERAGE(3.2 Beer) $10.00 PER DAY 1. NAME OF APPLICANT ORGANIZATION OR POLITICAL CANDIDATE 71aa Tax Num ber(Required) Winter Park&the Fraser Valley Chamber of Commerce 5 2. MAILING ADDRESS OF ORGANIZATION OR POLITICAL CANDIDATE 3. ADDRESS OF PLACE TO HAVE SPECIAL EVENT (include street,city/town and ZIP) (include street,city/town and ZIP) P.O. Box 3236 46 Market St Winter Park, CO 80482 Fraser, CO 80442 NAME DATE OF BIRTH HOME ADDRESS(Street,City,State,ZIP) PHONE NUMBER 4. PRES./SEC'Y OF ORG.or POLITICAL CANDIDATE Catherine Ross P.O. Box 3236 Winter Park CO 80482 970.726.4221 5. EVENT MANAGER Kristyna Nedele P.O. Box 3236 Winter Park CO 80482 970.726.4221 6. HAS APPLICANT ORGANIZATION OR POLITICAL CANDIDATE BEEN 7. IS PREMISES NOW LICENSED UNDERSTATE LIQUOR OR BEER CODE? ISSUED A SPECIAL EVENT PERMIT THIS CALENDAR YEAR? NO -]YES HOW MANY DAYS? ®NO YES TO WHOM? 8. DOES THE APPLICANT HAVE POSSESSION OR WRITTEN PERMISSION FOR THE USE OF THE PREMISES TO BE LICENSED? ❑Yes ❑No LIST BELOW THE EXACT DATE(S)FOR WHICH APPLICATION IS BEING MADE FOR PERMIT Date March 8 Date March 9 Date March 10 Date Date Hours From 1 prn m. Hours From 1 pim m. Hours From 1 pim m. Hours From m. Hours From m. To 11:30 .m. To 11:30 m. To 11:30 m. To m. To m. OATH OF APPLICANT l declare under penalty of perjury in the second degree that l have read the foregoing application and all attachments thereto,and that all information therein is true,correct, and complete to the best of my knowledge. � 4•,� ,,, � .. �` TITLE DATE AT .. S G URE r.„., .,' ( REPORT AND APPROVAL OF LOCAL LICE SING AUTHORITY(CITY OR COUNTY) The foregoing application has been examined and the premises, business conducted and character of the applicant is satisfactory, and we do report that such permit, if granted, will comply with the provisions of Title 12, Article 48, C.R.S., as amended. THEREFORE,THIS APPLICATION IS APPROVED. LOCAL LICENSING AUTHORITY (CITY OR COUNTY) ❑ CITY TELEPHONE NUMBER OF CITY/COUNTY CLERK ❑ COUNTY SIGNATURE TITLE DATE DO NOT WRITE IN THIS SPACE- FOR DEPARTMENT OF REVENUE USE ONLY LIABILITY INFORMATION License Account Number Liability Bate State TOTAL. -750(999) (Instructions on Reverse Size) APPLICATION INFORMATION AND CHECKLIST THE FOLLOWING SUPPORTING DOCUMENTS MUST BE ATTACHED TO THIS APPLICATION FOR A PERMIT TO BE ISSUED: F-] Appropriate fee. F-1 Diagram of the area to be licensed(not larger that 8 1/2"X 11"reflecting bars,walls,partitions, ingress,egress and dimensions. Note: If the event is to be held outside, please submit evidence of intended control, i.e.,fencing,ropes,barriers,etc. F-1 Copy of deed,lease,or written permission of owner for use of the premises. ❑ Certificate of good corporate standing(NONPROFIT)issued by Secretary of State within last two years; or F-1 if not incorporated,a NONPROFIT charter;or F-1 If a political Candidate, attach copies of reports and statements that were filed with the Secretary of State. ❑ APPLICATION MUST FIRST BE SUBMITTED TO THE LOCAL LICENSING AUTHORITY(CITY OR COUNTY)AT LEAST THIRTY(30)DAYS PRIOR TO THE EVENT. F-1 THE PREMISES TO BE LICENSED MUST BE POSTED AT LEAST TEN(10)DAYS BEFORE A HEARING CAN BE HELD.(12-48-106 C.R.S.) F-] AN APPROVED APPLICATION MUST BE RECEIVED BYTHE LIQUOR ENFORCEMENT DIVISION ATLEASTTEN(10)DA YSPRIORTOTHE EVENT. F-] CHECK PAYABLE TO THE COLORADO DEPARTMENT OF REVENUE (12-48-102 C.R.S.) A Special Event Permit issued under this article may be issued to an organization,whether or not presently licensed under Articles 46 and 47 of this title,which has been incorporated under the laws of this state for the purpose of a social,fraternal, patriotic, political or athletic nature, and not for pecuniary gain or which is a regularly chartered branch, lodge or chapter of a national organization or society organized for such purposes and being non profit in nature, or which is a regularly established religious or philanthropic institution, and to any political candidate who has filed the necessary reports and statements with the Secretary of State pursuant to Article 45 of Title 1, C.R.S. A Special Event permit may be issued to any municipality owning arts facilities at which productions or performances of an artistic or cultural nature are presented for use at such facilities. If an event is cancelled, the application fees and the day(s) are forfeited. VP vt ��........... Awl JMA /41 urf/11, 0/0 '00 10 I n, aim ri ED "0 MEMORANDUM February 1, 2013 TO: Mayor and Town Board CC: Jeff Durbin, Catherine Trotter, Allen Nordin FROM: Boots Ferguson and Kylie Crandall RE: Staff Report on Annexation Agreement This memorandum shall serve as a brief staff report that summarizes the provisions of the Annexation Agreement for Byers Peak Ranch that have been negotiated with the owners of the property and presented to the Board for review and consideration. The Annexation Agreement sets forth the various rights and obligations of the parties in connection with the Byers Peak Ranch annexation and development. The annexation is to annex 295 acres comprising the Byers Peak Ranch that is adjacent to the Town. The Agreement is separate from the PDD Plan that establishes the concepts for the development and some parameters. The PDD Plan includes preliminary reports and plans. The Agreement confirms the right of the Developer to develop up to 1435 dwelling units of various types and mixes, 550 hotel/motel/lodging units that would include RV sites, and 270,000 square feet of commercial space to be developed over a 35 year period. The Developer is granted vested rights in these densities and in the zoning under the Planned Development District zoning for the property. Much of the Agreement provides for application of the requirements and provisions of the Municipal Code to the project. By way of brief summary, the Agreement provides as follows: 1. Article 1: The annexation and zoning of the property and the right of Developer not to develop it so long as several of its obligations, including the provision of water storage to the Town, are fulfilled are confirmed. 2. Article 3: a. The Town will provide water service to the project for up to 1897 SFEs upon connection by Developer to the Town's municipal water system. b. The Developer will design, construct, convey and dedicate to the Town 60 acre feet of storage; 25 acre feet will be at the Forest Meadows property site and 35 acre feet will be on Byers Peak Ranch, together with easements for the filling of the ponds and release of water to the Fraser River or its tributaries. C. The Forest Meadows pond will be constructed and conveyed within seven years and the Byers Peak Ranch pond will be constructed and conveyed within 18 years or sooner. An operating agreement that addresses the operation of the ponds if Developer builds them with excess capacity to store its water rights too and allocation of costs. Developer will operate the ditches and the Town will operate the Ponds. The Developer has the right to use Byers Peak Ranch pond water for snowmaking to the extent the Town does not use its water in any given year. d. Water service infrastructure design and construction will comply with the Municipal Code requirements. e. The existing well on the property may be used in the future for non-potable purposes once the potable system is connected to the municipal system; it may continue to be used for potable purposes until such time as the connection is made. f. Any excess capacity in the water system constructed by Developer at the Town's request will be paid by the Town or other developers. g. Water Plant Investment Fees are split between the Town and Developer based on the needs of the Town to serve the project and the desire of Developer to recoup some of the costs of building the storage and water service infrastructure. 3. Article 4: Town will provide sewer service and will retain all plant investment fees. 4. Article 5: This provision requires compliance with the Municipal Code for all utilities. 5. Article 6: This provision requires compliance with the Municipal Code for managing drainage. 6. Article 7: This provision requires a. updating traffic impact analysis as the project is phased in; b. Town will maintain all public streets; C. the Municipal Code will apply to all public street construction and dedication; d. rights of way for the existing streets will be confirmed; e. improvement to the regional roadways is desired and Developer will be responsible for percentage costs of improvements and will provide base work for improvements to Fraser Valley Parkway; f. any private streets will comply with any emergency vehicle standards; g. a pathway along Fraser Valley Parkway will be constructed. 7. Article 8: a. Town will provide normal municipal services to project; b. open space will dedicated to project consistent with PDD Plan; C. a pocket park of 1.5 acres shall be constructed along the Fraser Valley Parkway and dedicated to the Town; d. school impact fee Municipal Code requirements will be met; e. a 6 acre parcel south of old town and west of the railroad tracks will be dedicated to the Town for municipal use. 8. Article 9: a. the PDD Plan sets forth densities and allocation of the same and general land uses for the various planning areas and density transfers; b all pond grading and excavation shall be performed consistent with the Grading and Excavation Plan that also regulates the transport of excess gravel off site for sale; C. a phasing plan will be provided consistent with the Municipal Code; d. the property will be included in the West Mountain Metropolitan District and a cap of 35 mils will be imposed on the property; e. general Town development requirements will be met. 9. Article 10: Agreement provides Developer with PDD Plan approval subject to compliance with Municipal Code requirements for Final PDP. 10. Article 11: Vested rights are created for the densities, zoning and general land use plan of the project for 35 years, the projected buildout of the project. 11. Article 12: Standard additional agreement provisions are set forth include default and remedies provisions. January 23, 2013 DRAFT BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT Town of Fraser, Colorado ---------------- 2013 This Agreement creates a Vested Property Right Pursuant to C.R.S. Section 24-68-103, as amended and Pursuant to the Terms Hereof {Client/1 3 23 6/1 16/024 1 4663.DOC/161 TABLE OF CONTENTS ANNEXATION AGREEMENT Article 1 ANNEXATION AND ZONING OF THE PROPERTY..................................................2 Section1.1 Ordinances........................................................................................................3 Section 1.2 Effective Date of Agreement............................................................................3 Section1.3 Annexation ............ ..........................................................................................3 Section1.4 Zoning ..............................................................................................................3 Section1.5 Acknowledgements ..........................................................................................3 Section 1.6 No Obligation to Develop ................................................................................3 Article2 DEFINITIONS..................................................................................................................3 Section2.1 Definitions........................................................................................................4 Article3 WATER............................................................................................................................5 Section3.1 Water Service...................................................................................................5 Section 3.2 Dedication of Water Storage Facilities ............................................................6 Section 3.3 Water Service Infrastructure and its Approval and Construction ..................10 Section3.4 On-site Wells..................................................................................................11 Section 3.5 Water Plant Investment Fees..........................................................................12 Section3.6 Excess Capacity..............................................................................................12 Section 3.7 Water Plant Investment Fee Accounting and Credit......................................12 Article4 SEWER...........................................................................................................................13 Section4.1 Sewer Service.................................................................................................13 Section 4.2 Individual Sewage Disposal Systems.............................................................14 Article 5 OTHER UTILITIES .......................................................................................................14 Section 5.1 Other Utilities.................................................................................................14 Article6 DRAINAGE....................................................................................................................14 Section6.1 Drainage .........................................................................................................14 Article 7 STREETS AND TRAFFIC ............................................................................................14 Section 7.1 Grading & Roadway Plan...............................................................................14 Section 7.2 Traffic Impact Analysis..................................................................................14 Section 7.3 Street Designations.........................................................................................15 Section 7.4 Street Maintenance.........................................................................................15 Section 7.5 Street Rights of Way ......................................................................................15 Section 7.6 Regional Roadways........................................................................................16 Section 7.7 Street Standards, Construction, Inspection, and Acceptance.........................16 Section7.8 Pathways.........................................................................................................16 Article 8 SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION.......................17 Section 8.1 Additional Municipal Services.......................................................................17 Section 8.2 Project Open Space ........................................................................................17 Section8.3 Public Open Space..........................................................................................17 {Client/1 3 23 6/1 16/024 14663.DOC/161 Section 8.4 School Impact Fees ........................................................................................17 Section 8.5 Municipal Parcel Dedication..........................................................................17 Section 8.6 Colorado Adventure Park Facilities and Operations......................................18 Article 9 GENERAL DEVELOPMENT OF THE PROPERTY...................................................18 Section 9.1 Development and Control of Development....................................................18 Section9.2 Densities.........................................................................................................18 Section 9.3 Transfer of Water and Sewer SFEs................................................................19 Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations ofFraser..........................................................................................................20 Section 9.5 Grading and Excavation Operations...............................................................20 Section 9.6 Transfer of Planning Area..............................................................................21 Section9.7 Phasing Plan.......... ........................................................................................21 Section 9.8 Metropolitan District. .....................................................................................21 Section 9.9 Financing of Public Improvements ................................................................22 Section 9.10 Maintenance Cost Offsets ..............................................................................22 Section 9.11 Hospital/Health Services District. ..................................................................22 Section 9.12 Owner's Associations.....................................................................................22 Section 9.13 Rules, Regulations and Official Policies........................................................23 Article 10 COOPER & IMPLEMENTATION..............................................................................23 Section 10.1 Statement of Intent.........................................................................................23 Section 10.2 Scope of this Agreement. ...............................................................................23 Article 11 VESTED RIGHTS........................................................................................................24 Section 11.1 Vesting of Certain Property Rights ................................................................24 Section 11.2 Rights Which Are Vested...............................................................................24 Section 11.3 Term for Vested Rights..................................................................................25 Section 11.4 Compliance with General Regulations and Limitations on TownActions .................................................................................................25 Article 12 MISCELLANEOUS.....................................................................................................26 Section 12.1 Time is of the Essence....................................................................................26 Section12.2 Covenants.......................................................................................................26 Section 12.3 Contractual Obligations..................................................................................27 Section12.4 Term ................. ............................................................................................27 Section 12.5 Amendment of Agreement.............................................................................27 Section 12.6 Default and Remedies ....................................................................................27 Section 12.7 No Joint Venture or Partner shib.....................................................................28 Section 12.8 No Third Party Beneficiaries..........................................................................28 Section12.9 Notices............................................................................................................28 Section 12.10 Assignment ................................................................................................29 Section 12.11 Agricultural Use.........................................................................................30 Section 12.12 Grant or Conveyance. Whenever a............................................................30 Section12.13 Recording...................................................................................................30 Section 12.14 Authorization .............................................................................................30 Section 12.15 Governing Law..........................................................................................30 {Client/1 3 23 6/1 16/024 14663.DOC/161 Section12.16 Severability................................................................................................30 Section 12.17 Waiver of Breach.......................................................................................30 Section 12.18 Entire Agreement.......................................................................................30 Section 12.19 No Additional Annexation Conditions Imposed........................................31 Section 12.20 Drafting of Agreement...............................................................................31 Section 12.21 Execution of Other Documents..................................................................31 Section 12.22 Counterparts; Facsimile.............................................................................31 {Client/1 3 23 6/1 16/024 14663.DOC/161 BYERS PEAK RANCH ANNEXATION AGREEMENT The parties to this Annexation Agreement (this "Agreement") are the TOWN OF FRASER, COLORADO, a municipal corporation of the State of Colorado ("Fraser"), and BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company and BYERS PEAK DOWNHILL ADVENTURES, LLC, a Colorado limited liability company (collectively "Developer"). RECITALS A. Fraser is a municipal corporation existing under the laws of the State of Colorado. Developer is comprised of two limited liability companies organized and existing under the laws of the State of Colorado; B. In 2007, Developer filed a Petition for Annexation (the "Annexation Petition") with Fraser to annex into Fraser approximately 295 acres of land south of Fraser in Grand County commonly known as the Byers Peak Ranch; this property is legally described in Exhibit A to this Agreement (the "Property") and is the subject of the Annexation Resolution and Annexation Ordinance defined below; C. Developer owns 100% of the Property; D. On , 200, the Town Clerk referred the Annexation Petition to Fraser's Board of Trustees (the "Board"); E. On ___, 200, the Board conducted a public hearing at which it adopted Resolution No. , wherein it determined that the Annexation Petition complies with C.R.S. Section 31-12-107, and the Property is eligible for annexation to Fraser; F. Fraser and Developer desire to enter into this Agreement setting forth more fully the terms of the annexation and development of the Property; G. In connection with the annexation of the Property to Fraser, Developer filed its application in February 2011 with Fraser for approval of the Byers Peak Ranch Planned Development District Plan ("PDD Application") for the Property pursuant to Ordinance No. 131, Series of 1985, set forth in Chapter 16, Article 5 of Fraser Municipal Code, as adopted and as amended from time to time by Fraser Board of Trustees ("Fraser Code"), Sections 16-5-10 through Section 16-5-720 (the "PDD Ordinance"); contemporaneously herewith Fraser approves the Byers Peak Ranch Planned Development District Plan with conditions (the "PDD Plan"), which allows a mixture of up to 1,435 dwelling units, 550 hotel/motel/lodging units and 270,000 square feet of commercial space, recreation facilities, and support activities on the Property, a copy of which is attached hereto as Exhibit B and incorporated herein by this reference provided that any amendments thereto may be made without amending this Agreement; {Client/1 3 23 6/1 16/024 14663.DOC/161 1 the Property will be served with municipal water and sewer service by Fraser consistent with the provisions of this Agreement; H. It is the understanding and intent of Developer and Fraser that the PDD Plan is preliminary in nature, as provided in the Fraser Code, and the final approval of the development of the Property, or any portions thereof, is subject to compliance by Developer with conditions set forth in the PDD Plan, applicable provisions of Fraser Code and other applicable regulations, rules and policies and this Agreement; L For the reasons recited herein, Developer and Fraser have determined that the PDD Plan is a development for which this Agreement is appropriate; J. The PDD Plan may contribute substantially to the economic growth of Fraser and, consequently, may increase tax revenues to Fraser; K. Fraser desires to annex the Property in order to provide for orderly growth in and around Fraser; L. Developer desires to receive the assurance that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement and in the PDD Plan, consistent with the Fraser Code; M. Development of the Property in accordance with this Agreement will provide for orderly growth in accordance with the policies and goals set forth in Fraser's Master Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, provide water storage to Fraser, and foster cooperation between the public and private sectors in the area of land use planning; N. Fraser and Developer mutually agree that the provisions hereinafter set forth are reasonable conditions and requirements in connection with the approval of the Annexation Petition; Fraser recognizing and reciting that such provisions are necessary to protect, promote and enhance the public welfare; and O. The Board approved the Annexation Petition and annexed the Property to Fraser under Resolution No. -- — Series 2013 ("Annexation Resolution") and Ordinance --- ("Annexation Ordinance"). AGREEMENT In consideration of the foregoing recitals, Ten Dollars, the mutual promises contained herein, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: ARTICLE 1 ANNEXATION AND ZONING OF THE PROPERTY {Client/1 3 23 6/1 16/024 1 4663.DOC/161 2 Section 1.1 Ordinances. For purposes of this Agreement, "Ordinances" shall mean collectively the following: (a) the Annexation Ordinance; (b) an ordinance approved by Fraser adopting and approving this Agreement; and (c) an ordinance approved by Fraser adopting and approving the PDD Plan. Section 1.2 Effective Date of Agreement. This Agreement shall become effective as of the date upon which the last of the parties to sign have executed this Agreement after the effective date of the approving ordinance as provided in Fraser Code (the "Effective Date"). This Agreement and such ordinances and other actions taken pursuant hereto may be cancelled and rescinded, at Fraser's option, if Developer fails to sign this Agreement not later than 5 days after the effective date of the ordinance approving this Agreement. Section 1.3 Annexation. Annexation of the Property shall be in accordance with this Agreement and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. §§ 31-12-101, et seq.). As provided herein, the Property shall be subject to all Fraser ordinances, the Fraser Code, and applicable rules, regulations and policies. Section 1.4 Zoning. Consistent with the requirements of the Act, Fraser contemporaneously herewith zones the Property a PD District and is amending the Official Zoning Map of Fraser accordingly. Section 1.5 Acknowledgements. The parties acknowledge the following: a. Development of the Property pursuant to the PDD Plan is estimated by Developer to have a 35 year build-out period. b. A material consideration for Developer's annexation of the Property and development of the Property consistent with the PDD Plan is Fraser's agreement to permit development of the Property in accordance with (i) the terms and conditions of this Agreement and (ii) the conditions of approval of the PDD Plan, provided that there is subsequent Fraser approval of an FPDP or subdivision within the PDD Plan pursuant to the Fraser Code. Section 1.6 No Obligation to Develop. Developer shall have no obligation under this Agreement to develop all or any portion of the PDD Plan and shall have no liability under this Agreement to Fraser or any other party for its failure to develop all or any part of the PDD Plan, unless otherwise expressly set forth in this Agreement. Nothing in this Agreement shall be construed as a waiver or release by Fraser of its rights to enforce the Fraser Code as provided herein. Developer shall have no liability to Fraser or any other party for not developing all or any part of the Property provided that Fraser and Developer are in full compliance with the terms and conditions of any subdivision improvements agreement(s) and this Agreement. Notwithstanding the foregoing and Developer's decision to delay or not develop the Property, Developer and Fraser agree to perform those specific obligations to be fulfilled that are expressly required and provided for in this Agreement. ARTICLE 2 DEFINITIONS {Client/1 3 23 6/1 16/024 1 4663.DOC/161 3 Section 2.1 Definitions. As used in this Agreement, unless specifically stated otherwise, the words and phrases used shall have the meaning as defined in the Fraser Code, Zoning Regulations, PDD Ordinance and Fraser Subdivision Regulations. For the purpose of this Agreement specific words and phrases in this Agreement shall have the definitions set forth elsewhere in this Agreement and below: a. Density. References to "Density" in the PDD Plan and Agreement are to Parcel Density as defined in the PDD Ordinance. b. Developer. The term "Developer" as defined above shall also include any person or entity who subsequently acquires a fee simple interest of record in any portion of the Property as a transferee, grantee, assignee or successor, but only with respect to the parcel transferred; except that the purchasers of subdivided residential units, lodging/hotel units, or commercial space in an approved FPDP or subdivision shall not be deemed to be a Developer for purposes of this Agreement and the PDD Plan, but shall take their property interests subject to the provisions hereof. C. Drainage Plan. The Conceptual Drainage Plan prepared by Top Knot Engineering, Inc. dated August 2011, and approved by Fraser as part of the PDD Plan. d. FPDP. The Final Planned Development Plan of the Property approved by the Board of Trustees of Fraser in accordance with the requirements of the PDD Ordinance and Fraser Code. e. Improvements Agreement. An agreement or agreements required by the Subdivision and Zoning Regulations of the Fraser Code to provide for the construction of required improvements pursuant to the requirements set forth in the Fraser Code. f. Master Plan. A plan for guiding and controlling the physical development of land use and circulation in Fraser of Fraser and beyond to a limit of three miles, as adopted pursuant to Part 2 of Article 23, Title 31, Colorado Revised Statutes, and any amendment or extension of such a plan. The Master Plan is also known as the "Comprehensive Plan." g. Planning Area. An area specifically identified on the PDD Plan. h. Regional Roadways. This term shall mean the following existing regional roadways, which are located on the Property: (a) the roadway designated on the PDD Plan as Fraser Valley Parkway (the "Parkway"); (b) County Road 72 ("CR 72"); and (c) County Road 73, also known as Mill Avenue ("CR 73"). i. Residential Unit. A residential unit is a "dwelling unit" as defined in the Fraser Code. j. Roadway Plan. The Conceptual Roadway Plan dated August 2011 prepared by Top Knot Engineering, Inc., as approved by Fraser as part of the PDD Plan. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 4 k. Sanitary Sewer Investment Fee. A fee collected by Fraser pursuant to the Fraser Code, Section 13-4-50. 1. Sewer Plan. The Conceptual Sewer Plan prepared by Top Knot Engineering, Inc., dated February 2011, as approved by Fraser as part of the PDD Plan. m. SFE. A "single family equivalent" defined in Section 13-2-10 of the Fraser Code. n. Water Facilities. The Water Facilities include the central potable water supply diversion structures, well pumps and appurtenances, treatment facilities, transmission lines to storage and treatment, raw water storage facilities, potable water storage tanks, and distribution lines, related PRV/booster stations connecting the water source facilities, raw water supplies, and all other physical infrastructure of the Fraser municipal water supply system that Fraser utilizes to provide water service to Fraser, together with the Water Rights, augmentation plans, groundwater wells supplying the central potable water system, raw water diversions and reservoirs including without limitation the Dedicated Storage; Water Facilities do not include individual service lines from a water main to a structure, which facilities shall be owned and maintained by the property owner on which the service line is located. o. Water Infrastructure Plan. The conceptual Water Infrastructure Plan prepared by Top Knot Engineering, Inc., dated March 2011, which describes the water infrastructure serving the Property, as approved by Fraser as part of the PDD Plan. p. Water Plant Investment Fee. A fee collected by Fraser pursuant to Fraser Code. q. Water Rights. The water rights decreed by Fraser for its water supply, including without limitation, the 60 acre feet of storage decreed by Developer for dedication to Fraser pursuant to this Agreement. ARTICLE 3 WATER Section 3.1 Water Service. Upon approval of this Agreement, Fraser will provide municipal potable water service to the Property for up to 1897 SFEs to serve the PDD Plan subject to the terms and conditions set forth herein and the applicable provisions contained in Fraser Code. Fraser's Water Rights are adequate to support the potable municipal water service for up to 1897 SFEs on the Property as described in the PDD Plan, subject to the construction and dedication of the Dedicated Storage to Fraser, the issuance of a decree from the Water Court confirming the as-built locations of the same, and other terms and conditions set forth herein. Fraser shall be responsible for all applicable implementation, operation and accounting requirements necessary to serve the Property pursuant to the PDD Plan. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 5 a. Infrastructure Connections. The water infrastructure connections to the existing Fraser municipal system infrastructure to serve the Property may be made through the infrastructure that serves the "old town" portion of Fraser or the infrastructure associated with the neighboring project known as the Grand Park project. The determination of which point of connection will be made will be based upon the location and phasing of the PDD Plan as set forth in applicable FPDP or subdivision approvals. The Developer will design and construct all required infrastructure to serve the Property as required by the Fraser Code and at its sole cost. The provision of water service is subject to the Developer's obligations to construct or pay for the construction of the necessary Water Facilities to connect to Fraser's municipal water system and to serve the PDD Plan or portions thereof as provided for herein, in applicable Improvements Agreement, and the Fraser Code. Reimbursement or credit to Developer for the costs of infrastructure constructed pursuant to this Section shall be as described in Section 3.6 and Section 3.7 below. b. The Developer agrees to pay Fraser $60,614 for Water Facilities needs in order to provide water service for the initial 711 SFEs of the total 1897 SFE approved herein. By this payment, Developer has no further obligation to reimburse Fraser for legal fees for water court processes as may be required by Fraser regarding the Dedicated Water Rights once they are conveyed to Fraser. Such amount shall be paid upon the Effective Date. C. The costs for water treatment plant improvements and other infrastructure, engineering and legal work that will have to be made from time to time to serve the PDD Plan, or portions thereof, shall be paid through the Water Plant Investment Fees payable to the Town. All Water Plant Investment Fees shall be allocated between the Developer and Fraser as specified in Section 3.7 below. Section 3.2 Dedication of Water Storage Facilities. In satisfaction of Fraser's water dedication requirements in connection with the provision of municipal water service for the PDD Plan, the Developer, at its sole cost, agrees to design and construct water storage facilities (ponds) (the"Dedicated Storage") and the ditches to fill the Dedicated Storage and to release water therefrom into the Fraser River or its tributaries upstream of the confluence of St. Louis Creek and the Fraser River to be located on the Property and/or on adjacent property owned by Cornerstone Winter Park Holdings, LLC, Grand Park Development LLC or affiliates as provided herein. Developer shall dedicate or cause to be dedicated to Fraser decreed water rights for the filling and storage of 60 acre feet of operational storage water in the Dedicated Storage (the "Dedicated Water Rights"). Developer shall also dedicate or cause to be dedicated to Fraser the legal rights to fill and store the Dedicated Water Rights in the Dedicated Storage together with all appropriate easements for such storage space and the operation,repair,replacement, improvement and maintenance thereof, the access rights necessary for the diversion and transportation of water for the filling of such storage and for the release of such stored water and its delivery to the Fraser River, and the rights of access to all facilities and infrastructure necessary and convenient for the full utilization of the Dedicated Water Rights by Fraser as a part of its municipal water system in accordance with the applicable procedures set forth in the Fraser Code and any applicable augmentation plan. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 6 The Dedicated Water Rights shall be conveyed by special warranty deeds and shall be free and clear of all liens and encumbrances. The easement rights for the Dedicated Storage and storage of the Dedicated Water Rights shall include without limitation rights for(a) the diversion and transportation of the same across any portion of the Property for the purposes set forth herein in a location agreed upon by the parties and the filling and storage of water, (b) the access thereto and to all associated facilities and infrastructure, (c) the rights for the operation, maintenance, repair, replacement and improvement thereof, and(d)releases and associated access therefrom to the Fraser River tributaries. The Developer is only required to grant easement rights across the Property. The Town recognizes that Developer is unable to grant or change ditch easements that may currently exist on adjacent property not owned by Developer and can only convey the same interest in easement rights it may have in connection with the water rights to be used for filling the Dedicated Storage. The easement rights shall be free of liens and encumbrances and shall be executed and delivered to Fraser by the owners of the respective properties on which the Dedicated Storage facilities are located concurrent with the dedication and conveyance of the Dedicated Water Rights by the Developer to Fraser, as provided herein. The easement documents for the Byers Peak Ranch Augmentation Pond system described herein shall be substantially in the form attached hereto as Exhibit C. The easement documents for the Forest Meadows Augmentation Plan Pond are attached hereto as Exhibit D. The water rights decreed in Case No. 05CW287 shall be conveyed to the Town by the applicants and owners thereof upon the Effective Date in satisfaction of the obligation to convey the Dedicated Water Rights associated with the Forest Meadows Augmentation Plan Pond. Developer will cause the grant of easement documents for the Forest Meadows Augmentation Plan Pond to be executed and delivered to Fraser by the owners of the Dedicated Water Rights and the property underlying the Dedicated Storage and associated facilities and all related facilities upon the Effective Date. Developer will cause the special warranty deed and grant of easement documents for the Byers Peak Ranch Augmentation Pond to be executed and delivered to Fraser by the owners of such Dedicated Water Rights and the property underlying such Dedicated Storage and associated facilities and all related facilities. Such special warranty deed and grant of easement shall be conveyed and delivered to Fraser immediately upon completion, approval and acceptance by Fraser of the Byers Peak Ranch Augmentation Pond as set forth in the Fraser Code. Such conveyances shall fulfill Fraser's water dedication requirements for the PDD Plan. The obligations set forth in this Section shall be fulfilled irrespective of whether Developer chooses not to develop all or portions of the Property under Section 1.7 hereof. Adequate security for the construction of the Dedicated Storage and associated facilities shall consist of alternative storage that is free and clear of encumbrances. On the Effective Date, Developer will grant an access easements and right of first use agreements to Fraser for up to 60 acre-feet of storage in existing ponds at Grand Park or in a satisfactory alternate facility, which easement shall be effective only in the event the above deadlines are not met and shall only apply to that amount of Dedicated Storage that has not been constructed and operational at the time it becomes effective; this right of first use shall terminate with respect to the amount of Dedicated Storage that has been constructed and operational. It is anticipated that such alternate storage, only to the extent as may be required, shall be in the existing pond commonly known as the {Client/1 3 23 6/1 16/024 1 4663.DOC/161 7 "Wishbone Pond." and associated ponds. A map of the Grand Park Ponds is attached as Exhibit E and the form of easement and use agreement is attached as Exhibit F. The two planned facilities for Dedicated Storage are the Byers Peak Ranch Augmentation Pond and the Forest Meadows Augmentation Plan Pond. The Dedicated Storage may be constructed in multiple ponds so long as the aggregate operational water stored equals 60 acre feet. The Forest Meadows Augmentation Plan Pond will be constructed to have the capacity to store 25 acre feet of the Dedicated Water Rights. It will be designed and located by Developer, subject to Fraser approval, no later than five years after the Effective Date. The location will be consistent with the decree entered in Case No. 83CW362. It will be constructed and all associated rights as provided herein conveyed to Fraser no later than seven years after the Effective Date. The Byers Peak Ranch Augmentation Pond will be constructed to have the capacity to store 35 acre feet of the Dedicated Water Rights. It will be designed, located, and constructed on the Property by Developer, subject to Fraser approval, and conveyed to Fraser no later than the earlier of the following: (a) the discontinuance of gravel and excavation operations consistent with the provisions of Section 9.5.e. or(b) 18 years from the Effective Date. The Developer shall comply with all applicable local, state and federal laws, including securing any required permits, for constructing the Dedicated Storage. Fraser agrees to waive all permit and review fees associated with the permitting for the grading and excavation and construction of the PDD Plan. The Dedicated Storage shall be constructed and operated and all releases of the Dedicated Water Rights made in compliance with the decrees (or pending decree)in Case Nos. 83CW362, 05CW287 or lOCW309, which include provisions to address groundwater that may be intercepted, and applicable augmentation plans. The Dedicated Water Rights to be used to fill the Byers Peak Ranch Augmentation Pond shall be the first rights diverted under Case No. lOCW309. All operations, maintenance, repairs and replacements, and water court or agency filings or activities for such ponds shall be Developer's responsibility at its sole cost until such time as the rights in the Dedicated Storage and the Dedicated Water Rights are conveyed to Fraser. Upon conveyance of the Dedicated Water Rights, Fraser shall be responsible for all operations, maintenance, repairs, and replacements, water court or agency filings or activities of the Dedicated Storage and Dedicated Water Rights stored therein, unless otherwise agreed upon by the parties in writing. The pond(s) may be designed to include the storage of additional water rights, and may include storm water detention capacity or any such other water uses that Developer may require. In such event, the parties shall be responsible for the costs of all operations, maintenance, repairs, and replacements, water court and agency filings or activities in proportion to the amount Developer stores in the subject pond relative to the amount of Dedicated Water Rights stored therein. With respect to any pond that will constitute all or a portion of the Dedicated Storage that also will store Developer storage rights, the first water stored in the same shall be the Dedicated Water Rights and Fraser shall have the priority of right to use the Dedicated Water Rights over any other water stored in the Dedicated Storage. Upon the Effective Date, the parties agree to execute an operating agreement for the Dedicated Storage pond(s) that will provide for Developer's ongoing use of the Byers Peak Ranch Augmentation Pond for snowmaking uses subject to all prior uses of Fraser of the same and that will address the issues associated with either pond being larger than the amount of Dedicated Water Rights to be stored therein to accommodate Developer storage water; it is understood that any such agreement shall provide that Fraser shall have the right to use the Dedicated Water Rights stored in any {Client/1 3 23 6/1 16/024 1 4663.DOC/161 8 such Dedicated Storage ponds with priority over any other water stored in the Dedicated Storage by and for Developer's use. Developer shall pay Fraser $5.00 an acre foot for such snowmaking use on an annual basis. Such fee shall increase by $5.00 an acre foot on each tenth anniversary hereof. If the Byers Peak Ranch pond system is larger than 35 acre feet, then all capacity in excess of 35 operational acre feet shall be retained solely for use by Developer and no fee is required for Developer's use of such excess acre feet and the operation of the same will be as provided herein. A copy of the agreement is attached as Exhibit G. The pond excavation operations for the Property shall be consistent with the recorded PDD maps and approval, Grading and Excavation Operations Plan provided for herein, and the provisions of this Agreement. a. Byers Peak Ranch Augmentation Pond(s). The Byers Peak Ranch Augmentation Pond(s) shall be designed, located, and constructed by the Developer, as provided herein for not less than 35 acre feet, on the Property. The water to fill such pond shall be diverted from St. Louis Creek and shall be capable of being delivered therefrom by gravity to the pond. The water stored therein shall be capable of being released to the Fraser River via its tributaries: Elk Creek or St. Louis Creek consistent with the provisions set forth in Case No. lOCW309, WD 5. The operating agreement attached as Exhibit G provides that Developer may have a right of use to use the Dedicated Water Rights in the Byers Peak Ranch Augmentation Pond for snowmaking purposes on an annual basis subject to the first right of Fraser to meet its needs to use such water for augmentation and other municipal purposes, in Fraser's sole discretion; Developer shall be responsible for all costs associated with its use of such portion of the Dedicated Water Rights. b. Forest Meadows Augmentation Plan Pond(s). The Forest Meadows Augmentation Plan Pond(s) shall be constructed by Developer, as provided herein and consistent with the decreed location described in Case No. 83CW362 as approved by Fraser, on property that is owned by Cornerstone Winter Park Holdings, LLC and included within the Grand Park Planned Development District Plan recorded on November 8, 2005 in the real property records of the Clerk and Recorder of Grand County as Reception No. 2005-012709, as amended from time to time (the "Grand Park PDD Plan"). The water used to fill such shall be diverted and conveyed to such pond through the Elk Creek No. 2 Ditch and Developer shall make such improvements as necessary to implement this diversion and conveyance in connection with the construction of the Forest Meadows Augmentation Plan Pond(s). The water stored therein shall be capable of being released to the Fraser River via its tributary Elk Creek or as consistent with the decrees in Case Nos. 83CW362 and 05CW287, WD 5. Upon Developer's conveyance of the water rights for the 25 acre feet decreed in Case No. 05CW287 to the Town as provided herein, Fraser agrees it will be solely responsible for any and all further water court proceedings and costs related to such water rights, based upon Developer's payment made pursuant to Section 3.1.2. above. Developer agrees it will not oppose any such water court proceedings that may be filed related to such water rights. Developer shall cause Cornerstone Winter Park Holdings, LLC to assist it in fulfilling its obligations hereunder for the Forest Meadows Augmentation Plan Pond(s). To the extent Cornerstone Winter Park Holdings, LLC and Grand Park Development, LLC fail to agree to these requirements as provided herein, the Byers {Client/1 3 23 6/1 16/024 1 4663.DOC/161 9 Peak Ranch Augmentation Pond(s) shall be constructed to an active capacity of 60 acre feet within the time frame required for the Forest Meadows Augmentation Plan Pond. C. Future Water Right Cases. The Developer agrees not to oppose any water rights application filed by Fraser for the purpose of findings of reasonable diligence, making absolute or otherwise utilizing the Dedicated Water Rights and/or utilizing them as a part of its water rights inventory in connection with any plan for augmentation or other water rights that are a part of its municipal water system. In addition, Fraser agrees that it will not file opposition to future diligence cases related to the water rights that serve the Property, including but not limited to Case Nos. IOCW309. The parties agree to discuss whether it is appropriate to file joint applications for diligence and for making the conditional Dedicated Water Rights absolute in the event they both have interests in the same pond(s). The owners of the Grand Park pond facilities may also be included as appropriate in the event they have storage rights decreed to the Forest Meadows Augmentation Pond or any alternative storage that is provided to Fraser if the Forest Meadows Augmentation Pond is not constructed and conveyed to Fraser as provided herein. Section 3.3 Water Service Infrastructure and its Approval and Construction. The infrastructure necessary to enable Fraser to provide municipal water service to the PDD Plan as provided herein includes without limitation the infrastructure described in the Water Infrastructure Plan. The Water Infrastructure Plan is conceptual and will be modified from time to time based on Developer's further engineering as approved by Fraser consistent with the Fraser Code. Within such Water Infrastructure Plan, the parties anticipate construction of the appropriate Water Facilities. In connection with any application for approval of an FPDP or subdivision for all or portions of the PDD Plan under the Fraser Code or with the any separate application for approval for the construction of any Water Facilities or Dedicated Storage, the applicable provisions of Articles 6 and 7 of the Subdivision Regulations, Article 2 of Chapter 13 and Article 3 of Chapter 18 of the Fraser Code and other applicable provisions of the Fraser Code and this Agreement shall apply to the identification, design, approval, construction, inspection, dedication, acceptance, cetera of the Water Facilities or Dedicated Storage that are necessary and convenient to enable Fraser to provide municipal water service to the portions of the PDD Plan that are the subject of such applications. Upon review of such applications and the identification of the Water Facilities submitted by Developer therein, Fraser may determine and require any new Water Facilities, or improvements or additions to existing Water Facilities, in order to provide the municipal water service to such portions of the PDD Plan that are the subject of the applications for approval; provided that Developer shall not be required to construct any Water Facilities unrelated to the PDD Plan except as provided herein or secure any water rights other than the Dedicated Water Rights and associated Dedicated Storage which are to be conveyed and constructed as provided herein. In making such determination, Fraser will also take into account the integration of the Water Facilities with its existing and planned facilities. As a condition of such FPDP or subdivision approval, Developer agrees to construct, at its sole cost and expense, the identified {Client/1 3 23 6/1 16/024 1 4663.DOC/161 10 Water Facilities that are reasonably required to service the property subject to the FPDP or subdivision and as may be identified in any applicable Improvements Agreement. It is important to Fraser to utilize its water rights in St. Louis Creek for their decreed beneficial uses and Developer agrees to assist in enabling Fraser to be able to divert and use the same given that the delivery of water under such rights may need to cross the Property once diverted as further provided in this paragraph. As a part of the construction of the diversion and transmission facilities from St. Louis Creek to the Byers Peak Augmentation Pond and of the construction of sewer lines from such pond site to the east portion of the property as identified on the Sewer Plan or such other alignment that is cost effective for the installation of the St. Louis Creek transmission line as determined by Fraser and Developer, Developer agrees to cooperate with Fraser to include the installation of a raw water transmission line in the trenches for such facilities in order for Fraser to divert its municipal water rights out of St. Louis Creek and convey them to the Municipal Parcel described below or its water treatment facility. Any additional costs incurred by Developer in fulfilling this responsibility will be paid by Fraser at the time that they are incurred. Until such time that Fraser diverts and applies its St. Louis Creek water rights to beneficial use, Fraser agrees that, on an annual basis, Developer may use those portions of its St. Louis Creek water rights not otherwise committed to other uses or parties for decreed purposes on the Property in order to keep such lands properly irrigated and to reduce dust within Fraser pending the development of the PDD Plan as provided herein. Such use is an important municipal use for Fraser to promote the irrigation of fields within the municipality and adjacent to the other residential components of Fraser for aesthetic and dust control purposes, among other municipal purposes. Fraser will notify Developer of the availability of such water and the parties shall discuss its uses each year, as may be appropriate, on or before May 1 of each year. Fraser may notify Developer at any time that such water will no longer be available for use. Section 3.4 On-site Wells. Section 13-2-20 of Fraser Code provides that on-site wells are not permitted on the Property except as approved by Fraser. Fraser acknowledges the Dedicated Storage ponds that are considered to intercept groundwater will require well permits from the State Engineer. While such ponds are technically wells if they intercept groundwater and therefore are subject to the provisions of Section 13-2-20 of the Fraser Code, the Town hereby determines that such "wells" are not within the contemplation of such Section, that a franchise under the laws of the State is not necessary if the ponds are deemed to be"wells," and that the same, if deemed to be "wells"by the State Engineer, are hereby approved as exceptions to the requirements of such Section. Fraser also acknowledges that the Colorado Adventure Park's water supply is provided through a permitted well. The water service for the Adventure Park shall be provided by Fraser upon the earlier of the following events occurring: (a) the installation of water service infrastructure in connection with the development of Planning Area 10 or Planning Area 11; (b) the installation of a municipal water service line within 200 feet of the well; or(c)upon connection to Fraser's municipal water system at any time agreed upon by Developer and Fraser. Until such connection is made as provided herein, the current permitted well is approved as a limited and temporary water source of supply for the Colorado Adventure Park and a franchise is not necessary to be obtained under Section 13-2-20 of the Fraser Code for the same. At the time that such water service connection is made, Fraser and Developer agree Developer may continue the use of such well for equestrian, snowmaking, and other non-potable uses within the Project {Client/1 3 23 6/1 16/024 1 4663.DOC/161 11 as may be appropriate, subject to the final approval of Fraser. There shall be a presumption that the well will be continued for such permitted non-potable uses on the Property and any well permits shall be changed as needed by the Developer, depending upon the ultimate water uses of the same. Under no circumstances shall the well be used for potable purposes after the Colorado Adventure Park is connect to Fraser's municipal water system and there shall be no cross connections. All potable uses of the well shall terminate upon the connection of the Adventure Park potable system to the Fraser municipal water system. Section 3.5 Water Plant Investment Fees. Water Plant Investment Fees associated with the water service to the project shall be due and payable as provided in Section 13-2-210 of Fraser Code. Section 3.6 Excess Capacity. Developer is only responsible for costs associated with Water Facilities that are reasonably required to service the Property. To the extent the costs of any excess capacity of any Water Facilities constructed by Developer at the request of Fraser are the subject of reimbursement agreement with other parties using such excess capacity, Developer shall be entitled to receive all reimbursements received and/or plant investment fees paid in proportion to the excess capacity utilized, but not to exceed such proportionate costs. To the extent Water Facilities constructed by Developer for the Property are utilized to the benefit of other property not within the PDD Plan, Fraser agrees to reimburse Developer for the proportionate cost of such Water Facilities in proportion to the use by such other property based on the cost to Developer of such facilities and limited by the actual reimbursement or plant investment fees paid to Fraser by the owners of such other property. The payment of such reimbursable amounts shall be due to Developer quarterly based on the funds received from other properties beginning with the first quarter after the subject Water Facilities are accepted by Fraser. To the extent that Fraser requests that the Water Facilities be constructed with excess capacity that are not the subject of reimbursement and Fraser, in its discretion, desires to have such excess capacity created, it shall pay the costs of the same at the time that they are incurred. Section 3.7 Water Plant Investment Fee Accounting and Credit. Fraser shall establish a separate water account for Developer and provide a specific accounting for Developer to track all Water Plant Investment Fees paid in connection with the Property and all certified costs incurred by Developer in the construction of Water Facilities and the Dedicated Storage. All reasonable Dedicated Storage construction costs and all reasonable Water Facilities construction costs incurred by Developer in connection with the development of an approved FPDP or subdivision shall be documented and certified by Developer and provided to Fraser for review and approval. The amount of such approved costs shall be credited to the Developer in Developer's water account. The amount of any Water Plant Investment Fees prepaid by Developer shall also be separately credited in the Developer's water account. Any Water Plant Investment Fees in Developer's water account shall not expire. Fraser will collect the Water Plant Investment Fees for residential and commercial water users within the Property as paid in accordance with the Fraser Code. The amounts collected shall be accounted for in Developer's water account. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 12 Developer shall be credited in Developer's water account the Water Plant Investment Fees both prepaid and paid in the amounts paid. Subject to the limitations set forth herein, Developer shall be reimbursed for construction costs of(a) all Water Facilities which are reasonably required to service the FPDP or subdivision and(b) Dedicated Storage. The payment of such reimbursable amounts shall be due to Developer quarterly based on the fees received beginning with the first quarter after the Water Facilities are accepted by Fraser and based upon the certified costs of Developer. Water Plant Investment Fees collected by Fraser for all connections at the Property and due to Developer hereunder shall be paid by Fraser to West Mountain Metropolitan District and the Developer's water account shall reflect the same. The amount of Water Plant Investment Fees to be reimbursed to Developer shall be as follows: a. BPR is reimbursed for all water plant investment fees generated by the BPR project paid from 41 SFE to 4711 SFE; b. BPR and the Town split equally the water plant investment fees generated by the BPR project paid from 4712 SFE to 41,331 SFE; C. BPR is reimbursed for all water plant investment fees generated by the BPR project paid from 41331 SFE to 41,520 to bring to a total of 900 fully reimbursed SFE fees to BPR; d. BPR and the Town split equally the water plant investment fees generated by the BPR project paid from 41,520 to 41,897. In the event all of Developer's certified costs are fully paid, Fraser shall thereafter be entitled to retain all Water Plant Investment Fees paid in connection with the Property. The reimbursement provided for herein shall not exceed the amount of the certified costs of Developer paid in connection with the construction of the Water Facilities and Dedicated Storage. If Fraser hereafter amends its Fraser Code to allocate its Water Plant Investment Fee between a system development fee and a water resource fee, neither Developer nor any other owner within the Property shall be obligated to pay a water resource fee except as otherwise identified by separate agreement between Developer and Fraser. All other hook-up and service fees customarily charged by Fraser to its water customers under the Fraser Code may be charged and collected to water customers within the Property. ARTICLE 4 SEWER Section 4.1 Sewer Service. Upon approval of this Agreement, Fraser will provide municipal sanitary sewer service to the Property to serve the PDD Plan subject to the terms and conditions set forth herein and the applicable provisions of the Fraser Code. To the extent that Fraser requests that the sewer facilities to be constructed to serve the PDD Plan be constructed with excess capacity that are not the subject of reimbursement and Fraser, in its discretion, desires to have such excess capacity created, it shall pay the costs of the {Client/1 3 23 6/1 16/024 1 4663.DOC/161 13 same at the time that they are incurred. To the extent that another property owner requests that the PDD Plan's sewer facilities be constructed with excess capacity to serve such other property, such other property owner shall pay the costs of the same at the time that they are incurred. To the extent that properties outside of the Property utilize any sewer facilities constructed by Developer, the users thereof shall reimburse Developer for the costs of such sewer facilities in proportion to the uses by properties outside the Property and those within. Section 4.2 Individual Sewage Systems.Disposal SyDisposal Systems. Fraser acknowledges and approves the existing Individual Sewage Disposal System as defined by and regulated by Colorado law ("ISDS") that serves the Colorado Adventure Park. Such ISDS may continue in operation until the sooner of the following events occurs: (a) the installation of sanitary sewer service infrastructure in connection with the development of Planning Area 10 or Planning Area 11; (b) the installation of a public main within 200 feet of the ISDS; or(c) at such time that the Colorado Adventure Park facilities are connected to the municipal water system of Fraser. After any one of the above events occurs, the parties agree that the Colorado Adventure Park shall connect to Fraser's municipal sanitary sewer system and the ISDS shall be abandoned. ARTICLE 5 OTHER UTILITIES Section 5.1 Other Utilities. Developer shall comply with the Subdivision Regulations, Chapter 13 of Fraser Code, and other applicable provisions of the Fraser Code regarding the development and extension of utility service to the PDD Plan or portions thereof, as applicable. ARTICLE 6 DRAINAGE Section 6.1 Drainage. Developer has submitted a Conceptual Drainage Plan prepared by Top Knot Engineering, Inc. dated August 2011 and a Preliminary Drainage Plan prepared by Top Knot Engineering, Inc. dated August 1, 2011. The applicable requirements of the Subdivision Regulations and of Section 16-5-440(8) of the Zoning Regulations and other provisions of the Fraser Code pertaining to drainage shall be complied with at the time of the submission of an application for an FPDP or subdivision for all or portions of the PDD Plan. As provided in the PDD Plan, a master drainage study will be submitted with the first application for an FPDP or subdivision ARTICLE 7 STREETS AND TRAFFIC Section 7.1 Grading & Roadway Plan. Developer has submitted a Preliminary Grading & Roadway Plan dated August 1, 2011,prepared by Top Knot Engineering, Inc., as a part of its submission of the PDD Plan ("Roadway Plan"), which has been approved by Fraser Board as part of the PDD Plan, which plan was amended on January 17, 2013. Section 7.2 Traffic Impact Analysis. Developer has provided a Traffic Impact Analysis dated February 2011 prepared by Felsburg Holt and Uhlevig (the "Traffic Impact Analysis"), which has been approved by Fraser's traffic consultants and approved by Fraser Board as a part of the PDD Plan. The Traffic Impact Analysis may be amended and updated from time to time, {Client/1 3 23 6/1 16/024 1 4663.DOC/161 14 including at the time of the filing of an application for an FPDP or a subdivision, as appropriate, in order to update the same as the PDD Plan is implemented over time and to reflect material changes in assumptions (such as the assumption that Fraser Valley Parkway will be completed to the north of the Property past County Road 73) and results of the same and material changes in impacts and conditions of traffic on Fraser. Fraser shall review and approve all such amendments, in its sole discretion, to insure that the traffic impacts of the development of Fraser and the traffic impacts of the implementation of the PDD Plan are identified and appropriately addressed. At the time of an application, the Developer shall provide the engineering and associated information required in Sections 16-5-430(12) and 16-5-440(l 1) of the Zoning Regulations and the information required in the Subdivision Regulations. A memorandum of construction traffic management procedures to address the ongoing impacts of the construction and phasing in of the PDD Plan shall be submitted at the time that an application for a grading and excavation permit is submitted and shall be amended from time as appropriate with the filing of any of the above referenced applications. Section 7.3 Street Designations. Streets within the Property shall be constructed in accordance with Fraser's design and construction standards as provided in Fraser Code and shall be public except as otherwise provided herein. Streets solely serving condominium or townhome projects will be private. There may be other private streets designated by mutual agreement between Fraser and Developer that would be owned by an association or by Developer in connection with the approval of an FPDP or a subdivision. Section 7.4 Street Maintenance. Public streets shall be maintained, repaired and replaced by Fraser. Streets and drives not dedicated to Fraser will be maintained, repaired and replaced by Developer, an applicable association, by Grand County, or by a metropolitan or other special district with the authority to do the same. All private streets and drives shall be maintained as required in Section 17-6-10(g) of the Fraser Code. Fraser shall have no obligation to maintain any non-dedicated streets on the Property unless otherwise agreed to by the parties. An easement shall be dedicated on each final subdivision plat to Fraser over, under, and across all roads not dedicated to Fraser for access to utility infrastructure and facilities, for emergency services, and for Fraser employees, agents, representatives to fulfill normal and ordinary Fraser responsibilities in connection with the construction, inspection, operation, and maintenance of any and all improvements within the PDD Plan, and for any access that is determined to be provided to the public in the course of the approval of an FPDP or subdivision. Section 7.5 Street Rights of Way. Streets to be dedicated to Fraser as public rights of way shall be dedicated in accordance with the provisions of the Fraser Code at the time of an FPDP or subdivision approval. The right of way for the roadway designated as Fraser Valley Parkway was previously dedicated to Fraser. The rights of way for County Road 72 and County Road 73 are owned by Grand County (that portion of County Road 73 within Fraser is commonly known as "Mill Avenue"). The rights of way for these roadways shall be confirmed on each FPDP or subdivision plat that includes the same within its boundaries. The designation of the alignment, location, and widths of all other primary and internal streets and roadways shall be consistent with the planned, designed, engineered and approved standards based on anticipated uses of such streets in connection with the PDD Plan and Fraser traffic needs as identified in the then current Traffic Impact Analysis and Traffic Impact Study. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 15 Section 7.6 Regional Roadways. The improvement of the Regional Roadways is the responsibility of Grand County and Fraser based on intergovernmental agreements and memoranda of agreement or understanding that may exist between them from time to time. Fraser and Grand County shall work together to establish the level of improvements desired for the Regional Roadways and the proportional responsibilities and timing associated with any improvements. Fraser shall reassess the necessity of such improvements at the time Developer submits its application for FPDP or a subdivision under the PDD Plan based on the then current Traffic Impact Analysis and Traffic Impact Study. Improvement to the Regional Roadways may be required by Fraser and Grand County or the Fraser Code or applicable regulations as a result of increases in traffic resulting from regional use or use in connection with the development of the Property. The design, engineering and construction of any required improvements will be the responsibility of Fraser and Grand County. The parties agree that Developer shall only be responsible for costs to improve Regional Roadways based on the percentage of total trips from the development under the PDD Plan to the total trips on the subject Regional Roadway. Such percentage of use is anticipated to increase as the development phases are implemented and shall be considered in connection with the appropriate improvements and allocation of total trips from the Property. It is understood that Developer has equipment and will contribute its portion of the improvements in kind through the use of its equipment to provide the base grading and excavation that may be necessary for such road improvements. No later than upon completion of the pond grading and excavation on the Property, the parties agree Fraser Valley Parkway should be improved by chip and seal, at a minimum. The Town shall provide for the development of the design and engineering of the improvements of such parkway. Developer, at its cost, agrees it will provide the initial grading and roadbase construction and materials necessary to enable chip and seal or paving improvements to be made. A timeline will be developed for Developer's work once the Town has secured appropriate funding for the surfacing improvements and can provide for the same. Section 7.7 Street Standards, Construction, Inspection, and Acceptance. Except as otherwise provided in this Agreement, the design, construction, inspection and acceptance of all public roads shall be consistent with the PDD Plan, approved FPDP or subdivision, and the road standards set forth in the Fraser Code. Developer shall be responsible for the costs of the same as provided in the Fraser Code. The primary access roads serving the Property shall be paved in accordance with applicable Fraser Code standards. The Developer may request alternate road surface designs on local roads and within low-density Planning Areas, in accordance with applicable standards for such surfacing. All private streets shall comply with those standards pertaining to emergency vehicle access and use as determined by the Fire District and consistent with Fraser Code requirements, if any. If any private streets are dedicated to the public, they shall meet all standards applicable to public streets as provided in the Fraser Code. Section 7.8 Pathways. Fraser and Developer agree that a path shall be designed and constructed by Developer along the Fraser Valley Parkway through the Property. It shall be designed in such a manner to have a separated path of sufficient width to reasonably accommodate bicycles and pedestrians. In the event the path is not constructed in connection with the grading and excavation operations for the ponds as set forth in the Grading and {Client/1 3 23 6/1 16/024 1 4663.DOC/161 16 Excavation Operations Plan referred to in Section 9.5, it shall be constructing as public infrastructure under the FPDP or subdivision approval for the first phase of the development. ARTICLE 8 SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION Section 8.1 Additional Municipal Services. After the Effective Date and subject to the provisions hereof, Fraser agrees to provide the Property such additional municipal services currently provided within Fraser on terms and conditions by which such services are so provided, subject to applicable terms and conditions of any approval of an FPDP or subdivision. Section 8.2 Project Open Space. Developer has submitted and Fraser has approved as a part of the PDD Plan a general open space plan consistent with the requirements of the Fraser Code. Developer agrees to further submit with each application for an FPDP or subdivision refined and detailed provisions of the open space plan for the property that is the subject of such application and an updated open space plan for the PDD Plan consistent with the requirements of the Subdivision Regulations and of the Zoning Regulations. Section 8.3 Public Open Space. During the implementation of that portion of the PDD Plan that includes development adjacent to the Fraser Valley Parkway from the old town south and on the east side and after the improvements to the Fraser Valley Parkway have been made and basic infrastructure installed in either Planning Area 2, 3, or 8 whichever is first, Developer shall create and develop (sod/grass and irrigation infrastructure to be installed) a"pocket"park at the south end of the viewplane shown on the PDD Plan adjacent to the Fraser Valley Parkway for public open space use and shall dedicate the same to the Town. Such park shall be 1.5 acres in size, shall, at a minimum, be in the configuration of a football field. Any other improvements to be made to the park shall be made by the Town at its expense. Any such land so dedicated shall be credited to Developer's park, open space, and other dedication requirements for the Property, as applicable and consistent with Developer's open space plan, in accordance with Fraser Code, including without limitation, Section 17-7-370. The Town shall be responsible for maintaining the same upon its dedication to the Town. Section 8.4 School Impact Fees. At Developer's request and subject to the provisions of Sections 17-7-340 and 17-7-350 of the Fraser Code, Developer may dedicate land for public schools or pay a fee in lieu based upon the calculation of those fees as set forth in Section 17-7- 350 of the Subdivision Regulations. Such fees shall be calculated and due and payable as provided in Section 17-7-350(4) of the Fraser Code or at such other time as agreed upon by the parties. Section 8.5 Municipal Parcel Dedication. On the Effective Date, the Developer agrees to dedicate, or to cause to be dedicated, 6 acres in the PA-1 Planning Area of the PDD Plan ("Municipal Parcel") to Fraser be used for municipal purposes. The Municipal Parcel shall be configured to exclude the detention pond from its boundaries, which detention pond is shown on the PDD Plan Preliminary Drainage Plan The Municipal Parcel is more specifically described in Exhibit H. The dedication will be made by special warranty deed free and clear of liens and encumbrances. A title insurance commitment has been provided to Fraser in connection with the application for subdivision exemption for the Municipal Parcel to be approved by Fraser as of {Client/1 3 23 6/1 16/024 1 4663.DOC/161 17 the Effective Date. It is understood that as of the Effective Date, only very preliminary assessment of drainage and other issues has been conducted. The parties agree that at the time that the land immediately to the west in Planning Area 1 is the subject of an FPDP or subdivision plat, the Municipal Parcel will be included in the analysis and proposed mitigation of such issues. Section 8.6 Colorado Adventure Park Facilities and Operations. The parties acknowledge the facilities and operations of the Colorado Adventure Park("Park")located in Planning Area 8 of the PDD Plan. The Park is an existing business that was the subject of the public review process in Grand County in connection with the issuance of a special use permit therefor. The Park has operated in accordance with the special use permit. The special use permit will terminate upon the Effective Date and Fraser shall approve by resolution, concurrent with the approval of this Agreement, a development permit for the continued operation of the Park consistent with the provisions of the special use permit pending the review and approval of an FPDP that includes the Park ARTICLE 9 GENERAL DEVELOPMENT OF THE PROPERTY Section 9.1 Development and Control of Development. Developer has the right to develop the PDD Plan on the Property subject to the terms and conditions of this Agreement, the land use approvals and the completion of the land use process consistent with the provisions of Fraser Code. This Agreement and the other provisions incorporated as a part of the PDD Plan are intended to prescribe a general plan for the use and development of the Property. Except as expressly provided herein and the other provisions of the PDD Plan, whenever any action is required to be taken by Developer hereunder at the time of or in conjunction with FPDP or subdivision review or approval, and the FPDP and subdivision do not occur concurrently, then the action shall be required at the time of the first approval for FPDP or subdivision for the subject property. Section 9.2 Densities. This Agreement and the approved PDD Plan set forth the number of Residential Units at a maximum of 1,435 dwelling units (as defined in Fraser Code), 550 hotel/motel/lodging house units (as defined in Fraser Code and including without limitation recreational vehicle parking spaces and campsites that are intended for tourist and visitor use only) and 270,000 square feet of commercial space, recreational facilities and appropriate support facilities which Fraser agrees is appropriate for development on the Property subject to the completion of the land use approval process under Fraser Code. The location of such units, the sizes of the various building envelopes, and other pertinent land use requirements shall be determined in the land use approval process as required by Fraser Code and reflected in an approved FPDP, subject to the provisions of the approved PDD Plan, the Fraser Code, and any density transfers properly identified in accordance with the Fraser Code. The PDD Plan is approved concurrently herewith and generally includes without limitation the following: a. a property description; i. land use and development notes referring to matters to be done relating to open space, accessory dwelling units, density transfer, water supply and system, {Client/1 3 23 6/1 16/024 1 4663.DOC/161 18 wastewater collection, grading and drainage, geologic features, development standards, sign guidelines,parking and planning area descriptions; ii. fourteen Planning Areas that are designated areas of land within the project and identified in the PDD Plan and that include residential use with detached, attached and stacked Residential Units (Planning Areas 2, 3, 4, 5, 6, 7, 8, 12, 13, 14); a mix of uses of commercial retail, office, industrial, warehousing, residential, lodging, and institutional uses and municipal purposes and facility uses (Planning Area 1), open space,park, trails and recreational uses (Planning Area 9), lodging, RV, camping, retail, commercial recreation, restaurant uses (Planning Area 10); detached, attached, stacked, RV, camping and cabin units (Planning Area 11); and excavation and grading operations and ponds and gravel operations associated with the pond and Project development (Planning Areas 4, 5, 6, 7, 8, 9, 10, 11) and other limited pond development (Planning Areas 2 and 3); iii. general site analysis; iv. land use plan that is a general map showing the Planning Areas with acres for the same and land use site data chart and two streets; V. preliminary sewer plan showing conceptual main sewer line locations and a reference that a master sewer study will be prepared at platting; vi. preliminary water plan showing conceptual water main locations and a reference that a master water study will be prepared at platting; vii. preliminary grading and roadway plan showing Road A with cross section, CR72, CR73 and Fraser Valley Parkway; viii. Preliminary drainage plan showing general flow directions and outfall points from the Property and proposed water features/detention ponds and a reference that a master drainage study will be prepared at a later date. Section 9.3 Transfer of Water and Sewer SFEs. In addition to the rights to transfer density set forth in Sec. 16-5-630 of the Fraser Code, Developer shall have the right to transfer water and sewer SFEs from the Property to an adjacent property subject to the following conditions: i. The property receiving the transferred SFEs must be within the boundaries of Fraser. ii. The transferred water SFEs shall remain subject to the Water Plant Investment Fee payment structure for the water SFEs set forth in Section 3.6 irrespective of the payment structure for SFEs associated with the receiving property. The transferred sewer SFEs shall remain subject to the payment structure for the sewer SFEs set forth in the Fraser Code irrespective of the payment structure for SFEs associated with the receiving property. iii. The receiving property shall remain subject to all other provisions of the Fraser Code. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 19 iv. Any transfer proposed must be approved by Fraser, which approval shall be based upon confirmation and satisfaction of these conditions. Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations of Fraser. Subject to the provisions of Article 11 hereof, development within the Property shall conform to the development standards approved as part of the PDD Plan and to the applicable provisions of Fraser Code. Prior to Fraser considering and approving an FPDP or subdivision for the Property, Developer shall satisfy all applicable rules and regulations of Fraser, submit all required plans and information,pay all standard fees, and shall satisfy all applicable conditions of approval of the PDD Plan, the requirements set forth herein, and all applicable requirements of the Fraser Code consistent with the provisions hereof. Section 9.5 Grading and Excavation Operations. In connection with any FPDP or subdivision application or other activity associated with the development of the PDD Plan, Developer shall obtain a grading and excavation permit in accordance with the requirements of Article 3 of Chapter 18, Building Regulations, of the Fraser Code. Due to the extent of the grading and excavation activities anticipated on the Property as a result of the development of water storage facilities for Fraser and Developer and roads and other components of the PDD Plan, any permit for the grading, excavation, and stockpiling on the Property or export of excavated material from the Property shall be subject to review and approval by Fraser for compliance with the provisions of the applicable Fraser Grading and Excavation Operations Plan, as it may be amended from time to time, and the requirements and conditions set forth in any applicable permit issued for such activities by State of Colorado Office of Economic Development, Colorado Department of Natural Resources, Division of Mining Reclamation and Safety ("DMRS"). The Grading and Excavation Operations Plan will be used to regulate grading and excavation operations for pond excavation for sale of gravel offsite within Fraser in addition to any DMRS permit that may be required and issued and the provisions hereof. Prior to commencement of any grading and excavation activities on the Property, Developer, its lessee or its operator, as appropriate (references to "Developer" shall include its lessee or operator), shall comply with the following, subject to Developer remaining responsible for insuring that such compliance occurs: i. DMRS Permit. Developer shall submit any required DMRS permit application and permit, if applicable. ii. Fraser Grading and Excavation Permit. Developer shall submit an application for and shall obtain a grading and excavation permit from Fraser in accordance with the requirements of Article 3 of Chapter 18, Building Regulations, of the Fraser Code. Such application shall include, without limitation, a copy of any DMRS permit application. A copy of the DMRS permit shall be filed with Fraser when issued. The grading and excavation permit issued by Fraser shall include a condition that it is subject to the Grading and Excavation Operations Plan. iii. Compliance with Laws. Developer shall comply with all applicable Fraser, state and federal rules, regulations and statutes, including, without limitation, {Client/1 3 23 6/1 16/024 1 4663.DOC/161 20 those enforced by the Colorado Department of Natural Resources, the Colorado Division of Reclamation, and the Colorado Division of Public Health and Environment. The Developer will apply for any other required permits and shall provide such permits to Fraser as a part of its application for or implementation of its grading and excavation permit. iv. Best Management Practices. Best management practices will be employed with regard to soil erosion, drainage, and other impacts on the site and mitigation of the impacts shall be included as a part of such practices; a summary of best management practices will be provided to Fraser with the grading and excavation permit application. V. Duration of Operation. Operations shall commence within six months of obtaining any required permit from the State and a grading and excavation permit from Fraser together with the required surety for Developer's performance, to the extent not previously provided. Developer agrees that any such permits shall be used for not longer than 10 years per permit, and all permitted gravel and excavation operations shall discontinue entirely after the 15 year anniversary of the issuance of the first grading and excavation permit. It is understood that additional grading and excavation activities may occur thereafter in connection with the phasing in of the PDD Plan after the pond(s) construction has been completed. Developer shall apply for and obtain appropriate grading and excavation permits in accordance with the Fraser Code for such activities. During periods of inactivity (six months or more), equipment associated with the grading and excavation operation must be moved off-site. Section 9.6 Transfer of Planning Area. Developer shall have the right to create a separate legal parcel of a Planning Area or portion thereof under the Subdivision Regulations. In the event the subject parcel satisfies the subdivision exemption criteria set forth in Section 17-3-10(a) of the Subdivision Regulations, the plat creating the same shall include a notation that approvals of the plat by Fraser do not indicate an approval of any access rights, availability of utilities or the ability of the parcel or parcels to be served by utilities and that such parcel or parcels are subject to the terms and conditions of this Agreement and the Fraser Code. In the event such parcel or parcels are transferred to a third party, any proposed changes to the PDD Plan by Developer with respect to the remainder of the Property or by the transferee with respect to the transferred parcel or parcels shall require the confirmation of the other party that such changes do not affect their respective property Section 9.7 Phasing Plan. Consistent with the requirements of Section 16-5-430 of the Zoning Regulations, a development schedule indicating an approximate date when construction of the planned development or phases of said development may begin shall be submitted with each application for an FPDP or subdivision, together with proposed amendments to the PDD Plan general phasing plan, as appropriate. Section 9.8 Metropolitan District. Developer has previously organized the West Mountain Metropolitan District (the "District"). The purpose of the District is to provide a means of financing various infrastructure improvements or operating infrastructure for the development within its boundaries but not to compete or conflict with the services and responsibilities of Fraser. Fraser has received a request from the District to include the Property within its service area. Contemporaneously herewith and pursuant to the provisions of C.R.S. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 21 Title 32 Article 1, Special District Act, Fraser has approved by resolution the petition to include the Property in the West Mountain Metropolitan District service area under C.R.S. Section 32-1- 401 and approved by resolution an amendment to the service plan consistent with the requirements of C.R.S. Section 32-1-204.5. It is understood that such service plan amendment includes without limitation an increase of the debt authorization, subject to District voter approval, to be equal to the application of a maximum District tax rate of 35 mills for the Property based upon the financial information provided under C.R.S. Sections 32-1-202(2)(b) and (f) and 32-1-203(3)(4). No more than 35 mills shall be imposed on the Property and this restriction shall run with the land the District shall include this Property with this restriction. Developer shall not be relieved of any of its obligations hereunder or under any land use approvals granted with regard to the Property and hereby guarantees and will execute any additional appropriate documents guaranteeing any financial obligation undertaken by the District in connection with any responsibility agreed to herein or under the Fraser Code, any conditions of approval of any approved FPDP or subdivision, or any conditions of approval of the amendment to the District's service plan. In connection with the approval of an FPDP or subdivision and the negotiations of a subdivision improvements agreement, development improvements agreement or Improvements Agreement, Fraser shall review the financing mechanisms and security proposed by Developer and the District for the financing of the infrastructure required by such agreement and may approve the same if consistent with the requirements and intent of the Fraser Code and this Agreement Section 9.9 Financing of Public Improvements. As requested by Developer from time to time, Fraser, in its discretion, agrees to consider public infrastructure financing techniques to assist in the costs of improvement that are of a regional nature. Section 9.10 Maintenance Cost Offsets. Developer and Fraser recognize and agree that the development contemplated by the PDD Plan may entail significant increased road maintenance and capital expenditures to be the responsibility of Fraser. Fraser may, as a condition of approval of any FPDP or subdivision require that the applicable Improvements Agreement provide for the Developer to provide a means of road maintenance necessary to serve the FPDP or subdivision or utilize other means of addressing the maintenance needs for such roadways other than the Regional Roadways, for a reasonable period of time not to exceed two (2)years. Section 9.11 Hospital/Health Services District. Developer may wish to form a Hospital/Health Services District and currently intends to include the Property within its service area. Fraser agrees to review any service plan prepared for such a special district at the time that it is submitted to Fraser for review and approval in connection with the inclusion of the Property within the district. A condition of approval of the creation of such a district is that the district and Fraser enter into an intergovernmental agreement that restricts the district from entering into any other contracts or assessing any property or sales taxes without subsequent Fraser approval. The district's service plan shall also contain such a restriction. Section 9.12 Owner's Associations. Developer reserves the right to impose covenants upon any portion of the Property and to form one or more owner's associations for all or any portions of the Property which shall assume responsibilities for collecting common expenses and {Client/1 3 23 6/1 16/024 1 4663.DOC/161 22 enforcing restrictive covenants. All such covenants and declarations must be provided as required by the Fraser Code. Section 9.13 Rules, Regulations and Official Policies. i. Fees, Conditions and Dedications. Developer shall make only those dedications and pay only those fees expressly described in this Agreement and the PDD Plan and those otherwise set forth in the Fraser Code, including without limitation the reimbursement of Fraser's expenses incurred in connection with Fraser's review of this Agreement and of any zoning and subdivision applications filed by Developer. Notwithstanding the foregoing, Developer, as appropriate and consistent with the provisions hereof, will be subject to such other normal fees, such as service fees, that all developers and citizens are required to pay for municipal services. ii. Land Use Approvals. Developer agrees to fulfill the provisions, terms and conditions of the PDD Plan as provided therein and as conditioned by Fraser. ARTICLE 10 COOPER & IMPLEMENTATION Section 10.1 Statement of Intent. It is the express intent of Developer and Fraser to cooperate, and work diligently to implement any approved preliminary subdivision plats and final subdivision plats, FPDP and/or other land use approvals, building permits or approvals in compliance with this Agreement and Fraser Code and in substantial conformance with the PDD Plan as such may be amended from time to time. Section 10.2 Scope of this Agreement. i. This Agreement is intended to set forth the parties' understanding and agreements regarding the annexation of the Property pursuant to the Municipal Annexation Act of 1965, as amended, the procedures, limitations and standards applicable to the construction of future improvements that may be installed to serve the Property, the responsibilities of the parties for various costs, fees and charges, and such other matters the parties believe can be addressed at this time. ii. Except as otherwise provided in this Agreement, this Agreement is not intended to address those additional matters which are properly considered at the time Developer submits to Fraser for its review and approval an FPDP, subdivision applications for each development phase of the Property, or both. Contemporaneously herewith, Fraser has approved the PDD Plan. Except as otherwise set forth in this Agreement, Fraser reserves all rights to review, approve or deny any future zoning application, FPDP application, or future subdivision application on any portion of the Property, in accordance with state law and applicable provisions of the Fraser Code, ordinances, rules, regulations, standards, and policies. iii. It is not the intention of the parties in any way to diminish or limit Fraser's legislative,judicial, quasi-judicial or other non-delegable discretionary powers except as to the matters specifically set forth in this Agreement. Except as otherwise provided in this Agreement, it is not the intention of the parties to impose on Fraser any duty, beyond the Fraser {Client/1 3 23 6/1 16/024 1 4663.DOC/161 23 Code and regulations as they may from time to time exist, nor to impose any special obligation on Fraser to approve or accept any items submitted by Developer or its successors and assigns including, but not limited to,plans, drawings, engineering, reports, security documents, improvements, agreements, and conveyances. ARTICLE 11 VESTED RIGHTS Section 11.1 Vesting of Certain Property Rights. The parties hereby agree i. that this Agreement shall constitute a development agreement as defined in C.R.S. 24-68-104(2) and shall constitute a site specific development plan under C.R.S. 24-68-102(4)(a); ii. that certain rights under this Agreement shall be vested property rights to the extent permitted by Colorado law as provided in this Agreement; and iii. because the development of the Property under this Agreement is sizable and requires phasing over 35 years according to the Developer and because of evolving market conditions, a vested property right is hereby established with respect to the Property in connection with the approval of this Agreement to undertake and complete development and use of the Property under the terms and conditions of this Agreement. Section 11.2 Rights Which Are Vested. Having provided notice and conducted a hearing in accordance with the requirements of C.R.S. Sec. 24-68-103(b), only the specific rights which are identified herein and in the PDD Plan attached hereto shall constitute the vested property rights established under this Agreement for the Property. Subject to the terms and conditions set forth in this Agreement and in the approval of the PDD Plan, these rights include the following: a. No Downzoning. Fraser shall not initiate any zoning action to reduce the maximum number and location of residential dwelling units, lodging units or allowable commercial space, to limit the free market nature of the various properties or interests therein offered, to impose any affordable housing fees or housing requirements, to limit sales, or to change or limit the permitted commercial activities as set forth in the PDD Plan. b. Residential Dwelling Units, Lodging and Acreage. The right to develop up to the total number and type of residential dwelling and hotel/motel/lodging units set forth on the PDD Plan and the right to utilize substantially the total gross acres for residential and hotel/motel/lodging use as set forth herein and in the PDD Plan. C. Commercial Acres and Density. The right to utilize substantially the total gross acres for commercial use as set forth on the PDD Plan and the right to develop up to the gross floor area for commercial use as set forth herein and in the PDD Plan. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 24 d. Land Uses. The right to develop land and engage in land uses in the manner and to the extent set forth in the PDD Plan. e. Timing and Development. In recognition of the size of the development contemplated under the PDD Plan, the time required to complete development, the need for development to proceed in phases, and the possible impact of economic conditions and economic cycles and varying market conditions during the course of development, the right to develop the Property in such order and at such time as the market dictates within the structure of this Agreement and the PDD Plan. f. Moratoria. Fraser will not impose a moratorium except Fraser may impose a temporary moratorium if, (i) the moratorium is non-discriminatory, (ii) the moratorium is based upon a set of circumstances or a situation that has created a serious and documented issue that threatens public health and safety and (iii) the moratorium is only so long as required to correct or remedy the situation. In no other event shall any type of general growth moratorium, product type, or building permit limitation of any kind enacted in any manner by Fraser be applicable to the Property. Section 11.3 Term for Vested Rights. In recognition of the size of the development contemplated under the PDD Plan, the time required to undertake and complete development, the need for development to proceed in phases, and the possible impact of economic cycles and varying market conditions during the course of development, Fraser agrees that the rights identified in Section 11.1 and Section 11.2 of this Agreement, as vested property rights, shall continue and have a duration of thirty-five(35) years beginning on the Effective Date. In the event the Developer or its successor(s) in interest does any of the following, the vested rights created herein shall terminate: 1. filing of voluntary petition in bankruptcy or for reorganization or for the adoption of an arrangement under the Bankruptcy Code (as it may be amended from time to time) or an admission of seeking the relief therein provided; 2. making a general assignment for the benefit of its creditors; 3. consenting to the appointment of a receiver for all or a substantial portion of the Property; 4. in the case of the filing of an involuntary petition in bankruptcy, the failure to have such petition stayed or dismissed within 60 days of filing; 5. the entry of a court order appointing a receiver or trustee for all or a substantial part of the Property; or 6. the assumption of custody or sequestration a court of competent jurisdiction of all or substantially all of the Property. Section 11.4 Compliance with General Regulations and Limitations on Town Actions. The Town shall not take any zoning, subdivision or other land use action that would alter, impair,prevent, diminish, impose a moratorium on development, or otherwise delay development or use of the Property in accordance with this Agreement. Except as otherwise provided herein, the Fraser Code, ordinances,policies,procedures, regulations, standards, and requirements in effect as of the Effective Date shall be applicable to the use and development of the Property. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 25 i. The establishment of the rights vested under this Agreement shall not preclude the application of Fraser ordinances,regulations. standards, or requirements which are general in nature and applicable to all properties within Fraser including, but not limited to, public works and sign regulations, impact fees, rate, toll, charge, tax, service fees, user fees, local improvement districts rules and regulations, building permit application requirements, building, fire,plumbing, engineering, electrical and mechanical codes, as such exist on the Effective Date or may be enacted or amended after the Effective Date. ii. In addition, the provisions of the Fraser Code, ordinances,policies, procedures, regulations, standards, and requirements may be amended from time to time and will be applicable to the development of the Property as provided herein if such amendments (i) are consented to by Developer or(ii) are general in nature and applicable to all properties in Fraser and do not have the effect of denying, altering, impairing,preventing, diminishing, imposing a moratorium on development, or otherwise delaying development or use of the Property in accordance with the PDD Plan and this Agreement. The parties understand and agree that the Business District development standards shall be applicable to all mixed use, accommodation, lodging and commercial zoned planning areas in the PDD Plan and shall be incorporated into the FPDP for such areas. Accordingly, the review procedures of the Fraser Code for the PD District shall apply to the approval of any FPDP or subdivision plats for the Property. Within 14 days after Fraser has approved the ordinance approving this Agreement and in accordance with C.R.S. Sec. 24-68-103(1)(c), Fraser shall cause to be published a notice in a newspaper of general circulation advising the general public of the site specific development plan approval and creation of a vested property right pursuant C.R.S. Sec. 24-68-101 through 106. Nothing contained in this Agreement shall constitute or be interpreted as a repeal of existing codes or ordinances or as a waiver or abnegation of Fraser's legislative, governmental or police powers to promote and protect the health, safety, or general welfare of Fraser or its inhabitants. ARTICLE 12 MISCELLANEOUS Section 12.1 Time is of the Essence. Time is of the essence with respect to the performance of each party's obligations hereunder. However, neither party shall be liable for delays or failures to perform due to acts of God, strikes, civil commotions, epidemics, quarantines, freight embargoes, or other cause of similar nature not reasonably within such party's control Section 12.2 Covenants. The provisions of this Agreement shall constitute covenants and servitudes which shall burden and run with the land comprising the Property and the burdens and benefits hereof shall bind and inure to the benefit of all estates and interests in the Property and all assigns and successors in interest to the parties hereto. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 26 Section 12.3 Contractual Obligations. Fraser and Developer agree that the agreements contained herein, are imposed by contract as terms and conditions of Fraser's annexation of the Property, independent of the continued validity or invalidity of any of the provisions of Fraser Code. Each of the Developer entities agrees to be jointly and severally obligated under this Agreement to fulfill the responsibilities, obligations and provisions agreed upon by Developer, including without limitation those provisions relating to default and the remedies and cures associated with the same. Notwithstanding the foregoing, Fraser shall have the right to look to only one Developer entity for compliance herewith, as appropriate, and to seek remedies in the event of a default against only one of the Developer entities and shall not be obligated to include both in any effort,proceeding or action to secure the same. Section 12.4 Term. The term of this Agreement shall commence upon the Effective Date and shall extend until all of the commitments hereunder are satisfied. After the expiration of the term, this Agreement shall be deemed terminated and of no further force or effect; provided however, that such termination shall not affect(a) the annexation of the Property to Fraser or(b) any right arising from Fraser permits, approvals or other entitlements for the Property or the PDD Plan which were granted or approved prior to, concurrently with, or subsequent to the approval of this Agreement. Section 12.5 Amendment of Agreement. Except as otherwise provided herein, this Agreement may be amended from time to time or revoked only by mutual agreement of the parties in writing following the applicable public notice and public hearing procedures required in the Fraser Code for approval of this Agreement by Fraser. Neither any amendment of the PDD Plan nor any approval of an FPDP, subdivision or resubdivision of the Property (or any part thereof) shall require an amendment to this Agreement. Section 12.6 Default and Remedies. i. Default by Fraser. A "breach" or"default"by Fraser under this Agreement shall be defined as (a)pursuant to Section 24-68-105, C.R.S., in effect as of the Effective Date, any zoning or land use action by Fraser or pursuant to an initiated measure that alters, impairs,prevents, diminishes, imposes a moratorium on development, or otherwise delays the development or use of the Property as set forth in the PDD Plan, subject to the exceptions set forth in said statute, or(b) Fraser's failure to fulfill or perform any material obligation of Fraser contained in this Agreement. ii. Default by Developer. A "breach" or"default"by Developer shall be defined as Developer's failure to fulfill or perform any obligation of Developer contained in this Agreement. iii. Notice of Default and Opportunity to Cure. In the event of default by one party in the performance of its obligations under this Agreement, written notice of such default shall be given to the defaulting party by the non-defaulting party. If the default is a failure to pay any amount of money due pursuant to the terms of this Agreement or to post a letter of credit as provided herein, then such default shall be cured within 10 days after notice of default is given to the defaulting party. If such default constitutes a breach or violation of any term or provision of this Agreement other than the payment of a monetary amount or the posting {Client/1 3 23 6/1 16/024 1 4663.DOC/161 27 of a letter of credit, the defaulting party shall have 15 days within which to institute corrective action and shall proceed diligently thereafter to cure the default within no more than 90 days from the date of the notice of default. iv. Remedies. Default by Fraser. In the event of a default by Fraser that is not timely cured as provided herein, the Developer shall be entitled to specific performance and mandatory prohibitory injunction and the remedies set forth in C.R.S. Sec. 24- 68-105, except Fraser shall not be liable for any compensation, if such default pertains to the vested rights established herein. V. Default by Developer. In the event of a default by Developer that is not timely cured as provided herein, Fraser shall be entitled to specific performance, and mandatory prohibitory injunction. Fraser shall also have the right to stop the processing of any application of any type or nature filed or pending before it with regard to the Property. Fraser shall also have the right to pursue any remedies set forth in applicable development or subdivision improvement agreements as provided therein. Section 12.7 No Joint Venture or Partnership. Fraser and Developer hereby agree that nothing contained herein or in any document executed in connection herewith shall be construed as making Fraser and Developer part of a joint venture or partners. Section 12.8 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon, or to give to, any legal person other than the Parties, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions or provisions hereof, and all of the covenants, terms, conditions and provisions in this Agreement by and on behalf of the Parties shall be for the sole and exclusive benefit of the Parties. Nothing in this Agreement is intended to interfere with the agreements of the Parties with third parties Section 12.9 Notices. Any notice or communication required hereunder between Fraser and Developer must be in writing, and may be given either personally, overnight by UPS or FedEx, or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or(ii) five (5) days after a registered or certified letter containing such notice,properly addressed, with postage prepaid, is deposited in the United States mail. If personally or overnight delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided herein, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to Fraser: Town of Fraser 153 Fraser Avenue P.O. Box 370 Fraser, CO 80442 Attention: Manager {Client/1 3 23 6/1 16/024 1 4663.DOC/161 28 with a copy to: Rodney R. McGowan, Esq. Cazier, McGowan & Walker P.O. Box 500 Granby, CO 80446 Arthur B. Ferguson, Jr., Esq. Kylie J. Crandall, Esq. Holland & Hart LLP 600 East Main Street, Ste 104 Aspen, CO 81611 If to Developer: Byers Peak Properties, LLC Byers Peak Downhill Adventures, LLC P.O. Box 30 Winter Park, CO 80482 Attention: C. Clark Lipscomb with a copy to: Lee F. Sachnoff, Esq Krendl Krendl Sachnoff& Way, P.C. 370 Seventeenth Street, Suite 5350 Denver, CO 80202 And Ramsey L. Kropf, Esq. Patrick, Miller, Kropf& Noto, P.C. 229 Midland Avenue Basalt, CO 81621 Section 12.10 Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest, assigns, transferees or the legal representatives of the parties hereto. Developer shall have the right to assign or transfer any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including but not limited to purchasers or long-term ground lessees of individual lots,parcels, or of any improvements now or hereafter located within the Property. In connection with any such assignment, the express assumption of any of Developer's obligations under this Agreement and the PDD Plan personally by its assignee or transferee may thereby relieve Developer of any further obligations under this Agreement with respect to the matter so assumed,provided that such assignee or transferee shall have sufficient financial capability and resources to fulfill such obligations as determined by Fraser and confirmed by the Developer. In such event, Fraser agrees to execute a written release of such obligations upon receipt of a written confirmation to undertake such obligations by the assignee thereof. Any approved assignment shall not be effective on Fraser for the transfer of the rights of Developer to such assignee until written notice of the same is delivered to Fraser executed by both the assignor and assignee. {Client/1 3 23 6/1 16/024 1 4663.DOC/161 29 Section 12.11 Agricultural Use. The Property is currently being used in part for agricultural, farm and ranch purposes. Normal non-building agricultural activities historically associated with the use of the land, such as plowing, irrigating, or planting, shall be exempt from Fraser permitting requirements to the extent any may be applicable. Developer may continue such uses during the phasing of the development notwithstanding the zoning of the Property under the PDD Plan. Section 12.12 Grant or Conveyance. Whenever a grant, dedication or conveyance is required in this Agreement free and clear of encumbrances and liens, Developer may make such conveyance subject to encumbrances or liens that Developer is contesting in good faith provided that adequate assurances acceptable to Fraser are given to provide that the lien or encumbrance will be satisfied and released in the event Developer is not ultimately successful in its contest of the lien or encumbrance. Fraser in its sole discretion shall determine whether such assurances are acceptable and accordingly whether the grant, dedication or conveyance will be accepted by Fraser. Section 12.13 Recording. This Agreement shall be recorded with the Clerk and Recorder in Grand County, Colorado. Section 12.14 Authorization. The signatories to this Agreement affirm that they are fully authorized to enter into and execute this Agreement, and all necessary actions, notices, meetings and/or hearings pursuant to any law required to authorize their execution of this Agreement have been made. Section 12.15 Governing g Law. This Agreement shall be construLaw. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Venue for any judicial action filed in connection with this Agreement shall be in the District Court in and for Grand County, Colorado. Section 12.16 Severability. If any term,provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining and the parties shall use good faith efforts to modify such term,provision, covenant or condition to the minimum extent necessary to be enforceable. Section 12.17 Waiver of Breach. The waiver by any party to this Agreement of a breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any other term or provision or of any subsequent breach by any party. Section 12.18 Entire Agreement. This Agreement represents the entire agreement between the parties and incorporates or supersedes any previous oral, written, or collateral agreements, communications, representations or understandings between the parties with respect to the matters set forth in this Agreement excepting those agreements pertaining to the funding of Fraser's cost of review of this Agreement and the PDD Plan. Except as otherwise provided herein, this Agreement does not abrogate or modify any existing improvements agreement, subdivision improvements agreement, development improvements agreement, or other {Client/1 3 23 6/1 16/024 1 4663.DOC/161 30 annexation agreement among the parties pertaining to properties other than the Property. In case of any conflict or inconsistency between the provisions of this Agreement and the provisions of such other graphic and written documents approved as part of the PDD Plan, the provisions of this Agreement shall control. Section 12.19 No Additional Annexation Conditions Imposed. Fraser and Developer acknowledge and affirm that this Agreement does not impose additional terms and conditions within the meaning of Section 31-12-107(1)(g), C.R.S. To the extent that Section 31-12-107(1)(g), C.R.S. might be construed as being ambiguous as to what might be considered additional terms and conditions, Developer, as the owner of 100% of the Property, hereby declares that it has voluntarily entered into this Agreement and states that if an election were held, Developer would approve the terms and conditions of this Agreement at such election. Section 12.20 Draftin _g of Agof Agreement. This Agreement is the product of a cooperative drafting and negotiating effort by Fraser and Developer and shall not be construed or interpreted against either party solely on the basis that one party or its attorney drafted the Agreement or any portion thereof. Section 12.21 Execution of Other Documents. The parties agree to execute any additional documents and to take any additional actions necessary to carry out this Agreement. Section 12.22 Counterparts; Facsimile. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement may be executed by copies of signature pages sent by email or facsimile. [Signature Pages Follow] {Client/1 3 23 6/1 16/024 1 4663.DOC/161 31 IN WITNESS WHEREOF, Fraser and Developer have executed this Agreement effective as of TOWN OF FRASER: By: Mayor ATTESTED BY: Town Clerk APPROVED, as to legal form by: Town Attorney DEVELOPER: BYERS PEAK PROPERTIES, LLC By: C. Clark Lipscomb, President BYERS PEAK DOWNHILL ADVENTURES, LLC By: C. Clark Lipscomb, President For good and valuable consideration, Cornerstone Winter Park Holdings, LLC, hereby agrees to be responsible for and fulfill the obligations specifically relating to the conveyance of Forest Meadows Augmentation Plan Pond(s), associated easements, the Dedicated Water Rights that are the subject of Case No. 05CW287, the easements and rights of use in the Grand Park pond system, and related obligations specifically set {Client/1 3 23 6/1 16/024 1 4663.DOC/161 32 forth herein. Its obligations shall be limited to those specifically relating to its properties and water rights and shall not extend to any other of those obligations of Developer set forth in this Agreement. Cornerstone Winter Park Holdings, LLC By: C. Clark Lipscomb, President STATE OF COLORADO ) ) SS COUNTY OF GRAND ) The foregoing instrument was acknowledged before me this day of 2013, by as Mayor, and __, as Town Clerk, of Town of Fraser, a municipal corporation of the State of Colorado. Witness my hand and official seal. My Commission expires: ( S E A L ) Notary Public STATE OF COLORADO ) ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2013, by C. Clark Lipscomb, as President of BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission expires: ( S E A L ) Notary Public {Client/1 3 23 6/1 16/024 1 4663.DOC/161 33 STATE OF COLORADO ) ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2013, by C. Clark Lipscomb, as President of BYERS PEAK DOWNHILL ADVENTURES, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission expires: ( S E A L ) Notary Public STATE OF COLORADO ) ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2013, by C. Clark Lipscomb, as President of CORNERSTONE WINTER PARK HOLDINGS, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission expires: ( S E A L ) Notary Public {Client/1 3 23 6/1 16/024 1 4663.DOC/161 34 BYERS PEAK RANCH ANNEXATION AGREEMENT LIST OF EXHIBITS EXHIBIT A — Legal Description of Property EXHIBIT B — EXHIBIT C — Form of Reservoir Easements EXHIBIT D —Municipal Parcel EXHIBIT E — EXHBIT F — Grading and Excavation Operations Plan 5991316_3 {Client/1 3 23 6/1 16/024 1 4663.DOC/161 35 C OIL OR ADO Planner Briefing for TB February 6th, 2013 Public Hearing and Action: Byers Peak Ranch Planned Development District Plan Parts of Sections 19 and 20 Township 1 South, Range 75 West of the 6t" PM County of Grand, State of Colorado Applicant = Byers Peak Properties, LLC. Byers Peak Downhill Adventures, LLC Background information: In the fall of 2007, the Town of Fraser received an Amended Petition for Annexation for Byers Peak Ranch. The Town Board adopted a resolution finding that the Petition was substantially complete. In early 2008, the Town Board held an annexation hearing and adopted a resolution finding that the property is eligible for annexation. In October 2010, the Town and BPR entered into a Pre-annexation Agreement. On February 23, 2011, the Town received a submittal for a Planned Development District Plan for Byers Peak Ranch. The following is a brief project description submitted by the applicant: "Byers Peak Ranch is a 295 acre ranch that is designed to be developed as a neighborhood project located south of Mill Ave. and west of the railroad tracks. Fraser Valley Parkway bisects the site. The existing neighborhood to the north of the property includes single family, attached residences and apartments; community meeting facilities, Town Hall, Town maintenance facilities, the Fraser Valley Elementary School and Library. The PDD for Byers Peak Ranch contemplates 530 detached and 905 attached residential units, 550 lodging units, RV sites and 270,000 SF of mixed use/commercial/industrial units. The residential product types will vary throughout the community and include single family lots, attached units, and lodging integrated into a cohesive community linked by open space corridors. The community will include a central open space and park with recreational uses and ponds. The mixed use/commercial/industrial and municipal uses are located along the railroad tracks and will serve as a transition from the railroad tracks to the residential neighborhoods. There will also be some commercial uses along the Fraser Valley Parkway to serve the residents and visitors." TOW11 Offrs ser PO Box 770.1 Fraser, CO 80442 oFfice 970 726 7491 faix 970 726 7718 Planned Development District (PDD) zoning is proposed for the property (rather than one of the conventional zoning districts). The PDD zoning allows for greater flexibility than in a traditional zoning district. The PDD regulations are located in Chapter 16, Article 5 of the Town Code. The PDD plan application is intended to generate enough site plan information in the form of written statements and schematic plans in order to provide adequate information for review by decision-making bodies and the general public in regard to the proposed PDD zoning. Furthermore, the standards and procedures are intended to ensure integrated planning goals and objectives of the Comprehensive Plan while allowing greater flexibility and innovations in development and site designs than is typically possible under conventional zone district regulations. The Planning Commission reviewed the proposed PDD zoning at three meetings in 2011. In addition to the zoning component, the Planning Commission considered the Town of Fraser Three Mile Plan (a component of the 2010 Comprehensive Plan). The Three Mile Plan states that development proposals for areas surrounding the Town of Fraser should be considered for incorporation within the municipality before development in unincorporated areas. Higher density residential, mixed use, commercial and light industrial should be directed towards municipal areas because public utilities and services can be provided more efficiently. Similar language is highlighted in the Grand County Master Plan. The PDD regulations state the following: The Planning Commission shall consider the application at a public hearing and after weighing all evidence presented to it, shall recommend to the Town Board either approval of said application as presented, approval subject to specified conditions, or disapproval. At the May 25th, 2011 Planning Commission (PC) meeting, the PC recommended approval of the Planned Development District subject to specified conditions. To date all the conditions have been met except one. The Planning Commission had recommended that the building heights along Mill Ave. in Planning Area #1, at a horizontal distance of 160', can't exceed 45 . The applicant is requesting a not to exceed height of 55' instead of 45 . TOW11 OUrs ser PO Box 770.1 Fraser, CO 80442 oFfice 970 726 5491 faix 970 726 7718 t5C 4 L 4 'R A 13 0 DEVELOPMENT PERMIT Name of Applicant: Byers Peak Properties LLC. Byers Peak Downhill Properties LLC. P.O. Box 30, Winter Park, CO. 80482 970-726-8600 PROJECT PROPOSAL: Development Permit to permit the operation of an Outdoor Adventure Park and Recreation Area located in the SE % of Section 19 and the NE % of Section 30, Township 1 South, Range 75 West of the 6m P.M., County of Grand, State of Colorado to be permitted in the Town of Fraser subsequent to this parcel being annexed into Town with the following findings and conditions: FINDINGS: 1. Fraser acknowledges that the Colorado Adventure Park is an existing permitted use in Grand County granted via a Special Use Permit, permitting the operation of an outdoor adventure park and recreation area located on a 35 acre parcel more legally described above. 2. It is the intent of Fraser to annex Byers Peak Ranch into the Town. This 35 acre parcel described herein, which contains the Colorado Adventure Park, is a part of the 295 acre ranch proposed to be annexed into Fraser. 3. The proposed project does not propose any prohibited use. 4. Fraser acknowledges that the existing Colorado Adventure Park can continue operating in the Town of Fraser with the following conditions: CONDITIONS: 1. This permit is effective upon annexation of this parcel to the Town of Fraser. 2. This development permit does not become effective unless and until the applicant accepts the preceding findings and following conditions in writing and transmits the acceptance to the Town of Fraser. 3. If the terms and conditions of the approval are violated, the Town, in addition to criminal and civil judicial proceedings, may, if appropriate, issue a stop order requiring the cessation of work, revoke this permit, require removal of any improvements made in reliance upon this permit with costs to constitute a lien on the property and/or restoration of the property. 4. Uses permitted are as follows: • Temporary building to be used for ticket sales and warming facility with restrooms. • Temporary storage facility for tubes and equipment— no additional storage facilities shall be allowed beyond the two (2) that are already on site. • Construction of a permanent"barn lodge" to be used for concessions, ticket sales, rentals, retail sales, storage of adventure park equipment. • Horseback riding, mountain biking, ice skating, cross country skiing, snowshoeing, snow-scoots, tubing, Nordic ski jumps, sledding hill, concessions, retail sales and equipment rentals, snowmaking, paintball, terrain park, zip line (under 35' in height), summer slope and associated uses/activities. 5. Days and hours of operation: • Monday through Sunday 10:00 A.M. — 10:00 P.M. • Snow Scoots— Monday through Sunday 10:00 AM —6:00 P.M. (to cease no later than 6:00 P.M.) • No hours of operation on snowmaking, although compliance with noise statute is mandatory. 6. This permit is valid only for the uses proposed in the application. Any expansion of uses or changes in hours of operation etc. will require an amendment to this Development Permit, including a public hearing before the Fraser Planning Commission. 7. If noise becomes a nuisance to adjoining properties, Fraser reserves the right to require the Applicant to install sound mitigation, restrict the use to certain hours or cease use all together. Maximum permissible noise levels shall fall within the C.R.S. Section 25-12-103 for commercial use: • 60 decibels from 7:00 A.M. to 7:00 P.M. • 55 decibels from 7:00 P.M. to 7:00 A.M. • Sound levels of noise radiating from a property line at a distance of twenty-five feet or more there from in excess of the decibel established for the above time periods shall constitute prima facie evidence that such noise is a public nuisance. • In the hours between 7:00 A.M and 7:00 P.M., the noise levels permitted may be increased by ten decibels for a period of not to exceed fifteen minutes in any one-hour period. • Unannounced noise monitoring may be conducted by Fraser. 8. The Applicant shall be required to contribute their summer proportionate share to the cost of magnesium chloride on County Road 721 (aka Fraser Valley Parkway), if applied, each year as determined by the Director of Public Works. 9. Obstacles used in the paintball field shall be earthen tone. Eco-friendly, filed only paint balls of muted colors are permitted and must be sold on-site. No off-site paint balls shall be allowed. Netting shall be removed at the end of each season. 10. The "barn lodge" shall be constructed to compliment the natural surroundings and have a ranch-like agricultural character with log or other rustic exterior with harmoniously colored or natural wood finish and non-reflective surfaces. 11. If the septic flow reaches 2000 gallons per day or more, a State Permit shall be obtained and a copy shall be forwarded to the Town of Fraser. Fraser may request a copy of the flow meter reports annually. 12. The Applicant shall be responsible for insuring compliance with all applicable Town, State and Federal Rules, Regulations and Statutes. Any violation of Federal, State or Local rules, regulations or statutes shall be grounds for immediate termination of this Permit 13. The Applicant shall control and mitigate noise, dust, glare and odor on the site and shall not allow noise, dust, glare or odor to create a nuisance to adjoining properties. All lighting shall be downward facing and hooded to minimize impacts to surrounding properties. 14. The Applicant shall use Best Management Practices for erosion and sediment control on all disturbed areas of the site. 15. Fraser by the issuance of this Development Permit assumes no responsibility for the operation of the site, and the Applicant hereby covenants and agrees to hold the Town of Fraser harmless for any jury or damage which may occur, of whatever type or nature, as the result of the operation contemplated by this permit. The Applicant warrants that he will obtain appropriate liability and hazard insurance to compensate any individual who may be injured or damaged in any manner by the conduct of this use. The Applicant further warrants and agrees to compensate Fraser for any expense incurred in the defense of any lawsuit or other type of action which may be brought against Fraser as a result of said Applicant's operation of this use. 16. The terms and conditions of this permit cannot be altered without proper notice and review by Fraser 17. Neither the Applicant nor its licensees shall be allowed, under any circumstances, to use the permit area for purposes of storing junk materials, such as abandoned cars or trucks or other equipment which is not capable of operation or any other equipment or materials which are not used in the operation contemplated by this permit within a period of six (6) months. The Applicant is specifically prohibited from using the permit area as a storage yard for junked equipment or materials. The Applicant shall be responsible for maintaining the site in an attractive condition at all times. 18. This Development Permit shall become a binding contract between the parties hereto upon the execution hereof as provided for below. Said contract shall be binding upon and inure to the benefit of the successors, heirs, assigns and personal representatives of the parties. 19. The Applicant, by accepting this permit, concurs and agrees that Fraser has the authority and mandate to require a cease and desist of operations for non- compliance with any permit conditions substantiated by Fraser. The Applicant irrevocably consents to Fraser's right to enter the property to check for compliance with permit conditions at any time. 20. In the event of violation of any of the restrictions or conditions on the use of this permit, or in the event of the Applicant's failure to fulfill any of the conditions required by this permit, Fraser may, upon not less than ten (10) days notice in writing to the Applicant at the address below, hold a Public Hearing to consider the revocation of this Permit or to take such other action as Fraser in its sole discretion deems appropriate. Notice to the Applicant shall be complete upon mailing at the following address: Byers Peak Properties LLC/Byers Peak Downhill Properties LLC Attn: Clark Lipscomb P.O. Box 30 Winter Park, CO. 80482 21. No termination of this permit shall be made without determination of good cause shown. 22. All signage must comply with the Town of Fraser Sign Code. 23. The Town of Fraser reserves the right to revisit this application if they feel that these conditions are not properly addressed. APPLICANT: Date: Byers Peak Properties LLC Byers Peak Downhill Properties LLC. TOWN OF FRASER: Catherine E. Trotter: Date: Town Planner Byers Peak Ranch Grading and Excavation Operations Plan —2-1-13 This Grading and Excavation Operations Plan (the "Plan") regulates grading and excavation for the specific Planning Areas defined in the Byers Peak Ranch Planned Development District Plan ("Byers Peak Ranch PDD Plan") in addition to those provision set forth in the Byers Peak Ranch Annexation and Development Agreement between the Town of Fraser(the "Town"), Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC (collectively, the "Developer") dated and recorded at in the public records of Grand County, Colorado (the "Annexation Agreement"). The term Developer as used herein shall include any party, including without limitation contractors, subcontractors, and lessees, conducting grading and excavating operations within the specific Planning Areas within the Byers Peak Ranch PDD Plan. Compliance Requirements: 1. The Developer shall be responsible for insuring compliance with all applicable Fraser, state and federal rules, regulations and statutes, including,without limitation, those enforced by the Colorado Department of Natural Resources,the Colorado Division of Reclamation, and the Colorado Department of Health and Environment. The Developer shall obtain any required permits and shall provide such permits to the Town of Fraser. Best management practices will be employed with regard to soil erosion and prevention at all times. 2. Water Used in Grading and Excavation Operations. If ground water is exposed or required for grading and excavation operations, Developer shall obtain well permits issued by the State Engineer,and shall provide such permits to the Town. The Developer shall comply with all applicable provisions in the decree entered in Case No, 10CW309, Water Div 5, and any other applicable water court decrees. If necessary,the Developer shall apply to the Water Court, Division 5 for a water court decree granting underground or surface water rights for use in grading and excavation operations. 3. Duration of Grading and Excavation Operations. The Developer shall commence grading and excavation operations within six months of obtaining any required permit from the State and a Grading Permit from the Town together with the providing to the Town the required surety for the Developer's performance. The Developer shall only use each such permit for 10 years and shall discontinue any and all grading, gravel and excavations operations after the 15 year anniversary of the issuance of the first Grading Permit. During periods of inactivity (six months or more), the Developer shall move all equipment associated with grading and excavation operations off site. 4. Hours of Operation. Monday through Saturday, 7:00 AM to 7:00 PM. There shall be no truck traffic on Fraser Valley Parkway on Saturdays unless and until the path for bicycles and pedestrians provided for in Section 7.8 of the Annexation Agreement is constructed and approved by the Town. 5. Management of Grading and Excavation Operations. a. The Developer shall identify the land on which it will carry out grading and excavations operations in the Grading Permit application. Such land shall be limited to an area of disturbance of 10 acres for each water storage facility, with no more than 5 separate acres of grading and excavation at any one 1 time. To the extent a water storage facility requires more than 10 acres of disturbance, any one area of disturbance may be greater than 10 acres as identified in the application; provided than no more than a total of 50 acres is being disturbed at any one time. b. The location of any stockpiling of material on the Property shall be identified on the Grading Permit. The total amount of stockpiled material will be kept to a minimum and each pile may be no more than 40 feet high and have a life of no more than 24 months. C. The developer shall limit the amount of equipment on the property and minimize any potential impact on views. 6. Distance from Residential Use. Grading and excavation operations shall be at least 1000 feet from any existing residential use(s)within the Town boundary or at least 1000 feet from any residential use(s) approved as a part of an FPDP or a final subdivision plat at the time the Grading Permit Application is submitted. 7. Inspection. Town staff may inspect the grading and excavation operations during normal business hours to ensure that the Developer is complying with these requirements and any other conditions imposed by the Town. 8. Truck Traffic. Truck traffic to and from the grading and excavation operations(s) shall not create hazards in Town. It is contemplated that the Developer shall use County Road 72, 73 and 721 to transport materials. No transport of material will be allowed on Mill Avenue-east of Carriage Rd.; Carriage Rd. — north of Mill Avenue; Norgren Road — north of Mill Avenue, Leonard Lane—north of Mill Avenue; and Eisenhower Drive unless there is a delivery in Town or extenuating circumstances relating to road closures. 18 wheel trucks (i.e. belly trucks) shall not exceed 80,000 Ibs GVW, 3 or more axle single unit vehicles(i.e. dump trucks) shall not exceed 54,000 Ibs GVW and 2 axle single unit vehicles (smaller dump trucks) shall not exceed 36,000 Ibs GVW. Any load in excess of these`requirements shall require the appropriate permit from Town of Fraser Public Works. 9. Public Street Damage. Traffic from grading and excavation operations shall not damage public streets. Developer shall be responsible for the costs incurred by the Town in repairing damage to the public roadways beyond the ordinary wear and tear along the designated route(s) resulting from truck traffic associated with the grading and excavation operations, as determined by the Town. Town staff will conduct annual assessments of the designated roadways. To the extent that there is identifiable damage from the grading and excavation operations that the Town determines needs to be repaired in order to prevent further damage, the Town shall document the damage and repair the same. The costs of all repairs shall be billed to and paid by the Developer. 10. Signage. 2 Developer will provide necessary signage and barricades approved by the Town along designated route(s)for safety and traffic control to insure that truck traffic does not create a hazard. 11. Impacts. Developer shall control and mitigate noise, dust, glare, odor and noxious weeds on the site and shall not allow noise, dust, glare, odor and noxious weeds to create a nuisance to adjoining properties. Developer shall provide adequate screening of the grading and excavation operations by means of berming and existing vegetation, such that the use is not objectionable to adjacent properties or the traveling public. 12. Grading and excavation operations are limited to the specific Planning Areas as defined in the Byers Peak Ranch PDD Plan. 3 DRAFT 2/1/2013 4:54 PM H LL ND & -, CONFIDENTIAL ATTORNEY WORK PRODUCT MEMORANDUM December 7, 2012 TO: Fraser Byers Peak Ranch Subcommittee FROM: Boots Ferguson RE: Proposed SFE water plant investment fee split structure This memorandum describes (1) the timing of the needs for capital improvements to Fraser's water diversion and treatment infrastructure in the context of the demand by the Town and by Byers Peak Ranch ("BPR"); (2) the total costs and pro rata share of costs between the Town and BPR for such improvements and infrastructure; and(3) the structure for BPR receiving reimbursement of water plant investment fees ("fees") and the splitting of the fees between BPR and the Town. The fees currently are $7000/SFE. A split of the SFEs would result in each party receiving $3500/SFE. BPR has proposed that it receive reimbursement of the fees paid for the first 900 SFEs in the BPR project and thereafter BPR and the Town would split the fees. The existing well infrastructure of the Town, with minimal investment, can produce a sustained pumping rate of 505 gallons per minute ("gpm"). The existing water treatment plant can produce a sustained 600 gpm. At buildout of the Town and BPR, the total average day demand will be 729 gpm, which amount exceeds the existing capacity of the wells and water treatment plant. Accordingly, the Town has done the following in anticipation of fulfilling its commitment to serve the Town and BPR as they phase towards buildout: a. indentify the improvements and replacements of well and plant infrastructure to serve the demand("improvements"); Holland&Hart LLP Attorneys at Law Mho e(303)295-8000 II""ax(303)295-8261 www.hollandhart.com 555 17th Street Suite 3200 Denver,Colorado 80202-3979 Ildaiillil ing Address P.O.Box 8749 Denver,Colorado 80201-8749 Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center 3ackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington,D.C. December 7,2012 % Page 2 b. indentify the costs of such improvements and the appropriate allocation of the same between the parties; C. indentify the timing of the need for the improvements; d. identify the timing of the need for the funds to pay for the improvements; and e. identify the appropriate structure for splitting the fees in order for the improvements to be made when needed and for them to be paid for. While it is understood that this effort is not an exact science, the goal is to have a clear structure for the fee split between the parties going forward that will provide for immediate reimbursement to BPR for infrastructure costs and for the appropriate securing of funds for the Town to pay for improvements when needed. Existing Demand and Immediate Needs The Town currently serves 889 Town SFEs and 0 BPR SFEs. Total average day demand is 200 gpm. To serve the next 160 Town SFEs and first 379 BPR SFEs,pumping water level investigation, videoing well investigation, and making minor equipment improvements to Wells 1, 2, 3b, 5R, 7 and 9 need to occur. The estimated cost is $40,000. Since the end result will be to serve 1049 Town SFEs and 379 BPR SFEs for a total of 1428 SFEs, BPR represents 25% of the demand. Accordingly, BPR should be responsible for 25% of the cost or $10,000. This amount should be paid up front. In addition, it is estimated that the preparing, filing and prosecuting of the application to confirm the location of the Forest Meadows water storage right at the original plan for augmentation site and making the same absolute upon the filling of the same will cost $50,000.00. This should be BPR's responsibility to confirm the dedication of water rights to the Town. This will be done upon completion of the Forest Meadows pond. Conclusion A: BPR pays $60,000 upfront($10,000 for well improvements and X50,000 for water rights application). Future Demand and Well and Water Treatment Plant Needs The next two critical improvement points occur when (1) the demand of the Town and BPR exceeds the 505 gpm well capacity and —Confidential Privileged—Attorney-Client Communication—Attorney Work Product December 7,2012 % Page 3 (2) the demand of the Town and BPR exceeds the 600 gpm treatment plant capacity. The well improvements associated estimated costs to expand the well capacity to 680 gpm are (1) rehabilitate well 8 at $147,000 and (2) redrill well 2 and rehabilitate well 9 at $123,000. Since these costs do not occur for some time, they can be paid out of collected fees. The needs for the Town to pay for its share of the costs come from fees collected from Town users. The needs for the Town to pay for the BPR responsible percentage need to be collected from fees generated by BPR; assuming a split of fees, the Town collects $3500/SFE in fees. The next step is to calculate how many SFEs must pay fees at $3500/SFE to collect the required amount; the conclusions in bold show this result. The rehabilitation of well 8 needs to occur when there are 1345 Town SFEs and 972 BPR SFEs (total demand is at 500 gpm). BPR is 41% of the total demand. It is responsible for 41% of the $147,000 cost, or $60,270. Conclusion B: BPR responsible for$60,270 of well 8 cost; this equals 17 split SFE fees. The redrilling of well 2 and rehabilitation of well 9 need to occur when there are 1370 Town SFEs and 1137 BPR SFEs (total demand is at 539 gpm). BPR is 45.3% of the total demand. It is responsible for 45.3% of the $123,000 cost, or $55,719. Conclusion C. BPR responsible for$55,719 of wells 2 and 9 costs; this equals 16 split SFE fees. The expansion/replacement of the water treatment plant needs to occur when there are 1467 Town SFEs and 1331 BPR SFEs (total demand is at 600 gpm). In this instance, since the expansion/replacement is to provide service at buildout of the Town and BPR of 729 gpm of average day demand, the percentage of responsibility for costs is properly based on full buildout. At full buildout, there are 1530 Town SFEs and 1897 BPR SFEs. BPR is 55.3% of the total SFEs at buildout. The projected costs of the water treatment plant expansion/replacement and attendant infrastructure is $3,500,000. BPR is responsible for 55.3% of this amount or $1,935,500. Conclusion D: BPR responsible for$1,935,500 of water treatmentplant costs; this equals 553 split SFE fees. —Confidential Privileged—Attorney-Client Communication—Attorney Work Product December 7,2012 % Page 4 As a result, at the time the demand is 600 gpm, wells 2, 8, and 9 will have to be upgraded and the water treatment plant expanded/replaced. This is at the projected level of service of 1467 Town SFEs and 1331 BPR SFEs. Conclusion E: At the time the demand is 600 gpm and the well and water plant improvements must be made,BPR's share of the costs are$2,051,489. It will take 586 split SFE fees to generate this amount. Therefore, the improvements described above have to be in place at the time of need. The Town needs to collect the funds in advance to pay for the improvements. It can finance them and then pay them off when the fees are collected and the improvements are on line. The last cost that BPR will share in that is projected during the buildout of the Town and BPR are the engineering and legal fees associated with the Town preparing, filing, and prosecuting the plan for augmentation for the Town that will include the Byers Peak Ranch Augmentation Pond and Forest Meadows pond. The estimated costs are $200,000. Since this benefits the Town and BPR at full buildout, the percentage of responsibility is 55.3% figure noted above. Therefore, the BPR percentage responsibility for the $200,000 is $110,600. Of course if there are additional costs above this estimate, the Town bears the risk and responsibility for them. Conclusion F. BPR is responsible for$110,600 of water right costs; this equals 32 split SFE fees. This amount coupled with the 586 split SFE fees noted above totals 618 split SFE fees. As a result, there will be 1331 BPR SFEs on line with the improvements are made. The 618 split SFE fee SFEs should be subtracted from the 1331 BPR SFEs so the Town can begin to collect the fees to pay for the needed improvements. This collection must therefore start at the 713 BPR SFE point. Conclusion: The BPR fee reimbursement/split fee structure is as follows: 1. BPR pays $60,000 to Town at execution of annexation agreement(Conclusion A); 2. BPR is reimbursed for all water plant investment fees generated by the BPR project paid from#1 SFE to #713 SFE (Conclusion F); 3. BPR and the Town split the water plant investment fees generated by the BPR project paid from#714 SFE to #1331 SFE (Conclusion F); —Confidential Privileged—Attorney-Client Communication—Attorney Work Product December 7,2012 % Page 5 4. BPR is reimbursed for all water plant investment fees generated by the BPR project paid from#1331 SFE to #1518 to bring to a total of 900 fully reimbursed SFE fees to BPR; 5. BPR and the Town split the water plant investment fees generated by the BPR project paid from#1518 to #1897; Town to pay for all additional improvements to wells and other needed imporvments from these fees; As a result,BPR collects $7000/SFE for 900 SFEs equaling$6,300,000 ($4,991,000 upfront from the first 713 SFEs) and$3500/SFE for 997 SFEs (1897-900) equaling$3,489,500 for a total reimbursement amount at full buildout of the BPR project of$9,789,500. —Confidential Privileged—Attorney-Client Communication—Attorney Work Product Lu wLL wo 2 a C/)LL ` (� a m0 oa w Z __ =E U) o oOO ZQ�U rn w p --= a �� - ago Oa` Y W Zs m 21 z LU - z Q O o 0 0 0 0 0 0 0 Wd U z p - W Q - W o W_Q°° W LL w >>° c Fa F m E c U) w O LL `m m o m " 00 Za_ J JN w¢U> O� - >� LL F F€ °. 0' Oa w z za W LL W W 8�� W Z =o Us- E_ Z U)���y� Q ZU F°' - Q� Qoo_ Wd e° 0= e 0° 3 °w - am d3 a.°oa LLo LLo - �o m� o F.Ea U� - - F E a F a oa O a r U LU W W'o m — W° W a 3 7rE� ° - Una° - Ua°> Uci -°a o a mw m ma � ma E w i S o W m LU EJ Zw w m= c ° o° ° m e ° J m - s Wpm 0 m a �Q o� e = z QQ�m Of o v i r , i zw p; wa Z> o ate_ E i �E 3Ea J w m mo „ a a° E t a m aE ° E { U ° z a > m ma m EEat U,a'u�N..=�za9 a a q w .".W 3 6 r$ ��as .��wz'N z.a�3r,"�99.a°3���3v� e 3 w3'�wawwv�.ap;= c� 33Al Al �. 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