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HomeMy Public PortalAboutTBP 2013-04-03 FRASER BOARD OF TRUSTEES MINUTES DATE: Wednesday, March 20, 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; Police Chief, Glen Trainor, Town Attorney Rod McGowan Mayor Smith called the meeting to order at 6:04 p.m. 1. Roll Call 2. Approval of Agenda Trustee Sumrall moved, and Trustee Waldow seconded the motion to approve the consent agenda. Motion carried: 7-0. 3. Executive Session: For a conference with Town Attorney 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) line sharing agreements with Winter Park Ranch Water and Sanitation and to include Town Attorney McGowan, Town Manager Durbin and Public Works Director Nordin. Open: 6:04 p.m. Trustee Sumrall moved, and Trustee Sanders seconded the motion to enter into executive session. Motion carried: 7-0. Exit: 7:00 p.m. Trustee Shapiro moved, and Trustee Cwiklin seconded the motion to exit executive session. Motion carried: 7-0. Attorney's pinion Required C.R.S. 4-6-40 ( )( .5)�II)( ). 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. Rod McGowan, Town Attorney Page 2 of 2 4. Consent Agenda: a) Minutes— March 6, 2013 Trustee Sumrall moved, and Trustee Sanders seconded the motion to approve the consent agenda. Motion carried: 5-2. 5. Open Forum: 6. Updates: a) Snowball Music Festival TM Durbin gave a Power Point presentation regarding the Snowball Music Festival and passed out"Snowflake" awards, thanking the entities that were involved in the public safety components of the event. 7. Public Hearings: 8. Discussion and Possible Action Regarding: a) Ordinance No. 404 Amending Fraser Town Code, With Respect To Water And Sanitary Sewer Service And Charges And Regarding The Duties And Functions Of The Water And Wastewater Committee. PW Nordin briefed the Board on the need for the Ordinance regarding the maintenance and repair of water and sewer service lines. TM Durbin outlined the proposed appeal process for the Water and Wastewater committee. The Ordinance will be brought back to the Board on April 17tH b) Resolution 2013-02-02 Winter Park Ranch Line Share Agreement There was a typo in the agreement; it will be brought back to the Board on April 3,d 9. Community Reports: 10. Other Business: Trustee Shapiro moved, and Trustee Naill seconded the motion to adjourn. Motion carried: 7-0. Meeting adjourned at 8:30 p.m. Lu Berger, Town Clerk FRASER BOARD OF TRUSTEES MINUTES DATE: Wednesday, March 26, 2013 MEETING: Board of Trustees Special 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; Finance Manager Nat Havens; Public Works Director Allen Nordin; Town Planner, Catherine Trotter; Special Attorney Boots Ferguson and Kylie Crandall; Water Engineer Mark Palumbo Mayor Smith called the meeting to order at 6:10 p.m. 1. Roll Call: 2. Approval of Agenda: Trustee Naill moved, and Trustee Sumrall seconded the motion to approve the agenda. Motion carried: 7-0. 3. 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 Byers Peak Ranch and to include Special Counsel Ferguson, Town Manager Durbin, Public Works Director Nordin, Planner Trotter, Water Engineer Palumbo, and Finance Manager Havens Open: 6:11 p.m. Trustee Sanders moved, and Trustee Sumrall seconded the motion to enter into executive session. Motion carried: 7-0. Exit: 9:16 p.m. Trustee Naill moved, and Trustee Shapiro seconded the motion to exit executive session. Motion carried: 7-0. Attorney's pinion Repaired C.R.S. 4-6-40 ( )( .5)�II)( ). 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 Attorney Page 2 of 2 4. Adjourn: Trustee Sumrall moved, and Trustee Shapiro seconded the motion to adjourn. Motion carried: 7-0. Meeting adjourned at 9:17 p.m. Lu Berger, Town Clerk C OIL OR ADO MEMORANDUM To: Mayor Smith and the Board of Trustees From: Joe Fuqua, Wastewater Treatment Plant Superintendant Date: March 27, 2013 Subject: Resolution 2013-04-01 Resolution 2013-04-01 provides for approval of the Pretreatment Dry Lime Feeder Addition contract. The Pretreatment Addition is necessary at the plant in order to more effectively comply with pH requirements of our Discharge Permit. This addition will house the lime chemical feeder and storage space for bulk bags of lime. Currently, we utilize liquid caustic which is stored in and fed from the pretreatment building. While we've been able to address pH via this system, it is more costly and carries more personnel risks than Lime, and the caustic freezes at 50 degrees (this causes us problems even during our summer months). The project was previous bid last fall, and only one bid was received for $275,000; this bidding cycle produced two bids with the second being over $200,000. The need for chemical additions started in 2006, when the treatment plant could not maintain a pH of 6.5 or greater as required by the discharge permit. After much testing and operational changes, two reasons were found to be the root cause of the problems. 1. Too much dissolved oxygen (D.O.). This problem was fixed with the purchase and installation of a smaller air pump (blower). This change also saved the treatment plant about$3,500 a month in electricity costs. 2. The Fraser River Basin water is very low in natural alkalinity. Testing of influent revealed a shortage of over 150mg/L of alkalinity. Alkalinity in water is a buffer used to help maintain pH levels. Here is a quick overview of the treatment process: Influent comes to plant with various levels of carbon, nitrogen and phosphorus. One pound of carbon is removed with the addition of one pound of D.O. and about 1 pound of alkalinity. One pound nitrogen ammonia is removed with 4.6 pounds of D.O. and 7.14 pounds of alkalinity. Alkalinity is increased to the required levels through the addition of chemicals. TOW11 OUrs ser PO Box 770.1 Fraser, CO 80442 oFfice 970 726 7491 faix 970 726 7718 The following chemicals were investigated for safety, storage and the environmental impact, during our six year wait for State permitting approval: • Caustic Liquid — Freezes at 50 degrees, burns skin on contact, contains sodium or salts, and is costly. • Soda Ash —Contains salts or sodium, and has a higher cost than lime. • Magnesium Hydroxide — High costs, hard to keep in solution with the cold water here. • Lime —Calcium is the base and has benefits for the biological life in plants and has the lowest cost per pound for available alkalinity. We received a bid of$128,761.50 from J. T. Kopp Construction, although he did fail to include a five percent (5%) Proposal Guaranty (bid bond) as requested by the bid documents. Upon review with the Town Attorney, the bid documents and our bidding requirements do make allowance for the Board to waive the bid bond and award the contract to the lowest bidder. Along with the JFOC member managers (Bruce Hutchins, GC#1; Kirk Klancke, WPR; Jeff Durbin, TOF), I recommend a waiver of the bid bond requirement and encourage the Board to award the contact to J. T. Kopp Construction. Please feel free to contact me with any questions. Joe PO Box 770.1 Fraser, CO 80442 oFfice 970 726 7491 faix 970 726 7718 TOWN OF FRASER RESOLUTION NO. 2013-04-01 A RESOLUTION ENTERING INTO A CONTRACT WITH J. T. KOPP CONSTRUCTION FOR THE CONSTRUCTION OF THE PRETREATMENT DRY LIME FEEDER ADDITION AT THE UPPER FRASER VALLEY WASTEWATER TREATMENT PLANT WHEREAS, the Town advertised for sealed proposals for construction and received the low bid from J. T. Kopp Construction; and WHEREAS, although a bid bond was not included with the J. T. Kopp Construction proposal, the three entity Managers and the WWTP Superintendent supported a waiver of the bond requirement; and WHEREAS, the Upper Fraser Valley Wastewater Treatment Plant Owners, and the Town acting as manager, reserves the right to waive inconsistencies and informalities, and to award the Contract on the basis of their own determination of which is the lowest and/or best bid, which best services the interest of the Owners; BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THAT: 1. That the Town Manager is hereby authorized to execute a contract, not to exceed $128,761.50, with J. T. Kopp Construction for of the Pretreatment Dry Lime Feeder Addition at the Upper Fraser Valley Wastewater Treatment Plant. DULY MOVED, SECONDED, AND ADOPTED 3RD DAY OF APRIL, 2013. Votes in favor: _ BOARD OF TRUSTEES OF THE Votes opposed: _ TOWN OF FRASER, COLORADO Absent: Abstained: _ BY: Mayor ATTEST: (S E A L) Town Clerk INDEX TO THE BYERS PEAK ANNEXATION AND DEVELOPMENT AGREEMENT AND ASSOCIATED DOCUMENTS 1. Petition for Annexation, Notice and Joinder, and Annexation Map i a. Resolution of approval i I b. Ordinance approving the annexation 2. Byers Peak Ranch Annexation and Development Agreement ("Annexation Agreement") a. Ordinance approving the Annexation Agreement 3. Exhibits the Annexation Agreement and Related Ordinances or Exhibits a. Legal Description of the Property i b. Byers Peak Ranch Planned Development District Plan With Conditions ("PDD Plan") i. Ordinance Approving the PDD Plan i c. Easement Grant and Agreement for Byers Peak Ranch Augmentation Pond and Associated Facilities and Infrastructure with Exhibits A [Exhibit B will be created upon construction of the pond.] i d. Easement Grant and Agreement for Forest Meadows Augmentation Pond and Associated Facilities and Infrastructure with Exhibit A [Exhibit B will be created upon construction of the pond.] e. Map of Grand Park Ponds f. Easement Grant and First Right of Use Agreement for the Grand Park Ponds and Associated Facilities and Infrastructure [Pursuant to discussions late last week, this Agreement is again part of the Town's security for construction of the BPR and FM augmentation ponds. Attached is the most recent draft received from the Developer, but is subject of ongoing negotiations.] g. Reservoir and Ditch Operating Agreement i i I I I I I i h. Legal Description of the Municipal Parcel [This map is being prepared by the surveyor and shall be provided by Developer once it has been completed.] I i. Subdivision Exemption Application (to be provided with map) ii. Resolution approving the Subdivision Exemption Parcel 4. Additional Documents Associated with the Annexation Agreement 3 a. Service Plan Amendments for the West Mountain Metropolitan District i. Resolution approving the same j b. Development Permit for Colorado Adventure Park j I i. Resolution approving the same c. Grading and Excavation Operations Plan i. ResoIution approving the same d. Non-Opposition Letter Agreement I I I I i I i I II I 1 AMENDED PETITION FOR ANNEXATION TO THE BOARD OF TRUSTEES OF THE TOWN OF FRASER. COLORADO; The undersigned ("Petitioner"), in accordance with the Municipal Annexation Act of 1965 as set forth in Article 12, Title 31, Colorado Revised Statutes, as amended and as in effect on the submission date set forth below (the "Annexation Act"), hereby petitions (this "Petition")the Board of Trustees of the Town of Fraser, Colorado (the "Board'),to annex to the Town of Fraser(the "Town") the unincorporated territory located in the County of Grand, State of Colorado, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"). This Amended Petition for Annexation amends and supersedes the Petition for Annexation of the Property filed by Petitioner with the Clerk of the Town on.tune 11, 2007. The maps submitted with the original Petition for Annexation have not been amended. In support of this Petition,Petitioner alleges that: 1. It is desirable and necessary that the Property be annexed to the Town. i 2. The requirements of Sections-144 and -105 of the Annexation Act exist or have been met. 3. Not less than one-sixth (116) of the perimeter of the Property is contiguous with the Town's current municipal boundaries. 4. A community of interest exists between the Property and the Town, 5. The Property is urban or will be urbanized in the near future. 6. The Property is integrated with or is capable of being integrated with the Town. 7. Petitioner comprises more than fifty percent (50%)of the landowners in the Property owning more than fifty percent (50%)of the Property, excluding public streets, and alleys and any land owned by the annexing municipality, and Petitioner hereby consents to the establishment of the boundaries of the Property as shown on the annexation plat submitted herewith. 8. Petitioner comprises the owner of one hundred percent (100%)of the Property within the meaning of Section 407(1)(g) of the Annexation Act. 9. The Property is not presently a part of any incorporated city, city and county, or town;nor have any proceedings been commenced for incorporation or annexation of an area that is part or all of the Property; nor has any election for annexation of the Property or substantially the same territory to the Town been held within the twelve (12)months immediately preceding the filing of this Petition. 10. The proposed annexation will not result in detachment of area from any school district or attachment of same to another school district. 7750A.r 11. Except to the extent necessary to avoid dividing parcels within the Property held in identical ownership, at least fifty percent (50%)of which are within the three (3) mile limit, the proposed annexation will not extend the municipal boundary of the Town more than three I (3)miles in any direction from any point of the current municipal boundary. 12. The proposed annexation will not result in the denial of reasonable access to any landowner, owner of an easement, or owner of a franchise adjoining a platted street or alley which has been annexed by the Town but is not bounded on both sides by the Town. E 13. In establishing the boundaries of the Property, no land which is held in identical ownership, whether consisting of a single tract or parcel of real estate or two or more contiguous tracts or parcels of real estate: (a) is being divided into separate parts or parcels without the written consent of the landowner or landowners thereof unless such tracts or parcels are separated by a dedicated street, road or other public way; or (b) comprising twenty (20) acres or more and together with buildings and improvements situate thereon having a valuation for assessment in excess of$200,000.00 for ad valorem tax purposes for the year next preceding the proposed annexation, is included in the Property without the written consent of the landowner or landowners. 14. If a portion of a platted street or alley is to be annexed, the entire width thereof is included within the Property. 15. The legal description of the land owned by Petitioner is set forth underneath the name of such Petitioner on Exhibit B, attached hereto and incorporated herein by this reference. As more particularly described on Exhibit B. the land owned by Petitioner constitutes one hundred percent (100%)of the Property within the meaning of Section-107(1)(g) of the Annexation Act. 16. The affidavit of the circulator of this Petition certifying that each signature on this Petition is the signature of the person whose name it purports to be and certifying the accuracy of the date of such signature is attached hereto as Exhibit C and is incorporated herein by this reference. 17. This Petition is accompanied by four prints of an annexation map containing, among other things,the following information: (a) A written legal description of the boundaries of the Property; (b) A map showing the boundary of the Property; (c) Within the annexation boundary map, a showing of the location of each ownership tract in unplatted land and, if part or all of the area is platted, the boundaries and the plat numbers of plots or of lots and blocks; and 775694.1 2 (d) Next to the boundary of the Property, a drawing of the contiguous boundary of the annexing municipality abutting the Property. 18. In connection with the processing of this Petition, Petitioner requests that the Town: (a) Institute zoning approval processes for the Property in accordance with Section-115 of the Annexation Act and Article 13-3 of the Municipal Code of the Town; and (b) Approve and execute an annexation and development agreement (the "Annexation and Development Aaeeemenf) which establishes vested property rights for the Property for an agreed upon term greater than three years pursuant to Article 68, Title 24, Colorado Revised Statutes, and otherwise establishes the development plan for the Property, 19. Petitioner has filed this Petition subject to the following condition: Petitioner hereby reserves the sole, exclusive and unilateral right, without the consent or agreement of any other landowner within the Property,to withdraw this Petition by so notifying the Town Clerk in writing at any point prior to the later of, (a)the latest effective date of the final ordinance(s) approving annexation of the Property, the Annexation and Development Agreement, or zoning of the Property as requested pursuant to this Petition or (b)any later date contemplated in such Annexation and Development Agreement. 20. Upon the annexation of the Property becoming effective, and subject to the conditions set forth in this Petition and to be set forth in the Annexation and Development Agreement, the Property shall become subject to all ordinances, resolutions, rules and regulations of the Town, except as otherwise set forth in the Annexation and Development Agreement, and except for general property taxes of the Town, which shall become effective on January 1 of the next succeeding year following adoption of the annexation ordinance. 21. This Petition is filed on the condition that, concurrently with its approval of annexation of the Property, (i)the Board approve zoning of the Property that is substantially consistent with the application for zoning approvals that Petitioner will submit following the Town making the required finding of this Petition's substantial compliance with the requirements of the Annexation Act, and(ii)the Board approve and authorize execution of the Annexation and Development Agreement. 22. Except for the terms and conditions of this Petition and of the Annexation and Development Agreement, which terms and conditions Petitioner expressly approves and therefore do not constitute an imposition of additional terms and conditions within the meaning of Section-107(1)(g) of the Annexation Act, Petitioner requests that no additional terms and conditions be imposed upon annexation of the Property to the Town. THEREFORE, Petitioner requests that the Board of Trustees of the Town, of Fraser, Colorado, complete and approve the annexation of the Property pursuant to the provisions of the Municipal Annexation Act of 1965,as amended. 775094.1 3 �I Respectfully submitted this day of Nnu ern her,2007. Signature of Landowner/Petitioner: I I Byers Peak Pro .e s, LC By: i C, tla k Lipscomb,P esident Date of Signature: 11-alp—r7 - Mailing Address: P.O.Box 30 Winter Park, Colorado 80482 Resident of the Property? YES X NO I I� l I I al I I i I ICI I I I 775094.1 4 i EXHIBIT A TO PETITION FOR ANNEXATION Legal Description of Property A parcel of land, being Government Lot 3, Government Lot 4 EXCEPT the Westerly 440 feet thereof, and a portion of the south 112 of Section 19, and the N1/2NE1/4 of Section 30, all in Township 1 South, Range 75 West of the 6th P.M., Grand County, Colorado, more particularly described as follows: i BEGINNING at the Southeast Corner of said Section 19 and the Northeast Corner of said Section 30,a 3" iron pipe with a 3-1/2"brass cap stamped USGLO 1933; Thence South 00 134'13" East along the easterly line of said Section 30 a distance of 1,317.29 feet to the North Sixteenth Corner of Section 29 and said Section 30,whence a leaning 2" iron pipe 1 foot above ground with a 2-1/x" brass cap stamped "LS# 12479" bears North j 31 128'41" East 0.51 feet,also whence the East Quarter Corner of said Section 30, a found 2-%2" brass cap stamped "USGLO 1933" bears South 00 034'13" East a distance of 1,317.29 feet; Thence North 89°55'10" West along the North Sixteenth line of said Section 30 a distance of 2,629.96 feet to the North-Center Sixteenth Corner of said Section 30, a set #5 re-bar with a 3-1/a" aluminum cap stamped "LS #24669", whence the Center Quarter Corner of said Section 30, a found #6 aluminum rod with a 2-1/2" brass cap stamped "DWD LS #16398,2001"bears South 00°56'13" East a distance of 1,330.77 feet; Thence North 00°56'13" West along the North-South Centerline of said Section 30 a distance of 1,330.77 feet to the South Quarter Corner of said Section 19, a set #6 re-bar with a 3-i/" aluminum cap stamped "LS #24669" re-established per monument record sheet ties prepared by Thomas M. Carpenter,LS# 16398,dated 8130/1996; Thence South 89°22'12" West along the southerly line of said Section 19 a distance of 2,181.82 feet to a set#5 re-bar with a plastic cap stamped "LS 24669", whence a 1-`/2' aluminum cap stamped "LS# 11415" bears North 52°17'06" East 1.63 feet, also whence the Southwest Corner of said Section 19 bears South 89'22'12" West a distance of 440,00 feet to a found 2" galvanized pipe with a 2-%2" brass cap stamped "USGLO 1933"; Thence North 00°14'02" West a distance of 1,322.19 feet to a found 1-1/2" aluminum cap stamped "LS# 11415"; i I Thence North 54°59'49" East a distance of 1,167.79 feet; Thence North 00°09'11" West a distance of 6 84.9 8 feet to the northerly right of way line of CR- 73 as recorded in Book 95,page 184; Thence North 89 050'49" East along said right of way a distance of 1,296.54 feet to the westerly Corporate Limit of the Town of Fraser; I Exhibit A 775094.1 i i Thence South 00°14'50" East along said Corporate Limit a distance of 29.94 feet; Thence North 89 148'07" East along said East-West Centerline of Section 19 a distance of 1,303.12 feet to a set #5 re-bar with a plastic cap stamped "LS 24669" on the westerly right of way line of the Union Pacific Railroad, whence the East Quarter Corner of said Section 19,a found 2" pipe in concrete with a 2-'/Z" aluminum cap, bears North 89°48'07" East a distance of 1,266.48 feet; Thence along said right of way the following three(3) courses: 1. South 14 040'05" East a distance of 989.32 feet to a point of curvature, a set#5 re- bar with a plastic cap stamped "LS 24669 2. Along the arc of a curve to the left having a central angle of 59 021'29", a radius of 816.78 feet and an are length of 846.18 feet (chord bears South 44°20'50" East, 808.84 feet), a set#5 re-bar with a plastic cap stamped"LS 24669"; 3. South 74°01'34" East a distance of 415.27 feet to a point on the easterly right of way line of CR-72 as recorded in Book 105,Page 278; Thence leaving said Union Pacific Railroad right of way South 04°38'38" West and along said easterly right of way line of CR-72 a distance of 98.01 feet; Thence North 89°38'52" West leaving said easterly right of way a distance of 40.11 feet to the westerly right of way line of said CR-72; Thence North 04°38'38" East along said westerly right of way line a distance of 97.13 feet to a point of non-tangent curvature on the southerly right of way line of Fraser Valley Parkway(CR-721) as recorded in Book 450, Page 480; Thence leaving said westerly right of way and along said southerly right of way and along the arc of a curve to the right having a central angle of 49°28'57", a radius of 244.97 feet, and an arc length of 211.56 feet(chord bears South 65°35'58" West, 205.05 feet); Thence South 00°20'l0" West leaving said southerly right of way a distance of 11.01 feet; Thence North 89°38'52" West a distance of 618.10 feet; Thence South 00°06'05" East a distance of 900.00 feet to a set #5 re-bar with a plastic cap stamped "LS 24669", whence a found 2-'/2" iron pipe bears North 25°31'29" West a distance of 5.46 feet; Thence South 89°37'46" East along the southerly line of said Section 19 a distance of 899.54 feet i to the POINT OF BEGINNING. Containing 12,868,892 square feet, or 295.429 acres,more or less. Exhibit A-2 775094.1 i i i EXHIBIT B TO PETITION FOR.ANNEXATION i Legal Description of Property Owned by Each Petitioner i Name of Landowner/Petitioner: Byers Weak Properties, LLC Legal Description of Land Owned by Byers Peak Properties,LLC: ' A parcel of land, being Government Lot 3, Government Lot 4 EXCEPT the Westerly 440 feet thereof, and a portion of the south 1/2 of Section 19, and the N1/2NE1/4 of Section 30, all in Township 1 South, Range 75 West of the 6th P.M., Grand County, Colorado, more particularly described as follows: I BEGINNING at the Southeast Corner of said Section 19 and the Northeast Corner of said i Section 30, a 3" iron pipe with a 3-%z"brass cap stamped USGLO 1933; I Thence South 00134'13" East along the easterly line of said Section 30 a distance of 1,317.29 feet to the North Sixteenth Corner of Section 29 and said Section 30,whence a leaning 2" iron pipe 1 foot above ground with a 2-1/z" brass cap stamped "LS# 12479" bears North 31°28'41"East 0,51 feet, also whence the East Quarter Corner of said Section 30, a found 2-'/z" brass cap stamped "USGLO 1933" bears South 00°34'13" East a distance of 1,317.29 feet; Thence North 89°55'10" West along the North Sixteenth line of said Section 30 a distance of 2,629.96 feet to the North-Center Sixteenth Corner of said Section 30, a set #5 re-bar with a 3-1/" aluminum cap stamped "LS #24669", whence the Center Quarter Corner of said Section 30, a found #6 aluminum rod with a 2-1/Z" brass cap stamped "DWD LS 416398, 2001" bears South 00°56'13" East a distance of 1,330.77 feet; Thence North 00°56'13" West along the North-South Centerline of said Section 30 a distance of 1,330.77 feet to the South Quarter Corner of said Section 19, a set#6 re-bar with a 3-1/4" aluminum cap stamped "LS #24669" re-established per monument record sheet ties prepared by Thomas M. Carpenter, LS# 16398, dated 8/30/1996; Thence South 89°22'12" West along the southerly line of said Section 19 a distance of 2,181.82 feet to a set #5 re-bar with a plastic cap stamped "LS 24669", whence a 1-1/x" aluminum cap stamped "LS# 11415" bears North 52 117'06" East 1.63 feet, also whence the Southwest Corner of said Section 19 bears South 89°22'12" West a distance of 440.00 feet to a found 2" galvanized pipe with a 2-1/x" brass cap stamped"USGLO 1933"; Thence North 00'14'02" West a distance of 1,322.19 feet to a found 1-1/z" aluminum cap stamped "LS# 11415"; i Thence North 54°5949" East a distance of 1,167.79 feet; Exhibit B 775094.1 i i I r 1 I E s Thence North 00"09'11" West a distance of 684.98 feet to the northerly right of way line of CR- 73 as recorded in Book 95,Page 184, Thence North 89°50149" East along said right of way a distance of 1,296.54 feet to the westerly Corporate Limit of the Town of Fraser; Thence South 00°14'50" East along said Corporate Limit a distance of 29.94 feet; Thence North 89 148'07" East along said East-West Centerline of Section 19 a distance of 1,303.12 feet to a set #5 re-bar with a plastic cap stamped "LS 24669" on the westerly right of way line of the Union Pacific Railroad, whence the East Quarter Corner of said Section 19, a found 2" pipe in concrete with a 2-1/z"aluminum cap,bears North 89°48'07" East a distance of 1,266.48 feet; Thence along said right of way the following three (3)courses: 1. South 14 140'05" East a distance of 989.32 feet to a point of curvature, a set 45 re- bar with a plastic cap stamped"LS 24669"; 2. Along the are of a curve to the left having a central angle of 59°21'29", a radius of 816.78 feet and an are length of 846.18 feet (chord bears South 44°20'50" East, 808.84 feet), a set#5 re-bar with a plastic cap stamped"LS 24669 3. South 74°01'34" East a distance of 415.27 feet to a point on the easterly right of way line of CR-72 as recorded in Book 105, Page 278; Thence leaving said Union, Pacific Railroad right of way South 04°3838" West and along said easterly right of way line of CR-72 a distance of 98.01 feet; Thence North 89°38'52" West leaving said easterly right of way a distance of 40.11 feet to the westerly right of way line of said CR-72; Thence North 04°38'38" East along said westerly right of way line a distance of 97.13 feet to a point of non-tangent curvature on the southerly right of way line of Fraser Valley Parkway(CR-721) as recorded in Book 450, Page 480; Thence leaving said westerly right of way and along said southerly right of way and along the are of a curve to the right having a central angle of 49°28'57", a radius of 244.97 feet, and an arc length of 211.56 feet(chord bears South 65°35'58" West, 205.05 feet); Thence South 00°20'10" West leaving said southerly right of way a distance of 11.01 feet; Thence North 89°38'52" West a distance of 618.10 feet; Thence South 00°06'05" East a distance of 900.00 feet to a set #5 re-bar with a plastic cap stamped "LS 24669", whence a found 2-1/z' iron pipe bears North 25°31'29" West a distance of 5.46 feet; I Exhibit B-2 775094.1 II I + f f Thence South 89°37'46" East along the southerly line of said Section 19 4 distance of 899.54 feet to the POINT OF BEGINNING. Containing 12,868,892 square feet,or 295.429 acres,more or less. E �I �I I i I� I�I I I ill VIII I Exhibit B-3 475094.! EXHIBIT C TO PETITION FOR ANNEXATION Affidavit of Circulator E i The undersigned, being of lawful age, who being first duly sworn upon oath deposes and says: That (s)he was the circulator of the foregoing Petition for Annexation of lands to the Town of Fraser, consisting of 9 pages, excluding the page(s) of this Exhibit C, and that the signatures of the petitioners thereon were witnessed by the circulator and are the true and original signatures of the persons whose names they purport to be, and that the dates of such signatures are correct, MOAAl- k ttl / � i ALU rOM Circular Q (j STATE OF ) ) ss. COUNTY OF GRAND ) The foregoin AFFIDAVIT OF CIRCULATOR was subscribed and sworn to before me this r2 C� day of�2007,by Witness my hand and official seal. My commission expires: Notary Public SUSAN J. KO✓NEKE NOTARY PUBLIC , STATE OF COLORADO My Commission Expires.02JI6l200S. i Exhibit C 775094.1 � f PETITION FOR ANNEXATION TO THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,COLORADO: The undersigned("Petitioner"), in accordance with the Municipal Annexation Act of 1965 as set forth in Article 12, Title 31, Colorado Revised Statutes, as amended and as in effect on the submission date set forth below (the "Annexation Act'),.hereby petitions (this "Petition") the Board of Trustees of the Town of Fraser, Colorado (the "Board"), to annex to the Town of Fraser (the "Town") the unincorporated territory located in the County of Grand, State of Colorado, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"). In support of this Petition, Petitioner alleges that: 1. It is desirable and necessary that the Property be annexed to the Town. 2. The requirements of Sections-104 and -105 of the Annexation Act exist or have been met. 3. Not less than one-sixth (116) of the perimeter of the Property is contiguous with the Town's current municipal boundaries. 4. A community of interest exists between the Property and the Town. k 5. The Property is urban or will be urbanized in the near future. 6. The Property is integrated with or is capable of being integrated with the Town. 7. Petitioner comprises more than fifty percent (501/o) of the landowners in the Property owning more than fifty percent (50%)of the Property; excluding public streets, and alleys and any land owned by the annexing municipality, and Petitioner hereby consents to the establishment of the boundaries of the Property as shown on the annexation plat submitted herewith. 8. Petitioner comprises the owner of one hundred percent (100%) of the Property within the meaning of Section-107(t)(g)of the Annexation Act. 9. The Property is not presently a part of any incorporated city, city and county, or town;nor have any proceedings been commenced for incorporation or annexation of an area that is part or all of the Property;nor has any election for annexation of the Property or substantially the same territory to the Town'been held within the twelve (12)months immediately preceding the filing of this Petition. 10. The proposed annexation will not result in detachment of area from any school district or attachment of same to another school district. �oiaaa.a y , 1 � 11. Except to the extent necessary to avoid dividing parcels within the Property held in identical ownership, at least fifty percent (50%) of which are within the three (3)mile limit, the proposed annexation will not extend the municipal boundary of the Town more than three (3)miles in any direction from any paint of the current municipal boundary. 12. The proposed annexation will not result in the denial of reasonable access to any landowner, owner of an easement, or owner of a franchise adjoining a platted street or alley which has been annexed by the Town but is not bounded on both sides by the Town. 13. In establishing the boundaries of the Property, no land which is held in identical ownership,whether consisting of a single tract or parcel of real estate or two or more contiguous tracts or parcels of real estate: (a) is being divided into separate parts or parcels without the written consent of the landowner or landowners thereof unless such tracts or parcels are separated by a dedicated street,road or other public way; or (b) comprising twenty (20) acres or more and together with buildings and improvements situate thereon having a valuation for assessment in excess of$200,000.00 for ad valorem tax purposes for the year next preceding the proposed annexation, is included in the Property without the written consent of the landowner or landowners. 14. If a portion of a platted street or alley is to be annexed, the entire width thereof is included within the Property. 15. The legal description of the land owned by Petitioner is set forth underneath the name of such Petitioner on Exhibit B, attached hereto and incorporated herein by this reference. As more particularly described on Exhibit B, the land owned by Petitioner constitutes one hundred percent (100%) of the Property within the meaning of Section-107(1)(g) of the Annexation Act. 16. The affidavit of the circulator of this Petition certifying that each signature on this Petition is the signature of the person whose name it purports to be and certifying the accuracy of the date of such signature is attached hereto as Exhibit C and is incorporated herein by this reference. 17. This Petition is accompanied by four prints of an annexation map containing, among other things,the following information: (a) A written Iegal description of the boundaries of the Property; (b) A map showing the boundary of the Property; (c) Within the annexation boundary map, a showing of the location of each ownership tract in unplatted land and, if part or all of the area is platted, the boundaries and the plat numbers of plots or of lots and blocks; and 7a�3aa.z 2 i (d) Next to the boundary of the Property, a drawing of the contiguous boundary of the annexing municipality abutting the Property. 18. In connection, with the processing of this Petition, Petitioner requests that the Town: (a) Institute zoning approval processes for the Property in accordance with Section-115 of the Annexation Act and Article 13-3 of the Municipal Code of the Town; and (b) Approve and execute an annexation and development agreement (the "Annexation and Development Agreement") which establishes vested property rights for the Property for an agreed upon terra,greater than three years pursuant to Article 68, Title j 24, Colorado Revised Statutes, and otherwise establishes the development plan for the Property. 19. Petitioner has filed this Petition subject to the following conditions: i (a) Petitioner hereby reserve the sole, exclusive and unilateral right, without the consent or agreement of any other Petitioner or landowner within the Property, to withdraw this Petition by so notifying the Town Clerk in writing at any point prior to the later to occur of: (i)forty(40) days after the latest effective date of the final ordinance(s) approving annexation of the Property, the Annexation and Development Agreement, or j zoning of the Property as requested pursuant to this Petition; or (ii)any later date contemplated in such Annexation and Development Agreement. (b) Prior to expiration of the period described in the foregoing subparagraph(b)without Petitioner having withdrawn the Petition, neither Petitioner nor the Town shall cause or permit the occurrence of the conditions to effectiveness of the annexation as set forth in Section-113(2)(b)of the Annexation Act. 20. Upon the annexation of the Property becoming effective, and subject to the conditions set forth in this Petition and to be set forth in the Annexation and Development Agreement, the Property shall become subject to all ordinances, resolutions, rules and regulations of the Town, except as otherwise set forth in the Annexation and Development j Agreement, and except for general property taxes of the Town, which shall become effective on I January 1 of the next succeeding year following adoption of the annexation ordinance. 21, This Petition is filed on the condition that, concurrently with its approval of annexation of the Property, (i)the Board approve zoning of the Property that is substantially consistent with the application for zoning approvals that Petitioner will submit following the Town making the required finding of this Petition's substantial compliance with the requirements of the Annexation Act,and(ii)the Board approve and authorize execution of the Annexation and Development Agreement. 22. Except for the terms and conditions of this Petition and of the Annexation and Development Agreement, which terms and conditions Petitioner expressly approves and therefore do not constitute an imposition of additional terms and conditions within the meaning I 701340.2 3 I I of Section -107(1)(g) of the Annexation Act, Petitioner requests that no additional terms and conditions be imposed upon annexation of the Property to the Town. THEREFORE, Petitioner requests that the Board of Trustees of the Town of Fraser, Colorado, complete and approve the annexation of the Property pursuant to the provisions of the Municipal Annexation Act of 1965,as amended. RespectBally submitted this IMI day of Qwng- ,2007. , v I Signature of Landowner/Petitioner: i Byers Peak Properties,LLC By: C�-Cliair—k Lipscomb,President Date of Signature; 6-I1- a-? I Mailing Address: P.O.Box 30 47 Cooper Creek Way Suite 321 Winter Park, Colorado 80482 f Resident of the Property? YES X NO I I 7�»4o z 4 ♦ y. EXHIBIT A TO PETITION FOR ANNEXATION_ Legal Description of Property A parcel of land, being Government Lot 3, Government Lot 4 EXCEPT the Westerly 440 feet thereof, and a portion of the south 1/2 of Section 19, and the N1/2NE1 14 of Section 30, all in Township 1 South, Range 75 West of the 6th P.M., Grand County, Colorado, more particularly described as follows: BEGINNING at the Southeast Corner of said Section 19 and the Northeast Corner of said Section 30, a 3" iron pipe with a 3-1/z" brass cap stamped USGLO 1933; Thence South 00°34'13" East along the easterly line of said Section 30 a distance of 1,317.29 feet to the North Sixteenth Corner of Section 29 and said Section 30,whence a leaning 2" iron pipe 1 foot above ground with a 2-1/x" brass cap stamped "LS# 12479" bears North 31°28'41"East 0.51 feet, also whence the East Quarter Corner of said Section 30, a found 2-'/z" brass cap stamped "USGLO 1933" bears South 00°34'13" East a distance of 1,317.29 feet; i Thence North 89°55'10" West along the North Sixteenth line of said Section 30 a distance of 2,629.96 feet to the North-Center Sixteenth Corner of said Section 30, a set #5 re-bar with a 3-1/4" aluminum cap stamped "LS #24669", whence the Center Quarter Corner of said Section 30, a found #6 aluminum rod with a 2-%z" brass cap stamped "DWD LS #16398, 2001" bears South 00 156'13"East a distance of 1,330.77 feet; Thence North 00°56'13" West along the North-South Centerline of said Section 30 a distance of 1,330.77 feet to the South Quarter Corner of said Section 19, a set#6 re-bar with a 3-'/4" aluminum cap stamped "LS 424669" re-established per monument record sheet ties prepared by Thomas M. Carpenter,LS# 16398,dated 8130/1996; Thence South 89 022'12" West along the southerly line of said Section 19 a distance of 2,181.82 feet to a set#5 re-bar with a plastic cap stamped MS 24669", whence a 1-%" aluminum cap stamped "LS# 11415" bears North 52'17'06" East 1.63 feet, also whence the Southwest Corner of said Section 19 .bears South 89122'12" West a distance of 440.00 feet to a found 2" galvanized pipe with a 2-'/Z" brass cap stamped"USGLO 1933'; Thence North 00°14'02" West a distance of 1,322.19 feet to a found 1-%z" aluminum cap stamped "LS#11415 4 Thence North 54°59'49" East a distance of 1,167.79 feet; Thence North 00°09'11" West a distance of 684.98 feet to the northerly right of way line of CR 73 as recorded in Book 95,Page 184; Thence North 89°50'49" East along said right of way a distance of 1,296.54 feet to the westerly Corporate Limit of the Town of Fraser; 701340.2 Exhibit A i r ' I I I i i I Thence South 00 014'50" East along said Corporate Limit a distance of 29.94 feet; Thence North 89°48'07" East along said East-West Centerline of Section 19 a distance of 1,303.12 feet to a set #5 re-bar with a plastic cap stamped "LS 24669" on the westerly right of way line of the Union Pacific Railroad, whence the East Quarter Corner of said Section 19, a found 2" pipe in concrete with a 2-1/2" aluminum cap,bears North 89°48'07" East a distance of 1,266.48 feet; Thence along said right of way the following three(3)courses; 1. South 14°40'05" East a distance of 989.32 feet to a point of curvature, a set#5 re-bar with a plastic cap stamped "LS 24669' 2. Along the arc of a curve to the left having a central angle of 59°21'29", a radius of 816.78 feet and an are length of 846.18 feet (chord bears South 44°20'50" East, 808.84 feet), a set#5 re-bar with a plastic cap stamped"LS 24669"; 3, South 74°01'34" East a distance of 415.27 feet to a point on the easterly right of way line of CR-72 as recorded in Book 105,Page 278; Thence leaving said Union Pacific Railroad right of way South 04°38'3$" West and along said easterly right of way line of CR-72 a distance of 98.01 feet; Thence North 89°38'52" West leaving said easterly right of way a distance of 40.11 feet to the westerly right of way line of said CR-72; Thence North 04138'38" East along said westerly right of way line a distance of 97.13 feet to a j point of non-tangent curvature on the southerly right of way line of Fraser Valley Parkway (CR-721)as recorded in Book 450,Page 480; Thence leaving said westerly right of way and along said southerly right of way and along the I arc of a curve to the right having a central angle of 49°28'57",a radius of 244.97 feet, and an are length of 211.56 feet(chord bears South 65°35'58" West, 205.05 feet); Thence South 00°20'10" West leaving said southerly right of way a distance of 11.01 feet; I Thence North 89°38'52" West a distance of 618.10 feet; I Thence South 00°06'05" East a distance of 900.00 feet to a set #5 re-bar with a plastic cap stamped "LS 24669", whence a found 2-1/2" iron pipe bears North 25°31'29" West a distance of 5,46 feet; Thence South 89°37'46" East along the southerly line of said Section 19 a distance of$99.54 feet to the POINT OF BEGINNING. i Containing 12,868,892 square feet, or 295.429 acres,more or less. i 701340.2 Exhibit A-2 � e I EXHIBIT B TO PETITION FOR ANNEXATION i Legal Description of Property Owned by Each Petitioner Name of Landowner/Petitioner: Byers Peale Properties, LLC Legal Description of Land Owned by Byers Peale Properties,LLC: A parcel of land, being Government Lot 3, Government Lot 4 EXCEPT the Westerly 440 feet thereof, and a portion of the south 1/2 of Section 19, and the N1/2NE1/4 of Section 30, all in Township 1 South, Range 75 West of the 6th P.M., Grand County, Colorado, more particularly described as follows: i BEGINNING at the Southeast Corner of said Section 19 and the Northeast Corner of said ' Section 30, a 3" iron pipe with a 3-%2"brass cap stamped USGLO 1933; j Thence South 00°34'13" East along the easterly line of said Section 30 a distance of 1,317.29 feet to the North Sixteenth Corner of Section 29 and said Section 30,whence a leaning 2" iron pipe 1 foot above ground with a 2-1/z" brass cap stamped "LS# 12479" bears North 31°28'41"East 0.51 feet, also whence the East Quarter Corner of said Section 30, a found 2-'/z" brass cap stamped "USGLO 1933" bears South 00°34'13" East a distance of 1,317.29 feet; i Thence North 89°55'10" West along the North Sixteenth line of said Section 30 a distance of 2,629.96 feet to the North-Center Sixteenth Corner of said Section 30, a set #5 re-bar with a 3-'/4" aluminum cap stamped "LS #24669", whence the Center Quarter Corner of said Section 30, a found #6 aluminum rod with a 2-%2" brass cap stamped "DWD LS #16398,2001" bears South 00°56'13"East a distance of 1,330.77 feet; Thence North 00°56'13" West along the North-South Centerline of said Section 30 a distance of 1,330.77 feet to the South Quarter Corner of said Section 19, a set #6 re-bar with a 3-1/4" aluminum cap stamped "LS 424669" re-established per monument record sheet ties prepared by Thomas M. Carpenter,LS# 16398,dated 8/30/1996; Thence South 89°22'12" West along the southerly line of said Section 19 a distance of 2,181.82 feet to a set#5 re-bar with a plastic cap stamped "LS 24669", whence a 1-1/2" aluminum cap stamped "LS# 11415" bears North 52°17'06" East 1.63 feet, also whence the Southwest Corner of said Section 19 bears South 89°22'12" West a distance of 440.00 feet to a found 2" galvanized pipe with a 2-%2" brass cap stamped "USGLO 1933"; Thence North 00 114'02" West a distance of 1,322.19 feet to a found 1-1/2'aluminum cap stamped "LS# 11415"; Thence North 54°59'49" East a distance of 1,167.79 feet; 701340.2 Exhibit B Thence North 00°09'11" West a distance of 6 84.9 8 feet to the northerly right of way line of CR- 73 as recorded in Book 95,Page 184; Thence North 89°50'49" East along said right of way a distance of 1,296.54 feet to the westerly Corporate Limit of the Town of Fraser; Thence South 00°14'50" East along said Corporate Limit a distance of 29.94 feet; Thence North 89 148'07" East along said East-West Centerline of Section 19 a distance of 1,303.12 feet to a set 95 re-bar with a plastic cap stamped "LS 24669" on the westerly right of way line of the Union Pacific Railroad., whence the East Quarter Corner of said Section 19, a found 2" pipe in concrete with a 2-%2" aluminum cap,bears North 89°48'07" East a distance of 1,266.48 feet; Thence along said right of way the following three(3)courses: i 1. South 14 040'05" East a distance of 989.32 feet to a point of curvature, a set #5 re-bar with a plastic cap stamped"LS 24669"; 2. .Along the arc of a curve to the left having a central angle of 59°21'29", a radius of 816.78 feet and an arc length of 846.18 feet (chord bears South 44°20'50" East, 808.84 feet),a set 45 re-bar with a plastic cap stamped"LS 24669"; 3. South 74 101'34" East a distance of 415.27 feet to a point on the easterly right of way line of CR-72 as recorded in Book 105,Page 278; I Thence leaving said Union Pacific Railroad right of way South 04°38'38" West and along said easterly right of way line of CR-72 a distance of 98.01 feet; Thence North 89°38'52" West leaving said easterly right of way a distance of 40.11 feet to the westerly right of way line of said CR-72; Thence North 04°38'38" East along said westerly right of way line a distance of 97.13 feet to a point of non-tangent curvature on the southerly right of way line of Fraser Valley Parkway(CR-721)as recorded in Book 450,Page 480; Thence leaving said westerly right of way and along said southerly right of way and along the arc of a curve to the right having a central angle of 49°28'57",a radius of 244.97 feet,and an arc length of 211.56 feet(chord bears South 65°35'58" West,205.05 feet); Thence South 00°20'10" West leaving said southerly right of way a distance of 11.01 feet; Thence North 89°38'52" West a distance of 618.10 feet; Thence South 00106'05" East a distance of 900.00 feet to a set #5 re-bar with a plastic cap stamped "LS 24669", whence a found 2-'/z" iron pipe bears North 25°31'29" West a distance of 5.46 feet; 701340.2 Exhibit B-2 � r I� Thence South 89°37'46" East along the southerly line of said Section 19 a distance of 899.54 feet to the POINT OF BEGINNING, Containing 12,868,892 square feet, or 295.429 acres,more or less. �I II I, 3 I i I I i i i ill III III i I i y 701340.2 Exhibit B-2 I I i i EXHIBIT C TO PETITION FOR ANNEXATION Affidavit of Circulator The undersigned, being of lawful age, who being first duly sworn upon oath deposes and says: I That(s)he was the circulator of the foregoing Petition for Annexation of lands to the Town of Fraser,consisting of 9 pages, excluding the page(s) of this Exhibit C, and that the signatures of the petitioners thereon were witnessed by the circulator and are the true and original signatures of the persons whose names they purport to be, and that the dates of such signatures are correct. ll ff f Circulaor U 0 ! STATE OF C } )ss. COUNTY OF ) The foregoing AFFIDAVIT OF CIRCULATOR was subscribed and sworn to before me this_14_day of 200X,by Wgr,1z 11r l Witness my hand and official seal. My commission expires: -7--121a — 1-9' Notary Public , SUSAN J. KOENEKE NOTARY PUBLIC STATE OF COLORADO My Commission Expires 02/96/2009 I� 701940.2 MEMORANDUM March 28, 2013 TO: Mayor and Town Board of Trustees for the Town of Fraser, Colorado CC: Jeff Durbin, Lu Berger, Catherine Trotter, Allen Nordin FROM: Boots Ferguson and Kylie Crandall RE: Review of the Major Agreement Points in the Proposed Annexation of the Byers Peak Ranch Property to the Town of Fraser. This memorandum briefly summarizes the basic agreement points of the proposed annexation of the Byers Peak Ranch property which is across the street from the old Town. The Ranch is currently owned by a developer and is anticipated to be the subject of development in the foreseeable future, either in the Town or in the County. Annexation of property into the Town allows the Town and the property owner to negotiate an agreement to address their respective interests regarding the property, its development, and its impacts. As a result, the proposed agreement points address the basic interests of the Town that occur with the development of the Ranch in the Town. The Town's interests may not be addressed if the development occurs in the County. The agreement also addresses the basic interests of the developer for the development. Town Interests. From a big picture perspective, the Town's interests that are covered under the agreement are the following: 1. Water Reservoirs. Over the long term, the Town needs to obtain water storage rights, locate a place to construct reservoirs upstream of the Town and construct the reservoirs in order to firm up a long term reliable and dependable legal and physical supply of water for the Town's municipal needs. This is the case with or without the development of the Ranch. In the near future the Town needs just under 20 acre feet to comply with the water court decree for the Forest Meadows area. The Town also needs an additional 40 acre feet of storage to serve the Town, including the Ranch, long term. uIage 12 The need for the storage is to make releases to allow the Town's wells to continue to pump water for the Town's needs when a call from a senior water right is placed on the Fraser River. Without the storage, the wells would be shut down. a. The Town's engineers advise that a minimum of 60 acre feet be built; one acre foot of water equals the amount of water to cover a football field one foot deep; b. The costs of obtaining water rights and constructing storage are approximately $75,000 an acre foot or $4,500,00 for 60 acre feet, not including the cost of the land for the reservoir; C. Under the agreement, the Town pays nothing and Developer provides the land for the reservoirs and designs and constructs them to hold a total of 60 acre feet at Developer's initial cost (see Paragraph 9 below); the water storage rights and appropriate easements are dedicated to the Town. This happens whether or not Developer develops the Ranch. There is security for the provision of this water storage. d. The Town does not currently have the financing to construct reservoirs. To do so could result in additional costs to existing Town water customers. 2. Town Control. The Town will have control over the development to manage the impacts on the Town. 3. Town Code Applies. The Town's Municipal Code provisions and requirements will apply to the project. 4. Town Gravel Extraction Requirements. Any gravel extraction that accompanies reservoir construction must meet the requirements of the Town's Grading and Excavation Operations Plan. The Plan restricts days and hours of operation and truck traffic, among other things. In Grand Park, there are no such existing regulations. 5. Town Receives 6 acres. The Town will receive a 6 acre parcel adjacent to the Town at the time of annexation; it may be used for any municipal purposes. 6. Town Receives Park. The Town will receive a 1.5 acre pocket park along the Fraser Valley Parkway as a part of the required view corridor through the Ranch. 7. Pathway Along Parkway. A pathway will be constructed along the Fraser Valley Parkway. uIage 13 8. Town Use of St. Louis Creek Rights. The Town will have the physical ability to divert its St. Louis Creek water right of 1.0 cfs across the Ranch for use by the Town. 9. Split of Paid Tap Fees. The Town and Developer split water plant investment fees as they are paid in the future by residents and business of the development at building permit issuance. The split is based on when the Town needs to make its improvements to the water system as the Town builds out and the Ranch builds out. The split is based on the cost of the improvements and the percentage of the Ranch that is built out compared to the build out of the Town. All such fees from the Rendezvous and Grand Park projects are fully reimbursed. a. The fee split pays Developer over time for the costs of the construction of the reservoirs and the prosecution of the water court cases and a portion of the costs of the Ranch water facilities. Developer's pays its costs up front and Town pays nothing. b. The fees are paid by Developer's property purchasers. All of the financial risk for the costs of the reservoirs is on Developer with no financial risk to the Town. 10. Relationship with Developer. This agreement has been structured with the goal of clarifying the responsibilities of the parties, learning from the past, and minimizing the potential for disagreement and lawsuits. Developer Interests. The Developer's interests are the following: 1. Annexation. The Ranch becomes part of the Town. 2. Preliminary Approval. The Ranch receives preliminary plan approval. 3. Density Approval. The Ranch receives approval of the density for 1435 residences, 550 lodge/motel/camper spaces and 270,000 sq. ft of commercial space on 295 acres. 4. Municipal Services. The Ranch receives water and sewer service from the Town. 5. Split of Paid Tap Fees. The Town and Developer split water plant investment fees as they are paid in the future by residents and business of the development. The split is based on when the Town needs to make its improvements to the water system as the Town builds out and the Ranch builds out. The split is based on the cost of the improvements and the percentage of the Ranch that is built out compared to the build out of the Town. 6. Vested Rights. Developer receives vested rights for 35 years in the preliminary plan approved by the Town with the designated zoning and densities; the property cannot be down-zoned during this period. Page 14 No Annexation. The possible results of no annexation and agreement may include the following: 1. Water Storage. The Town's current water service customers will have to pay for the construction of water reservoirs at Town cost estimated to be $75,000 an acre foot with a minimum requirement of 20 acre feet and an ideal requirement of 60 acre feet ($4,500,000). The Town would have to find a place for the reservoir which may involve additional costs to the Town. 2. County Zoning Applies. The property can be developed under County zoning and County approvals and all activities on the Ranch will be regulated by the County. 3. Water and Sewer Service. The Developer could, over time, develop its own water supply system and sewer system. The Town may remain in a position to negotiate, initially at its cost, water service for the Ranch or may oppose the Developer's efforts to obtain water court approval for water service, at Town cost. 4. Gravel Extraction . Any gravel extraction from the property will be based on County and State permitting requirements. 5. County Control. The County will control all aspects of the Ranch development and activities. The Town will have the right to comment on but not the ability to control and manage the development's impacts on the Town. 6. Land Dedication. There will be no land dedication to the Town. 6118989_2 NOTICE OF CONVEYANCE OF PORTIONS OF PROPERTY THE SUBJECT OF A PETITION FOR ANNEXATION AND JOINDER OF GRANTEE OF SUCH CONVEYANCE AS ADDITIONAL PETITIONER. The undersigned Petitioner,Byers Peak Properties,LLC, and Additional Petitioner, Byers Peak Downhill Properties,LLC,hereby fie with the Town Clerk of the Town of Fraser this Notice and Joinder with respect to the Petition for Annexation fled by Petitioner,dated rune 11,2007, as amended November 26,2007(the"Petition"), seeking annexation of certain property to the Town of Fraser, The Petition was found in substantial compliance with C.R.S. Section 31-12-107(1)by the Eraser Board of Trustees on December 19,2007,by Resolution No. 12-09-07. A hearing date was set, notice was provided and the public hearing on the Petition was held on February f,2008, in accordance with C.R.S. Sections 31-12-108 to 110. At the conclusion of such hearing,the Board of Trustees adopted Resolution No.02-01-08, setting forth its findings of fact and its conclusions with respect to the compliance of the area proposed for annexation with the applicable requirements of C.R.S. Sections 31-12-104 and 105 and the other findings required pursuant to C.R.S. Section 31-12-110. Action on the proposed annexation was deferred at that time until the terms of the annexation agreement were negotiated,or until the Board otherwise determined to act upon said proposed annexation. The Town and Petitioner entered into a Pre-Annexation Agreement dated October G,2010, a copy of which is attached hereto as Exhibit 1 and incorporated herein by this reference. A copy of the Petition, including the legal description of the property proposed for annexation,are attached to said Pre-Annexation Agreement as Exhibit A. On January 9,2009,Petitioner conveyed a portion of the area proposed for annexation in the Petition to Additional Petitioner by General Warranty Deed recorded that date at Reception No. 2009000279, a copy of which is attached hereto as Exhibit 2 and incorporated herein by this reference. The property conveyed to Additional Petitioner is hereinafter referred to as the "BPDP Property". The Additional Petitioner hereby gives the Town notice that it joins in the Petition and Pre- Annexation Agreement as an additional petitioner and owner, confirms that the statements made in the Petition are true and accurate,and consents to and approves of all proceedings,hearings, findings and conclusions conducted or reached by the Town with regard to the Petition as of the date of this Notice. The Additional Petitioner hereby consents to the same and to being included in and subject to all remaining proceedings to effectuate an annexation of the property described in the Petition and including the BPDP Property, The Additional Petitioner further agrees to abide by and fulfill all commitments,Obligations,and representations,whether written or oral, made by Petitioner on the record to date with regard to the BPDP Property,whether as a part of the annexation proceedings or land use proceedings before the Town. Submitted with this Notice are four(4)copies of an amended annexation map containing,among other things,the following information: (a)A written legal description of the boundaries of the area proposed to be annexed;(b)a map showing the boundary of the area proposed to be annexed; (c)within the annexation boundary map,a showing of the location of each ownership I', I tract in unplatted Iand and,if part or all of the area is platted,the boundaries and the plat numbers of plots or of lots and blocks;and(d)next to boundary of the area proposed to be annexed,a drawing of the contiguous boundary of the annexing municipality abutting the area proposed to be annexed. Notices of future proceedings shall be sent to the Additional Petitioner at the following mailing address: i I Byers Peak Downhill Properties,LLC 11001 W. 120th Avenue, Suite 310 Broomfield, CO 80021 IN WITNESS WHEREOF,the Petitioner and Additional Petitioner have hereunto subscribed Li I their signatures this /7—day of Skt&,,,�4,2012. PETITIONER: ADDITIONAL PETITIONER: i I Byers Peak Pro roes,VC, Byers Peak Do Properties,LLC, ,pe a Colorad zted l' ity company a Colorado ' i lia ' pany I By: By: _ C:.• k Lipscomb,President ame and Title) i Affidavit of Circulator The undersigned,being of lawful age,who being first duly sworn upon oath deposes and says: That(s)he was the circulator of the foregoing Notice relating to a petition for annexation of lands to the Town of Fraser,and that the signatures of the Petitioner and Additional Petitioner thereon were witnessed by the circulator and are the true and original signatures of the persons whose names they purport to be,and that the dates of such signatures are correct. I Circulator STATE OIL COLORADO � ) SS COUNTY OF ) I The foregoing Affidavit of Circulator was subscribed and sworn to before me this day o 2012,byuw� b L�.YItt c. Witness m hand and official seal. My Commission cxpires: 1,G '„7 i .SSA { No ary Public fi r�0 I i nil co I 3 APPROVED AND ACCEPTED: TOWN OF FRASER BY: I Fran Cook,Mayor i ATTEST: Lu Berger,Town Clerk I I i i _ 3 _ I i I I 61 I T f. Ink I----. -----—--————————- All is at it 9 EQ iv fit pi I!!1!e Zi Ilig.-go Fiji, flu fl$ 9211,11 k' I I It Is no< _3 Hg t i i I TOWN OF FRASER, COLORADO RESOLUTION NO. 2013 i AN RESOLUTION OF THE TOWN OF FRASER BOARD OF TRUSTEES CONCERNING FINDINGS FOR PETITION FOR ANNEXATION OF THE BYERS PEAK RANCH PROPERTY WHEREAS, pursuant to C.R.S. § 31-12-107(1)(a), a petition for annexation ("Annexation Petition"), dated June 11, 2007, amended November 26, 2007, was filed by Byers Peak Properties, LLC ("BPP") with the Town Clerk of the Town of Fraser, Colorado (the "Town") seeking to annex approximately 295 acres of unincorporated territory located south of the Town in Grand County, Colorado, commonly known Byers Peak Ranch (the "Property"), as more particularly described in the legal description attached hereto and incorporated herein as Exhibit A, and was referred therefrom to the Town's Board of Trustees (the"Board"); WHEREAS, by Resolution No. 11-01-07 dated November 28, 2007 the Board found and determined that the Annexation Petition was in substantial compliance with the statutory requirements in accordance with the requirements of C.R.S. § 31-12-107, and set a public hearing, WHEREAS, on February 6, 2008, the Board conducted a public hearing at which it adopted Resolution No. 02-01-08 in which it set forth its findings of fact and its conclusions on the Annexation Petition in accordance with the requirements of C.R.S. §31-12-110 and other applicable provisions of the Municipal Annexation Act of 1965, and deferred action on the annexation of such Property until the terms of an annexation agreement were negotiated, or until the Board otherwise determined to act upon such proposed annexation; WHEREAS, on February 27, 2012, Byers Peak Downhill Adventures, LLC ("BPD") filed a Notice and Joinder (the "Joinder") with the Town to join the Annexation Petition as a landowner after portions of the Property subject to the Annexation Petition had been conveyed by BPP to BPD in 2009; WHEREAS, BPP and BPD (together, the "Developers") own one hundred percent of the Property that is the subject of the Annexation Petition; j WHEREAS, the Board had an annexation impact report prepared and filed in accordance with the provisions of C.R.S. §31-12-108.5; WHEREAS, the Town and Developers have reached an agreement on the terms and conditions of the Byers Peak Ranch Annexation and Development Agreement dated [ �, pertaining to the annexation of the Property; NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO: i I Section 1. Findings of Fact. The Board has determined that the requirements of the applicable parts of C.R.S. §§ 31-12-104 and 105 have been met, including but not limited to the following I findings of fact. 1. Not less than one-sixth of the perimeter of Property is contiguous with the Town. 2. A community of interest exists between the area proposed to be annexed and the Town, based on contiguity between the Town and the Property. i 3. The area is urban or will be urbanized in the near future. 4. The area is integrated with or is capable of being integrated with the Town. 5. No land held in identical ownership has been divided into separate parts of parcels without the written consent of the landowners thereof. 6. No land comprising twenty acres or more with a valuation for assessment in excess of two hundred thousand dollars for ad valorem tax purposes for the year next preceding the annexation has been included without written consent of the landowners. 7. No annexation proceedings concerning the area proposed to be annexed have been commenced by another municipality. S. This proposed annexation will not result in the detachment of the area proposed to be annexed from the school district. 9. No part of the Property extends the existing Town boundaries more than three miles in any direction from the Town in any one year. 10. No additional terms and conditions are being imposed by the Town upon the Property in accordance with C.R.S. § 31-12-112. 11. No petition for annexation election has been submitted and an election is not required pursuant to C.R.S. §§ 31-12-107(2) and 31-12-112. Section 2. Conclusions. Pursuant to C.R.S. § 31-12-110, the Board further finds and concludes the following. 1. The Property is eligible for annexation pursuant to the applicable parts of C.R.S. § 31-12-104. 2. None of the limitations of C.R.S. § 31-12-105 apply to restrict annexation of the Property. I 3. The requirements of the applicable parts of C.R.S. §§ 31-12-104 and 31-12-105 have been met. 4. A determination has been made that additional terms and conditions are not to be imposed. 5. An election is not required under C.R.S. § 31-12-107(2). f 6. Said parcel may be annexed by Ordinance pursuant to C.R.S. §§ 31-12-107(1)(g) and 31-12-111 without election. I I 7. Having found that the Property is eligible to be annexed, the Board hereby resolves that the parcel should be annexed to the Town by Ordinance and the Board will undertake further proceedings to pass such an Ordinance confirming and adopting this Resolution in accordance with the applicable provisions of the Municipal Code and Municipal Annexation Act of 1965. i READ, PASSED, ADOPTED AND RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THIS day of , 2013. BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO i BY: Mayor i ATTEST; BY: i Town Clerk i 6093818 1 i i il III i I ' I i Lam" I,PF.TMOl4 FOR AMMK,Uorg Legal Dmviptlon o0rcperjty A par ml of Iwd, 6 (3ovemmnt Lot 3, 0overnment Lot 4 EXCEPT IN Westerly 440 fi�et th a4 and a POrdou of the NWh 12 of Scotion 19,rind ft NIME114 of Setstlon 30,all in Towashiip 1 South,Range 75 West of the 6 PM,Gmd County,Crlomdo,Morre particularly described as follows: • i MOVINNO at the Soudwst Cox= of sold Section 1 -tie No oast Corner of gold Seta.30,a 3"iron pipe w�h a 3-%"b ms eap ped USOL 11933,, oa South 00-94413"But ly line of said Seotion30 a distance of 1,317,29 tla the North Sixteenth Comer of°Scction 29 sud'said.Socd( a 30,whom a•loaniug 2" j frog pipe 1 foot above swund WA a 2-K"brass cup stamped"L i 12477"beam North 31°28'41"East 0.51 i dd,40 whrM the But Q Cagier of sold Section 30,a.found W bms OW stamped "U5G1,0 1933" beers $ot& 00°3413" Bast a distanoo of 1,317.29 'bier"NOA 99"55'10" West along&a North Siwntb'line of said Srotion 30 a distawa of 2,529 96 &et to the North,-tom Si nth Comer of sold Section (1, a set 3'ra»bar with a 3-V,"alumiuum oap stamped "LS 024669",whenco the Center Qtr Corer of odd Seotfon30, a,'found 06 aluminum rod with a 2.1/" brm o:a .stanzped "L WD 1.S 16398,200111 boars South 00"56113"Bast a fl Ia a of 1330.77 feed Timoo North 00'56113"W6st 910 the North-South C-Mftlhw of sold Won 30 a dhftw of 1.,930.77 feet to the South Quorter Comer of sad Section 19,a set#6 w-bor with a 3.W aluU (*p stamped "LS #M69" re-oftblished-per monument mcord shoot pmpared by Th as M Ga cater,L,S#16398,dated 8130/1994, ThOnw Sots 89°x'12"West faOng the Outhorly tine of said Sac#on 19 a distance of 2,181.82 feet to a M#5 r r with a plastic d "LS 2460",Inc a 1-Val,aluminum cap sto po 1%9# 11415" bears North 521IT06" But 1.63 Est, also whence the Southwest Comm of said SOCONI 1'91m South 89022'12!' 'Feet 4,dismoo of 440.00 f #to a food vani zed pip with a 2-I NI ban cap stamped"7SOLO 193311; Thence North 00114''x'"West a distance of 1,322.19 f'eoat to a found 1-W ORMIn m cap swtezupod "00 114151% Thence Nom 5415549"RM u co of 1,167,79 foot, Thence North 00"09'11"West;o distance of 684A foot to the hodhors y right of wq. line of C1 73 as WDOW In Book 05,I 184 i "ihenco North W50'4 I B st.along said tight cif way a diftnoo of 1,296.54 fmt to tho wcatorly i Corpo L,met of the Town of r, milli UMbitA • I I i i ,III • I III � nce S()Utb 00"14'50"PMt alOng said CCoz c to Limit a disimce of 29.94 feet; Then* North $904WG7" Eut Wong sale nut.west�Cejgorjjw of Soctj=19 a di st moo of 1,303.12 fOK19 o SO fig x bw VVM It plaetao ORP ottimped 110 24 569"' c n tbo westerly i tot of way line of the Union Puma XdWA V&anoc ft list QuWer Corner of'said SaWOR 19,a JbMd 2"1ipa in onnorWe with a 2MKrl almkm tap,bem North 89°48'07" EM E a Mum of 1,266,48 feet, `,lenoe alvim aid rhft of way tho following&W(3)aauses. E i 1. South 14"40'05"MW a dWWW of 989.32 W to a point of ou at`am,a W,W5 xc�bar with a p1 4 M OMP% 9"; 2. Alag the am cif'a On"to the left ba vitrg a MW aerie of 59'21'29';A radius of 81.6.78 fect-aad an am I'Moth oaf 846.18 fit(chW bom South 44D2O15V Wit, 808.84 Wit),a Od#5 r-1 .r with It Plastic 04P stamped Ills ,10 3. 8odcth 74110113411 Flost a distomo of 415.27 fect to a crf�at�tip e�tvrfy right of way 1140 of CR 72 as t urd in Book 1(15,Page 27'81 Thenco Idaving came Union Paafia Ralmad light of way South 04"3838"West wd along said rly right dWAY liras of C 72 a distanoo of 98.41 feet; ThDm Nor&89°38'52"Wen lead said oastetly right of Wi y a djgtanoD of 40.11 fact to tl wMt rly light of1ay find ofWd M-720, Thence'NorM 0411381381'fast clang said westffly right of wad►lino a d1st ce oJf`97,13 hat to a Point of "On-talipm curvatum on the aoawwr right y � 1�` of'may line t�f' r "V"alCo Pall y(CR-721)as nwrftd In Book 450,Page 490; I 1bcA00 leaving said westerly right of way aid.(ion&acid uouftr y rift of wmj and'ate the am ofa to the right h"W a cMtM1 00810 car of49'28' 7"''A A of244.97 f ,and a am 1 x"211.56 fact(donf oath 65435188" �206.05 ); lea South 00120'10"Wost loavlog wd ao 7 right of way a.d. of 11.01 fooet'. 'Meme Not*89*38152"Wut u dMwm of 618»ID Theace South 00106'051 Bast a distame of 900,00 hot to a act 5 re-bar with a pksdc cup sty '18 24669", whm=a found 2-%" kon i l]f 2511311291, West a distance of 46 r � 'l nad Sou&891374 t Elting ft sowh rly Hoo of Bald SeWoA 19 a distawo of 899,54 fbot to tlae POINT OF DEURiMo. Containing 12,11 ,892 square fit,err 295.429 uowN mom or lass. I sta.a Wilbit A4 j i i i Ii TOWN OF FRASER, COLORADO ORDINANCE NO. SERIES 2013 r i i AN ORDINANCE ANNEXING TO THE TOWN OF FRASER, COUNTY OF GRAND, STATE OF COLORADO, THE BYERS PEAK RANCH PROPERTY WHEREAS, pursuant to C.R.S. § 31-12-107(1)(a), a petition for annexation ("Annexation Petition"), dated June 11, 2007, amended November 26, 2007, was filed by Byers Peak Properties, LLC ("BPP") with the Town Clerk of the Town of Fraser, Colorado (the "Town") { seeking to annex approximately 295 acres of unincorporated territory located south of the Town in Grand County, Colorado, commonly known Byers Peak Ranch (the "Property"), as more particularly described in the legal description attached hereto and incorporated herein as Exhibit A, and was referred therefrom to the Town's Board of Trustees (the"Board"); l i WHEREAS, by Resolution No. 11-01-07 dated November 28, 2007 the Board found and determined that the Annexation Petition was in substantial compliance with the statutory requirements in accordance with the requirements of C.R.S. § 31-12-107, and set a public hearing. WHEREAS, on February 6, 2008, the Board conducted a public hearing at which it adopted Resolution No. 02-01-08 in which it set forth its findings of fact and its conclusions on the Annexation Petition in accordance with the requirements of C.R.S. §31-12-110 and other applicable provisions of the Municipal Annexation Act of 1965, and deferred action on the annexation of such Property until the terms of an annexation agreement were negotiated, or until the Board otherwise determined to act upon such proposed annexation; WHEREAS, on February 27, 2012, Byers Peak Downhill Adventures, LLC (`BPD") filed a Notice and Joinder (the "Joinder") with the Town to join the Annexation Petition as a landowner after portions of the Property subject to the Annexation Petition had been conveyed by BPP to BPD in 2009; WHEREAS, BPP and BPD (together, the "Developers") own one hundred percent of the Property that is the subject of the Annexation Petition; WHEREAS, the Board had an annexation impact report prepared and filed in accordance with the provisions of C.R.S. §31-12108.5; WHEREAS, the Town and Developers have reached an agreement on the terms and conditions of the Byers Peak Ranch Annexation and Development Agreement dated pertaining to the annexation of the Property; WHEREAS, on , 2013, the Board conducted a public hearing at which it adopted Resolution No. - -13 in which it set forth its findings of fact and its conclusions on the Annexation Petition as modified by the Joinder in accordance with the requirements of C.R.S. i I �I i V i §31-12-110 and other applicable provisions of the Municipal Annexation Act of 1965, and resolving that such resolution be confirmed and adopted by ordinance and that the Property shall be annexed to the Town of Fraser, Colorado by ordinance in accordance with C.R.S. § 31-12- 107(1)(g) and 111; i WHEREAS, the Board determines that it is in the best interest of the Town to annex the Property to the Town; and i WHEREAS, the Board desires to annex the Property to the Town by ordinance in accordance with C.R.S. §§ 31-12-107(1)(g) and 111; I NOW THEREFORE, THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO ORDAINS: Section 1. Authorization. of Annexation. The Developers are the owners of one hundred percent � of the Property that is the subject of the Annexation Petition and the Developers have petitioned for annexation to Town; the requirements of C.R.S. §§ 31-12-104 and 105 have been met; an election is not required under C.R.S. § 31-12-107(2); and no additional terms and conditions are to be imposed. Therefore, the Property commonly known as Byers Peak Ranch, more i specifically described on Exhibit A, attached hereto, be and hereby is annexed to the Town and made a part of said Town upon the effective date of this Ordinance. Section 2. The annexation shall take effect in accordance with the Municipal Annexation Act of 1965, as amended, and the Town's Municipal Charter and Municipal Code, as amended. Section 3. That, in annexing the Property to the Town, the Town does not assume any obligation respecting the construction of water mains, sewer lines, gas mains, electric service lines, or any I other sewer or utilities, or streets, bridges, parkways, other public ways or other public amenities, improvements or facilities in connection with the Property hereby annexed except as provided by the ordinances of the Town and the terms and conditions of the Annexation Agreement entered into between the Developers and the Town. Section 4. Required Filings; Direction to Town Cleric. As required by C.R.S. § 31-12-113(2), the Town Clerk is directed as follows: i 1. File one copy of the annexation map with the original of this Annexation Ordinance in the office of the Town Clerk; and 2. File for recording three certified copies of this Annexation Ordinance and map of the area annexed containing a legal description of such area with the County Clerk and Recorder of Grand County, Colorado. i Section 5. Conditions. This Annexation Ordinance and any approval herein is conditioned upon the Developers satisfying the following conditions prior to the effective date of this Ordinance: a. Obtaining and delivering to the Town Clerk an original or counterpart copies of the Annexation Agreement duly signed and acknowledged by any and all required parties within ten days of the date of this Ordinance, and i i Il II b. Paying to the Town all fees and costs associated with or related to the annexation process, as provided to the Developers by the Town. If these conditions are not fully satisfied prior to the effective date of this Ordinance,then the Board may, at its sole option,rescind or repeal this Ordinance and declare said/or Annexation Petition null and void. Section 6. Severability. If any section, subsection, sentence, clause or phrase of this Annexation 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 Annexation Ordinance. The Town hereby declares that it would have adopted this Annexation Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional. READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THIS day of , 2013. Votes in favor: _ I Votes opposed: Votes abstained: _ Votes absent: BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO BY: Mayor ATTEST: BY: Town Clerk Published in the on ,2013. 60936501 I I 15 2013 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 lClienN32.161 10/02414663.DOC/16 1 TABLE oFCONTENTS ANNEXATION AGREEMENT Article lANNEXATION AND ZONING 0f THE PROPERTY.......... ...... ............ ....... .......2 Section1. Ordinances............ ........ -- ........... ........... ... ... ..... ................. -- .......3 Section 1.2 Effective Date*f/\greemem*.............. — ... ........ _-- ........ ................ .......3 Section1.3 Annexation........... .......... -- ....... — ............... _---............... ...............3 Section1.4 Zoning .................. __—__ ........ ....... — ......... ............ ................3 Section1.5 _........ ............................... ..... .... ............... ...........3 Section 1.6 No,Obligation wo Develop.............. —_---- ........ ....................................3 � Article 2DEPDNKTx0NS------.........—... ......... ---_— ............... ............^''^'~~.... —43 Section2,1 Definitions..... .........----- ............ ...................—_------- ............4 Article3 WATER............___....— ... ............................... ........... ....____ —...............— ... ....5 Section 3.1 Water Gcrvice_....... ......... ................................ .............................— ....5 Section 3.2 Dedication ofWater Storage Facilities.......___............... ....... ...............--6 Section 3.3 Water Set-vice Infrastructure and its Approval and Construction ... ..... _�24� Section 3.4 On-site WeUu—___—~~.'...____—__--^—''^—'---`L3 4-4 Section3�.5 Water Plant bmeumaom Fees......--- ... ............................----....... .&H2 Section 3.6 Excess Capacity.........._...._...... —........... ....................___... ......-��� Section 3.7 Water Plant lovoomem/Fee Aouounbogand C�d�-----------�t 4-2 Article4SEqVER'~ .......... _____ ............................... .__ ...... ' ........... _~J5 4 3 Section 4.1 Sewer Service........ _— ......................... .......—_— ................ .~...J5 l; Section 4.2 Individual Sewage Disposal Systems.............. --- ............... .... ... ..l644 Article 5 OTHER NTLLlT1ES........... .......................................... --- ............... ._.—.��|4 Section 5.1 0<�r0�bhea_.____---_______—_----'^—Jl)144 Article 6 DRAINAGE—.___....... ---- ................ ....... ........-- .......—__..^— ............. 6 14 Section 6.1 Drainage........ .................. .......... ...... ....... .............. ^^-- ...... 6 14 Article 7STREETS AND TRAFFIC.......... ......................-------....... -- ........ .........16H4 Section 7.1 Grading&Roadway Plan........ ........... -- ........... ---_------_.. ��' Section 7.2 Traffic Impact Aom�o�—_----_------------------'JU614 Section 7.3 Street Designations........... ..................—__ ...... —............— ....... ....... J2l5, Section 7A Street Maintenance...... ..............------ .......--__... ....... 24-55 Section 7.5 Street Rights nt Way.......—_—__ ................... — ....... ........ ...... 7[,55 Section 7.6 Regional Roadways......................... --- ... ... —............. -----'.[Z�('� Section 7.7 Street Standards,Coontrnmdwm Inspection,and Acceptance-------1�|� Section 7.8 Pathways---.—.—......._--------......._—_-----_—.—.��A& Article 8 SCHOOL[MP4CTFEGS,GENERAL MAlTBRD&SUBDIVISION...................@f7 Section 8.1 Additional Municipal Services................................................................ ` 9-1� Section 8,.2 Prqject Open Space..................... ............... ................ ............... ........... 947 � Section 8.3 Public Open Space..... .............— .......... ........................ ....... .......... 4� jCuen0323e 16/02414663unc,1q Section 8.4 School Impact Fees'-___ ....... ........... _...... _--__ ....... l44� Section 8.5 Municipal Parcel Dedication........ ......-_.............. ...............- ......... 94-7 Section 8.6 Colorado Adventure Burk Facilities and Operations..................... .......... �&[8 Article 9GENERAL DEVELOPMENT 8P THE PRpPERTY--- .... --_....... _....... ...2048 Section 9\1 Development and Control of Development-....... ...... --.......................201�* Section 9.2 Densities-....----.... ...... ...... ...........----... ... ............... ...........'-'....2Q�48, � Section 9.3 Transfer of Water and Sewer 0fBo.......... -- ...... ........... ........... ---�l1-9 Section 9.4 Fraser Code Standards,Requirements,Rules and Regulations ofFraser.......------ ............ ............-- ........................ ..........'~^2,220 Section 9.5 Grading and Excavation 0pmnatioma- ... -....... - ............. ...... -- ...2�0 Section 9.6 Tna��roJP�no�g Aru/-------_--_-----_--_---_.��2!� Section 9.7 Phasing Plan..............._____-_ ..................... ~'_- ...... ........ �11 Section 9.8 K�e�opm0�m[�o��L----.....-_--_---.-._-.-----_-'�� 1 Section 9.9 Financing oC Public Improvements ... ....................... ......--.............. ...2422 Section 9.10 Maintenance Cost O8fsdo ........ ........................... ........... ................... ��4�� Section 9.11 Uomp�uyBeu�6Se���Chm���-------------------_'�£�2- Section 9.12 Owner's Associations __---------------_---_----''Z52� Section 9.13 Rules,Regulations and Official Policies.... ------ ........................... 5;�3 Article lO COOPER&IMPLEMENTATION.................. .......... .............. .............. --_'2 52,r3 Section 10.1 Statement wf&Mnnt-...--........... -...-_................................... --_���� Section 10.2 Scope of this Agreement. .......... - ....... ......... ...............----..............2-5�� Article I VESTED RIGNTS-... .......... ....... ......... -- .......... .......... ............. .............._2 6 2:4,, Section 11.1 Vesting o[Certain Pnopeoty�Rights................. ----- ...........-_-...-2Q24, Section 11.2 Rights Which Are Vested.... ....... ....... _ .......- ...........-- ...........2624, � Section 11.3 Term for Vested Rights.................. ................ -___---- .......2Z2;,,;� Section 11.4 Compliance with General Regulations and Limitations mu Town Actions...........--- ............ .........--------^ ............... 2I25 Article 12MOSCELLANEO03- ..................................... - ...... ............ ...... -- .............2824� Section 121 Time isofthe Essence............... ...... - ............... ....... -.....................29�4,) Section 12.2 Covenants.-.-....................... .........--------^-^....... ..................... 9g4 Section 123 Contractual Obligations................ - ...... ....... ...... ........... ........... .........24 27 Section 12.4 Term........ ._...................-___- .......... .................... --_-_,��9 Section 12.5 Amendment of Agreement... .......-- ............................... ................ _292� Section 12.6 Default and Remedies..........---....... -.......................... ................-..2927 Section 12.7 No Joint Venture urPuuoershdp_ ...... ............. ........ ....... ............ ......'3029 Section 12.8 No Third Party 8eme6*iariea_.......... ........................._--....... ........... R 8@0 Section 12.9 Notices... . ..................... _ ........ ...................... ............... .......'3329 Section 12]0 Assignment..........---........... ........... .................. - ............ ...... --3 124 Section 12,11 Agricultural Ose..^...... ......................----...........-_^^^------.32�4 8ucdou 12]2 Qmo ozCoovuymoo� \�bumevr u-------_----..................... 2�# Section 12.13 Recording....... -....... ....... ...... - ............... -.....-......................-3�2-',A Section 12.14 Authorization............-....... ...---... .............. ..^~- .................._-314) � Section 12.15 Governing Law ............ ...... .......... -~_.^.^----.................. -..32,44 jCnmm32mx/um241*66zuoc//6� Section 1116 Severa6ility............. ...... — ...... ---_ .............................................32,344 Section 12A7 WuivuufBreuch.__.—___—_-----_. 334 Section 1118 Entire Agremoeo —_---_---__------_—. 3 3-3(1 Section 12.19 Nu Additional Annexation Conditions bopomed ... ........... — .............3 3� Section 12.20 Drafting of Agreement........... --_— ............... ............ ..................'333-1 Section 12.21 Execution uf Other Dooumoots— ... ...................... ............................-I3.3-1 � Section 12.22 Counterparts; Facsimile......—_-- ........................................... ......... .,�.3 4 I Cnenm32am16me w^m»*o//w BYERS PEAK RANCH ANNEXATION AND DEVELOPMEN17 AGREE MENT 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. —1 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 t,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; 1 i i r 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; I. 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; I 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 j 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 2 Section 1.1 Ordinances, For purposes u2 this Agreement, "Ordinances" shall mean oaUecbve|ythe 0pilmviug: (a) the Annexation Ordinance- (l) an ordinance approved by Fraser adopting and approving this Agreement; uod(o) an ordinance approved 6y Fraser adopting and approving the PI}0Plan. Section 1.2 Effective Date of Agreement, This Agreement shall be executed W:2���ArIgLshal I become effective as of the LI st day after effective date of the approving ordinance as provided in Fraser Code (the "Effective Date"). _Lf�t�hAp lie ordinance anDrQVIII& pi�oympg_qE4inance of this Agreement or t the annexation are subjected to a legal challenge, DeKvgeJ�)er may. at its option to be A greement to be null and void, in which case the annexation of the Prqpgrty shall be void and said PEPP-g-r�Y-.-s-.h..-a-.I-]..-.b.....e—dis,c—orinected from Fraser and the PDD Plan shall be void and of no effect, einded, at 8eodma 1.3 Annexation, Annexation o/the Property shall bein accordance with this Agreement and the Colorado Municipal Annexation Act of 1965, as amended (C.D.S. 00 3l-(2-]0l, et seq.). v`o provided herein, the Property shall be subject zoall Fraser ordinances, the Fraser Code, arid applicable rm|na, regulations arid policies, Section 1.4 Zoning, Consistent with the requirements uf the Act, Fraser contemporaneously herewith zones the Property aPD District and is amending the Official Zoning Map of Fraser accordingly. Section 1.5 Acknowledgements. The parties acknowledge tile lbDu,ving: m. Development ofthe Property pursuant to the PDD Plan is estimated hy Developer xo have o35 year build-out period, 6. A material consideration for Developer's annexation mf the Property and development of the Property consistent with the PDD Plan iaFrancc'o agreement t" permit development of the Property io accordance with (i) the terms and conditions of this Agreement and (ii) the conditions of approval of the PDD Plan, provided that there io subsequent Fraser approval ofaoFPDyo,subdivision within tile PDD P|uo pursuant to the £roye, Code, Section 1,6 No Obligation to Develop. Developer shall have on obligation under this Agreement to develop all or any portion of the PDD Plan and shall have no liability Linder this Agreement to Fraser oz any other party for its failure m develop all or any pail ef the 9DDPlan, unless otherwise expressly set forth im this Agreement. Nothing in this Agreement shall be construed uuu waiver or release hy Fraser mf its rights*o enforce tile Fraser Code aaprovided herein.Developer shall have no liability to Fraser or any other party for not developing all or any part uf the Property provided that Fraser and Developer are in full compliance with the terms and 3 i II 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 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, i 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 Iand 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." i g. Planning ing 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 4 i 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- a 44 prepared by Top Knot Engineering, Inc., as approved by Fraser as part of the PDD Plan, k. Sanitary Sewer Investment Fee, A fee collected by Fraser pursuant to the Fraser Code, Section 13-4-511. L Sewer Plan. The Conceptual Sewer Plan prepared by Top Knot Engineering, Inc.met VFeb-Fuafy-U4--l-, as approved by Fraser as part of the PDD Plan. M. SEE. A "single family equivalent" defined in Section 13-2-10 of the Fraser Code. 11. 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 as defined in the Fraser Cod which facilities shall be owned and maintained by the property owner on which the service line is located. 0. Water Infrastructure Plan. The conceptual Water Infrastructure Plan prepared by Top Knot Engineering, lnc.,--"ted-A4-afth-2-W4, 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 5 subject to the tennismnd conditions set forth herein and the applicable provisions contained in Fraser Code. Frumcr'oVVuuer Rights are wde9wo|e to support the potable municipal vvate, service for up to 1897 SFEs on the Property as described in the PDD Plan, subject to the construction and dedication mf the Dedicated Storage to Fraser, tile issuance ofadecree from the Water Court confirming the ^u-6u(U locations ufthe same, and other terms and conditions set forth herein. Fraser o6o]| be responsible for all applicable implementation, operation and accounting requirements necessary to serve tile Property pursuant tnthe P0$ Pluu. m. Infrastructure Connections. The water infrastructure connections /o the existing Fraser municipal system infrastructure to serve the Property may be made through the infrastructure that oorvcm the °u|d tovvm" portion uf Fraser orthe infrastructure xyxocio1nd with the neighboring project kuuvvu as the Grand Park project. Thndetemuiomiomn/whiobpointofcmnneudomvvi/| 6emoxdevviUbohammdupantbe 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 aocvino is subject to the Developer's obligations to construct or pay for the coomcuuiino of the necessary Water Facilities to connect to Fraser's municipal water system and to serve the PDD Plan orportions thereof ooprovided for herein, in uyy|ima6ie Improvements Agreement, and the Fzemor 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. 6. T6m Developer agrees to pay Fraser$60,614 for Water Facilities needs in order tu provide water service for the initial 711. SyEuof the total 1,897 SFR approved herein. By this payment, Developer has mo further obligation tmreimburse P,onc` for legal fees for water court processes as may be required by Fraser regarding the Dedicated Water Rights once they are conveyed |mFraser, Such amount shall he paid upon the Effective Date. C. The costs for water treatment plant improvements and other io&rmmuduon, engineering and legal work that will have to be made from time to fime to serve the PDD Plan, or portions thereof, shall be paid through the Water P|mm Investment Fees payable to, the Town, All Water Plant Investment Fees shall be allocated between tile Developer and Fraser au specified in Section 3.7below. | Section 3.2 Dedication of Water StoEMLIFacilities, ln satisfaction of Framor,owator dedication requirements io connection with the provision wf municipal water service for the MDD | p|uu.+huDevelopez,at its sole cost,agrees to design and construct water storage facilities (puodn)(tile"Dedicated 8torngo")and the ditches tofill the Dedicated Storage and k,release water therefrom imot6oFraec River er its tributaries upmremoo[the confluence nfSt. lmmin Creek and the Fraser River zube located omthe Property and/or om adjacent property owned by Cornerstone Winter Park Holdings,LLC,Grand Park Development LLCo,affiliates maprovided herein and in accordance with the decrees for such water ri If the Dedicated Storap-e fails in the first year of qp3gejrgatgisomn t jo properly store the required amount of water for storage and operations consistent with the decree and the provisions hereof in the opinion of the Town after consultation with Dcyejo er and after consideration of normal and accepted seepage for such stare re faciLjtes,.-Developer shall repair the subject Dedicated Storage the summer following first ear and m..MLjiffLappropriale.line the same. Developer shall-ggpvey- v—e4o-be dediea*d 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"),and shall dedicate or cause:to be dedicated the Dedicated Storage as provided herein. Developer shall also_--sq�uye ded"te or cause to be conveyed-ded"tted to Fraser the legal rights to fill and store the Dedicated Water Rights in the Dedicated Storage together with all appropriate casements 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. The two planned Eacilitics for Dedicated Storage aEq e Byers Peak Ranch Augmen La ion fond. The -- — — Pond arid the Forest Meadows Auamentation Plan Pond. The Dedicated Storage may be constructed in multiple ponds so long as the aggregate operational water stored CQUals 60 acre �feet. The Forest IM.eadows Auarnentation Plan Pond will be constructed to hays the capacity to store 25 acre lect of the Dedicated Water Rights, It will be designed and located by Developer sub"ect to Fraser a ravel no later than five ears after the ive Date, The location will be consistent with the decree entered in Case No, 83CW362. It will be constructed and all associated riftts as ryravided herein dedicated to 1 racer rro later than seven years after the Effective Date, The Byers Peak Ranch Augnjentatin Pond will be constructed to have the capacity to store 35 acre I-'ect of the Dedicated Water Rights. It will be designed located,and constructed on the Proi)ertv bv Developer.sub ject tnmmk r aser approval and dedicated ice racer no later than the earlier of the following:-Cal_LheAiscontiiivaiiec of gravel and excavation operations consistent with fhe pmy�isioijsL of Section 9,5,e r b) - — —.0 -L8 years from the Efl'ective Date. The Developer shall comply with all aDDlicable-Igealitate and federal laws including seqLjriqgL!nY required permits, constructing the Dedicated Storage, Fraser agrees to waive all,.rermit and review fees associated with tliqpqrmijttjngjf excavation and construction of the PDD Plan, The Dedicated Storm hall qll be constructed and op,2LEated and all releases(n fte Dedicated Water Rights made ijng�o� ce with the applicable decrees 10 r-pending decreejn Case Nos. 83CW362, )5CW287 or 10CW309,-yliicl Include provisions to address round�yqtU that..m4Y-kein-tg -aLd--ap-RL,c,LibLc,,iugniejitq qjj plans. 'The Dedicated WatcLLZig,h, o be his to used to fill the I yKrs,Peak Ranch AugnLentatipp_.Pond shall be the first rights-divvrted un(t Case No., 10CW300, below 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-aw f the Property for the purposes set forth herein 7 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-ofAy required to grant easement rights that will —burden only-aeross 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 firee of liens and encumbrances and shall be executed and delivered into escrow with Title Corn pan y of the Rockies Inc.-- Winter Park Branch-12fasff by the owners of the respective properties on which the Dedicated Storage facilities are located to be held in accordance with instructions to be p1gLyided consisteLit i..ILie rrovisions of this Agreement, The grant of easernent-doetiments,for the Byers Peak Ranch Augmentation Pond system"isdeserfl3�ed herein alwalf be sir y i tern attached hereto as Exhibit C.Tbe..grgflt_�2f easement dozum,"ts for the Forest Meadows Augmentation Plan Pond isare 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 ofeasement-deawv&H4s,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. The water rights decreed in Case No. I OCW309 to fill and store 35 acre feet of storage shall be conveyed to the Town by applicants and the owners thereofwithin thirty days ofthe issuance of a final decree for the same. 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 eons,eyad a.. ff-­ffflffiedtfttely-HPOH4.�Offl�,�� Fr�seF of the By entatio -Poud--as--,et­ `f" :--Such conveyances shall fulfill Fraser's water dedication requirements for the PDD Plan, The obligations set forth in this Section 3.2 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 ofthe Dedicated Storage and associated facilities shall consist of(a)alternative storms that free and clear ofencurnbrances,(b)retention of Water Plant Investment fees,and(c)Fraser's remedies in the event of a default,as follows: (a) N lLeg tive St�ora&g, ri evelgp will t access ja� ___Ptbe Effective Date-Q easement s acrd rights of first rise ervwents to f°rasa r ftrr SfI sore feet of storage in exiLs_fiug2,onds.at.Grand.1bark a[ n ('�'(Yhand P ar f k lends"l, which easements shall be effective only in the event the above deadlines are not inet and 8 shall on 1v at)t)lv to that amount of Dedicated StoraQe.that hs not beer)constructed and operational,this right of first use shall terminate with respect to the arnOUrIt of Dedicated iage-thtyt bas been constructed and operational at the bane it becomes effective. It is anticipated that such op rational storage,only to the extent as may be recigired.shall be in the existing mao of the Grand Park Ponds is attached as Exhibit E and the Eeasement and I;irst.Riyj.a! d Asso6ated Facilities and Infrastructure is attached as Ex1jibit F. Oi-i4be-L!4fee+ive-Date,-F,)ev.e4oper--.,,vW--R, ts ponds-Grand Papk ef 4rt a sanisfaetafy altem-al-e C-i-lil�4- easeme*Pjhafl-bt el 'a�r°e+-P*a,the ameant-ef-Dedieated beeenies- �- he-itrnemt-iaf Dedlealed St rage that has d opem-ionah 4--eff4e.—,"A AL- ond hone Pend,"mid A map of-the-C4and. a#a(A-wd-a-s--J;*hU)ft-F. (b) The Water Plant Investment Fees to be reimbursed to Developer as provided in Section 3.7 shall be field in aseDcrate account as securi For the costs to construct the Dedicated Storaee or portions thereof that have not been constructed and coqyeycd to Fraser as provided herein. It is assumed that the costs of such construction,are$7�5000 t)er acre foot of water to be stored and the arnount of such fees held will not exceed the remaining acre feet of storage required to be built by Develq and dedicated to Fraser that is not otherwise secured d by ) ends times$75.0K T o the -1d extent some or all of the Dedicated Storage is constructed and dedicated as provided. herein,the amounts held in such separate account that exceed the necessary security for the remaining acre fectofstoragg to be constructed and dedicated shall be released to Developer consistent with the provisions of Section 3.7 hereof. Ccj._ELELsgCjReniedies in Default To the extent that Developer fails tq_p i(Le the Dedicated Storages tQfvI gCin the time frames provided femur Fas ipay&o L---Zc _L - _ _eL implement its remedies set forth in Section 12,6,v, I he twe planned4ae -es F. rage-efe4he-By-efs-Peak44t,F---h-A-ugn+entati-k+n Po*d-a+xk4i�-+oi;&A-Meadew,s--Augme*tation-41-tan44mW 44w4)ed-w,,i • r-be ee4+str;H , ' raId:,..k.+fi nds so long a e-aggfegate-epef-1-ional watef- e ��acre Ste Fe 2 --eH ater-Rights---41`44-11 be des.gned aad-leeate"y-Devakffief, --FF----1 ne WeF lhan4iye-yeans- fi-w4l-be ed-1 ase-X . XGW362. It, e-Byers-fk-ak-Raneh to a e4e later-4hati-4h"afker,+f4W-f+)4ow4-n 9 eery r T till gip' „p..r; T requirl terrasergr°° t via' pew' r"cra-r-w f��-,s%'W x..d With 'ling--fef-4 f ad-°.i -edaceea;; �' r"T'" i, t�3dti r Dedieated-Water-R4gWniade4n complianee with the deerees(ef-peffdiffg-deeree)4- e les; b"-Aemepted--md-applieab at rat e. s. =he-[)edieated-'a at ghts u e ro-4lt eff, The above security praovidcd for irr la?and(b shall be released after the.jrst,year of store and crpreration oftlrc subs ct DedicateLl Stora e,if it is not limed. The above secu - movided for in(a)and ogether riot exceed the dotal gists of the Dedicated Stpjag to bg air remaining to ire constructed,based on the estimated costs set forth in fb .. lly wa of example ample„ if the Forest Meadows Auementation Plan Pond is constructed and onerational then the total security shall anrount to that required to construct the Byers Freak Ranch Auit(.titation��onct, 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 Fights are conveyed to Eraser.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 anrount 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 sarne 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 rrzr abtar�r°aairrf�ryrauarrrr +rNt'h-e_f�r.,s rvc)-k, i-Aid Ditull )lrc,ir.rbi maps i ¢aw�Ii L raj for the Dedicated Storage pond(s)that will provide for Developer's ongoing use of the Dyers Peak.Ranch Augmentation Pond for snowmaking.-41L rrr-lg��ti®c?r 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,;;-4- n' t t y such-fhc o eratin&agreement shall provide that Eraser shall have the right to use the Dedicated Water Rights stared in any 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. There shall be no fee charred for use ofthe!rat r for it°r iaation use. C,iven that the irrittation use is at the same time as Fraser's uses the_operatirt areement shall provide for a mechanism for the parties to allocate the amount available for irr�atiorr use on air annual basis. If the Byers Peak Ranch pond system is larger than 35 acre feet„then all capacity in excess of 35 10 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 r.rgrecnwnt Ties;rv6 tr,u,d_t, itc1m Opt ,E rjir gy.r rr prtta am„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. d:ar. Byers Peak Ranch Augmentation Pond(s9. 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 Eraser River via its tributaries: Elk Creek or St. Louis Creek consistent with the provisions set forth in Case No. 1QCW304, WD 5. The r.b.l�erttorag trr;r ertwn R sere oil and,��tpdy,9r t pl r'�d,R,rr,blw f"�t;la�rdpwa rpl;, 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. ,,,V7. Forest M.cadows 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 Pao. 83CW362 as approved by Fraser,on p h ro LLC and d in laded within r'>fi�rr W.ia+1e� Irrrrrl� 1ir�l�l-sffrfd�ta tcrrl wa)u in 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. 20115-012704, as amended from time to time (tire "Grand Park PDD Plan"). The water used to fill such pcancllshall 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 villa its 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 Trio. 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 Layers 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. 1l V7-,, '" 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. I OCW309. 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. �t%ekm 3 2 Scci['K)n ,,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 P lminLary Water-la4as#uettwe Plan. The PreliminM Watcr4i+ffa4Fw4u+e Plan is conceptual and will be modified frorn 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 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, 12 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 E 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 E St.Louis Creels 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. gectioH-3:3-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 currently 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 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 j permits shall be changed as needed by the Developer,depending upon the ultimate water uses of i 13 I i f 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. SeOion 14 Section 3,5 Plant Investment Fees, Water Plant Investment Fees associated with the water service to the project shall be due and payable as provided in Section 13-2-214 of Fraser Code. Secstiorr 5 tiec9:ioc3.6_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 reirnbursable 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 j 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. i Seet-iotr3 6-Sc;ction 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 j 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. i Fraser will collect the Water Plant Investment Pees for residential and commercial water i users within the Property as paid in accordance with the Fraser Code. The amounts collected shall be accounted for in Developer's water account. Developer shall be credited in Developer's water account the Water Plant Investment I 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 14 I i of such reimbursable arnounts 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#1 SEE to#711 SFE; b. BPR and the Town split equally the water plant investment fees generated by the BPR project paid from#712 SFE to#1,331 SFE; cl BPR is reimbursed for all water plant investment fees generated by the BPR project paid from#1331 SFE to#1,520 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 91,520 to#1,897. In the event all of Developer's certified costs are fully paid and no other Water Facilities and or Dedicated Storage are necessar 1 0 planned for cot _tar tor completion of the PDD Plan,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-Lip 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 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, 15 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 reirnburse 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 Disposal 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 ISMS 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 studyj:()r the portion afthe Property submitted for FPDP will be submitted with the-first—`each apph cation for an FPDP..-ef-SHbdiv4.,,ion ARTICLE 7 STREETS AND TRAFFIC Section 7.1 Grading&Roadway Plan.Developer has submitted a Preliminary Grading &Roadway Plan-&t.ed-Au gust---1—,2444,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, ah ran . Section 7.2 Traffic Impact Analysis, Developer has provided a Traffic Impact Analysis dated February 2011 prepared by Felsburg Holt and Ublevig(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, 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 16 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 I 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(11)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 the 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 i 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 e 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. Section 7.6 Regional Roadways. The improvement of the Regional Roadways is the responsibility of Grand County and Fraser based on intergovernmental agreements and 17 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 sea[,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 Leyen vicars from the Effective Date,Moon the�next subdivision filing -_ �i, - _gn4er the PDQ Plan,the oath will be included as a sub Jvi ' ' -4ie ._aj��u to be construct�Ld ace(Ird ena�4h gradin-argil exeava4ieri 18 the€1? P +r d4v4.%o ase of t: 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 Proiect 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 83 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 84 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 I7-7-350(d)of the Fraser Code or at such other time as agreed upon by the patties. 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. I= l wh a.;...ff a 1, m,., tl to t ffrom--iE+kac idarie .,.r ieh,a<,# moron 4x--P-DD Plan„__ " PTan•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 19 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 they gill discuss and mutuallv elan as aimroDriate draitia,,g),�e�,aiid�associ,�ated issues that affect both PAS--I and the Municipal Parcel as the oroiect develovs,--at4he-tmt r t"%-WeS4-w 424arnl4ig-Afea-4-"s "�ubJeet of an FPDP divisioft-plat-,�h I 4unie*l PaFeel will be ihtded4n-tk"rw4ysk.and Fn; A - "I stfes, 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. Tile 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 all 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 tenns 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 Plain 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 tile 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/i,notel/todging 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; 20 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, wastewater collection,grading and drainage,geologic features,development standards,sign guidelines,parking and planning area descriptions; I 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 2,3,4,5,6,7,9, 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,S,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 Rea- " with ore seetien,,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. 21 iii. 'rhe receiving property shall remain subject to all other provisions of the Fraser Code. iv. Any transfer proposed must be approved by Fraser,which approval shall be based upon confin-nation and satisfaction of these conditions. Section 9.4 Fraser Code Standards,Requirements,Rules and Regulations of Fraser. Subject to the provisions of Article I I 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 arid 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, if applicable for commercial sales A)ur oses 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. ri. 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. 22 iiL Developer shall comply with all applicable Fcaser,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 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 mrimmpinmeotatioaof its grading and excavation permit. iv. Best management practices will ho employed with regard to soil erosion,drainage,and other impacts on the site and mitigation of the impacts shall 6e included mom part uf such practices;m summary of best management practices will 6e provided vo Fraser with the grading and excavation pen-nit application. | V. oua shall commence within six months of obtaining any required permit from the State and agrading J excavati on permit from Fraser, Developer agrees that any sw*-permits for pond e wavation and any resul-tingsale of gravel offsite-shall be used for not longer than 10 years per permit,and all permitted gravel and excavation operations.that result in the-jjqle of y Q.ffsitq shall discontinue entirely after the 15 year anniversary of the issuance of the first grading understood that additional grading and excavation activities may occur thereafter in connection includiniz anv resulting sale of gMvqLoffsite. 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 ufuPlanning Area or portion thereof tinder the Subdivision Regulations. In the event the subject parcel ma/ia6os the subdivision exemption criteria me/ 6u,tb in Section 17-3-lO(a) of the Subdivision Kmgu|udmun, the plat creating the aaoue shall iooKodc umotegiou that approvals of the plat by Fraser do not indicate an approval uf any access rights, availability of utilities or the ability ofthe pmruc) or parcels to be served by utilities and that such parcel or parcels are subject uothe terms and omodihnoo of this Agreement and the Fraser Code, In the event such parcel or parcels are transferred to athird party, any proposed changes to the PUU P8umL+y the transferee with o:mpmot to the tmoatc,re4 parcel or parcels ebu|| require the confirmation ofthe m+� | mz ouuhchmm��o �m m�Lo��o1 roperty, | ' ' ��------ ^ —��^ Section 9.7 Phasing Plan. Consistent with the requirements of Section lb'5'430ofthe Zoning Regulations,u development schedule indicating an approximate date when construction ef the planned development*r phases nfoniddevdmpmeutmuybe&6aobuUbemubniuedv,id, each application for an FPDP or subdivision,together with proposed amendments to the PDD Plan general phasing plan,xmappropriate. 23 Section 9.8 Metropolitan District. Developer has previously organized tile West Mountain Metropolitan Distriu(the°Dimtrict`), The purpose mf the District iom provide a means uf financing various infrastructure improvements or operating infrmtructuo4o+4he | within its boundaries but not»°compete wr conflict with the services ond responsibilities ofFraser. Fraser has received arequest from the District|m include the Property within its service area. Contemporaneously herewith and pwrsmau /oU`epmvisiomoufC.B.8. Title 32 Article 1, Special District Act, Fraser has approved by resolution the petition to include the Property 6m tile West Mountain Metropolitan District service area under C.R.8. Section 32'1' 401 and approved by resolution an amendment to the service plan consistent with the requirements ofC.D.S. Section 32-1-204.5. Uia understood that such service plan amendment includes without limitation an increase of the debt authorization,subject to District voter approval,xu6w equal sm the application mfo maximum District tax rate of35 mills for the Property based upon the financial inK/mnudon provided under C.R.S.Sections 32-1-202(2)(b) and (&and 32'1-2O3(3)(d). Nw more than 35 mills shall be imposed om 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 tbe-a����� r-v4ee-pW in connection with the approval of an FPDP or subdivision and the negotiations of a subdivision improvements agreement,development improvements agreement or Irnprovements Agreement, Fraser shall review the financing mechanisms and security proposed by Developer and the District for the financing of tile 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 90 Financing of Public Improvements. Ae requested hy Developer from time tn time,Fraser,in its discretion,agrees to consider public infrastructure financing techniques to assist in the costs af improvement that are ofu regional nature. Section 9.l8 Maintenance Cost Offsets, Developer and Fraser recognize and agree that the development contemplated&ythe PDD Plan may entail significant increased road maintenance and capital expenditures m6ethe responsibility ofFraser, Fraser may,aoa condition or approval of any FPDP or subdivision require that the applicable Improvements Agreernent provide for the Developer to provide a means of road maintenance necessary to serve the BPePar subdivision nr utilize other means ofaddressing the maintenance needs for such roadways other than the Regional Roadways,for a reasonable period of time not to exceed two (2)years. Scmiom9.11 Dcve�permay wish to6nmu Huopim|/Hod*bServi�sDin*iotand cor�oUyintends m include the Property within its service area. Fraser agrees to review any service plan prepared for such o special district mu the time that itio submitted ua Fraser for review and approval in connection with the inclusion uf the Property within the district. A condition of approval o/the creation nf such o district io that the district and Fraser enter into an intergovernmental agreement that restricts the district frorn entering into 24 I I I ! ! I 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 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 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 j 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 COOPERATION&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 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 j 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 I I 25 I i it 'r t 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. i 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 F to the matters specifically set forth in this Agreement. Except as otherwise provided in this j Agreement,it is not the intention of the parties to impose on Fraser any duty,beyond the Fraser 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 f 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 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); i 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.See,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. I 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. 26 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. I d. band 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: i 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�Properti Comment[a2]:There is a concern that the value -- ------------------------------ oftbe.proerty should be sustained through a bankruptcy so that the project can be developed as Section 11.4 Compliance with General Regulations and Limitations on Town Actions. approved and not put in the position of starting over. The Town shall not take any zoning,subdivision or other land use action that would alter, i 27 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, 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, Eire,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. a i,i ill', It is understood that Fraser will a .the current business district standards to any a ipplicable development within the PDD Plan cither_b_y way of reference to such �standards qL by_grnendment to the PP District zonin_g_TqgUj1qiiorLs.jn applyint the same Fraser shall not unp g se a di licativeXrocess on Developer 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 28 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. Section 123 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 Linder 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 tile 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 in p c -AAer the-expif atmiao-Phe4effn-, , ;�,' - t-A+&14-be-deemed ter-minal—ed and of vto-. fee-of effeet,—,_.Iov�dedhowevef,+hat s- fl-ri`nt-a ftect(a"11 the 0"Inexa"on Of the P+OPefVY 1,04ssr c ,in -d"prwml-of�Agfeernent. 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 tbereof)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, of otherwise delays the development or use of the Property as set forth in the PDD Plan,subJect to tile exceptions set forth in said statute,or(b)Fraser's failure to fulfill or perform any material obligation of Fraser contained in this Agreement. 29 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 patty 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 terns 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 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- 65-105,except Fraser shall not be liable for any compensation,if such default pertains to the vested rights established herein, V. Remedies-Default by Develol2c . 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_(5A),stop the processing of any application of any type or nature filed or pending before it with regard to the Property,j,Lnd-fli,), n associated with the development ofthe Property,g!W_(, ..l as 11-a1 law tlme rmgfm�i 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 30 i 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 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 8I611 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 Assi ng ment. 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, 31 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. 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, including, but not lirnited to-awah-as plowing,_tilling, irrigating,-of planting, Iia yin g_and_gra7ing,_sbalI 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 rnake 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 6 :overning Law. 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,t6 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 tinder the facts and circumstances then pertaining and the parties shall 32 I 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 I other term or provision or of any subsequent breach by any party. Section 12.18 Entire Agreement. This Agreement represents the entire agreement i between the parties and incorporates or supersedes any previous oral,written,or collateral j 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 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, i 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 Drafting of Agreement. This Agreement is the product of a cooperative drafting and negotiating effort by Eraser 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] 33 �I I� I 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, irmd LLC, hereby agrees to be responsible for and fulfill the obligations specifically relating to the (,1onve-yaitet,-*,4,'Forest Meadows Augmentation Plan Pond(s), associated easements, &he Dt�dioala(-Wawl--4,�4-ghl-s--flim are 45'GW2-W7-q-the casements and rights of use in the Grand Park pond Ponds am as(,wi".Iled ....... j s ......­­–- —---__-- 34 system, and pl,U,related obligations specifically set 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, Grand Park,Development LLC By: C. Clark Lipscomb, President Winter Partc 1loidkig�Lj,j,(', jj�,��r by ............. .........................................­____............- - L i� ,__ Afle ft��o' and 111]1,fflj.he obhg� C @ gions.sr,�ppifi aly J�q I Dc,dicated Wa teT that we the sub sell. [orth herLin. l�lutt�iu��un� lrrtwt,ai"iG°urCGts ------------RSA.1[12',alions shaH be hiniled �o 01ose .........................__ _ __ sli and ;vatqz iig_hts -iaH no� extend I o., y -r�E ............... D,q�,vc oper sa forch �n t ­­- _L ___ j !Iis A, 0.)rnc smnt,, Winler Park HoUin"S11A, . ............ ... ------------ 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 seat, My Commission expires: ( SEAL ) Notary Public 35 i I I 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: I s ( SEAL) Notary Public i 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: SEAL Public � ( SEAL ) Notary bli u i i 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: ( SEAL) Notary Public 36 i The fine ua s Br�i .."..n. ...:��c N d�c" ,�9 ctl a�.a .l flm � ,me t'Iri°��.. _ day of o.rs ;c � � a s President Nt c � aw � ."A. ' ........... . D E[,). I , 1 < � (tgr d lialidaa �h �. alm nagwy,.. M 1 . o _ Witness n, nd , d...d."ab„�.auicw �rr�°n a. rirrw. ........... ........ .. ... � �.. Notary K'I)6a._ 37 BVERS PEAK RANCM ANNEXATION AND DEVu,omicivi"'AGREEMENT LIST OF ExtiIBITS U'XHIMT A 1, �j )td(j_ofPr pgy�y, (,(�,,IJ15 m.mided from Annexation Pelitio .I..........Lt 113 H' crs Peak Ranch Planned Dev I LILm�jqI)istrict Phan Widi Comfifions ----------- (a t I'l c h e(J)".. FXHIBIT C' Easement Grant arld f6l' thc" BN,,ers Peak Ranch Au ............... ...........arena d Aocjated Facjl6qs...a...nd Infrast ca rc. g P .......... EXHUT D Easennent Gr,aw nd A�g�jj�,,n!..Jor the, Fcwcs� meadows, A rentallon .......... ..........-1-1111-1-1 ... ........ Pcmd and Asso6aled FacihOcsand �nfrastnuj Ur -----------—.- —.............. FXlHfflT E N/ A 01GN11141 Park flonds FXHIBil, F, E".4sic'ment and FirSt sq G Ii -Azp .mKrut for the Grand Park flonds and Associated Facilities end ..........— 1;X I 111 IT G Reservoir and 1, 1, A n mat (4 1 e d'), FXHIBIT H 1�ogpj Dcsc,rjpi 1) (�his is bein 1 c y, --� .1-111.11--1-,j � ..!— -Niul��-CJJ24L,�"A -_jl—p Inc surveyor and shffl be ,d ti ... ft?G ve_&alga r in c, t us l-1 en 3,8 i TOWN OF FRASER, COLORADO ORDINANCE NO. SERIES 2013 AN ORDINANCE APPROVING THE BYERS PEAK RANCH PROPERTY AND DEVELOPMENT AGREEMENT; AUTHORIZING THE MAYOR OF THE TOWN OF FRASER, COLORADO TO SIGN THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT; AND APPROVING THE CREATION OF VESTED PROPERTY RIGHTS WHEREAS, by Ordinance No. Series 2013, the Town of Fraser, Colorado, a municipal corporation of the State of Colorado (the "Town"), has annexed to the Town approximately 295 acres of land south of the Town in Grand County, Colorado commonly known as the Byers Peak Ranch (the "Property") in accordance with the applicable provisions of the Municipal 1 Annexation Act of 1965 and the Town's Municipal Charter and Municipal Code; WHEREAS, in connection with the annexation of the Property, the Town has reached an agreement with the owners of 100% the Property, Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC (together, the "Developer"), on the terms and conditions of the Byers Peak Ranch Annexation and Development Agreement, dated (the "Annexation Agreement"), a copy of which is attached hereto and incorporated herein, pertaining to the annexation of the Property described above; WHEREAS, the Town and the Developer intend for the Annexation Agreement to establish vested property rights of the Developer to undertake and complete development of the Property as set forth in the Annexation Agreement; and WHEREAS, the Town's Municipal Charter and Municipal Code, and applicable provision of the Colorado Revised Statutes authorize the Board of Trustees of the Town (the "Board") to enter into such agreements and create such vested property rights. NOW THEREFORE, THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO ORDAINS; Section 1. Approval and Execution of the Annexation Agreement. The Annexation Agreement and all easements and related agreement, including any exhibits thereto are approved and the Mayor of the Town is hereby authorized to sign the Annexation Agreement and easements and related agreements, including any exhibits thereto. Section 2. Vested Rights,. The Annexation Agreement shall constitute an approved "site specific development plan" as defined in the Vested Property Rights Statute, C.R.S. § 24-68-101 et seq. Without limiting the generality of the foregoing, the Developers shall have vested property rights to undertake and complete development and use of the Property as set forth in the Annexation Agreement, subject to compliance with all applicable provisions of the Town's Municipal Code and subject to the provisions of any final development plan, as approved by the Town. The i I I i I i vested property rights so established shall be and remain vested for the term of 35 years pursuant to the provisions of the Annexation Agreement and C.R.S. §26-48-104. APPROVAL OF THE ANNEXATION AGREEMENT CONSTITUTES A VESTED PROPERTY RIGHT PURSUANT TO SECTION 24-68-103, C.R.S., AS AMENDED. Section 3. Required Publication; Directions to Town Clerk. As required by C.R.S. § 24-68- 103(c), the Town Clerk is directed to publish a notice advising the general public of the site specific development plan approval and creation of vested property right in the Annexation ' Agreement within 14 days of the approval of the Annexation Agreement in this Ordinance. i Section 4. Conditions. This Ordinance and any approval or property right created herein is conditioned upon the Developer satisfying the following conditions prior to the effective date of this Ordinance: a. Obtaining and delivering to the Town Clerk an original or counterpart copies of the Annexation Agreement duly signed and acknowledged by any and all required parties, and b. Paying to the Town all fees and costs associated with or related to the annexation process, as provided to the Developer by the Town. If these conditions are not fully satisfied prior to the effective date of this Ordinance, then the Board may, at its sole option, rescind or repeal this Ordinance and declare said/or Annexation Petition null and void. Section 5. Seve_ rability. 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 hereby declares that it would have adopted this Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional. READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THIS day of , 2013. Votes in favor: _ Votes opposed: Votes abstained: Votes absent: I BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO BY: Mayor ATTEST: BY: Town Clerk Published in the on 2013, 6011622 1 Exhibit A to the Byers Peak Ranch Annexation and Development Agreement M�rr A A parml of IM4 being v Lot% Cave Lot 4 VXCM tho Westerly 440 fbet th It PtdOa Of the "Ouft 1/2 Of 900flOn 19,Oud ft N1 '114 of Saution 30,all in Township I Soul%Rop 75 West of tho,6th PM,(b=d County,colowdo,more partleWarly deserfWaff foRomm: WOMINO at the SMWM&t Coma of said Soodon 19 ad,tb North C orner of said Swdon 30,:a 3"iron pipe whha3-%"br&sff oap Stumped USULo 1933; Thonee South 0,0-34113- Bast along the wmmly jillo of said BoWan 30 a diabuce of 1�317�29 f0Vt-t0IhDN0rM SkMA CoMerotgootion 29 andMdd SaCdon 30,Vftnoe 4.10"hS 2,, iron pi P I fOOt above Sound WIM a 2-Va"brass o4p Womp-od""LSO 12479"bogts North 31°28"41"FWt 0.51 fwt,an WhOM the East Qumtor,Comu of said geotion 30,a found 2_yin bras cap stamped *US(Xo 1933" bms S" 00o34,13oll4g a digWoo of 1,317,29 kzt.- The=NOA 8055410- West along ft North gb*anth'11he of said geollfut 30 a 41mace.of 2,62�x96 feet to the Xbrik-CM1W SbftQRth Corner of said Senora 30, a got 05're-bar vdth 0 3.A"aluminum Qftp stamped "M f/24669",-wbmc the conter Qumw Comer of odd Section 30, a'found #6 aluminum wd wMi a 2-W brass(ap'sjampW 9)WD LS #16398,200111 bears South 0001501311 Host a distance of 1,,330.77&M; The c North 00115+6'13"West along the Naxth-South Contaffm of said Mon 30 a list as of 1,.330.77 feet to the Sou&Qm*f Comor of OgAd SoWw 19,a Rot,#6 yebu with a 3.V4,, RIumihUM MP MmPed LS 02466911 ro-aswbfishod-Im monument recoM shoot ocq WPArod by Uo*u M Qnwntpr,LBO 16398,dated 0130/1990,, Thw=south 9902211211 Most slog the gonfimly Jim of.said Settim 19 a digt"00 of 2,,181.82 feet to a set 05 ro-bar Ath a plash op stamped%8 24669 ,whmoc a 1-1/21 aluminum vap stamped "LS# 1141511 bow Nmth 52cI7"06t, BOA 1,63 feet, also who me the Scuthmst Comex Of said 80W0a 19 Um South 8902211211 West a,distaboo of 440,00 foot to afbund 211 Salvanizod pig wn ft 2-%n]grass call MUM"USOLO 193311, Thence Nofth 00.1*02"Wut a distuce of 1,322.19 fvet to n-fbwd I-W ofluminwn oafs oftwped "LAN 1141.111, Thanoo North 54059149"Rasta distanoo of 1,167.79 foot-, Th00 With 0049"11""West a diet-ca of 94.99 fW to the janAerly right of way line orck. 73 to nomded In Book 9$,PAp IR 7benea North 89115014911 Hast,along sold right of way a distance of 1,296,54 fbot W the wagerly Como ato Limit orthe Town of Frasor, ExhibItA Them*South 00014*50"EM along eadd Colponte Unit a distanoe of 29.94 foot; Thonao Nath 89114810711 Efid atoog said Em-Writ-Cordaline of 8006ou 19 a diet as of 11303,12 Feat b R M#5 rc-bur w1th RAndo 04F RWupd`L9 7,466911 on tho wv&rly 'd9bt Of MY l Of the Union PsAfto RAIroad,whmc*the EM Quarter Comm of Wd Sion 19,a found 2"Vkpo In oonoww vdth a 2.%,,aludin"m cap,bom Nofth 89%V07, But a distam of 1,266.48 fbet-, "Ime 410mg saw right Dfvmy tho following t1w(3)comes.- I. South 14*4015"ftst a(fthmm Dr9p,32 foot to upohg of CurvatuM a ftt45 ro.bw with U*00 CRP aftmPed'S8 2466914 0 1 2. Aloft the am of a Curve to thus 10ft b4vl%a CMW angle of 59121'2911.4 audits of 816-78 rwt-and an are 100*h Of 946-18 f(chord be=South 440205()v&g,8Q8,84 feet),a set 05 re-bor with 4 plastic oup stampod ,LS 24669m► 3. South 7400118411 Fmt a distuaw of 415.27 feet to a poka on tho easterly right of wq lim QfCR-72 as woor&d in Hook 105,page 277; . Thence,leaving said Vidon P RaHmad sight of MY South 04038138"West and along said 64*dY right Ofvmy line of CR-72 a distance of98.01.feat; Thenco Nonh 89038,521, Walt leav wY y a eanoe of 40.11 feet to to wastedy light of way Me of laid CR-72" Theme Worth 049M"Bast along said westerly fight o f way 00 a distanm of 97.13 fbet to a point of aon-tau pnt turvalum on the sourly 0 ► of way Uno of Frawr Valley PWmmy(CR-72 1)US mwl*d In Book 450,Page 480, nmw 10RAM said westeTly right Of MY and Wong RM vouftdY fight of way and along the am of u0mve to the right bAvhwa 00=1 angle of49'29'57" aradius of 244.97'feet,and ==16M&of2ll,56 W(chord be=South 6503515811 VVC'st,205.0,5 fwt); Thance South 00120�10"Wed lmwbg add Nougmly right of Way a dbbm of 11.01 IbO4 Thmm Nodh 89138'52"Wed 4 dbbaco of 6193 0 f Th=0 South 00106105" &8t 4 dW"00 Of 900,00 fiat to a set$5 =-bar with a plastic oup stamped"LS 24669", whmm a found 2-A" IMA pipe beam NOA 25113112911 West a dint uce of5.46 nefto South 89137146"East along ft.south °l Ike of said Sea ions 19 a distance of 899.54 b to the POINT OF DEMM0. 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SERIES 2013 AN ORDINANCE ZONING NEWLY ANNEXED PROPERTY; AMENDING THE LOCAL ZONING MAP OF THE TOWN OF FRASER; AND APPROVING THE BYERS PEAK RANCH PLANNED DEVELOPMENT DISTRICT PLAN WHEREAS, by Ordinance No. , Series 2013, the Town of Fraser, Colorado (the "Town") annexed to the Town approximately 295 acres of land south of the Town in Grand County, Colorado commonly known as the Byers Peak Ranch property (the "Property") in accordance with the applicable provisions of the Municipal Annexation Act of 1965 and the Fraser Municipal Charter and Municipal Code; WHEREAS, pursuant to C.R.S. § 31-12-115, it is necessary to zone the Property; I WHEREAS, the owners of 100% of the Property, Byers Peak Properties, LLC and Byers Peak j Downhill Adventures, LLC, (together, the "Developer"), have requested the official zoning map of the Town be amended to zone the Property "Planned Development District"; i WHEREAS, the Developer has further proposed that the Property be made subject to the Byers Peak Ranch Development Planned Development District Plan(the "PDD Plan"); WHEREAS, at public hearings before the Town's Planning Commission for the zoning amendment and PDD Plan held between and [�, and after review of presented evidence, testimony, exhibits, review of the Town's Master Plan or Comprehensive Plan (hereinafter referred to as the "Master Plan"), comments of public officials, comments from the public and recommendation from Town Staff, the Town Planning Commission, by resolution, approved its recommendation for approval of the PDD Plan to the Board of Trustees of the Town of Fraser (the "Board"); and, WHEREAS, the Board held public hearings pursuant to the notice of the public hearing, properly published, as required by the Town's Municipal Code and C.R.S. §31-23-304, for the the zoning amendment and the PDD Plan between February 6, 2013 and i WHEREAS, at such public hearings, after consideration of the application, the relevant support materials, and findings and recommendations of the Planning Commission, Town Staff and information given at the public hearings, and after determining compliance with the evaluation criteria listed herein and other standards and criteria of the Town's Municipal Code, the Board hereby finds as follows: i 1. The proposed zoning for the Property and the PDD Plan are in substantial conformance with the Town's Master Plan, as amended; 2. The PDD Plan is consistent with the efficient development and preservation of the Property, does not affect in a substantially adverse manner either the enjoyment of land abutting upon or across the street from the Property or the public interest, and is not granted solely to confer a benefit upon any person; 3. The PDD Plan is in the best interest of the Town; will promote good design, enhancement of environmental amenities and increased efficiency of public and private services; and will ensure integrated planning goals and objectives of the Town's Master Plan while allowing greater flexibility and innovations in development and site designs that is typically possible under the conventional zone district regulations, while providing the Town with assurances that the project will retain the character now envisioned; 4. The PDD Plan, while preliminary and general in nature, is consistent with the following additional considerations prescribed by the Town's Municipal Code: a. Constitutes a unique and truly innovative project which is represented by the Developer to be constructed within a reasonable period of time in relation to the project's size and scope and which will be of economic benefit to the Town, thereby qualifying the project under this and other criteria for review under the Town's PD regulations; b. Provides for and improves existing commercial, residential, industrial and education facilities within the community; c. Ensures that the provisions of the zoning laws which direct the uniform treatment of dwelling type, bulls, density and open space within other zoning districts will not be applied in a manner which would distort the objectives of the Fraser Zoning Ordinance; d. Allows innovations in residential, commercial, and industrial development and renewal so that the growing demands of the population may be met by greater variety and types, design and layout of buildings and the conservation and more efficient use of open space ancillary to said buildings; e. Allows an efficient use of land and of public and private services to reflect changes in the technology of land development so that resulting economies may inure to the benefit of the community as a whole; I f. Reduces energy consumption and demand; g. Lessens the burden of traffic on streets and highways by encouraging land uses which decrease trip length and encourage the use of public transit; h. Conserves the value of the land and preserves environmental quality; i I i i. Provides a technique of development which can relate the type, design and layout of residential, commercial, and industrial development to the particular site, thereby encouraging preservation of the site's natural characteristics; j. Encourages integrated community planning and development in order to achieve the above purposes; and i 5. It appearing to the Board that it would be in the best interests of the Town to zone this Property and approve the PDD Plan as provided in this Ordinance. NOW THEREFORE, THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO ORDAINS: Section 1. Approval of Zoning. The Official Zoning Map of the Town is hereby amended by zoning the Property in accordance with the provision of the PDD Plan for the Byers Peak Ranch Development approved pursuant to this Ordinance. Such amendments shall include an outline of the geographical area of the Planned Development District and the PD 4, as defined below. Section 2. Approval of PDD Plan. The PDD Plan for the Property is hereby approved. Such PDD Plan consists of plan sheets,the cover sheet of which bears the Board's approval as of the date of this Ordinance. The PDD Plan shall constitute a zone district subject to the contents of the PDD Plan as Planned Development District No. (PD# ). I Section 3. Conditions. This Ordinance is conditioned upon the approval by the Town Board of Ordinance No. , Series 2013, approving the annexation of the Property to the Town. Section 4. 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 hereby declares that it would have adopted this Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional. READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THIS day of , 2013. i Votes in favor: Votes opposed: j Votes abstained: Votes absent: BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO BY: Mayor i i ATTEST: i i BY: Town Clerk I Published in the on 72013. 6011521_1 �i i i II II 'I I� I H&H DRAFT 3/12/13 EXHIBIT C TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT II EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE 3 THIS EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE ("Agreement") is made and entered into as of the day of , 20_, by and between BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company (the "Grantor"), whose address is 46 Market Street, Fraser, CO 80442 and mail;, P.O. Box 30, Winter Park, Colorado 80482 and the TOWN OF FRASER, COLORADO, a municipal corporation of the State of Colorado (the "Grantee"), whose address is 153 Fraser Avenue, P.O. Box 370, Fraser, Colorado 80442. RECITALS i A. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by and between Grantee and Grantor and Byers Peak Downhill Adventures, LLC ("BPD"), dated recorded at in the public records of Grand County, Colorado i (the"Annexation Agreement"), Grantee annexed land owned by Grantor, as more specifically described in the Annexation Agreement. B. Pursuant to the Annexation Agreement, Grantor and BPD are obligated to locate, design and construct storage facilities ("Dedicated Storage")to store 60 acre feet of operational storage water and to convey to Grantee a total of 60 acre feet of water storage rights that have been decreed for storage and municipal and other beneficial uses (the "Dedicated Water Rights") to be stored in the Dedicated Storage, i C. Grantor and BPD are obligated to design,permit and construct a pond or ponds that will have the capacity to store at least 35 acre feet of operational storage water on the i Easement Property as defined below("BPR Pond"),which will constitute partial satisfaction of Grantor and BPD's obligation to construct the Dedicated Storage. The details of this obligation are as described in the Annexation Agreement. D. Grantor shall convey to Grantee the first 35 acre feet of the storage water rights decreed in Case No. l OCW309, Water Division 5 (the "Fraser BPR Water Rights")via special warranty deed upon entry of the decree in Case No. I OCW309 or upon completion of the BPR Pond and approval and acceptance of the BPR Pond by Grantee, whichever occurs first. The conveyance of the Fraser BPR Water Rights to Grantee will constitute partial satisfaction of Grantor and BPD'S obligation to convey the Dedicated Water Rights, E. The location of the BPR Pond; the facilities necessary or convenient to divert water under the Fraser BPR Water Rights and transport such water to fill the BPR Pond, to operate the BPR Pond, and to release such water from the BPR Pond into the Fraser River or its i t tributaries; and access to the BPR Pond and such facilities will be located generally as shown on Exhibit A attached hereto and incorporated herein by this reference (the "Easement Property"). F. Grantor desires by this instrument to grant and convey to Grantee a perpetual, non-exclusive easement upon the Easement Property for the BPR Pond and associated facilities, after it is constructed and dedicated to Grantee. Such easement will include associated facilities and associated rights of access and rights to divert water from St. Louis Creek, store water in the BPR Pond and release water from the BPR Pond; and Grantee desires to accept such easement, ' upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, for and in consideration of the above recitals, which are incorporated herein by this reference, and the mutual covenants and agreements here set forth and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: GRANT AND AGREEMENT 1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to Grantee and its successors and assigns forever, a perpetual,non-exclusive easement over, upon, across, under and through the Easement Property as shown generally on Exhibit A for the purposes C specified in this Agreement(the "Easement"). The Easement for the BRP Pond and associated facilities and infrastructure will be different from the Easement Property. The Parties acknowledge the depiction of the Easement Property on Exhibit A is general because the final design for construction of the BPR Pond and related facilities have not been completed, and all appropriate governmental approvals for the construction have not been obtained. Upon completion of the construction of the BPR Pond, Grantor shall survey the BPR Pond, associated facilities and water delivery infrastructure, along with appropriate access along such facilities and to the same. At such time,the surveyed location of the easement on Grantor's property shall be attached to this Agreement as Exhibit B to be provided upon construction and survey of the BPR Pond.. . The surveyed descriptions shall include the following, without limitation. (a) The easements along the length of the Gaskill Ditch,Beaver Dam Ditch and Clark's Ditch No. 1, as those ditches are located on Grantor's property to the BPR Pond, as they exist now or may be relocated in the future, shall extend 10 feet on one side of the center line of each ditch and 20 feet on the other side of each ditch for a total of 30 feet in width. The easement from the headgate of the Gaskill Ditch, Beaver Dam Ditch and Clark's Ditch No. 1, as it crosses land owned by others shall be the same dimensions as any prescriptive easement. (b) The easement along the length of the ditch, pipeline or other water conveyance facility,on Grantor's property,that transports water released from the BPR Pond to j the Fraser River or its tributaries shall extend t 0 feet on one side of the center line of such facility and 20 feet on the other side of such facility for a total of 30 feet in width.. (c) The easement for the BPR Pond to be depicted on Exhibit B shall be reasonably consistent with industry standards for the purposes contemplated in the Annexation Agreement. I� 2 i 2. Use of Easement. The Easement may be used by Grantee for(1) diverting and transporting Fraser BPR Water Rights from St. Louis Creek to the BPR Pond; (2) storage of the Fraser BPR Water Rights in the BPR Pond; (3) release and transport of the stored BPR Water Rights from the BPR Pond across and through the Easement to the Fraser River or its tributaries; and(4) access to the BPR Pond and any and all associated facilities and infrastructure subject to the terms and conditions set forth in this Agreement. Grantee shall have the right to use the i i Easement for the purposes of operation,maintenance, repair, replacement and improvement and use of the BPR Pond, the associated ditches, pipelines and conveyance facilities and any and all associated facilities and infrastructure consistent with the terms and conditions herein, the decreed uses of the same, the provisions of the decree in Case No. l OCW309, as they may be amended, modified or changed from time to time, and the provision of any plan for augmentation decreed by Grantee in the future that includes the Fraser BPR Water Rights. 3. Storage Ca acit . The active capacity of the BPR Pond in excess of 35 acre feet is reserved for Grantor's use. If the BPR Pond is constructed with active capacity in excess of 35 acre feet,the operation of the BPR Pond shall be governed by the Reservoir and Ditch Operating Agreement, which is Exhibit F to the Annexation Agreement, and is dated recorded at in the public records of Grand County, Colorado. i 4. Alternate Access. The parties acknowledge that convenient access may not be available to (a) the headgates of the Gaskill Ditch,Beaver Dam Ditch or Clark's Ditch No. 1; (b) all points along the length of the water conveyance facilities transporting water from St. Louis Creek to storage in the BPR Pond and from storage in the BPR Pond to the Fraser River or its tributaries; or (c) the BPR Pond. Accordingly, Grantor shall provide additional access along all existing roads and roads to be constructed on Grantor's property that are shown on Exhibit B. . k 5. Assignment of Additional Rights. Grantor assigns any and all of Grantor's interest in and to any and all easement rights it may have in connection with the BPR Pond, as described in this Agreement. 6. Temporary Easement Provision. Because the parties contemplate that Grantor will construct and convey to Grantor the BPR Pond in the future pursuant to the Annexation Agreement deadlines, the Grantor provides the following"Temporary Easement", which will become effective only if the BPR Pond is not constructed and dedicated to Grantee within the deadlines in the Annexation Agreement. I 6.1 The Temporary Easement allows Grantee to enter and construct the BPR Pond on the Easement Property if Grantor does not do so as prescribed by the Annexation Agreement. If the BPR Pond is constructed for at least 3 5 acre feet as contemplated in the Annexation Agreement and is dedicated to Grantee within the time set forth in the Annexation Agreement,this Temporary Easement shall not become effective. This Temporary Easement shall automatically terminate upon conveyance of the BPR Pond to Grantee as contemplated in the Annexation Agreement. 6.2 If the BPR Pond is not constructed the Temporary Easement shall become effective on the 18g'year anniversary of the Annexation Agreement's effective date to allow Grantee to access the Easement Property (shown as Exhibit A) as reasonably necessary for only i i 3 I I the limited purpose to construct the BPR Pond and associated facilities to convey water to and from the BPR Pond. Reasonable access to the Easement Property shall only include access by E existing roads, along the water supply ditches and to, through, across, along,under and around f the BPR Pond footprint. I 6.3 Any alterations to the Temporary Easement shall only be made by the parties in writing. 7. No Encumbrance to Title. Grantor shall not burden or encumber the title to the Easement Property in any manner that will compromise Grantee's rights under this Agreement and the Annexation Agreement. If the Grantor so burdens or encumbers the Easement Property, Grantor shall be obligated to remove any burden or encumbrance. As specified in the Annexation Agreement, Grantee may withhold any approvals for development on the Byers Peak Ranch property until Grantor removes any burden or encumbrance to Grantee's satisfaction. 8. Miscellaneous Provisions. i 8.1 Governing Law. The validity and effect of this Agreement shall be determined in accordance with the laws of the State of Colorado. 8.2 Binding ft. The terms, provisions, covenants, agreements, restrictions and conditions in this Agreement are intended to be, and shall be construed as, covenants running with the Easement Property, Dedicated Storage, and Dedicated Water Rights and shall bind the parties and all subsequent owners of the applicable portions thereof. The benefit of such terms,provisions, covenants, agreements, restrictions and conditions shall run to and may be enforced by the parties hereto and their respective successors, assigns or transferees. 83 Recording. This Easement Grant and Agreement shall be executed at € the Annexation Agreement's effective date. At that time, it shall be placed into escrow with the Title Company of the Rockies, Inc. —Winter Park, where it shall be held and NOT RECORDED until the BPR Pond is constructed and dedicated to Grantee within the deadlines in the Annexation Agreement or in accordance with the provisions of subparagraph(b) of this section. I (a) Once the BPR Pond is constructed and conveyed to the Grantee, then after such conveyance, Exhibit B shall be finalized, attached to this Agreement, and this Agreement shall be recorded at that time. (b) If the BPR Pond is not constructed and conveyed to the Grantee within the deadlines proscribed by the Annexation Agreement, then upon such deadline's expiration, this Agreement shall be recorded, and the Temporary Easement shall become j effective, and Grantee may build the BPR Pond, and create Exhibit B to reflect the permanent Easement granted herein. At that time,this Agreement shall be re-recorded with the final Exhibit B. (c) Any recording shall be made in the real property records for Grand County, Colorado. 4 i 8.4 Notices. Any notice or communication required hereunder between Grantee and Grantor must be in writing, and may be given either personally; overnight by UPS or FedEx; by registered or certified mail, return receipt requested; by facsimile; or by electronic mail. 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 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. If delivered by facsimile or electronic mail, a notice shall be deemed to have been given when sent, as long as no delivery failure message is received by the sending party. 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 Grantee: Town of Fraser 153 Fraser Avenue P.O. Box 370 Fraser, CO 80442 Attention: Manager Email: jdurbin @town.fraser.co.us with a copy to: Christopher L. Thorne,Esq. Kylie J. Crandall, Esq. Holland& Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 r Email: ethorne a,holland.hart.com Email: _kjcrandall@hollandhart.com If to Grantor: Cornerstone Winter Park Holdings, LLC { P.O. Box 30 Winter Park, CO 80482 Attention: C. Clark Lipscomb Email: clarknocstoneholdin s.com with a copy to: Ramsey L. Kropf, Esq. Patrick, Miller, Kropf&Noto, P.C. 229 Midland Avenue Basalt, CO 81621 Email: Iropf(c�r�waterlaw.com i 8.5 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability of any other provision of this Agreement, or the applicability of such provision to persons or circumstances other than those to which it is held 5 I invalid or unenforceable, and each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. j 8.6 Counterparts. It is hereby mutually agreed upon by the parties to this agreement that facsimile and electronic communication and/or acceptance shall be an acceptable and binding form of communication. This Agreement may be executed in several counterparts and, as so executed, shall constitute one agreement, binding on all the parties as though all the parties have signed the signature pages. All signatures shall be binding as of the date of signature on facsimile or electronic communication. IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement on the date first above written. GRANTOR: BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company i I By Name: C. Clark Lipscomb Title: President,Byers Peak Properties, LLC GRANTEE: TOWN OF FRASER, COLORADO, a Colorado municipal corporation, i i By: Mayor of the Town of Fraser, Colorado ATTEST: I Town Clerk i i 6 i I' I i STATE OF } } SS. COUNTY OF } The foregoing instrument was acknowledged before me this day of by as of Byers Peak Properties, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission empires: I Notary Public i I t STATE OF COLORADO ) } SS. COUNTY OF GRAND } The foregoing instrument was acknowledged before me this day of by , Mayor, Town of Fraser, Colorado and as Clerk of the Town of Fraser, Colorado. i Witness my hand and official seal. i My commission expires: Notary Public I i i I i I 7 I i i I I EXHIBIT A TO EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE E Depiction of Easement Prop e I I i f I I i �I I i 8 �I co co m X QI Ln M m m Q � r rr ro rr LAN p> y ' r4 a Ipl n = ra cz rypYd .. M.N Q K' FF T q ! jy x> w„ �� m o � L. �o Ln W o � fir` m *49k rr q 2 i i � m 2g m r m p m m rav es ' ©z ! -..-..�4 CCk)NTY ROAD 72 � I :5 f s p ( ma - . ... 3 3 m a ww __........_ rw m+ loco s� EXHIBIT B TO EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE Surveyed Mgp and Legal Description for Final Easement Location j 59779555 E i t 1 'i i i I l i �I II I ICI I 9 I DRAFT DATED 3/15113 EXHIBIT D TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE THIS EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE ("Agreement") is made and entered into as of the day of , 20—, by and between GRAND PARK DEVELOPMENT, LLC, a Colorado limited liability company (the "Grantor"), whose address is 46 Market Street, Fraser CO 80442, P.O. Box 30, Winter Park, j Colorado 80482 and the TOWN OF FRASER, COLORADO, a municipal corporation of the State of Colorado (the"Grantee"), whose address is 153 Fraser Avenue, P.O. Box 370, Fraser, Colorado 80442. i RECITALS A. Grantor is the owner of certain real property located in Grand County, Colorado, which includes the approved site of the Forest Meadow Augmentation Plan Pond (the"FM Pond") as generally described in the decree entered in Case No. 83CW362, Water Division 5. Grantee is the owner of the augmentation plan and all associated water rights decreed in Case No. 83CW362. B. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by and between Grantee, Byers Peak Properties, LLC ("BPP") and Byers Peak Downhill Adventures, LLC ("BPD"), dated (the"Annexation Agreement"), BPP and BPD are obligated to locate, design and construct storage facilities ("Dedicated Storage")to store 60 acre feet of operational storage water and to convey to Grantee a total of 60 acre feet of water storage rights that have been decreed for storage and municipal and other beneficial uses (the "Dedicated Water Rights")to be stored in the Dedicated Storage. C. BPP and BPD are obligated to design, permit and construct a pond or ponds that will have the capacity to store at least 25 acre feet of operational storage water in the general location of the FM Pond on the Easement Property described below, which will constitute partial satisfaction of BPP and BPD's obligation to construct the Dedicated Storage. The details of this obligation are as described in the Annexation Agreement. I D. In partial satisfaction of the obligation to convey the Dedicated Water Rights, upon execution of the Annexation Agreement Grantor conveyed to Grantee via special warranty j deed the water rights decreed in Case No. 05CW287, Water Division 5, including the conditional storage water right for 25 acre feet (the "CWP-FM Reservoir Rights"). i E. It is anticipated that Grantee will seek Water Court approval to change the place of storage of the CWP-FM Reservoir Rights to the site of the FM Pond prior to or upon completion of the construction of the FM Pond, I I i i F, The location of the FM Pond; the facilities necessary or convenient to divert water under the Elk Creek Ditch No. 2 water rights,the CWP-FM Reservoir Rights, and/or other water from Elk Creek pursuant to the applicable Water Court decrees, and transport such water to fill the FM Pond, to operate the FM Pond, and to release water from the FM Pond into Elk Creek or the Fraser River; and access to the FM Pond and such facilities will be located generally as shown on Exhibit A attached hereto and by this reference made a part hereof(the"Easement f Property"), G. Grantor desires by this instrument to grant and convey to Grantee a perpetual, non-exclusive easement upon the Easement Property for the FM Pond and associated facilities, after it is constructed and dedicated to Grantee. Such easement will include and associated rights of access and rights to divert water from Elk Creek, store water in the FM Pond and release water from the FM Pond, and Grantee desires to accept such easement,upon the terms and conditions set forth in this Agreement. NOW,THEREFORE, for and in consideration of the above recitals, which are incorporated herein by this reference, and the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: GRANT AND AGREEMENT 1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to Grantee and its successors and assigns forever, a perpetual, non-exclusive easement over, upon, across, under and through the Easement Property as shown generally on Exhibit A for the purposes specified in this Agreement (the "Easement"). The Easement for the BRP Pond and associated facilities and infrastructure will be different from the Easement Property. The Parties acknowledge the depiction of the Easement Property on Exhibit A is general because the final design for construction of the FM Pond and related facilities have not been completed, and all appropriate governmental approvals for the construction have not been obtained. Upon completion of the construction of the FM Pond, Grantor shall survey the FM Pond,associated facilities and water delivery infrastructure, along with appropriate access along such facilities and to the same. At such time,the surveyed location of the easement on Grantor's property shall be attached to this Agreement as Exhibit B to be provided upon construction and survey of the FM Pond. The surveyed descriptions shall include the following, without limitation. (a) The easement along the length of the Elk Creek Ditch No. 2 from the headgate to the FM Pond, as that ditch is located on Grantor's property to the FM Pond, as it exists now or may be relocated in the future shall extend 20 feet on one side of the center line of the ditch and 10 feet on the other side of the ditch for a total of 30 feet in width. The easement from the headgate of the Elk Creek Ditch No. 2 as it crosses land owned by others shall be the same as any prescriptive easement. i (b) The easement along the length of any ditch,pipeline or other water conveyance facility that transports water from Elk Creek to the FM Pond shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of such facility for a total of 30 feet in width, 2 I i (c) The easement along the ditch,pipeline or other water conveyance facility that transports the water released from the FM Pond to Elk Creek or the Fraser River shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of j such facility for a total of 30 feet in width. (d) The easement for the FM Pond to be depicted on Exhibit B shall be reasonably consistent with industry standards for the purposes contemplated in the Annexation Agreement. 2. Use of Easement. The Easement may be used by Grantee for(1) diverting and i transporting water across and through the Easement in the Elk Creek Ditch No. 2 as it exists or is reconstructed,to the FM Pond; (2) diverting and transporting water across and through the f Easement from Elk Creek; (3) storage of up to 25 acre feet of water in the FM Pond pursuant to the decrees entered in Case Nos. 83CW362 and 05CW287, and any amended or changed decrees in such cases; (4) release and transport of such stored water from the FM Pond across and through the Easement to Elk Creels and/or the Fraser River; and(5) access to the FM Pond and any and all associated facilities and infrastructure subject to the terms and conditions set forth in this Agreement. In addition, Grantee shall have the right to use the Easement for the purposes of operation, maintenance, repair, replacement and improvement and use of the FM Pond,the associated ditches,pipelines and conveyance facilities, and any and all associated facilities and infrastructure consistent with the terms and conditions herein, the decreed uses of the same,the provisions of the decree in Case Nos. 83CW362 and 05CW287, as they may be amended, modified or changed from time to time, and the provisions of any plan for augmentation decreed by Grantee in the future that includes the 25 acre feet of water stored in the FM Pond pursuant to the decrees entered in Case No. 83CW362 and 05CW287. 3. Alternate Access. The parties acknowledge that convenient access may not be available to (a) the headgate and all points along the length of the Elk Creek Ditch No. 2; (b) all points along the length of the water conveyance facilities transporting water from Elk Creek to storage in the FM Pond and from storage in the FM Pond to the Fraser River or its tributaries; or (c) the FM Pond. Accordingly, Grantor shall provide additional access along all existing roads and roads to be constructed on Grantor's property that are shown on Exhibit B. 4. Assignment of Additional Rights. Grantor assigns any and all of Grantor's interest in and to any and all easement rights it may have in connection with the FM Pond, as described in this Agreement. 5. Vacation of Prescriptive Easement, To the extent that the alignment of the Elk Creek Ditch No. 2 across Grantor's property as constructed to deliver water to the Reservoir is different than historic alignment of the Elk Creek Ditch No. 2, Grantee agrees that, upon the re- recording of this Agreement with the completed Exhibit B provided for herein that includes the surveyed legal description of the EIk Creek Ditch No. 2, any prescriptive easement rights associated with the historic alignment of such ditch shall be vacated by the Grantee to the extent the historic alignment is not included within the surveyed legal description agreed to by the parties. i 3 I I 6. Temporary Easement Provision. Because the parties contemplate that Grantor i will construct and convey to Grantor the FM Pond in the future pursuant to the Annexation j Agreement deadlines, the Grantor provides the following "Temporary Easement", which will become effective only if the FM Pond is not constructed and dedicated to Grantee within the deadlines in the Annexation Agreement, i 6.1 The Temporary Easement allows Grantee to enter and construct the FM Pond on the Easement Property if Grantor does not do so as prescribed by the Annexation i Agreement. If the FM Pond is constructed for at least 25 acre feet as contemplated in the Annexation Agreement and is dedicated to Grantee within the time set forth in the Annexation Agreement, this Temporary Easement shall not become effective. This Temporary Easement shall automatically terminate upon conveyance of the FM Pond to Grantee as contemplated in the Annexation Agreement. 6.2 If the FM Pond is not constructed, the Temporary Easement shall become effective on the 7th year anniversary of the Annexation Agreement's effective date to allow Grantee to access the Easement Property (shown as Exhibit A) as reasonably necessary for only the limited purpose to construct the FM Pond and associated facilities to convey water to and from the FM Pond. Reasonable access to the Easement Property shall only include access by existing roads, along the water supply ditches and to, through, across, along, under and around the FM Pond footprint. I 6.3 Any alterations to the Temporary Easement shall only be made by the parties in writing. 7. No Encumbrance to Title. Grantor shall not burden or encumber the title to the Easement Property in any manner that will compromise Grantee's rights under this Agreement and the Annexation Agreement. If the Grantor so burdens or encumbers the Easement Property, Grantor shall be obligated to remove any burden or encumbrance. As specified in the Annexation Agreement, Grantee may withhold any approvals,permits, authorizations, inspections, acceptances for development or any associated activities on the Byers Peak Ranch property until Grantor removes any burden or encumbrance to Grantee's satisfaction. 8. Miscellaneous Provisions. 8.1 Governing Law, The validity and effect of this Agreement shall be determined in accordance with the laws of the State of Colorado. I 8.2 Binding Effect. The terms, provisions, covenants, agreements, restrictions and conditions in this Agreement are intended to be, and shall be construed as, covenants running with the Easement Property, the Dedicated Storage, and the Dedicated Water Rights and shall bind the parties and all subsequent owners of the applicable portions thereof-. The benefit of such terms, provisions, covenants, agreements, restrictions and conditions shall run to and may be enforced by the parties hereto and their respective successors, assigns or transferees. 8.3 Recording. This Agreement shall be executed at the Annexation Agreement's effective date. At that time, it shall be placed into escrow with Title Company of the Rockies, Inc.—Winter Park,where it shall be held and NOT RECORDED until the FM Pond 4 I I is constructed and dedicated to Grantee within the deadlines in the Annexation Agreement or in accordance with the provisions of subparagraph (b) of this section. (a) Once the FM Pond is constructed and conveyed to the Grantee, then after such conveyance, Exhibit B shall be finalized, attached to this Agreement, and this Agreement shall be recorded at that time. (b) If the FM Pond is not constructed and conveyed to the Grantee within the deadlines proscribed by the Annexation Agreement,then upon such deadline's expiration,this Agreement shall be recorded, and the Temporary Easement shall become effective, and Grantee may build the FM Pond, and create Exhibit B to reflect the permanent I Easement granted herein. At that time,this Agreement shall be re-recorded with the final Exhibit B, (c) Any recording shall be made in the real property records for Grand County, Colorado. 8.4 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; by registered or certified mail, return receipt requested; by facsimile; or by electronic mail. 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 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. If delivered by facsimile or electronic mail, a notice shall be deemed to have been given when sent, as long as no delivery failure message is received by the sending party. Any party hereto may at any time, by giving written notice to the i 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 Grantee: Town of Fraser 153 Fraser Avenue P.O. Box 370 Fraser, CO 80442 Attention: Manager Email: jdurbin astown.£rasenco.us with a copy to: Christopher L. Thorne, Esq, Kylie J. Crandall, Esq. Holland& Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Email: ethorne cr,hollandhart.com Email: k'crgj1da11 a hollandhart.com �I 5 Ili i If to Grantor; Grand Park Development, LLC P.O. Box 30 Winter Park, CO 80482 Attention: C. Clark Lipscomb i Email: clark,@cstoiieholdings.com with a copy to: Ramsey L. Kropf, Esq. Patrick, Miller, Kropf&Noto, P.C. 229 Midland Avenue Basalt, CO 81621 Email: Kropf(&waterlaw.com 8.5 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability of any other provision of this Agreement, or the applicability of such provision to persons or circumstances other than those to which it is held invalid or unenforceable, and each provision of this Agreement shall be valid and enforced to the I. fullest extent permitted by law. t 8.6 Counterparts. It is hereby mutually agreed upon by the parties to this agreement that facsimile and electronic communication and/or acceptance shall be an acceptable and binding form of communication. This Agreement may be executed in several counterparts and, as so executed, shall constitute one agreement, binding on all the parties as though all the parties have signed the signature pages. All signatures shall be binding as of the date of signature on facsimile or electronic communication. IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement on the date first above written. f I GRANTOR: GRAND PARK DEVELOPMENT,LLC, a Colorado limited liability company i By: Name: Title: �I 6 i i i I I i I GRANTEE: TOWN OF FRASER, COLORADO, a Colorado municipal corporation, I By: Mayor of the Town of Fraser, Colorado ATTEST: Town Clerk I I I I i I i I i i I I i �I 7 i STATE OF SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of by as of Grand Park Development, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) SS. COUNTY OF GRAND ) The foregoing instrument was acknowledged before me this day of by , Mayor, Town of Fraser, Colorado and as Clerk of the Town of Fraser, Colorado. Witness my hand and official seal. My commission expires: f i Notary Public I i I I i 1 I 8 i EXHIBIT A TO EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE Depiction of Easement Property i i I I i i i ICI 9 / , Illl I IUD r 77JJJJJJJ�J�JJyy; ah f i c a f o ISO .Too— i i i EXHIBIT B TO EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE i t Surveyed MLap and Legal Description for Final Easement Location III �f E r I 5977147 7 10 DRAFT DATED 3115113 EXHIBIT D TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE THIS EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE ("Agreement") is made and entered into as of the_day of 5 2 0 0_,by and between GRAND PARK DEVELOPMENT, LLC, a Colorado limited liability company (the "Grantor"), whose address is 46 Market Street, Fraser CO 80442, P.O. Box 30, Winter Park, Colorado 80482 and the TOWN OF FRASER, COLORADO, a municipal corporation of the E State of Colorado (the "Grantee"), whose address is 153 Fraser Avenue,P.O. Box 370, Fraser, € Colorado 80442. RECITALS A. Grantor is the owner of certain real property located in Grand County, Colorado, which includes the approved site of the Forest Meadow Augmentation Plan Pond (the "FM Pond") as generally described in the decree entered in Case No. 83CW362, Water Division 5. Grantee is the owner of the augmentation plan and all associated water rights decreed in Case No. 83CW362. i B. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by and between Grantee, Byers Peak Properties, LLC ("BPP") and Byers Peak Downhill Adventures, LLC. ("BPD"), dated (the "Annexation Agreement"), BPP and BPD are obligated to locate, design and construct storage facilities("Dedicated Storage")to store 60 acre feet of operational storage water and to convey to Grantee a total of 60 acre feet of water storage rights that have been decreed for storage and municipal and other beneficial uses (the "Dedicated Water Rights") to be stored in the Dedicated Storage. C. BPP and BPD are obligated to design, permit and construct a pond or ponds that will have the capacity to store at least 25 acre feet of operational storage water in the general location of the FM Pond on the Easement Property described below, which will constitute partial satisfaction of BPP and BPD'S obligation to construct the Dedicated Storage. The details of this obligation are as described in the Annexation Agreement. D. In partial satisfaction of the obligation to convey the Dedicated Water Rights, upon execution of the Annexation Agreement Grantor conveyed to Grantee via special warranty deed the water rights decreed in Case No. 05CW287, Water Division 5, including the conditional storage water right for 25 acre feet (the"CWP-FM Reservoir Rights"). i E. It is anticipated that Grantee will seek Water Court approval to change the place of storage of the CWP-FM Reservoir Rights to the site of the FM Pond prior to or upon completion of the construction of the FM Pond. I I I, III F. The location of the FM Pond; the facilities necessary or convenient to divert water under the Elk Creek Ditch No. 2 water rights, the CWP-FM Reservoir Rights, and/or other water j from Elk Creek pursuant to the applicable Water Court decrees, and transport such water to fill the FM Pond,to operate the FM Pond, and to release water from the FM Pond into Elk Creek or the Fraser River; and access to the FM Pond and such facilities will be located generally as shown on Exhibit A attached hereto and by this reference made a part hereof(the "Easement Property") e G. Grantor desires by this instrument to grant and convey to Grantee a perpetual, non-exclusive easement upon the Easement Property for the FM Pond and associated facilities, , after it is constructed and dedicated to Grantee. Such easement will include and associated rights of access and rights to divert water from Elk Creek, store water in the FM Pond and release water from the FM Pond, and Grantee desires to accept such easement, upon the terms and j conditions set forth in this Agreement. NOW, THEREFORE, for and in consideration of the above recitals, which are incorporated herein by this reference, and the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: GRANT AND AGREEMENT 1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to Grantee and its successors and assigns forever, a perpetual,non-exclusive easement over, upon, across, under and through the Easement Property as shown generally on Exhibit A for the purposes specified in this Agreement(the "Easement"). The Easement for the BRP Pond and associated facilities and infrastructure will be different from the Easement Property. The Parties acknowledge the depiction of the Easement Property on Exhibit A is general because the final design for construction of the FM Pond and related facilities have not been completed, and all appropriate governmental approvals for the construction have not been obtained. Upon completion of the construction of the FM Pond, Grantor shall survey the FM Pond, associated facilities and water delivery infrastructure, along with appropriate access along such facilities and to the same. At such time, the surveyed location of the easement on Grantor's property shall be attached to this Agreement as Exhibit B to be provided upon construction and survey of the FM Pond. The surveyed descriptions shall include the following,without limitation. (a) The easement along the length of the Elk Creek Ditch No, 2 from the headgate to the FM Pond, as that ditch is located on Grantor's property to the FM Pond, as it exists now or may be relocated in the future shall extend 20 feet on one side of the center line of the ditch and 10 feet on the other side of the ditch for a total of 30 feet in width. The easement from the headgate of the Elk Creek Ditch No. 2 as it crosses land owned by others shall be the same as any prescriptive easement. (b) The easement along the length of any ditch,pipeline or other water conveyance facility that transports water from Elk Creek to the FM Pond shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of such facility for a total of 3 0 feet in width. I 2 I (c) The easement along the ditch,pipeline or other water conveyance facility that transports the water released from the FM Pond to Elk Creek or the Fraser River shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of such facility for a total of 3 0 feet in width. I (d) The easement for the FM Pond to be depicted on Exhibit B shall j be reasonably consistent with industry standards for the purposes contemplated in the Annexation Agreement, 2. Use of Easement. The Easement may be used by Grantee for(1) diverting and transporting water across and through the Easement in the Elk Creek Ditch No. 2 as it exists or is reconstructed, to the FM Pond; (2) diverting and transporting water across and through the Easement from Elk Creek; (3) storage of up to 25 acre feet of water in the FM Pond pursuant to the decrees entered in Case Nos. 83CW362 and 05CW287, and any amended or changed decrees in such cases; (4) release and transport of such stored water from the FM Pond across and through the Easement to Elk Creek and/or the Fraser River; and(5) access to the FM Pond and any and all associated facilities and infrastructure subject to the terms and conditions set forth in this Agreement. In addition, Grantee shall have the right to use the Easement for the purposes of operation, maintenance, repair, replacement and improvement and use of the FM Pond,the associated ditches,pipelines and conveyance facilities, and any and all associated facilities and infrastructure consistent with the terms and conditions herein,the decreed uses of the same,the provisions of the decree in Case Nos. 83CW362 and 05CW287, as they may be amended, modified or changed from time to time, and the provisions of any plan for augmentation decreed by Grantee in the future that includes the 25 acre feet of water stored in the FM Pond pursuant to the decrees entered in Case No. 83CW362 and 05CW287. 3, Alternate Access. The parties acknowledge that convenient access may not be available to (a)the headgate and all points along the Iength of the Elk Creek Ditch No. 2; (b) all points along the length of the water conveyance facilities transporting water from Elk Creek to storage in the FM Pond and from storage in the FM Pond to the Fraser River or its tributaries; or (c)the FM Pond. Accordingly, Grantor shall provide additional access along all existing roads and roads to be constructed on Grantor's property that are shown on Exhibit B. 4. Assignment of Additional Rights. Grantor assigns any and all of Grantor's interest in and to any and all easement rights it may have in connection with the FM Pond, as described in this Agreement. 5. Vacation of Prescriptive Easement. To the extent that the alignment of the Elk Creek Ditch No. 2 across Grantor's property as constructed to deliver water to the Reservoir is j different than historic alignment of the Elk Creek Ditch No. 2, Grantee agrees that,upon the re- recording of this Agreement with the completed Exhibit B provided for herein that includes the surveyed legal description of the Elk Creek Ditch No. 2, any prescriptive easement rights associated with the historic alignment of such ditch shall be vacated by the Grantee to the extent the historic alignment is not included within the surveyed legal description agreed to by the parties. I 3 I' i 6. Temporary Easement Provision. Because the parties contemplate that Grantor will construct and convey to Grantor the FM Pond in the future pursuant to the Annexation Agreement deadlines, the Grantor provides the following"Temporary Easement", which will become effective only if the FM Pond is not constructed and dedicated to Grantee within the deadlines in the Annexation Agreement, I 6.1 The Temporary Easement allows Grantee to enter and construct the FM Pond on the Easement Property if Grantor does not do so as prescribed by the Annexation Agreement. If the FM Pond is constructed for at least 25 acre feet as contemplated in the Annexation Agreement and is dedicated to Grantee within the time set forth in the Annexation Agreement, this Temporary Easement shall not become effective. This Temporary Easement shall automatically terminate upon conveyance of the FM Pond to Grantee as contemplated in the Annexation Agreement. 6.2 If the FM Pond is not constructed, the Temporary Easement shall become effective on the 7th year anniversary of the Annexation Agreement's effective date to allow Grantee to access the Easement Property (shown as Exhibit A) as reasonably necessary for only the limited purpose to construct the FM Pond and associated facilities to convey water to and from the FM Pond. Reasonable access to the Easement Property shall only include access by existing roads, along the water supply ditches and to, through, across, along, under and around i the FM Pond footprint. 6.3 Any alterations to the Temporary Easement shall only be made by the parties in writing. 7. No Encumbrance to Title. Grantor shall not burden or encumber the title to the Easement Property in any manner that will compromise Grantee's rights under this Agreement and the Annexation Agreement. If the Grantor so burdens or encumbers the Easement Property, Grantor shall be obligated to remove any burden or encumbrance. As specified in the Annexation Agreement, Grantee may withhold any approvals,permits, authorizations, inspections, acceptances for development or any associated activities on the Byers Peak Ranch j property until Grantor removes any burden or encumbrance to Grantee's satisfaction, i 8. Miscellaneous Provisions. 8,1 Governing Law. The validity and effect of this Agreement shall be determined in accordance with the laws of the State of Colorado, i i 8.2 Binding Effect. The terms,provisions, covenants, agreements, restrictions and conditions in this Agreement are intended to be, and shall be construed as, covenants ' running with the Easement Property, the Dedicated Storage, and the Dedicated Water Rights and shall bind the parties and all subsequent owners of the applicable portions thereof. The benefit of such terms,provisions, covenants, agreements, restrictions and conditions shall run to and I may be enforced by the parties hereto and their respective successors, assigns or transferees. 8.3 Recording, This Agreement shall be executed at the Annexation Agreement's effective date. At that time, it shall be placed into escrow with Title Company of the Rockies, Inc. —Winter Park, where it shall be held and NOT RECORDED until the FM Pond 4 i is constructed and dedicated to Grantee within the deadlines in the Annexation Agreement or in accordance with the provisions of subparagraph (b) of this section. (a) Once the FM Pond is constructed and conveyed to the Grantee, then after such conveyance, Exhibit B shall be finalized, attached to this Agreement, and this Agreement shall be recorded at that time. (b) If the FM Pond is not constructed and conveyed to the Grantee within the deadlines proscribed by the Annexation Agreement,then upon such deadline's expiration,this Agreement shall be recorded, and the Temporary Easement shall become effective, and Grantee may build the FM Pond, and create Exhibit B to reflect the permanent j Easement granted herein. At that time, this Agreement shall be re-recorded with the final Exhibit B. i I (c) Any recording shall be made in the real property records for Grand ' County, Colorado. j 8.4 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; by registered or certified mail, return receipt requested; by facsimile; or by electronic mail. 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 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. If delivered by facsimile or electronic mail, a notice shall be deemed to have been given when sent, as long as no delivery failure message is received by the sending party. 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 Grantee: Town of Fraser 153 Fraser Avenue P.O. Box 370 Fraser, CO 80442 Attention: Manager Email: jdLi,rbin@town.fraser.co.us with a copy to: Christopher L. Thorne, Esq. Kylie J. Crandall, Esq. Holland& Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Email: cthome@hollandhart.com Email: kicrandall@hollwidhart.com i 5 I I I If to Grantor: Grand Park Development, LLC P.O. Box 30 Winter Park, CO 80482 Attention: C. Clark Lipscomb Email: clark@cstonehol.din,ys with a copy to: Ramsey L. Kropf, Esq. Patrick, Miller, Kropf&Note, P.C. 229 Midland Avenue Basalt, CO 81621 Email; KropL&waterlaw.com 8.5 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability of any other provision of this Agreement, or the applicability of such provision to persons or circumstances other than those to which it is held invalid or unenforceable, and each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 8.6 Counterparts. It is hereby mutually agreed upon by the parties to this agreement that facsimile and electronic communication and/or acceptance shall be an acceptable and binding form of communication. This Agreement may be executed in several counterparts and, as so executed, shall constitute one agreement,binding on all the parties as though all the parties have signed the signature pages. All signatures shall be binding as of the date of signature on facsimile or electronic communication. IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement on the date first above written. GRANTOR: GRAND PARK DEVELOPMENT, LLC, a Colorado limited liability company i By: Name: Title: i 6 i I i GRANTEE: TOWN OF FRASER, COLORADO, a Colorado municipal corporation, i i i I By: Mayor of the Town of Fraser, Colorado ATTEST: Town Clerk I i i I I I i i i i 7 STATE OF } } SS. COUNTY OF } The foregoing instrument was acknowledged before me this day of by as of Grand Park Development, LLC, a Colorado limited liability company. I Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO } SS. COUNTY OF GRAND ) The foregoing instrument was acknowledged before me this day of by ' Mayor, Town of Fraser, Colorado and as Clerk of the Town of Fraser, Colorado. i Witness my hand and official seal, i My commission expires: Notary Public i 8 I I EXHIBIT A E TO EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE E Depiction of Easement Property I I f I ! I 1 i i I I I I i I I I i i i 9 i s i I EXHIBIT B TO EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE Surveyed Map and Legal Description for Final Easement Location �I I I I E i i E I i 1 5977147_7 i� 10 (D A2> Co LO U7 c9 C"b a 6 12 I pA CDva C i 1 co lz us ei o L r v r- LO KK co , 0w i. c 1 r i i�J�fir N l I I i R&H DRAFT 3/1,85/13 EXHIBIT F TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT TEMPORARY EASEMENT GRANT AND FIRST RIGHT OF USE AGREEMENT FOR THE GRAND PARK PONDS AND ASSOCIATED FACILITIES AND INFRASTRUCTURE THIS FORM OF TEMPORARY EASEMENT GRANT AND AGREEMENT ("Agreement")is made and entered into as of the_day of 201_,(the "Execution Date")by and between GRAND PARK DEVELOPMENT,LLC,a Colorado limited liability company,whose address is 47 Cooper Creek Way,Suite 321A,P.O.Box 30,Winter Park,Colorado 80482("Grand Park");CORNERSTONE WINTER PARK HOLDINGS, LLC,a Colorado limited liability cornpany,whose address is 47 Cooper Creek Way,Suite 321A,P.O. Box 30,Winter Park,Colorado 80482("Cornerstone");BYERS PEAK PROPERTIES,LLC,a Colorado limited liability company whose address is 47 Cooper Creek Way,Suite 321 A,P,O, Box 30,Winter Park,Colorado 80482("BPP"and together with Grand Park and Cornerstone, the"Grantors"),and the TOWN OF FRASER,COLORADO,a home rule municipal corporation (the"Grantee"),whose address is 153 Fraser Avenue,P.O.Box 370,Fraser,Colorado 80442, RECITALS A. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by and between Grantee and BPP and Byers Peak Downhill Adventures,LLC("BPD"),dated ,recorded at in the public records of Grand County,Colorado (the"Annexation Agreement"),Grantee annexed land owned by BPP and BPD,as more specifically described in the Annexation Agreement. B. Pursuant to the Annexation Agreement,BPP and BPD are obligated by certain deadlines to design,construct and convey to Grantee 60 acre feet of water storage facilities(the "Dedicated Storage")upstream of the confluence of St.Louis Creek and the Fraser River to be located on property owned by G&°°^°w^"^ °°Grand Park and BPP. C. As qgl security to ensure BPP and BPD construct and convey the Dedicated Storage to Grantee,if BPP and BPD do not meet the deadlines for design,construction and conveyance of the Dedicated Storage pursuant to the Annexation Agreement,this Agreement shall become effective and Fequitmss-Grantors shall to-grant to Grantee the easement and first right of use described in thjs A�reemeot for up to 60-30 acre feet of active7firied storage in existing ponds at Grand Park defined as the"Detention Reservoirs"in the decree in Case No, 98CW41,Water Division 5,and decreed conditional in Case No.99CW315,Water Division 5 (the"Detention Ponds"),or in a satisfactory alternate facility owned by Grantors as deten-nined by Grantee in its sole discretion under the terms and conditions described in this Agreement, D. Grantors desire by this instrument to grant and convey to Grantee a non- ( exclusive,perpetual easement upon the EAseffR*" Qrgnd Park"s2ro eqy for the Detention Ponds and associated facilities and associated rights of access and rights to divert water from the Fraser River and its tributaries,store such water in the Detention Ponds and release such water from the Detention Ponds,and for the first right of use of 6030 acre feet of 1 H&H DRAFT 3/185/13 active storage capacity in the Detention Ponds,-but is not built within the deadlines Breed unon in the AnnexatiojLAr geLqLieiq,,-,-dffd-Grantee desires _ _ to accept such casement and first right of use, upon the terms and conditions set forth in this Agreement. NOW,THEREFORE,for and in consideration of the above recitals,which are incorporated herein by this reference,and the mutual covenants and agreements here set forth and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: GRANT AND AGREEMENT 1. Grant of Easement. Grantors hereby grant,bargain,sell and convey to Grantee and its successors and assigns forever,a pefpe4WjgnMoraiy,non-exclusive easement over,upon,across,under and through the Easiement-"ei4yQrand Park's pinperty as shown generally on Exhibit A for the purposes specified in this Agreement(the"Easement"). The Parties acknowledge the depiction of the Easement Property on Exhibit A is general because the final design for construction and the construction of all of the Detention Ponds and related facilities have not been completed,and all appropriate governmental approvals for the construction have not been obtained. Upon the Effective Date of this Agreement,GFa•tofq-� sufvey4,heLiq Detention Ponds,the associated facilities and the infrastructure allowing physical delivery of water to and from the Detention Ponds-may-be surveyed "Jon _Ajjh appro riate access aloe p such facilities and to the sai!ne. At Such trine the surveyed location of the Easement on Grand Park's T)TODertv shall be attached to the Effective Date of this AZrqgpient. aa44he-paf6ea4+a4-anwnd4he4egal desenip"I'01- Easement Pfope— A to �iqeIiffFeFa4e4Ite­-surveye tom' a 'Y au ' ,", 44s-Agfeefnefit, The surveyed descriptions shall include the following,without limitation, (a) The easements,along the length of the Cozens Ditch,as it exists now or may be relocated in the future,shall extend 20 feet on one side of the center line of the ditch and 10 feet on the other side of the ditch for a total of 30 feet in width. The easement from the headeate of flie Cozens Ditch as it crosses land owned It y thers shall be the same as a:y prescriptive easement. (b) The casement along the length of any other ditch,pipeline or water conveyance facility that transports water from the Fraser River or its tributaries to storage in the Detention Ponds shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of such facility for a total of 30 feet in width. (c) The easement along the length of the ditch,pipeline or other water conveyance facility that transports water released from the Detention Ponds to the Fraser River or its tributaries shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of such facility for a total of 30 feet in width. (d) The casement for the Detention Ponds to be depicted on Exhibit GB shall be reasaunably consistent with incliustr ari&Ws�fortlic �qroses�contein contemplated in the ,AiiiiexagoAagmgnLYhe-ea� t^lke,f)etei�n4s�d­feet4rem4he-liigh 2 H&H DRAFT 3/18511.3 2. Use of Easement. The Easement erty-may be used by Grantee for(1)diverting and transporting water across and through the Easement o ein the Cozens Ditch or any other water conveyance facility frown the Eraser River or its tributaries,to the Detention Ponds;(2)storage of up to 1-30 acre feet of water, above the 32.7 ae in the Detention Ponds pursuant to the decrees entered in Case No. 98CW41,99CW314 and 99CW315,and any amended or changed decrees in such eases;and (3)release and transport of such stored water from the Detention Ponds across and through the Easement P +ty--to the Fraser Fiver or its tributaries;and(4)access to the Detention Ponds and any and all associated facilities and infrastructure subject to the terms and conditions set forth in this Agreement. In addition,Grantee shall have the right to use the Easement for the purposes of operation,maintenance,repair,replacement and improvement and use of the Detention Ponds,the associated ditches„pipelines and conveyance facilities,and ally and all associated facilities and infrastructure consistent with the terms and conditions herein,the decreed uses of the same,the provisions of the decrees in Case Nos.98CW41,99CW314 and 990315,as they may be amended,modified or changed from time to time,and the provisions of any plan for augmentation decreed by Grantee in the future that includes the additional 60-30 acre feet of water stored in the Detention Ponds pursuant to the decrees entered in Case No. 98CW41,99CW314 and 99CW315. 3. _ Alternate Access" The parties acknowled Te that convenient access Wray root be avalableo_(a`t the headgate ruaucl all points aloe the lenof the rrzens T)itclr°Ub all points alongthe lengtb of the water conveyance facilities transportina water from the Fraser River and its tributaries to stora e in the Detention Fonds and from storms in,the Detention Ponds to the Fraser Cover or its tributaries;or tg'1 the Detention Ponds, ACCOT-dingwly„_Grantor ,shall .rovide additional access alon all existin roads acrd roads to be constructed on Grantor's property that are shown on E hfblt B, (Formatted,, No underline l•:�.. __- Effective Date, As This Agreement is only provided as security to ensure BPP and BPD construct and convey the Dedicated Storage to Grantee pursuant to the terms and conditions of the Annexation agreement;+f. 'This/agreement shall be executed at the time of the Annexation Agrcetnecrt,acrd placed iurtcr escrow witb.the Title Company of the Rockie .celiac.__- inter Parr, Only at such tirne and if°13PP and BPD do not meet&deh-the Annexation Agregment deadlines for design,construction and conveyance of the Dedicated Storage pursuant to the Annexation Agreement,tlr' rrartiFml�r" e urthn. written notice from Grantee shall be provided to the Grantors and to the Title mCfatarpany ofth Rockics,,lrrc.;41f the default is not otherwise cured bv Grantors within jt days after LLc t of notice or by another date certain as otherwise agreed to by the parties,t eria the title ocrrparry shall release t11i 4grr grncnt,and Fraser can record the same. The date o recording shall be -(the"Effective Date"). This Agreement shall only apply to that amount of Dedicated Storage that has not been constructed and is,-not-becornes operational on the Effective Date, This A ijo nent ment-shall.AutQ lnatically terrninate with respect to the amount of Dedicated Storage that has been constructed and becomes operational-�wbgt ver,c call s rust d b ra,_;ntor or Grantee ,even after the Effective Date,as long as such construction and operation of such Dedicated Storage is on the terms and conditions provided for under the annexation Agreement 3 H DRAFT 3118-5/13 as determined in the sole discretion of Grantee, Because Grantee has other casements bv which the Dedicated Storage mav be built, the parties specifically contqmnlate that the easement granted in tlrs Arnj S r `eta rage is constructed. 4- Grantee's First Right of Use-,Amount of Storage. Upon the Effective Date of this Agreement,Grantors bargain,sell and convey to Grantee and its successors and assigns forever the above-described T i 6�00 ,!�n2pim 10LEasernent and a first right of use for t p to — acre feet of active,tined storage in the Detention Ponds or in a satisfactory alternate facility as determined by Grantee in its sole discretion under the terms and conditions described in this Agreement. Currently,the Detention Ponds are d-constructed at the time of the Annexation Agreement to store 32,8acre feet of water, "—rheDetention Ponds are decreed to store conditional water storage rights in the total amount of 76 acre feet pursuant to the decree entered in Case No.99CW315, In order to fulfill its obligation under this Agreement,Grantors shall make available to Grantee the first 30 acre feet of storage in the Detention Ponds,and Grantee shall have the right to use the 30 acre feet of water stored in the Detention Ponds with priority over anwy�r ,other a«wrater stored in the detention Ponds. � r�"^� �w«�• aelive eapaeity4*4he-getentio++42e*id,,,eyef and above­the-n4-aere feet d--te (ifantee eurren4ly deefeed eaf aoit aty-C-ekqfade-, G first 16.7 aefe-fe . - �addi 40 pfevide4he-ff" Location and Construction of Detention Ponds. Grantors shall construct the Detention Ponds as decreed in Case Pilo.99CW315 and.08CW 194 One d-s4*,age 4w "wand shall seek any and all appropriate government approvals, including but not limited to,any water court adjudications necessary to use the Detention Ponds as storage facilities as soon as practicable but not later than the Effective Date of this Agreement. Five of the decreed Detention Ponds have been constructed,but are located more than 200 feet from their decreed locations. On or before November 2018.Grantors must file an application for a finding of reasonable diligence to preserve the conditional storage water rights in the Detention Ponds,�and such applications necessary to make the constructed Detention Ponds absolute-on-opbefete Nevember--a--ci°1sW.r�ti. GFaff tefa4%*I14H+e-theTon4q-a*",,*ftfl­-� ••he-as_l?�u oea­iOft.­ '-walter tilt -eouw shall do so no-Wer dieed the 'let-Gf a+1tee-Pnay--se&­,ueh­-vvfAef­ae+wt-at)pf evf&, 0"1 *t-404 he av e 1"of 91 1 at full btf-I-A 6,111111 I'the developffwnt-en propeFt-�- 4 H&H DRAFT 3/185/13 t11 pertn4-and-eens truot 32.7 aef #be devv4iartffent-mi-tomRendezv 4hftt,. a„���.., 1" to° wild be eonstrjeted4n-the &,4if tithe- rent fe, .. veep .fin*-... ��. 4)et"'be 1°T 2 7 I' 4*,. e,.. �Y , ers rive — .^ feet.ke* ,ueh al. � -re "kert �reFr � ry , 4-L Assignment of Additional Rights, Ripon the Effective Date of this Agreement, Farrmatt.&Tab stops Not at t Grantors. also assigns portion of any and all of Grantors' interest in and to any and all easement rights it may have in connection with operation„maintenance,repair,replacement and improvement and use of the Detention Ponds,the associated ditches,pipelines and conveyance facilities,and any and all associated facilities and infrastructure. l.tt.K No l ncurnbrance to Title, Grantor shall not burden or encumber the title to the Easement in any manner that will compromise G'rantee's rights under this Agreement and the Anneaat qj 4 r-eijji�nt. If the Grantor sq]burdens or encumbers the Easement Grantor shall be obligated to remove anv burden or encumbrance. As s ep crtzgd in the Annexation Agreement Cirgnte trja withhold an a rova.Os ennits authorizations inspections.acceptances for t1ev ,No atnent or anassociatecl activuties on the E3yrs °ealc ranch property until Grantor removes any burden or encumtjrance to Grantee's satisfaction.`l'itle G ant � � t ra8a�;-tle-- a 8 k9, Miscellaneous Provisions. 44:19.,N.............. ...Governing Law. The validity and effect of this Agreement s1a91 be determined in accordance with the laws of the State of Colorado,. 1 L20-2 .........Bindin. Effect. The terms,,provisions,covenants,agreements, restrictions and conditions in this Easement Agreement are intended to be,and shall be construed as,covenants running with the sen nt 4eper-tyGrand ?'atic's p c ,the Detention Ponds, the Dedicated Storage and the Dedicated Water Rights and shall bind the parties and all subsequent owners of the applicable portions thereof. The benefit of such terms,provisions, covenants,agreements,restrictions and conditions shall run to and may be enforced by the parties hereto and their respective successors,assigns or transferees. 9.3 RccordmR. Tbis reemeatt shall be executed at the Annexation Agreement's effective date. At_Lhgj_tiij1qjjt shall be placed into escrow with the"Title t�QMpgpy of the Rockies Inc,---Winter Par tite-Gr ; where it shall be held and RIOT RECORDED until the Effective bate of this reement. Upon the Effective Date ofthia5 Agreement as 5 H&H DRAFT 3/18-5/13 defined above in Section-4-,this—Agreement_shall be recorded with the final Exhibit B in the real, 139,4 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;by registered or certified mail,return receipt requested;by facsimile;or by electronic mail. 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 days after a registered or certified letter containing such notice,property 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. If delivered by facsimile or electronic mail, a notice shall be deemed to have been given when sent,as long as no delivery failure message is received by the sending party. 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 Grantee: Town of Fraser 153 Fraser Avenue P.O. Box 370 Fraser,CO 80442 Attention: Manager Email: idurbin -1town.fraser.co.us with a copy to: Christopher L,Thorne, Esq. Kylic J.Crandall Holland& Hart LLP 555 17th Street Denver,CO 80202 Email: ctliot•ne(d),Iioliandhart,.coni Email: kierandall(t-liollandliart.coni If to Grantors: 5 2 9 DefwerT"Wad"4= A#enti -1 r.,— 1 S P,ma,4 PLFR4ANK 444ai4o--,J-she4s@ ,We4� Grand P'ark-f)evelopinent.LLCComcrstone Winter Park Holdings,LLC and Byers Peak Properties,LLC P.O.Box 30 Winter Park,CO 80482 Attention: C, Clark Lipscomb Email: clarkra),cstoneholdings.com 6 H&H DRAFT 3/185/13 with a copy to: Ramsey L. Kropf,Esq. Patrick,Miller,Kropf&Noto,RC, 229 Midland Avenue Basalt,CO 81621 Email: Kpopf a a Nyaterlaw,com - t 1.49 5 ----Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid,illegal or unenforceable,it shall not affect or impair the validity,legality or enforceability of any other provision of this Agreement,or the applicability of such provision to persons or circumstances other than those to which it is held invalid or unenforceable,and each provision of this Agreement shall be valid and enforced to the fullest extent pen-nitted by law. I I 59'6 Counterparts. It is hereby mutually agreed upon by the parties to ....................................— this agreement that facsimile and electronic communication and/or acceptance shall be an acceptable and binding form of communication, This Agreement may be executed in several counterparts and,as so executed,shall constitute one agreement,binding on all the parties as though all the parties have signed the signature pages. All signatures shall be binding as of the date of signature on facsimile or electronic communication. IN WITNESS WHEREOF,Grantors and Grantee have executed this Agreement on the date first above written. GRANTORS: GRAND PARK DEVELORMENTI LLC,a Colorado limited liability company By: Name: Title: CORNERSTONE WINTER PARK HOLDINGS,LLC,a Colorado limited liability company By: Name: Title: BYERS PEAK PROPERTIES,LLC,a Colorado limited liability company 7 i I I i I I H&H DRAFT 3/185/13 By: I Name: Title: GRANTEE: TOWN OF FRASER,COLORADO,a home rule municipality, I By: Mayor of the Town of Fraser,Colorado ATTEST: Town Clerk �I 8 i I H&H DRAFT 3/1,85/13 STATE OF SS. COUNTY OF The foregoing instrument was acknowledged before me this_day of by as of S Go,lofftdeGrand Park DeveLoRment, LLC,a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF SS. COUNTY OF The foregoing instrument was acknowledged before me this of by as of Cornerstone Winter Park Holdings,LLC,a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF S& COUNTY OF The foregoing instrument was acknowledged before me this_day of by as of Byers Peak Properties, LLC,a Colorado limited liability company. Witness joy hand and official seal. My commission expires: Notary Public 9 I I I H&H DRAFT 3/185/13 i STATE OF COLORADO ) j SS. COUNTY OF GRAND ) The foregoing instrument was acknowledged before me this day of by ,Mayor,Town of Fraser,Colorado and as Clerk of the Town of Fraser,Colorado. i Witness my hand and official seal. My commission expires: j I Notary Public I I f I i I I I 10 I i H&H DRAFT 3/185/13 EXHIBIT A TO EASEMENT GRANT AND AGREEMENT _..._ _ .... ................. w v � AS-CONSTRUCTED RESERVOIR MR-4 —71 AF o "wo w t ol M v AS-CONSTRUCTED 'rs RESERVOIR MR-3 jz- " --8.7 AF Do AS-CONSTRUCTED RESERVOIR K-1 R&K-2 AS-CONSTRUCTED --13.6 AF r' RESERVOIR K-1 r m_3.4 AF TOTAL DECREED LOCATION RESERVOIR KI-R INN I m DECREED LOCATION RESERVOIR K.2 DECREED LOCATION a �� RESERVOIR K1-A DECREED LOCATION �w RESERVOIR MR-4 'Z" Na DECREED LOCAT00N r RESERVOIR MR-3 o � k v r , a saa 1,000 1 aaa,�//D///////O/////f SCALE: 1"=1,000' .._ .. (D A2> Co LO U7 c9 C"b a 6 12 I pA CDva C i 1 co lz us ei o L r v r- LO KK co , 0w i. c 1 r i i�J�fir N l I I i R&H DRAFT 3/1,85/13 EXHIBIT F TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT TEMPORARY EASEMENT GRANT AND FIRST RIGHT OF USE AGREEMENT FOR THE GRAND PARK PONDS AND ASSOCIATED FACILITIES AND INFRASTRUCTURE THIS FORM OF TEMPORARY EASEMENT GRANT AND AGREEMENT ("Agreement")is made and entered into as of the_day of 201_,(the "Execution Date")by and between GRAND PARK DEVELOPMENT,LLC,a Colorado limited liability company,whose address is 47 Cooper Creek Way,Suite 321A,P.O.Box 30,Winter Park,Colorado 80482("Grand Park");CORNERSTONE WINTER PARK HOLDINGS, LLC,a Colorado limited liability cornpany,whose address is 47 Cooper Creek Way,Suite 321A,P.O. Box 30,Winter Park,Colorado 80482("Cornerstone");BYERS PEAK PROPERTIES,LLC,a Colorado limited liability company whose address is 47 Cooper Creek Way,Suite 321 A,P,O, Box 30,Winter Park,Colorado 80482("BPP"and together with Grand Park and Cornerstone, the"Grantors"),and the TOWN OF FRASER,COLORADO,a home rule municipal corporation (the"Grantee"),whose address is 153 Fraser Avenue,P.O.Box 370,Fraser,Colorado 80442, RECITALS A. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by and between Grantee and BPP and Byers Peak Downhill Adventures,LLC("BPD"),dated ,recorded at in the public records of Grand County,Colorado (the"Annexation Agreement"),Grantee annexed land owned by BPP and BPD,as more specifically described in the Annexation Agreement. B. Pursuant to the Annexation Agreement,BPP and BPD are obligated by certain deadlines to design,construct and convey to Grantee 60 acre feet of water storage facilities(the "Dedicated Storage")upstream of the confluence of St.Louis Creek and the Fraser River to be located on property owned by G&°°^°w^"^ °°Grand Park and BPP. C. As qgl security to ensure BPP and BPD construct and convey the Dedicated Storage to Grantee,if BPP and BPD do not meet the deadlines for design,construction and conveyance of the Dedicated Storage pursuant to the Annexation Agreement,this Agreement shall become effective and Fequitmss-Grantors shall to-grant to Grantee the easement and first right of use described in thjs A�reemeot for up to 60-30 acre feet of active7firied storage in existing ponds at Grand Park defined as the"Detention Reservoirs"in the decree in Case No, 98CW41,Water Division 5,and decreed conditional in Case No.99CW315,Water Division 5 (the"Detention Ponds"),or in a satisfactory alternate facility owned by Grantors as deten-nined by Grantee in its sole discretion under the terms and conditions described in this Agreement, D. Grantors desire by this instrument to grant and convey to Grantee a non- ( exclusive,perpetual easement upon the EAseffR*" Qrgnd Park"s2ro eqy for the Detention Ponds and associated facilities and associated rights of access and rights to divert water from the Fraser River and its tributaries,store such water in the Detention Ponds and release such water from the Detention Ponds,and for the first right of use of 6030 acre feet of 1 H&H DRAFT 3/185/13 active storage capacity in the Detention Ponds,-but is not built within the deadlines Breed unon in the AnnexatiojLAr geLqLieiq,,-,-dffd-Grantee desires _ _ to accept such casement and first right of use, upon the terms and conditions set forth in this Agreement. NOW,THEREFORE,for and in consideration of the above recitals,which are incorporated herein by this reference,and the mutual covenants and agreements here set forth and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: GRANT AND AGREEMENT 1. Grant of Easement. Grantors hereby grant,bargain,sell and convey to Grantee and its successors and assigns forever,a pefpe4WjgnMoraiy,non-exclusive easement over,upon,across,under and through the Easiement-"ei4yQrand Park's pinperty as shown generally on Exhibit A for the purposes specified in this Agreement(the"Easement"). The Parties acknowledge the depiction of the Easement Property on Exhibit A is general because the final design for construction and the construction of all of the Detention Ponds and related facilities have not been completed,and all appropriate governmental approvals for the construction have not been obtained. Upon the Effective Date of this Agreement,GFa•tofq-� sufvey4,heLiq Detention Ponds,the associated facilities and the infrastructure allowing physical delivery of water to and from the Detention Ponds-may-be surveyed "Jon _Ajjh appro riate access aloe p such facilities and to the sai!ne. At Such trine the surveyed location of the Easement on Grand Park's T)TODertv shall be attached to the Effective Date of this AZrqgpient. aa44he-paf6ea4+a4-anwnd4he4egal desenip"I'01- Easement Pfope— A to �iqeIiffFeFa4e4Ite­-surveye tom' a 'Y au ' ,", 44s-Agfeefnefit, The surveyed descriptions shall include the following,without limitation, (a) The easements,along the length of the Cozens Ditch,as it exists now or may be relocated in the future,shall extend 20 feet on one side of the center line of the ditch and 10 feet on the other side of the ditch for a total of 30 feet in width. The easement from the headeate of flie Cozens Ditch as it crosses land owned It y thers shall be the same as a:y prescriptive easement. (b) The casement along the length of any other ditch,pipeline or water conveyance facility that transports water from the Fraser River or its tributaries to storage in the Detention Ponds shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of such facility for a total of 30 feet in width. (c) The easement along the length of the ditch,pipeline or other water conveyance facility that transports water released from the Detention Ponds to the Fraser River or its tributaries shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of such facility for a total of 30 feet in width. (d) The casement for the Detention Ponds to be depicted on Exhibit GB shall be reasaunably consistent with incliustr ari&Ws�fortlic �qroses�contein contemplated in the ,AiiiiexagoAagmgnLYhe-ea� t^lke,f)etei�n4s�d­feet4rem4he-liigh 2 H&H DRAFT 3/18511.3 2. Use of Easement. The Easement erty-may be used by Grantee for(1)diverting and transporting water across and through the Easement o ein the Cozens Ditch or any other water conveyance facility frown the Eraser River or its tributaries,to the Detention Ponds;(2)storage of up to 1-30 acre feet of water, above the 32.7 ae in the Detention Ponds pursuant to the decrees entered in Case No. 98CW41,99CW314 and 99CW315,and any amended or changed decrees in such eases;and (3)release and transport of such stored water from the Detention Ponds across and through the Easement P +ty--to the Fraser Fiver or its tributaries;and(4)access to the Detention Ponds and any and all associated facilities and infrastructure subject to the terms and conditions set forth in this Agreement. In addition,Grantee shall have the right to use the Easement for the purposes of operation,maintenance,repair,replacement and improvement and use of the Detention Ponds,the associated ditches„pipelines and conveyance facilities,and ally and all associated facilities and infrastructure consistent with the terms and conditions herein,the decreed uses of the same,the provisions of the decrees in Case Nos.98CW41,99CW314 and 990315,as they may be amended,modified or changed from time to time,and the provisions of any plan for augmentation decreed by Grantee in the future that includes the additional 60-30 acre feet of water stored in the Detention Ponds pursuant to the decrees entered in Case No. 98CW41,99CW314 and 99CW315. 3. _ Alternate Access" The parties acknowled Te that convenient access Wray root be avalableo_(a`t the headgate ruaucl all points aloe the lenof the rrzens T)itclr°Ub all points alongthe lengtb of the water conveyance facilities transportina water from the Fraser River and its tributaries to stora e in the Detention Fonds and from storms in,the Detention Ponds to the Fraser Cover or its tributaries;or tg'1 the Detention Ponds, ACCOT-dingwly„_Grantor ,shall .rovide additional access alon all existin roads acrd roads to be constructed on Grantor's property that are shown on E hfblt B, (Formatted,, No underline l•:�.. __- Effective Date, As This Agreement is only provided as security to ensure BPP and BPD construct and convey the Dedicated Storage to Grantee pursuant to the terms and conditions of the Annexation agreement;+f. 'This/agreement shall be executed at the time of the Annexation Agrcetnecrt,acrd placed iurtcr escrow witb.the Title Company of the Rockie .celiac.__- inter Parr, Only at such tirne and if°13PP and BPD do not meet&deh-the Annexation Agregment deadlines for design,construction and conveyance of the Dedicated Storage pursuant to the Annexation Agreement,tlr' rrartiFml�r" e urthn. written notice from Grantee shall be provided to the Grantors and to the Title mCfatarpany ofth Rockics,,lrrc.;41f the default is not otherwise cured bv Grantors within jt days after LLc t of notice or by another date certain as otherwise agreed to by the parties,t eria the title ocrrparry shall release t11i 4grr grncnt,and Fraser can record the same. The date o recording shall be -(the"Effective Date"). This Agreement shall only apply to that amount of Dedicated Storage that has not been constructed and is,-not-becornes operational on the Effective Date, This A ijo nent ment-shall.AutQ lnatically terrninate with respect to the amount of Dedicated Storage that has been constructed and becomes operational-�wbgt ver,c call s rust d b ra,_;ntor or Grantee ,even after the Effective Date,as long as such construction and operation of such Dedicated Storage is on the terms and conditions provided for under the annexation Agreement 3 H DRAFT 3118-5/13 as determined in the sole discretion of Grantee, Because Grantee has other casements bv which the Dedicated Storage mav be built, the parties specifically contqmnlate that the easement granted in tlrs Arnj S r `eta rage is constructed. 4- Grantee's First Right of Use-,Amount of Storage. Upon the Effective Date of this Agreement,Grantors bargain,sell and convey to Grantee and its successors and assigns forever the above-described T i 6�00 ,!�n2pim 10LEasernent and a first right of use for t p to — acre feet of active,tined storage in the Detention Ponds or in a satisfactory alternate facility as determined by Grantee in its sole discretion under the terms and conditions described in this Agreement. Currently,the Detention Ponds are d-constructed at the time of the Annexation Agreement to store 32,8acre feet of water, "—rheDetention Ponds are decreed to store conditional water storage rights in the total amount of 76 acre feet pursuant to the decree entered in Case No.99CW315, In order to fulfill its obligation under this Agreement,Grantors shall make available to Grantee the first 30 acre feet of storage in the Detention Ponds,and Grantee shall have the right to use the 30 acre feet of water stored in the Detention Ponds with priority over anwy�r ,other a«wrater stored in the detention Ponds. � r�"^� �w«�• aelive eapaeity4*4he-getentio++42e*id,,,eyef and above­the-n4-aere feet d--te (ifantee eurren4ly deefeed eaf aoit aty-C-ekqfade-, G first 16.7 aefe-fe . - �addi 40 pfevide4he-ff" Location and Construction of Detention Ponds. Grantors shall construct the Detention Ponds as decreed in Case Pilo.99CW315 and.08CW 194 One d-s4*,age 4w "wand shall seek any and all appropriate government approvals, including but not limited to,any water court adjudications necessary to use the Detention Ponds as storage facilities as soon as practicable but not later than the Effective Date of this Agreement. Five of the decreed Detention Ponds have been constructed,but are located more than 200 feet from their decreed locations. On or before November 2018.Grantors must file an application for a finding of reasonable diligence to preserve the conditional storage water rights in the Detention Ponds,�and such applications necessary to make the constructed Detention Ponds absolute-on-opbefete Nevember--a--ci°1sW.r�ti. GFaff tefa4%*I14H+e-theTon4q-a*",,*ftfl­-� ••he-as_l?�u oea­iOft.­ '-walter tilt -eouw shall do so no-Wer dieed the 'let-Gf a+1tee-Pnay--se&­,ueh­-vvfAef­ae+wt-at)pf evf&, 0"1 *t-404 he av e 1"of 91 1 at full btf-I-A 6,111111 I'the developffwnt-en propeFt-�- 4 H&H DRAFT 3/185/13 t11 pertn4-and-eens truot 32.7 aef #be devv4iartffent-mi-tomRendezv 4hftt,. a„���.., 1" to° wild be eonstrjeted4n-the &,4if tithe- rent fe, .. veep .fin*-... ��. 4)et"'be 1°T 2 7 I' 4*,. e,.. �Y , ers rive — .^ feet.ke* ,ueh al. � -re "kert �reFr � ry , 4-L Assignment of Additional Rights, Ripon the Effective Date of this Agreement, Farrmatt.&Tab stops Not at t Grantors. also assigns portion of any and all of Grantors' interest in and to any and all easement rights it may have in connection with operation„maintenance,repair,replacement and improvement and use of the Detention Ponds,the associated ditches,pipelines and conveyance facilities,and any and all associated facilities and infrastructure. l.tt.K No l ncurnbrance to Title, Grantor shall not burden or encumber the title to the Easement in any manner that will compromise G'rantee's rights under this Agreement and the Anneaat qj 4 r-eijji�nt. If the Grantor sq]burdens or encumbers the Easement Grantor shall be obligated to remove anv burden or encumbrance. As s ep crtzgd in the Annexation Agreement Cirgnte trja withhold an a rova.Os ennits authorizations inspections.acceptances for t1ev ,No atnent or anassociatecl activuties on the E3yrs °ealc ranch property until Grantor removes any burden or encumtjrance to Grantee's satisfaction.`l'itle G ant � � t ra8a�;-tle-- a 8 k9, Miscellaneous Provisions. 44:19.,N.............. ...Governing Law. The validity and effect of this Agreement s1a91 be determined in accordance with the laws of the State of Colorado,. 1 L20-2 .........Bindin. Effect. The terms,,provisions,covenants,agreements, restrictions and conditions in this Easement Agreement are intended to be,and shall be construed as,covenants running with the sen nt 4eper-tyGrand ?'atic's p c ,the Detention Ponds, the Dedicated Storage and the Dedicated Water Rights and shall bind the parties and all subsequent owners of the applicable portions thereof. The benefit of such terms,provisions, covenants,agreements,restrictions and conditions shall run to and may be enforced by the parties hereto and their respective successors,assigns or transferees. 9.3 RccordmR. Tbis reemeatt shall be executed at the Annexation Agreement's effective date. At_Lhgj_tiij1qjjt shall be placed into escrow with the"Title t�QMpgpy of the Rockies Inc,---Winter Par tite-Gr ; where it shall be held and RIOT RECORDED until the Effective bate of this reement. Upon the Effective Date ofthia5 Agreement as 5 H&H DRAFT 3/18-5/13 defined above in Section-4-,this—Agreement_shall be recorded with the final Exhibit B in the real, 139,4 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;by registered or certified mail,return receipt requested;by facsimile;or by electronic mail. 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 days after a registered or certified letter containing such notice,property 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. If delivered by facsimile or electronic mail, a notice shall be deemed to have been given when sent,as long as no delivery failure message is received by the sending party. 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 Grantee: Town of Fraser 153 Fraser Avenue P.O. Box 370 Fraser,CO 80442 Attention: Manager Email: idurbin -1town.fraser.co.us with a copy to: Christopher L,Thorne, Esq. Kylic J.Crandall Holland& Hart LLP 555 17th Street Denver,CO 80202 Email: ctliot•ne(d),Iioliandhart,.coni Email: kierandall(t-liollandliart.coni If to Grantors: 5 2 9 DefwerT"Wad"4= A#enti -1 r.,— 1 S P,ma,4 PLFR4ANK 444ai4o--,J-she4s@ ,We4� Grand P'ark-f)evelopinent.LLCComcrstone Winter Park Holdings,LLC and Byers Peak Properties,LLC P.O.Box 30 Winter Park,CO 80482 Attention: C, Clark Lipscomb Email: clarkra),cstoneholdings.com 6 H&H DRAFT 3/185/13 with a copy to: Ramsey L. Kropf,Esq. Patrick,Miller,Kropf&Noto,RC, 229 Midland Avenue Basalt,CO 81621 Email: Kpopf a a Nyaterlaw,com - t 1.49 5 ----Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid,illegal or unenforceable,it shall not affect or impair the validity,legality or enforceability of any other provision of this Agreement,or the applicability of such provision to persons or circumstances other than those to which it is held invalid or unenforceable,and each provision of this Agreement shall be valid and enforced to the fullest extent pen-nitted by law. I I 59'6 Counterparts. It is hereby mutually agreed upon by the parties to ....................................— this agreement that facsimile and electronic communication and/or acceptance shall be an acceptable and binding form of communication, This Agreement may be executed in several counterparts and,as so executed,shall constitute one agreement,binding on all the parties as though all the parties have signed the signature pages. All signatures shall be binding as of the date of signature on facsimile or electronic communication. IN WITNESS WHEREOF,Grantors and Grantee have executed this Agreement on the date first above written. GRANTORS: GRAND PARK DEVELORMENTI LLC,a Colorado limited liability company By: Name: Title: CORNERSTONE WINTER PARK HOLDINGS,LLC,a Colorado limited liability company By: Name: Title: BYERS PEAK PROPERTIES,LLC,a Colorado limited liability company 7 i I I i I I H&H DRAFT 3/185/13 By: I Name: Title: GRANTEE: TOWN OF FRASER,COLORADO,a home rule municipality, I By: Mayor of the Town of Fraser,Colorado ATTEST: Town Clerk �I 8 i I H&H DRAFT 3/1,85/13 STATE OF SS. COUNTY OF The foregoing instrument was acknowledged before me this_day of by as of S Go,lofftdeGrand Park DeveLoRment, LLC,a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF SS. COUNTY OF The foregoing instrument was acknowledged before me this of by as of Cornerstone Winter Park Holdings,LLC,a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF S& COUNTY OF The foregoing instrument was acknowledged before me this_day of by as of Byers Peak Properties, LLC,a Colorado limited liability company. Witness joy hand and official seal. My commission expires: Notary Public 9 I I I H&H DRAFT 3/185/13 i STATE OF COLORADO ) j SS. COUNTY OF GRAND ) The foregoing instrument was acknowledged before me this day of by ,Mayor,Town of Fraser,Colorado and as Clerk of the Town of Fraser,Colorado. i Witness my hand and official seal. My commission expires: j I Notary Public I I f I i I I I 10 I i H&H DRAFT 3/185/13 EXHIBIT A TO EASEMENT GRANT AND AGREEMENT _..._ _ .... ................. w v � AS-CONSTRUCTED RESERVOIR MR-4 —71 AF o "wo w t ol M v AS-CONSTRUCTED 'rs RESERVOIR MR-3 jz- " --8.7 AF Do AS-CONSTRUCTED RESERVOIR K-1 R&K-2 AS-CONSTRUCTED --13.6 AF r' RESERVOIR K-1 r m_3.4 AF TOTAL DECREED LOCATION RESERVOIR KI-R INN I m DECREED LOCATION RESERVOIR K.2 DECREED LOCATION a �� RESERVOIR K1-A DECREED LOCATION �w RESERVOIR MR-4 'Z" Na DECREED LOCAT00N r RESERVOIR MR-3 o � k v r , a saa 1,000 1 aaa,�//D///////O/////f SCALE: 1"=1,000' .._ .. Draft dated 3-15-13 EXHIBIT G TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT RESERVOIR AND DITCH OPERATING AGREEMENT I THIS RESERVOIR AND DITCH OPERATING AGREEMENT ("Agreement") is made and entered into as of the day of 2013, by and between BYERS PEAK PROPERTIES, j LLC, a Colorado limited liability company ("BPP"), BYERS PEAK DOWNHILL ADVENTURES, LLC, a Colorado limited liability company ("BPD"), GRAND PARK DEVELOPMENT, LLC, a Colorado limited liability company ("GPD"), whose address is 46 Market Street, P.O. Box 30, Winter Park, Colorado 80482 (collectively "Developers") and the TOWN OF FRASER, COLORADO, a 3 municipal corporation of the State of Colorado ("Fraser"), whose address is 153 Fraser Avenue, P.O. Box 370, Fraser, Colorado 80442. RECITALS A. BPP and BPD are the owners of certain real property located in Grand County, Colorado, commonly known as Byers Peak Ranch (the legal description of which is set forth in the Annexation Agreement defined below). Byers Peak Ranch includes the sites of the Byers Peak Ranch Augmentation Pond ("BPR Pond") described in the application filed in Case No. 10CW309, Water Division 5. GPD is the owner of certain real property located in Grand d County, Colorado, commonly known as the Forest Meadows property and Grand j Park, which includes the site of the Forest Meadow Augmentation Plan Pond (the "FM Pond") described in the decree entered in Case No. 83CW362, Water Division 5 (collectively the FM Pond and BPR Pond shall be referred to as the "Ponds"). B. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by and between Fraser, BPP, and BPD, dated _______, 2013 and recorded in the official records of Grand County, Colorado at (the "Annexation Agreement"), BPP and BPD are obligated to locate, design and construct storage facilities ("Dedicated Storage") to fill and store 60 acre feet.of operational storage water and to convey to such water to Fraser (the "Dedicated Water Rights"). The details regarding the Dedicated Storage and the required conveyance are specified in the Annexation Agreement. I C. In connection with the construction of the Ponds pursuant to the Annexation Agreement, the Annexation Agreement provides that Developers may construct ponds and associated infrastructure with operational capacities greater than those necessary to store the 60 acre-feet of Dedicated Water Rights. Therefore, the parties desire to enter into this Agreement to set forth terms and conditions for their joint use of the FM Pond and BPR Pond, associated i infrastructure and associated casements and the future operation, maintenance, repair, replacement and improvement of the FM Pond and BPR Pond and associated infrastructure. This Agreement shall apply to either or both of the Ponds only in the event one or both Ponds are built with excess operational capacity in order to store Developers' additional water rights or in the event the infrastructure that diverts and delivers the Dedicated Water Rights to either of the Ponds or that delivers water released from storage in either of the Ponds to the Fraser River or its tributaries is used by both Developers and Fraser. D. In addition, the Annexation Agreement provides that BPP and BPD may use the Dedicated Water Rights for snowmaking and irrigation purposes on Byers Peak Ranch under the terms and conditions set forth in this Agreement. I NOW, THEREFORE, for and in consideration of the above recitals and ! the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Limits Of Agreement, This Agreement does not go into effect with respect to any pond unless and until such pond is dedicated to Fraser as Dedicated Storage and the water rights, or portions of the water rights to be stored in the same, are conveyed to Fraser as provided in the Annexation Agreement. Because the Ponds are not required to be constructed and dedicated to Fraser for specific time periods, this Agreement will not apply to any ponds otherwise constructed and used on Byers Peak Ranch or Grand Park property until such ponds are dedicated to Fraser as Dedicated Storage. This Agreement shall be effective only if there is excess capacity in the Dedicated Storage such that both Fraser's storage rights and Developers' storage rights are stored in the same facility. If there is no such excess capacity, then this Agreement does not apply to the Ponds, but only to ditches or pipelines that convey water for both Fraser and Developers, even if stored separately. i 2. Excess Pond Capacities. The parties agree that the Ponds may be j built with operational capacities greater than those necessary to store the 60 acre- feet of Dedicated Water Rights as provided herein and in the Annexation Agreement. Such excess capacities may be used exclusively by Developers to store its decreed storage water rights, for storm water detention, or for such other appropriate water uses that Developers may require. Any such excess capacities shall be subject to the following terms and conditions: i a. FM Pond. After the FM Pond is constructed and dedicated to j Fraser, then the first water available for diversion in priority at the headgates of the ditches or other water conveyance facilities used to fill the FM Pond shall first be diverted, transported and placed into the FM Pond for storage for Fraser's sole benefit. Once Fraser's Dedicated Water Rights of 25 acre feet of operational storage water allocated to the FM Pond have been stored in such 2 I I I pond, Developers shall have the right to the next water available in priority to divert, transport and store in the excess capacity of the FM Pond, if any. i b. BPR Pond. As noted above, the Annexation Agreement provides that Developers have a specific time period within which it may build the BPR Pond and dedicate it to Fraser. Developers contemplate building storage at Byers Peak Ranch before such dedication is required. Until such time as the BPR Pond is dedicated to Fraser pursuant to the Annexation Agreement, Fraser has no rights to any diversions or storage that Developers may build on the Byers Peak Ranch property. Upon Developers' dedication of the BPR Pond to Fraser, the following provisions for operations and sharing the BPR Pond and associated facilities shall be effective. C. First Storage to Town. After Developers dedicate the Ponds to Fraser, the first quantities of operational storage water stored in the Ponds shall be the amount of Dedicated Water Rights, and Fraser shall have the right to use the Dedicated Water Rights stored in the Ponds with priority over any other water stored in the Ponds by and for Developers' use. Only after Fraser has diverted, transported and stored its Dedicated Water Rights in the Ponds, shall Developers have the right to the next water available in priority to divert, transport and store in the excess capacity of the Ponds, if any, or in any other ponds contemplated by this Agreement. If there is water in priority to refill the Ponds, the Ponds will be refilled consistent with the decrees. Any such refill shall first be allocated to Fraser's portion of the storage in the Pond. Appropriate accounting forms that reflect allocation of the water rights and joint use of facilities consistent with this Agreement will be developed and agreed to by the parties. , d. No Adverse Effect. The right of Developers to use excess capacities in the Ponds shall have no adverse impact on Fraser's Dedicated Water Rights or its use of the same for all decreed purposes. The use of excess capacities in the Ponds shall have no adverse impact on the water quality of the Dedicated Water Rights that is being released for augmentation or other decreed purposes to the Fraser River or its tributaries. e. No Fee. Except as specifically set forth herein or in the Annexation Agreement, Developers shall have no obligation to pay any fee to Fraser for the use of the excess capacity of the Ponds. Nor shall any fee for use be required prior to dedication of the Ponds to Fraser. f. At the beginning of each operational season, beginning from April 1 to March 31 of each year, Developers agree to provide notice in writing to Fraser of Developers' requirements for use of any excess capacity in the Ponds and Fraser shall operate the excess capacities consistent with such requirements unless advised in writing otherwise. 3 i i I I 3. Priority of Storage of Water in BPR Pond, The parties understand that BPP and BPD may develop other storage ponds on the Byers Peak Ranch property other than the Dedicated Storage. In such event, only after the BPR Pond has been dedicated to Fraser, then the first water available for diversion in priority at the headgates of the ditches or other water conveyance facility shall be used to fill Fraser's 35 acre feet of storage. The water used to fill Fraser's 35 acre feet of storage shall be diverted, transported and placed into the BPR Pond under the water rights decreed in Case No. 1OCW309 (Water Div. 5) as allocated to the BPR Pond, prior to Developers' diversion, transportation and storage of any of its water rights decreed in Case No. IOCW309 which may be used to fill additional capacity at the BPR Pond or any other pond on the Byers Peak Ranch property. This priority of storage is limited to the water rights in Case No, 10CW309, and does impact any water rights delivered by the same ditches that are owned by either Fraser or Developers. i 4. Operation, Maintenance, Repairs, Replacements, and Improvements. a. Ponds. Fraser shall be responsible for all costs, use, operations, maintenance, repairs, replacements, improvements and water court or agency filings or activities of or associated with the Dedicated Storage and Dedicated Water Rights stored therein, including the provisions of the decrees in Case Nos. 83CW362, 05CW287 and IOCW309, as appropriate and as they may be amended, modified or changed from time to time, and the provisions of any plan for augmentation decreed by Fraser in the future that includes the portion of the Dedicated Water Rights and the water rights associated with the Ponds, unless otherwise agreed upon by the parties in writing. Developers shall be responsible for all water court or agency filings or activities of or associated with their water rights stored in the Dedicated Storage, unless otherwise agreed upon by the parties in writing. r To the extent that any of the Dedicated Storage is designed and constructed to have excess capacities as provided for herein, Fraser shall remain responsible for the Dedicated Storage and Dedicated Water Rights stored therein consistent with the terms and conditions of this Agreement. If the Dedicated Storage does have excess capacities, the parties shall be jointly responsible for the costs of all operations, maintenance, repairs, and replacements, and agency filings or activities in proportion to the amount of storage in acre-feet that each party controls in the Dedicated Storage with excess capacity only. For example, if the Developers initially build water storage of 50 acre-feet at Byers Peak Ranch, then after 35 acre-feet of storage in the BPR Pond is dedicated to Fraser, then Fraser is responsible for 70% of the operational costs (35150), and the Developers are responsible for 30% of such costs. i b. Headgates and Ditches. Developers shall be responsible for all use, operations, maintenance, repairs, replacements, improvements and all associated infrastructure relating to the diversion and transmission of water, 4 I including the Dedicated Water Rights to the Dedicated Storage in the BPR Pond, unless otherwise agreed upon by the parties in writing. Each party shall be responsible for all water court or agency filings or activities of or associated with their respective water rights stored in the Dedicated Storage, unless otherwise agreed upon by the parties in writing. Developers may assign all responsibilities for this work to successor developers, an approved special district, Fraser, or any other party as the parties to this Agreement may otherwise agree to in writing. I In the event the headgates, ditches, pipelines, and all associated infrastructure are shared for the delivery of water to the Dedicated Storage in the BPR Pond or other storage facilities of Developers, the parties shall be jointly responsible for the costs of all operations, maintenance, repairs, and replacements, and agency filings or activities in proportion to the storage in acre- feet that each party controls. Each party shall be responsible for all water court or agency filings or activities of or associated with their respective water rights stored in the Dedicated Storage, unless otherwise agreed upon by the parties in writing. In the event excess capacity is created in the FM Pond, Developers shall be responsible for all use, operations, maintenance, repairs, replacements, improvements and all associated infrastructure relating to the diversion and transmission of water, including the Dedicated Water Rights to the Dedicated Storage in the FM Pond, unless otherwise agreed upon by the parties in writing. Each party shall be responsible for all water court or agency filings or activities of or associated with their respective water rights stored in the Dedicated Storage, unless otherwise agreed upon by the parties in writing. i In the event the headgates, ditches, pipelines, and all associated infrastructure are shared for the delivery of water to the Dedicated Storage in the FM Pond or other storage facilities of Developers, the parties shall be responsible for the costs of all operations, maintenance, repairs, and replacements, and agency filings or activities in proportion to the amount of excess capacity created by Developers in the subject infrastructure relative to the amount of Dedicated Water Rights diverted and transmitted therein. In the event Developers have such responsibilities, they may assign them to Fraser or to any quasi-governmental entity as the parties may otherwise agree to in writing. Every effort will be made to jointly coordinate in advance and schedule routine maintenance and any significant repair, replacement or improvement during those periods of the year when the parties are not diverting water to fill the Ponds. I C. Other Infrastructure. Any infrastructure requirements of Developers that need to be installed with respect to the Ponds or associated infrastructure in connection with Developer's use of excess capacity in either or both Ponds shall be installed at the time of the construction of the Ponds. To the extent that such infrastructure is integral to the infrastructure of the Ponds and associated infrastructure in connection with the filling, storage, and release of water in Ponds for Fraser's use, the use, operation, maintenance, repair, 5 i replacement and improvement of the same shall be performed by Fraser in connection with its responsibilities set forth herein. To the extent that such infrastructure is not so integral to the storage requirements for Fraser or the operation of the ponds to store water and make releases thereof (for example, if Developers install pumps for snowmaking or irrigation or both,), then Developers shall be responsible for such activities for such infrastructure at their sole cost. d. Cooperation. Fraser and Developers shall work together in good faith with regard to the use and operation of the Ponds and associated ' infrastructure to fulfill their respective requirements, with the understanding that the use and operation of the Ponds by Fraser under its decrees shall not be compromised as a result of the joint use and operation of the Ponds. The parties agree that each spring the Ponds shall be filled with the Dedicated Water Rights as soon as practicable, and refilled during any time as allowed by the water right decrees. E C. Failure to Operate, Maintain Repair, Replace or Improve or f Emergencies. In the event the Ponds and/or associated infrastructure have excess capacity and these provisions are applicable and either party fails to appropriately and timely operate, maintain, repair, replace, or improve the infrastructure they are responsible for hereunder and the water stored in the Ponds cannot be used as decreed and otherwise required or the infrastructure may fall into disrepair and water cannot be delivered for storage or released from storage, the other party shall give the operating party written notice of the issue to be addressed. In the event the issue is not addressed by reasonable and diligent efforts of the noticed party within 24 hours of the receipt of the notice in the event of some emergency, or ten days under a non-emergency situation, and the noticed party is not diligently addressing the issue, the other party shall have the right to access the Ponds and/or infrastructure to address such issue, In the event an emergency arises with respect to any of the Ponds or associated infrastructure that threatens the integrity or operation of the same or water cannot be delivered for storage, stored or released from storage, and to the extent practical, after making a reasonable effort to give the operating party immediate notice, the other party may attend to necessary maintenance and repairs immediately to address the emergency and shall notify the operating party as soon as possible of the circumstances and action taken. To the extent either party fails to timely cure the failure as provided herein and the other party does so as provided herein, such other party shall provide the operating party with a written statement of its reasonable costs associated with addressing the immediate issue and operating party shall account for a credit of such amount on the accounts kept as required hereunder. All communications and coordination under this paragraph and otherwise pertaining to the operation, maintenance, repair, improvement, and replacement of the Ponds and/or associated infrastructure shall be between the designated representatives of the parties as set forth in Paragraph hereof. The parties acknowledge that as a practical matter, b I�, they will coordinate and work together to assess and address any significant failures to fill the Ponds and to release water from the same as provided herein. 5. Cost Accounting and Billing. Fraser shall maintain a separate accounting for the Ponds and the expenses incurred in fulfilling its responsibilities hereunder. I a. FM Pond. Fraser shall maintain a separate account for the headgates, ditches, pipelines, and associated infrastructure to divert and transmit the Dedicated Water Rights to the FM Pond to the extent Developer uses such facilities to fill excess capacity in the FM Pond or other Developers' ponds. b. BPR Pond. Developers shall maintain a separate accounting for the headgates, ditches, pipelines, and associated infrastructure to divert and transmit the Dedicated Water Rights to the BPR Pond. c. Joint Costs. Each party shall provide a detailed invoice to the other party by the twenty-first day of the month following the calendar month in which costs were incurred that are shared as provided herein. The billed party shall pay the same within fifteen days after receipt thereof. 6. Snowmaking and Irrigation Use by BPD of Dedicated Water Rights Stored in BPR Pond. Fraser hereby grants BPD a right of use to use the Dedicated Water Rights in the BPR Pond as follows. a. Snowmaking. After such time as the Developers dedicate the BPR Pond to Fraser, Developers may use the BPR Pond for snowmaking purposes on an annual basis subject to the first right of Fraser to meet its uses, needs and requirements for such water for augmentation, decreed and other municipal purposes, in Fraser's sole discretion. BPD shall be responsible for all costs associated with its use of such portion of the Dedicated Water Rights for snowmaking, and, in addition, shall pay Fraser a fee of $5.00 an acre foot for such snowmaking use on an annual basis. The $5.00 fee shall be increased by $5.00 on the tenth anniversary of the Effective Date and every tenth anniversary thereafter. In the event Developers convey or otherwise transfer ownership of the Colorado Adventure Park, at which site the snowmaking is to occur, to parties that are not owned by or affiliated with Developers, this fee arrangement shall terminate and thereafter any water used for such purposes shall be subject to Fraser's normal raw water fee rate applicable at such time. Such costs shall be included separately in the cost accounting provided for herein and shall be the responsibility of BPD. 7 I b. Irrigation. After such time as the Developers dedicate the BPR Pond to Fraser, Developers may use the BPR Pond on an annual basis subject to the first right of Fraser to meet its uses, needs and requirements for such water for augmentation, decreed and other municipal purposes, as determined solely by Fraser. Such right of } irrigation use shall extend for 15 years from the date of the dedication of the Dedicated Storage for the BPR Pond to Fraser or until such earlier time as the Byers Peak Ranch property loses its agricultural designation, or until the parties otherwise agree in writing. Developers shall be responsible for all costs associated with Developers use of the 3 Dedicated Water Rights for irrigation. Fraser shall advise Developers on or before April 15 of each year, how much water Fraser anticipates Fraser will use and how much water Fraser anticipates will be available for Developers' irrigation use. To the extent that Fraser has not used and will not use the amount of water retained for Fraser's use and to the extent Developers do not use the entire amount allocated by Fraser to Developers for irrigation use, such combined amount of water shall be available for snowmaking use as provided in subparagraph a above. c. Other Uses. Until such time as the Developers dedicate the Ponds to Fraser, if physical water storage structures are built and filled on Developers' property, then those ponds and the related water rights may be used for any decreed uses by the Developers, at Developers' cost. i d. Records. Developers shall keep records of Developers use of water stored in the BPR Pond in a form sufficient to be used to (i) to satisfy the requirements of the State and Division. Engineer's (ii) to support Fraser's claim of reasonable diligence or to make the water rights absolute, and (iii) to properly allocate to Developers any and all costs associated with Developers' use of the water for snowmaking or irrigation as described in subsections a and b above. Developers shall provide all records to Fraser at the end of each water year. 7. Miscellaneous Provisions. a. Representatives. The parties shall each designate a representative to be the contact for practical and coordinating communications between the parties in fulfilling their respective rights and responsibilities under this agreement. b. Default. In the event of a default on the part of either party for non-payment of bills, the other party shall provide the defaulting party with written notice of the default. Upon receiving the notice, the defaulting party shall have ten days to respond to the other party with a plan to cure the default. Such plan must cure the default within a 30 day period, or in a time frame that i I the parties may agree upon in writing. The non-defaulting party may refuse to deliver water to the defaulting party until such bills are paid, i i C. Governing Law. The validity and effect of this Agreement shall be determined in accordance with the laws of the State of Colorado. d. Binding Effect. The terms, provisions, covenants, agreements, restrictions and conditions in this Agreement are intended to be, and shall be construed as, covenants running with the Dedicated Storage, and Dedicated Water Rights and shall bind the parties and all subsequent owners of the applicable portions thereof. The benefit of such terms, provisions, covenants, agreements, restrictions and conditions shall run to and may be enforced by the parties hereto and their respective successors, assigns or transferees. e. Recording. Within ten days after execution, this Agreement shall be recorded in the real property records for Grand County, Colorado. f, Notices. Any notice or communication required hereunder between Fraser and Developers must be in writing, and may be given either personally; overnight by UPS or FedEx; by registered or certified mail, return receipt requested; by facsimile; or by electronic mail. 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 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 j to the party to whom it is addressed. If delivered by facsimile or electronic mail, a notice shall be deemed to have been given when sent, as long as no delivery failure message is received by the sending party. 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 3 P.O. Box 370 Fraser, CO 80442 Attention: Manager Email: jdurbin@town.fraser.co.us 9 with a copy to: Christopher L. Thorne, Esq. Kylie J. Crandall, Esq. Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Email: cthorne&hollandhart.com Email: kicrandall@hollandhart.com If to Developers: Grand Park Development, LLC Byers Peak Properties, LLC Byers Peak Downhill Adventures, LLC P.O. Box 30 Winter Park, CO 80482 Attention: C. Clark Lipscomb Email: Clark @cstoneholdings.com with a copy to: Ramsey L. Kropf, Esq. Patrick, Miller, Kropf& Noto, P.C. 229 Midland Avenue Basalt, CO 81621 Email: Krop.f@waterlaw.com g. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability j of any other provision of this Agreement, or the applicability of such provision to persons or circumstances other than those 'to which it is held invalid or unenforceable, and each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. h. Counterparts. It is hereby mutually agreed upon by the parties to this agreement that facsimile and electronic communication and/or acceptance shall be an acceptable and binding form of communication. This Agreement may be executed in several counterparts and, as so executed, shall constitute one agreement, binding on all the parties as though all the parties have signed the signature pages. All signatures shall be binding as of the date of signature on facsimile or electronic communication. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. DEVELOPERS: I, 10 BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company I By: Name:.C.Clark Lipscomb. Title: President i BYERS PEAK DOWNHILL ADVENTURES, LLC, a Colorado limited liability company III By• Name: C.Clark Lipscomb Title: President C GRAND PARK DEVELOPMENT, LLC, a Colorado limited liability l company BY: I Name: C.Clark Lipscomb Title: President i FRASER: TOWN OF FRASER, COLORADO, a home rule municipality, By: Mayor of the Town of Fraser, Colorado i ATTEST: II I �I | \ | | | Town Clerk | | � ` 12 STATE OF } } SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of ___ 2013, by --------- -- as ---- of Byers Peak Properties, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: I Notary Public STATE OF ) SS. COUNTY OF ) I The foregoing instrument was acknowledged before me this day of 2013, by as of Byers Peak Downhill Adverntures, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF ) } SS. COUNTY OF } The foregoing instrument was acknowledged before me this day of -- -- 2013, by ....—.........----- as of Grand Park Development, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public 13 STATE OF COLORADO ) SS. COUNTY OF GRAND } The foregoing instrument was acknowledged before me this day of _______ 2013, by Mayor, Town of Fraser, Colorado and as Clerk of the Town of Fraser, Colorado. 3 Witness my hand and official seal. My commission expires: I Notary Public 60624703 II I I III VIII l f I III Ilf �I I I II I 14 i EXHIBIT H TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT Legal Description of the Municipal Parcel Being prepared by surveyor and will be provided by Developer as soon as survey is complete. I k I Subdivision Exemption Application to be provided as soon as survey of the legal description of the Municipal Parcel is complete. I i I I I I I i I I I I i I I i i i i i i i I I i I TOWN OF FRASER, COLORADO RESOLUTION NO. 2013---- I I i I A RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO APPROVING THE APPLICATION FOR SUBDIVISION EXEMPTION FOR THE TOWN OF FRASER MUNICIPAL PARCEL WHEREAS, by Ordinance No. _, Series 2013, the Board of Trustees of the Town of Fraser, Colorado (the `Board") approved the annexation to the Town of Fraser, Colorado (the "Town") of approximately 295 acres of land south of the Town in Grand County, Colorado commonly known as the Byers Peak Ranch(the "Property"); i WHEREAS, by Ordinance No. —, Series 2013, the Board approved the Byers Peak Ranch Annexation and Development Agreement between the Town and Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC (the "Annexation Agreement") and authorized the Town's Mayor to sign the Annexation Agreement; i WHEREAS, by Ordinance No. Series 2013, in conjunction with the annexation of the Property, the Board approved the Byers Peak Ranch Planned Development District Plan (the "PDD Plan"); WHEREAS, pursuant to the annexation of the property and approval of the Annexation Agreement and the PDD Plan, the Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC (together, the "Developers") desire to dedicate 6 acres in PA-1 Plamling Area of the PDD Plan to the Town, more specifically described on Exhibit A attached hereto and incorporated herein, to be used for municipal purposes, including but not limited to community facilities (the "Municipal Parcel") under the terms and conditions described in the Annexation Agreement; WHEREAS, the Developers have applied to the Town for a subdivision exemption for the Municipal Parcel attached hereto and incorporated herein as Exhibit B (the "Subdivision Exemption Application"); and NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees of the Town of Fraser, County of Grand, State of Colorado: I The Subdivision Exemption Application attached hereto as Exhibit B associated with the annexation of the Property be and is approved under the terms and conditions described in the Subdivision Exemption Application and the Annexation Agreement, The Board has determined that the above-described Subdivision Exemption Application shall be approved by resolution only, and does not require a subdivision exemption plat to be provided to and approved by the Town Planning Commission. i i The Board directs the Director of Planning for the Town to provide a copy of this Resolution to the Developers. This Resolution shall serve as an agreement binding BPP and BPD to the terms and conditions of the attached Subdivision Exemption Application. j INTRODUCED, READ, APPROVED, ADOPTED AND RESOLVED this day of February, 2013. TOWN OF FRASER I I By: I Mayor I i i ATTEST: j Town Clerk 6052007 1 i i ICI I I!, 2 i Service Plan Amendments to the First Amended and Restated Consolidated Service Plan for the West Mountain Metropolitan District, West Meadow Metropolitan District and Byers View Metropolitan District (the "Districts") Section I: The legal description and map depicting the future inclusion property (Byers Peak Ranch, approximately 295 acres to be included in the West Mountain Metropolitan District) to be included within the boundaries of the Districts, subject to Town approval, are attached as Exhibit C-1. Section IV: The list of facilities to be provided and the engineer's preliminary infrastructure cost estimates on Page 4 are amended by the addition of$3,868,000 for 60 acre feet of Water Storage;plus the following additional amounts for the additional infrastructure required for the Byers Peak Ranch parcel; Sanitation: $13,850,000; Street Improvement and Drainage: $25,172,00; Water: $ 14,009,000; the total of all increases is$57,000,000. The Districts can only support the reimbursement of$30,000. Notwithstanding anything to the contrary contained herein,the total amount of debt which may be issued by the Districts is increased by $30,000,000 for a new maximum of One-Hundred-Twenty-Nine Million dollars ($129,000,000). j The Districts may impose a mill levy for the purpose of levying taxes to pay the Districts' operations and maintenance expenses, but such amounts shall be limited to administrative expenses and shall not exceed $35,000 per year in 2013 Dollars, as may be increased over time in amounts not exceeding increases in the Denver-Boulder-Greeley Consumer Price Index (CPT) after 2013, or as otherwise approved by the Town. i Section V: The debt service mill levy cap for the District shall be reduced from a 50 mill cap for debt service purposes to a 35 mill cap for debt service purposes. All such debt obligations must be issued by the Districts on or before December 31, 2050. All such debt must mature on or before December 31, 2070. Notwithstanding anything else herein to the contrary, such debt obligations shall be subject to a mill levy not to exceed 35 mills (for debt service), except for changes in the method of calculating assessed valuation (a Gallagher adjustment). The Districts shall prepare and record in the records of the Grand County Clerk and Recorder a Disclosure Statement substantially in the form attached hereto. �I Approved , 2013 I I (00319115.DOCX/3) I I I TOWN OF FRASER, COLORADO RESOLUTION NO, RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER APPROVING THE SERVICE PLAN AMENDMENT FOR THE BYERS VIEW, WEST MOUNTAIN, AND WEST MEADOW METROPOLITAN DISTRICTS WHEREAS, the Town of Fraser, Colorado (the"Town"), is a political subdivision of the State of Colorado,duly organized and existing pursuant to the laws and the Constitution of the State; and WHEREAS, pursuant to the provisions of the "Special District Control Act", Part 2 of Article 1, Title 32, C.R.S., on February 22, 2013, the Boards of Directors of the Byers View Metropolitan District, the West Mountain Metropolitan District, and the West Meadow I Metropolitan District(the "Districts") filed with the Clerk of the Town, Amendments to the First Amended and Restated Consolidated Service Plan for the Districts ("Service Plan Amendment") for the purposes of amending the Consolidated Service Plan of the Districts to: (i) authorize the inclusion of Byers Peak Ranch, more particularly described in Exhibit C-1 of the Service Plan Amendment; (ii) increase the total costs of infrastructure required by the inclusion of the Byers Peak Ranch into the boundaries of the District; (iii) increase the total authorized debt to accommodate the costs of infrastructure for the Byers Peak Ranch; and (iv) extend the time period to issue and pay off the additional debt authorization; (v) reduce the Debt Service Mill Levy from a maximum of 50 mills to 35 mills; i (vi) require recording of a Disclosure Summary; and WHEREAS, the Board of Trustees of the Town has fully considered the Service Plan Amendment and all testimony and other evidence presented to it in this matter relating to the Service Plan Amendment, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES, TOWN OF FRASER, STATE OF COLORADO: Section 1. The Board of Trustees hereby determines that all of the jurisdictional and other requirements of Sections 32-1-207 and 32-1-204.5, C.R.S., have been fulfilled, including those relating to the filing and form of the Service Plan Amendment. 100319091.DOC/) I Section 2. Based upon the information contained within the Service Plan Amendment and evidence presented to the Board of Trustees hereby finds and determines as follows: (i) There is sufficient existing and projected need for organized services of the nature proposed in the Service Plan Amendment in the area serviced by the Districts; i (ii) The existing services in the area to be served by the Districts are inadequate for present and projected needs; j i (iii) The Districts are capable of providing economical and sufficient I services to the area within its boundaries; and (iv) The area within the Districts has the financial ability to discharge the proposed amendments to the indebtedness on a reasonable basis. Section 3. The Service Plan Amendment of the Districts shall be and is hereby approved without conditions. Section 4. The Town Clerk to the Board of Trustees is hereby directed to advise the Districts in writing of this action and to attach a certified copy of this Resolution. Section 5. All Resolutions, or parts thereof, in conflict with the provisions hereof,are hereby repealed to the extent of such conflict only. Section 6. This Resolution, immediately upon its passage, shall be authenticated by the signatures of the Town Mayor and the Town Clerk and sealed with the corporate seal of the Town. Section 7. This Resolution is necessary for the public health, safety and welfare of the citizenry of the Town. MOVED, READ AND ADOPTED by the Board of Trustees of the Town of Fraser, Colorado, at its regular meeting held the day of , 2013. TOWN OF FRASER, COLORADO By: Peggy Smith, Mayor ATTEST: i I Lu Berger, Town Clerk (0031909 LDOC/) r C 0 IL ra 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. The applicant, by his or her signature, agrees to all conditions specified herein. 3. 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. Prior to construction, site and architectural design must be approved via an FPDP. • 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. 4. 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.) • Snowmaking is not limited to these hours. 5. This Development Permit is issued in order to authorize the current uses as permitted by the Grand County Special Use Permit. This Development Permit will be replaced upon approval of an FPDP for the property. Additional uses as permitted by the PDD may be approved by an FPDP or FPDP amendment. 6. 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. 7. The Applicant may be required to contribute their 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. 8. 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. 9. 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. 10. 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. 11. All lighting shall be downward facing and hooded to minimize impacts to surrounding properties. Existing lighting as approved by Grand County may exceed maximum height limitations under Town Code, but is grandfathered by this permit. 12. The Applicant, by accepting this permit, concurs and agrees that Fraser has the authority to mandate and 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. If the terms and conditions of the approval are deemed to be violated, the Town, in addition to criminal and civil judicial proceedings, may, if appropriate, issue a stop order requiring the cessation of operations and revoke this permit. Any stop order, revocation order or other enforcement order by a Town administrative officer or official shall be subject to appeal to the Fraser Board of Adjustment in accordance with the provisions of the Fraser Municipal Code. 13. 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. 14. 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 shall provide notice to the Applicant at the following address: Byers Peak Properties LLC/Byers Peak Downhill Properties LLC Attn: Clark Lipscomb P.O. Box 30 Winter Park, CO. 80482 Personal delivery of such notice is an alternate to mailing. APPLICANT: Date: Byers Peak Properties LLC Byers Peak Downhill Properties LLC. TOWN OF FRASER: Catherine E. Trotter: Date: Town Planner i' TOWN OF FRASER RESOLUTION NO. 2013 t F A RESOLUTION OF THE FRASER BOARD OF TRUSTEES, APPROVING A DEVELOPMENT PERMIT TO OPERATE AN OUTDOOR ADVENTURE PARK AND RECREATION AREA IN THE TOWN OF FRASER SUBSEQUENT TO THIS PARCEL BEING ANNEXED INTO THE TOWN OF FRASER, COLORADO. I I WHEREAS, 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 in the SE '/ of Section 19 and the NE %of Section 30, Township 1 South, Range 75 West of the 6t`' P.M., County of Grand, State of Colorado; and WHEREAS, it is the intent of the Board of Trustees, to annex Byers Peak Ranch into Fraser and this 36 acre parcel described herein, which contains the Colorado Adventure Park, is part of the 295 acre ranch proposed to be annexed into Fraser; ! 3 NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THAT: 1 The Fraser Town Board approves the attached Development Permit to operate 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 6 th P.M., County of Grand, State of Colorado. DULY MOVED SECONDED AND ADOPTED THIS 3rd DAY OF APRIL 2013. ! TOWN OF FRASER BOARD OF TRUSTEES i BY: Peggy Smith, Mayor ATTEST: Lu Berger, Town Clerk j I I 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 �I TOWN OF FRASER, COLORADO RESOLUTION NO. 20][3- - III f A RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO APPROVING THE BYERS PEAK RANCH GRADING AND EXCAVATION OPERATIONS PLAN IN CONJUNCTION WITH THE BYERS PEAK RANCH ANNEXATION AND PDD PLAN APPROVAL WHEREAS, by Ordinance No. _, Series 2013, the Board of Trustees of the Town of Fraser, Colorado (the `Board") approved the annexation to the Town of Fraser, Colorado (the "Town") of approximately 295 acres of land south of the Town in Grand County, Colorado commonly j known as the Byers Peak Ranch (the "Property"); WHEREAS, by Ordinance No. Series 2013, the Board approved the Byers Peak Ranch Annexation and Development Agreement between the Town and Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC (the "Annexation Agreement") and authorized the Town's Mayor to sign the Annexation Agreement; WHEREAS, by Ordinance No. Series 2013, in conjunction with the annexation of the Property, the Board approved the Byers Peak Ranch Planned Development District Plan (the "PDD Plan"); i WHEREAS, certain grading and excavating operations are contemplated for the purposes of pond excavation and sale of gravel offsite within Fraser in specific Planning Areas, as defined in the PDD Plan; and WHEREAS, the Town Staff has prepared the Byers Peak Ranch Grading and Excavation Operations Plan dated (the "Grading and Excavation Plan"), attached hereto as Exhibit A and incorporated herein, to regulate such grading and excavating operations in addition to those provisions set forth in the Annexation Agreement. i NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees of the Town of Fraser, j County of Grand, State of Colorado: I The Grading and Excavation Plan attached hereto as Exhibit A associated with the annexation of the Property and the approval of the PDD Plan be and is approved. I The Board directs the Director of Planning for the Town to provide a copy of this Resolution to the Developer. This Resolution shall serve as an agreement binding the Developer to the aforementioned Grading and Excavations Plan. 1 INTRODUCED, READ, APPROVED, ADOPTED AND RESOLVED this day of 2013. I i TOWN OF FRASER i By: i Mayor ATTEST: j Town Clerk 6010354 1 i it i III i I 2 i I. I Planner Briefing for TB April 3, 2013 The briefing below was included in the February 6 and March 6, 2013 Town Board packet in regard to the Byers Peak Ranch PDD. 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 TOW11 Offrs ser PO Box 770, Fraser, CO 80442 oFfice 970 726 7491 f,ax 970 726 7718 residential neighborhoods. There will also be some commercial uses along the Fraser Valley Parkway to serve the residents and visitors." 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, Fraser, CO 80442 oFfice 970 726 5491 f,ax 970 726 7718 10 o add O H B CD 17'1 2 0 ale I MEN C) 0 mg. -,j 121-— All =0 C) 2 j0 171 ova Lj inn g g 14 w. d non in I us in 00 aq HE � \ \ , . . , . , , , . , , , . , , , , , . , ,. . , . . „ . : . , , -- ®° � m e � �»Q � Et m_ e qS \\\ /j3 ® \ ( }■ . 9// > \\\ 23o m 4 ` \\\ � S . r-- / \\ � 3 jE r/j y S � C OIL OR ADO Finance Update: 04/03/2013 Prepared: 03/27/2013 Transmitted with this week's packet are the Joint Facility financials for February, I know how exciting! Got the draft audit report this week, Nancy and I will be reviewing the document over the next week and will return it to the auditors with corrections and questions shortly. Again I am hoping we can have our presentation of the 2012 Audit before too long. As always please contact me with any questions or concerns you might have: 726-5491 X206 or at nhavens(a)town.fraser.co.us. TOW11 Offrs ser PO Box 770.1 Frn iser.l CO 80442 office 970 726 5491 faix 970 726 55 18 TOF-JOINT FACILITIES FUND BALANCE SHEET FEBRUARY 28,2013 JOINT FACILITIES FUND ASSETS 40-10210 JFOC CHECKING-GMB 0318047507 78,103.58 40-10215 GMB MONEY MARKET-O&M RESERVE 52,943.56 40-11550 A/R-WPR 16,859.03 40-11560 A/R-GC#1 26,892.78 40-11570 A/R-TOF 14,583.93 TOTAL ASSETS 189,382.88 LIABILITIES AND EQUITY LIABILITIES 40-20920 JFOC O&M RESERVE 189,326.02 TOTAL LIABILITIES 189,326.02 FUND EQUITY UNAPPROPRIATED FUND BALANCE: REVENUE OVER EXPENDITURES-YTD 56.86 BALANCE-CURRENT DATE 56.86 TOTAL FUND EQUITY 56.86 TOTAL LIABILITIES AND EQUITY 189,382.88 TOF-JOINT FACILITIES FUND REVENUES WITH COMPARISON TO BUDGET FOR THE 2 MONTHS ENDING FEBRUARY 28,2013 JOINT FACILITIES FUND PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT REVENUE 40-30-100 INTEREST-O&M ACCOUNTS 22.65 51.84 600.00 548.16 8.6 40-30-200 O&M REIMBURSEMENT-WPR 16,859.03 23,781.16 216,742.00 192,960.84 11.0 40-30-210 O&M REIMBURSEMENT-GC#1 26,892.78 37,934.65 345,737.00 307,802.35 11.0 40-30-220 O&M REIMBURSEMENT-TOF 14,583.93 20,571.92 187,493.00 166,921.08 11.0 40-30-900 MISCELLANEOUS REVENUE .00 5.00 .00 ( 5.00) .0 40-30-999 CARRYOVER BALANCE .00 .00 247,362.00 247,362.00 .0 TOTAL REVENUE 58,358.39 82,344.57 997,934.00 915,589.43 8.3 TOTAL FUND REVENUE 58,358.39 82,344.57 997,934.00 915,589.43 8.3 TOF-JOINT FACILITIES FUND EXPENDITURES WITH COMPARISON TO BUDGET FOR THE 2 MONTHS ENDING FEBRUARY 28,2013 JOINT FACILITIES FUND PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT PLANT EXPENDITURES 40-85-110 SALARIES 12,444.08 25,023.15 181,440.00 156,416.85 13.8 40-85-210 HEALTH INSURANCE 2,733.94 5,532.71 45,000.00 39,467.29 12.3 40-85-220 FICA TAX 887.43 1,783.98 13,880.00 12,096.02 12.9 40-85-230 RETIREMENT 497.76 1,000.92 7,258.00 6,257.08 13.8 40-85-250 UNEMPLOYMENTTAX 37.34 75.08 544.00 468.92 13.8 40-85-280 TRAINING PROGRAMS 60.00 60.00 3,000.00 2,940.00 2.0 40-85-290 TRAVEL-MEALS AND LODGING .00 .00 2,500.00 2,500.00 .0 40-85-295 MEALS-LOCAL BUSINESS .00 .00 200.00 200.00 .0 40-85-310 LEGAL FEES .00 .00 5,000.00 5,000.00 .0 40-85-320 AUDIT FEE .00 .00 5,000.00 5,000.00 .0 40-85-330 ENGINEERING FEES .00 .00 15,000.00 15,000.00 .0 40-85-350 SLUDGE REMOVAL 7,599.34 7,599.34 65,000.00 57,400.66 11.7 40-85-370 PROFESSIONAL SERVICES 232.00 464.00 20,000.00 19,536.00 2.3 40-85-375 REIMBURSABLE PROF SERVICES .00 .00 1,000.00 1,000.00 .0 40-85-410 BANK CHARGES .00 .00 100.00 100.00 .0 40-85-430 INSURANCE-PLANT .00 .00 32,000.00 32,000.00 .0 40-85-440 ADVERTISING .00 .00 50.00 50.00 .0 40-85-460 PLANT MAINTENANCE AND REPAIR 7,505.75 7,703.60 40,000.00 32,296.40 19.3 40-85-475 GROUNDS MAINTENANCE .00 .00 2,000.00 2,000.00 .0 40-85-480 EQUIPMENT RENTAL .00 .00 500.00 500.00 .0 40-85-490 PROFESSIONAL MEMBERSHIPS .00 .00 500.00 500.00 .0 40-85-500 OPERATING SUPPLIES 195.83 315.32 20,000.00 19,684.68 1.6 40-85-506 OPERATING SUPPLIES-CHEMICALS 6,213.42 12,346.84 85,000.00 72,653.16 14.5 40-85-510 EQUIPMENT PURCHASE AND REPAIR .00 .00 20,000.00 20,000.00 .0 40-85-520 TESTING 2,177.54 2,292.80 55,000.00 52,707.20 4.2 40-85-525 PERMITS .00 .00 10,000.00 10,000.00 .0 40-85-560 UTILITIES-TELEPHONE 199.58 342.62 5,500.00 5,157.38 6.2 40-85-562 UTILITIES-ELECTRICITY 15,780.30 15,780.30 95,000.00 79,219.70 16.6 40-85-565 UTILITIES-NATURAL GAS 520.00 520.00 6,000.00 5,480.00 8.7 40-85-567 UTILITIES-PLANT GENERATOR .00 .00 2,500.00 2,500.00 .0 40-85-569 UTILITIES-TRASH REMOVAL 134.87 269.74 3,500.00 3,230.26 7.7 40-85-650 VEHICLE EXPENSES 1,116.56 1,177.31 6,500.00 5,322.69 18.1 40-85-690 MISCELLANEOUS EXPENSE .00 .00 1,000.00 1,000.00 .0 TOTAL PLANT EXPENDITURES 58,335.74 82,287.71 749,972.00 667,684.29 11.0 TOTAL FUND EXPENDITURES 58,335.74 82,287.71 749,972.00 667,684.29 11.0 NET REVENUE OVER EXPENDITURES 22.65 56.86 247,962.00 247,905.14 .0 TOF-JOINT FACILITIES FUND BALANCE SHEET FEBRUARY 28,2013 JFF-CRR/CIP FUND ASSETS 47-10220 COLOTRUST 8006-CRR 188,693.72 47-10310 CB MONEY MARKET-CRR 244,005.08 47-10410 GMB MONEY MARKET-CRR 85,774.26 47-10510 CDARS-1012191266-CRR 472,324.52 47-10515 CDARS-1012193366-CRR 472,324.52 47-10521 CDARS-1014540756-CRR 379,500.06 47-10522 CDARS-1014540802-CRR 379,500.06 47-10523 CDARS-1014540837-CRR 379,449.21 TOTAL ASSETS 2,601,571.43 LIABILITIES AND EQUITY LIABILITIES 47-20910 JFOC-CRR FUNDS 21598,184.23 TOTAL LIABILITIES 2,598,184.23 FUND EQUITY UNAPPROPRIATED FUND BALANCE: REVENUE OVER EXPENDITURES-YTD 3,387.20 BALANCE-CURRENT DATE 3,387.20 TOTAL FUND EQUITY 3,387.20 TOTAL LIABILITIES AND EQUITY 2,601,571.43 TOF-JOINT FACILITIES FUND REVENUES WITH COMPARISON TO BUDGET FOR THE 2 MONTHS ENDING FEBRUARY 28,2013 JFF-CRR/CIP FUND PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT CRR AND CIP FUND REVENUES 47-30-100 INTEREST INCOME-CRR ACCOUNTS 1,607.73 3,387.20 20,000.00 16,612.80 16.9 47-30-990 CRR CARRYOVER BALANCE .00 .00 2,447,244.00 2,447,244.00 .0 TOTAL CRR AND CIP FUND REVENUES 1,607.73 3,387.20 2,467,244.00 2,463,856.80 .1 TOTAL FUND REVENUE 1,607.73 3,387.20 2,467,244.00 2,463,856.80 .1 TOF-JOINT FACILITIES FUND EXPENDITURES WITH COMPARISON TO BUDGET FOR THE 2 MONTHS ENDING FEBRUARY 28,2013 JFF-CRR/CIP FUND PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT CAPITAL RPLMNTRESERVE PROJECTS 47-60-730 CRR PROJECTS .00 .00 34,000.00 34,000.00 .0 TOTAL CAPITAL RPLMNTRESERVE PROJECTS .00 .00 34,000.00 34,000.00 .0 CAPITAL IMPROVEMENT PROJECTS 47-65-730 CIP PROJECTS .00 .00 320,000.00 320,000.00 .0 TOTAL CAPITAL IMPROVEMENT PROJECTS .00 .00 320,000.00 320,000.00 .0 CAPITAL PURCHASES 47-69-740 CAPITAL PURCHASES .00 .00 25,000.00 25,000.00 .0 TOTAL CAPITAL PURCHASES .00 .00 25,000.00 25,000.00 .0 TOTAL FUND EXPENDITURES .00 .00 379,000.00 379,000.00 .0 NET REVENUE OVER EXPENDITURES 1,607.73 3,387.20 2,088,244.00 2,084,856.80 .2 Clerks Update April 3, 2013 1 have been in contact with Dan Volpe of Serene Wellness. The State has conducted their final inspection of the property. We will be doing our inspection of the property the week of April 1St and if everything is in order we will issue our local license after receiving the State's approval and payment of fees. Wipeout is taking place on April 6th. I will be holding a Public Hearing in my office on April 1St at 8:00 am, without opposition I will issue the Special Event permit after the hearing. We are looking at scheduling the Board retreat, please pass on any dates that you will be unavailable. If you have any questions, feel free to contact me @ 726-5491 x201 or Iberger(a)town.fraser.co.us Lu C O L O R A D O PUBLIC WORKS UPDATE (As of 03/27/2013 for 04/03 meeting) WATER— Fraser Valley Elementary: PW has been working closely with the EGSD as well as the Fire District on a cost effective approach to resolving the issue of a 10-inch frozen water line that is located in the ROW of Norgren St.just west of the 1998 school addition, and which services the schools west end fire suppression system and facilities. This is the only water service on this line. Following a failed attempt to thaw the line by a private contractor hired by the school PW stepped in the next day and also made a failed attempt to thaw the line. A third contractor was hired by the district in an effort to thaw the service line from the inside of the building out to the main, again, with no success. Options looked at included 1) tearing up the roadway and thawing the line from the inside; 2) installation of a temporary `surface' water line for fire protection only; 3) placing a ground thawing machine along the 200 foot length of the line and thawing from the ground down to the line; and 4) installation of an `interconnection' line between the original fire suppression system and the new suppression system in the '98 addition. The District chose Option 3 following discussions and approval by the fire district. Options 1 and 2 would've had significant expenses related to them exceeding $23,000 for a temporary repair. The original part of the school has a water service line feeding it from the east side allowing the school to remain occupied with the exception of the library which had to be closed until fire suppression water was returned to that area. This work was completed on March 26tH SANITARY SEWER— Preparing our 2013 inspection and maintenance program for manholes and cleaning and jetting of our sewer lines. STREETS— Negotiating with our chip contractor for costs to complete the final phase (3 of 3) of chip sealing which completes all of our paved streets where chip and seal application is required. The remaining streets to be treated will be in Rendezvous and Cozens Meadow subdivisions and totals approximately 70,000 square yards. Estimated date for construction TBD. GARDENER— Planning for improvements to the `Mustang Triangle' (Sharkey's) to include a survey, locate of underground utilities and site design. OTH ER- ➢ Looking forward to the return of our two seasonal laborers to assist our utilities staff in completing our water and sewer inspection and maintenance programs. ➢ Getting cost together to present options and costs for the purchase of some overdue replacement equipment to include a new(er) street sweeper and mini Excavator. As previously mentioned this is slated for the 4/17 meeting. Questions? anordina-town.fraser.co.us or 970-531-1844. l n of IC::uIT ,,;er II ox ff7ff Il:ras r, CO 80442 oi„i`lice 970 726 5491 fax 970...7 26...551 www.fraseurv¢;doir do.¢;onu am N 00 .. N .. N .. N M �k N I/ N .. N O N W 00 L O � o i U o .. N O U') O U') O U') O U') O U') O U� N O n U� N O n U� N O N N N r-I r-I r-I r-I O O O O (a9W)Atha 113 d MOl3 3n1 NOW NnS lb'S 1W nHl (13M 3nl NOW fi NnS lb'S 1W nHl �+ 43M GJ � 3nl 3 NOW N n S lb'S L 1W Rm� i nHl 43M LL 0 � .. 3n1 " NOW s a-+ N n S cQ lb'S o G .. 1W " nHl 43M °s 3nl NOW NnS lb'S 1W nHl (13M 3nl NOW O Ln O Ln O Ln O Ln O Ln O in N O Il in N O Il in N O N N N r-I r-I r-I r-I O O O O (a9W)Atha 113 d M01 3 INFLUENT FLOWS UPPER FRASER VALLEY TREATMENT PLANT Date Day Influent GCWS#1 WPR TOF MGD Influent Flow Influent Flow Influent Flow 1-Feb-13 Fri 0.557 0.197 0.137 0.223 2-Feb-13 Sat 0.631 0.245 0.131 0.255 3-Feb-13 Sun 0.597 0.226 0.115 0.256 4-Feb-13 Mon 0.541 0.189 0.101 0.251 5-Feb-13 Tue 0.485 0.167 0.098 0.22 6-Feb-13 Wed 0.473 0.162 0.095 0.216 7-Feb-13 Thu 0.484 0.162 0.091 0.231 8-Feb-13 Fri 0.599 0.217 0.113 0.269 9-Feb-13 Sat 0.672 0.275 0.135 0.262 10-Feb-13 Sun 0.624 0.239 0.118 0.267 11-Feb-13 Mon 0.542 0.183 0.096 0.263 12-Feb-13 Tue 0.524 0.177 0.089 0.258 13-Feb-13 Wed 0.493 0.179 0.095 0.219 14-Feb-13 Thu 0.521 0.208 0.1 0.213 15-Feb-13 Fri 0.673 0.277 0.124 0.272 16-Feb-13 Sat 0.738 0.315 0.158 0.265 17-Feb-13 Sun 0.768 0.342 0.178 0.248 18-Feb-13 Mon 0.633 0.271 0.128 0.234 19-Feb-13 Tue 0.557 0.192 0.093 0.272 20-Feb-13 Wed 0.517 0.186 0.095 0.236 21-Feb-13 Thu 0.504 0.171 0.088 0.245 22-Feb-13 Fri 0.597 0.21 0.113 0.274 23-Feb-13 Sat 0.66 0.251 0.134 0.275 24-Feb-13 Sun 0.583 0.203 0.121 0.259 25-Feb-13 Mon 0.512 0.151 0.087 0.274 26-Feb-13 Tue 0.463 0.151 0.084 0.228 27-Feb-13 Wed 0.432 0.146 0.078 0.208 28-Feb-13 Thu 0.494 0.18 0.085 0.229 AVG. 0.567 0.210 0.110 0.247 MAX 0.768 0.342 0.178 0.275 MIN 0.432 0.146 0.078 0.208 C OIL OR ADO Treatment Plant Update as of March 26, 2013 • Pre-Treatment Facilities— Everything is working well going into Spring Break. The annual calibration of flow meter was performed on March 20, calibration corrections were made. • Secondary Treatment Facilities — We've experienced some computer board failures that did not register alarms to the SCADA system. Browns Hill has made some programming change to correct the issue. The RAS (return activated sludge) pumps have been programmed to maintain flow pacing with influent flows, this has been done to attempt better nutrient removal. • Disinfection Facilities —The UV system is working very well. • Solids Handling —Vibrations are still causing problems and I have been in contact with the manufacture about repairs after busy season. • Site & Landscape—Just snow removal around the plant and clearing the road. • SBR—Still frozen over. • Chemical Building —We received two bids for the project with J. T. Kopp Construction being the low qualified bidder. • Nutrient Regulations—We have updated our sampling and testing of the plant discharge and the Fraser River as a result of Regulation #85 passage. TOW11 Offrs ser PO Box 770.1 Fraser, CO 80442 oFfice 970 726 7491 faix 970 726 7718 0 o o ti Ln c � a) 0) 12 0 m O O O 0 Ln C ao O > Q p [O Q ♦+ > bA � O O G � 2 � Ql Qj ID w W p W bA > p E l0 lS7 O m p on > D E O O J V v u (D O bA Q N ti v1 D D E N - N c 0 N N p \ m m w ^ 7k � W O cz ai w q m V E ti d , T W M 0 C) N N p \ T\06 O rn o N i0 Lf)� h 00 O. E Ln 4i r O y W Q� Ql > C ? c — C t0 C o O p O O O_ O O_ O f0 N b>n O W p m a r+ Q O v1 2 N j p p � N 0 0 p E E � O w n w W W E z ao N Q Q Q J 0) 00 t0 > \ O O N t0 t0 't w m M V1 c p N 0 0 p E CIO O O Li C a; O rt�i F- bn � ll t0 m G N > Q O 0) 00 fo Q J m lf1 lf'1 m bA' I, 0 N O O p E; t0 m N O O m m o L m >. to c-I J i t _ H d J i t _ H d o > ° 'a m e £ c E E 'a m e = £ c £ £ E m CU cu ti ¢ v O o v LL ¢ � p o v LL a ,, zc a H zc = Q U --o N N m O c O v � v ti ti CL E F x o 0 y � v o w � v ti ti W D Z O a d N P £ bA n m VI 00 N N 00 00 m o m CO O M lD O M O Ql 't W O W -i CL N £ N I, to N O U1 M N VI I, n to to } N Z o>n C � pp Q VI N 7 w O W M x f0 on Q O^ M £ N D 00 D J O M O in O O to to M to n ti i bA d; M N O cf' N O O -I O O .-1',. 4>A N N J bA ._ Q Q Q O Cl to -i O W 00 ti Q C,. N Z Z Z N N N N N N N N Z T N do O u- O q > E � £ a c Q o M o r n � a 7 O .-i 7 p v m M `E w a w z C m '"'* N M O N M O M M N . ,— O .: N N N N N M m m N N N 7 D £CIO N 00 VI w O W M V bA N Q >, tOO a O d' O 4y O O a v M Ln Q m O T m D � o u VI M M n O n Ln N 7 y 00 Iq O d n Uj nj N N N N N N N cy S° M ('� J f0 m c £ E E J f0 m c £ s E E £ Q a v i u £ Q = a u > u v ¢ p o v v ¢ p o v CL " in z C a W in z C March 2, 2013 To: Fraser Board of Trustees and Town of Fraser Staff This letter is to be included in the public hearing on Byers Peak Ranch Annexation on March 6, 2013. The document titles "Draft Annexation Agreement" is really two documents which should be separated. The PDD should be addressed and approved or not, standing on its own, rather than as a package with the annexation agreement. Has the current Board discussed the PDD in detail? This proposed development is encouraging sprawl. Sprawl has been the blight and death of many downtowns. The Town of Fraser seems to be trying to promote the business district, but this development is in contradiction with those efforts. The amount of commercial space proposed seems to invite non-locally owned businesses. Only a small amount of each dollar spent at non-locally owned businesses stays in the community as opposed to a majority of each dollar for locally owned businesses. I suggest some stipulation on the maximum square footage any one business can occupy. I really don't want to hear the Board cannot do this, as other communities have done so. I have serious concerns about the great amount of subsidies proposed for the developer, especially for the water taps, and for future additional costs of this proposed development to the Town, property owners and water and sewer customers. The Developer must be responsible for the costs of building his development. The Town and its residents and property owners must not be required to share in those expenses. Town action on this project must be tabled until the Board and staff has had proper time to review all the related documents and give due consideration to the ramifications they will bring to bear. Also, past compliance by the developer should be looked at in detail. Sincerely, do_xlr�� e- Connie Clayton PO Box 263 Fraser Co 80442 Editor Sky Hi Daily News Dear Editor, I've been a property owner in Fraser and lived in the Valley for more than 40 years. During that time, I've occasionally asked a neighbor for help and plenty of times I've helped a neighbor who needed it. For me, Fraser and Grand County have always been that sort of neighborly place. The developer of Byer's Peak Ranch,who has proven he is no neighbor anyone would want, has come to Fraser for a handout. Like a bum with a cardboard sign, he stands there with empty hands, bringing nothing that will make Fraser a better place to live. Instead of considering the age and condition of the existing water supply and helping upgrade it to meet his needs, he's asking for free water taps. Free water taps? How on earth is that going to help us fix the school's water supply? You probably remember the one that froze up last week. Some folks might not know much about Fraser's water supply. I've kept a piece of it that I dug up out of Mill Avenue a few years back and honestly, it looks like something you would expect to find in a street ripped up in the Haitian hurricane. Unfortunately, it's typical of a lot of the old Fraser pipe that hasn't been dug up yet. I ask everyone to think long and hard before anyone gives away a single tap, let alone the thousand he wants. I am convinced this is no deal for Fraser. Why should we reach into our pocket to make Fraser a better place for this developer? All he wants is to take from us. He wants to take away the view of Byers Peak and is already ripping out migratory wetlands to do so. In exchange, he's offered to turn Saint Louis Creek into a six-acre cesspool and clog our roads with his Denver contractors for the next 35 years. This is no deal for Fraser;this is no deal for Grand County;this is no deal for any sane community. Jay Clough Fraser 6 I / el C` May 30, 1989 Fraser Board of Trustees P.O.Box 20 Fraser, CO 80442 Re: Byers Peak Vista Dear Trustees: I ask the Fraser.Town Council to scrutinize and evaluate the obligations and track record of the developer(s) before annexing the Byers Peak Vista Trailer Park, industrial complex, etc. Given the past and present economic environment within the Fraser Valley and the West in general:Iurge that the developer of Byers.Peak Development In.c. supply the Town of Fraser an irrevocable F.D.I.C. insured letter of credit. This letter of credit would,in.fact,indemnify the Town.(taxpayers)for any and all costs the Town may incur for improvements to be completed on roads,water,sewer,landscaping,and attorney's fees. (In defense of possible litigation pertaining to this project). It is my belief that the taxpayers of Fraser should have no risk when dealing with highly speculative investors and unknown developers_ .. If this letter of credit were instrumented the taxpayers of Fraser would be protected against the downside risk and the obligation would fall on the speculator. Without this letter of credit I implore that the Byers Peak Vista annexation. be terminated. Respectfully, 7 Jay G. Clough /dlo cc: Winter Park Manifest Byers Peak Ranch Patty Sue (Motor) Coulson 195/195 Mill Ave Fraser, CO Thank: Town Staff& Board for opportunity for community to speak on annexation Personally in favor of annexation: • Would prefer town take a tighter reign on density numbers and height of buildings • Is the town really taking control or are they allowing the developer a free hand for the Town's financial gain? S;+ LV-�' • Commercial development—why add another commercial area aFid work to in-fill what we have. We need to eliminate commercial from this area. HoweveUl apposed to the RV Park& Adventure Park. Tr- Most of us would prefer the Developer to be more like a"Steward of the Land" • What are the prospects of. Historic Status • Open Space & Mtn Parks • Boulder now has a"Rural Historic Landscape" • We should protect our view corridors Do we want to turn into the next Highland Ranch, etc? • Do you see the real estate features in the Denver Post—they could be Grand Park � P �__ Why do people fall in love with our community then want to change it to be like where they came from? (Tiny Boxes—"and they all look the same" d for, land r-U11- By Eric a Meltzer " .laaily Camera eta sa The fields south- east ofl 6ulder are dotted in the spring with the dark shapes of cows„ahA,ilreir new calves. - That sce e plays out every year,decade` fter decade,along a stretch 'f l f hway that is oih- erwYSe:flanked:by shopping malIs,office pads arid;subd�vi- = lions because Boulder bought tip ranchland go en space. I�Tow boulder Ogren Space and Mountain Parks js working with'a team from the University of Colorado Beaver's Center of Preservation Research to have the area declared a rural histor- ie landscape: The designation is issued by the National,Register of histor- ic Places. Instead of recogniz- ing a,single building,the,desig- nation recognizes"a geographi- cal area..that historically,has been used by people or shaped or modified by human activity. ...and that possesses a signifi- cant concentration, linkage or continuity of areas of land use, vegetation,buildings and struc- tures,roads and waterways,and ! natural features;' Abigail.Christman, a survey coordinator with the Center of Preservation Research, has been`workingwith four gradu- ate students to document the Cherryvale area's features and history. "It's a, great, intact land- scape,”Christman said. Christman said the corridor along U.S.36 is one of the only areas in the entire Denver met- ro area where historic ranch buildings are still surrounded by ranch land that is still used for pasture. Public Hearing Comments - Byers Peak Properties Annexation Request Jane Mather, April 3, 2013 Thanks once more to the Town Board,staff and counsel for all of their hard work. There have been lots of great comments from others in this public hearing and past hearings, so I want to address another issue-process. If you want to read some of my questions and comments., I've created a facebook page, facebook.com/fraserfrd. I'm am copying this information and submitting it to the town on a regular basis to be part of the public record. You can also add your own. If you don't have a facebook account, I can provide a way for you to access it. So on to "process." This is the third meeting you have asked us to provide public comment, Is this approach"Continuing to ask us for comments,without providing the information that we think we need to provide comments, "a good use of our time? More infuriating is that every time interested landowners and residents try to get more information to answer our questions and concerns, all we get is "Trust Us." Take a look at the counsel's latest memo or the staff report. These aren't answers,they are too general-basically they say,Trust Us. Or we've heard there's too much information and it's too complicated-Trust Us. If you can't explain it,you don't understand it,and you shouldn't be making a recommendation. As well,it's an insult to us to say that we aren't smart enough for us to understand. Or, it's a risk to the Town to provide this information during the negotiations-Trust Us. Yes,some of the information should be confidential,but our questions are about basic facts. Facts that the Clark Lipscomb and the Byers Peak Properties staff likely already know. So,without answers and not willing to "trust you," many of us are spending hours and days researching this information so that we can try to understand whether the proposed annexation is in the best interest of the Town. And the more I learn,the more concerned I am. But I'm focusing on process. Public Hearing Comments-Byers Peak Properties Annexation Request 2 Jane Mather,April 3,2013 At one hearing,we asked counsel about all the Executive Sessions and whether they were consistent with Colorado Open Meetings Law. He said yes,because they are discussing a negotiation. Puzzled about what rights the Town has to keep this information private, I started researching the Colorado Open Meetings. I found a summary by Geoff Wilson, general counsel for the Colorado Municipal League,the organization that advised Elected Officials,that provides a review of the Open Meetings Law, often and related court cases. Reading these comments,it seems the Town may have some requirements to provide us with more information. http://www.cml.org/uploadedFiles/CML-Site_Map/_Global/training/boards_meetings-wilson.pdf Wilson notes that the underlying principle of the Open Meetings Law is that the formation of public policy is the public's business and therefore should not (generally) be conducted in secret. According to the Colorado Supreme Court, "the democratic government best serves the commonwealth if its decision processes are open to the public scrutiny." Of course, as counsel Ferguson noted,there are exceptions for which private discussion may better serve the public interest. "Determining positions and development strategy for negotiations and instructing negotiators, 24-6-402 (4)(e)." "Conference with an attorney for legal advice, except that the presence of the attorney alone does not meet this requirement, 24-6-402(4)(b) But,the"mere presence or participation of an attorney at an executive session of the local public body is not sufficient to satisfy the requirements of this subsection (4);" Note these discussions are not about basic facts and public information,they are about discussing the negotiations and receiving legal advice. Further,the governing body may only call an executive session at a regular or special meeting,a meeting for which the public has received appropriate notice. This requirement means that the Manager and the Board should be presenting basic information and then voting to go into Executive Session for discussion of the public information. Court challenges have concluded that the Board's activities cannot all be conducted in Executive Sessions as they are in Fraser. Public Hearing Comments-Byers Peak Properties Annexation Request 3 Jane Mather,April 3, 2013 Wilson: "The governing body cannot utilize a subsequent open meeting to simply"rubber stamp"the position adopted by it while in executive session. " (Littleton Educ.Assoc.v.Arapahoe County Sch. Dist, No 6, 553 P.2d 793, 798 (Colo. 1976); Bagby v. School Dist. No. 1, 528 P.2d 1299, 1302 (Colo.1974); Hudspeth, supra, 667 P.2d 775 (Colo. Ct.App. 1983). The public cannot"participate in a public meeting if[it] witnesses only the final recorded vote." (Bagby.. .) "The Court of Appeals has held that Open Meetings Law requirements apply to the quasi- judicial meetings of local bodies." (Lanes v. State Auditors Office, 797 P.2d 764 (Colo. Ct.App. 1990) In fact, our counsel has the right to make the recommendation to the Town Board,that these Executive Sessions are in the Town's best interest. But as a landowners,we can consider whether we should file a complaint with the state Attorney General. I also found another reason that our town management and counsel to believe that the Trust Us is the best approach to Town government. In my research I found a document titled"Nine Practices of Highly Ineffective Councils and Boards," posted by the Colorado City and County Management Associations (CCCMA). While the Colorado Municipal League audience is elected officials,this a statewide association of local government managers and assistants. They note that a major problem is that Town Boards, and of course,land owners residents cause problems by "Reviewing, rehashing,redoing," some boards spend a great deal of their time going over what the staff has already done. But as the author [of the book quoted in this article] says, "reviewing,rehashing,and redoing staff work-no matter how well- do not constitute leadership"! Instead the author notes: As the representative body for the citizens-the true "owners" of the community- your job is to exercise ethical and trusteeship responsibilities on behalf of the Public Hearing Comments-Byers Peak Properties Annexation Request 4 Jane Mather,April 3,2013 ownership.Viewed in that light, it becomes apparent that neither the championing of management decisions, nor substituting your judgment for that of staff, are part of those responsibilities. You determine the"ends." Leave the"means"to the staff. Briefly, "ends" are the results or outcome to be obtained or the impact to be made, for whom,and at what cost or relative worth.You could call the "ends"the"what and the why." Everything else falls into "means," or the"how." Once you determine the "ends," give staff the latitude to determine the "means." If the governing body becomes involved in means,you may be simultaneously impairing your staff's ability to exercise their best judgment, and crippling your ability to hold them accountable for the achievement of the ends. In other words,just wait and see if it works. When there are so many glaring questions and so many risks, I'm not willing to wait and find out what happens - is Byers Peak Properties going to follow the contract,will there be enough water for this large a development,will 7- story-high buildings destroy the small-town environment that brings tourists here,will the Town need to increase fees and taxes because we don't collect appropriate fees for this development? We can't just sit back and watch, and trust them. Further,when they are unwilling to answer questions and all meetings are behind closed doors,we have even more reason not to trust them. If they were making reasonable decisions,they would have the knowledge, ability and willingness to answer our questions. If not,it appears to me that they don't really understand the issues well enough to be making these recommendations. So what's going to happen next? In the 1980s,the Town approved a major development for the land where Safeway is located,but the voters petitioned for an election,and the development was rejected and now we have fewer buildings and more ponds. According to state statute CRS 31-12-107, it only takes 40 people to sign a petition requesting an election on the proposed annexation. It will cost the town money and we may end up with the County managing the development process,but considering the risks of the current proposal, I think this approach is worth the risks. OPEN MEETINGS Sunshine laws generally—An overview All 50 states,as well as the federal government,have enacted a variation of the initial"Sunshine Laws"passed by Florida and California in the 1960s.Colorado's Open Meetings Law was an initiated statute approved by the voters in 1972.'The Colorado law exercises authority over public official disclosurez lobbyists,3 and meetings.'This publication is limited to discussion of that portion of the Open Meetings Law governing meetings,and particularly as those provisions affect municipalities. The Colorado Open Meetings Law As originally enacted,the Open Meetings Law applied only to state government bodies,and contained no exceptions or executive session provisions.Until 1991,meetings of municipal bodies were governed by a different statute,the Public Meetings Law.'The Public Meetings Law served many of the same purposes as the Open Meetings Law,but was far more general in nature.The lack of specificity and guidance provided by the Public Meetings Law prompted the General Assembly to repeal it and bring local governments under the purview of the Open Meetings Law.'Due to the similar goals of the Public Meetings Law and the Open Meetings Law,much of the case law developed under the now-repealed Public Meetings Law should carry forward and assist in applying the Open Meetings Law.Cases decided under both laws are thus cited throughout this publication. This publication will answer the most common questions concerning the requirements of the Open Meetings Law. •Who is covered? What is a"meeting"? When are"executive sessions"permitted? What advance notice of a meeting is required? What exemptions are there? What happens when the law is violated? The Colorado Supreme Court has described the Open Meetings Law as"reflect[ing]the considered judgment of the Colorado electorate that democratic government best serves the commonwealth if its decisional processes are open to public scrutiny."On the few occasions that appellate courts in Colorado have reviewed government actions for compliance with the OML,courts have balanced this ideal with the practical obstacles that often face officials when conducting the business of the people. Because Colorado courts have not been called upon to examine many aspects of the Open Meetings Law,guidance in many areas is somewhat limited.This publication is intended to serve as a guide to some of the more fundamental aspects of the law,and should not be used as a substitute for reasoned legal advice.The reader is urged to consult with the municipal attorney concerning any specific questions. Locally-adopted open meetings procedures The Colorado Court of Appeals in 1996 issued a ruling that may pave the way for municipalities to legislate in areas not addressed in the state statutory scheme.In upholding a statutory town's local ordinance establishing a procedure for emergency meetings,the court relied heavily on the presumption that local ordinances and state statutes should be reconciled.if possible,and effect given to both.'Only when the statute and the ordinance contain express or implied conditions that are irreconcilable or are"inconsistent and irreconcilable with one another"does a true conflict exist.` 1 Colorado Sunshine Law,Ch.456,1973 Cob.Sess.Laws.1660. 2 "24-6-301-309,C.R.S.(Regulation of Lobbyists). 3 "24-6-401-402,C.R.S.(Open Meetings Law). 4 "24-6-401-402,G.R.S.(Open Meetings Law). 5 "29-9-101,C.R.S.(Public Meetings Law). 6 1991 Colo.Sess.Laws 142. 7 Benson v.McCormick,195 Colo.381,383,578 P.2d 651,653(Colo.1978). 8 Lewis v.Town of Nederland,934 P.2d 848,851(Colo.CL App.1996), 9 Id.at 851. COLORADO MUNICIPAL LEAGUE 3 Home rule municipal charters or ordinances may contain additional,or perhaps different,open meeting procedures. Although the Open Meetings Law contains a declaration of"statewide concern,""the power of the General Assembly to bind home rule municipalities in this area has not been tested," Scope of the Open Meetings Law: "Local public bodies"and "meetings" The OML imposes open meeting,notice,and minutes requirements on"meetings"of"local public bodies."The definitions of these two critical terms determine the reach of many OML requirements. What is a"local public body'? The OML defines a"local public body"to include any board,committee,commission or other policymaking,ruiemaking, advisory or formally constituted body of a political subdivision of the state,such as municipalities.12 Additionally,any public or private entity that has been delegated any"governmental decision-making function,"is a"local public body"and must conduct its meetings consistent with the Open Meetings Law."However,"persons on the administrative staff of a local public body are specifically excluded." What constitutes a"meeting"? The Open Meetings Law defines a"meeting"as"any kind of gathering,convened to discuss public business,in person,by telephone,electronically,or by other means of communication."15 In a decision affecting the scope of the OML as a whole,the Colorado Supreme Court has provided important direction concerning what sort of meetings are covered by the Open Meetings Law.The Court clarified that for a"gathering"to be subject to Open Meetings Law requirements"there must be a demonstrated link between the meeting and the policy- making powers of the government entity holding or attending the meeting.""The Court went on to explain that such a link exists when the meeting is"convened to discuss or undertake...a rule,regulation,ordinance,or formal action.""On the other hand,"merely discussing matters of public importance,"does not trigger the requirements of the Open Meetings Law." Meetings conducted by"telephone,electronically,or by other means of communication" Technological advancements have provided various methods for public officials to confer;conference calls and other once nontraditional forums for discussion are now commonplace with many local public bodies.In response,the General Assembly has included electronic,as well as"other means"of communication under the statutory definition of"meeting."'a In adding electronic communications to the statute,the General Assembly noted the unique circumstances that the use of e-mail and the like create,and the need to balance the privacy interests of public officials with the public's interest in open governance.20 The Open Meetings Law now explicitly subjects the e-mail communication of elected officials that discusses pending legislation or other public business to the statutory requirements.21 Chance meetings and social gatherings The Open Meetings Law provides expressly that chance meetings or social gatherings of public officials"at which discussion of public business is not the central purpose",are not subject to the provisions of the Open Meetings Law." 10 '24-6-401,C.R.S. 11 The Colorado Court of Appeals has recognized the authority of home rule municipalities to enact their own rules and regulations governing open meetings;however this decision did not involve a conflict between a local provision and state law,so the Court did not rule directly on whether home rule provisions supersede conflicting requirements of the Open Meetings Law.Glenwood Post v.City of Glenwood Springs,731 P2d 761,762(Colo.Ct.App.1966). 12 24-6-402(1)(a),C.R.S. 13 Id. 14 id. 15 24-6-402(1)(b),C.R.S. 16 Board of County Commissioners of Costilla County v.Costilla County Conservancy District,88 P.3d 1188.1194(Colo.2004).Additionally, the Court of Appeals has held that Open Meetings Law requirements apply to the quasi-judicial meetings of local public bodies.Lanes v State Auditors Office,797 P.2d 764(Colo.Ct.App,1990). 17 Id. 18 Costilla County,88 P.3d at 1191 19 '24-6-402(1)(b),C.R.S,Of course.a meeting is also described as a"gathering"which,in the context of e-mail communications,is pre- sumed by many municipal attorneys to imply that such e-mail communications must occur in a"chat-room"format or otherwise be very contemporaneous,in order to constitute a"meeting."At this writing however,no Colorado court decision had adopted this presumption. 20 3.gvg 1996 Colo.Sess.Laws 1479(legislative declaration).For a judicial perspective on this balance,see:Denver Pub.Co.v Board of County Com'rs of County ofArapahoe,121 P.3d 190(Colo.2005). 21 '24-6-402(2)(d)(III),C.R.S.This requirement presents numerous potential practical problems for local government officials seeking to comply with the openness,notice and other requirements of the Open Meetings Law,in the e-mail context.Close consultation with the municipal attorney is advised. 22 '24-6-402(2)(e),C.R.S. 4 OPEN MEETINGS,OPEN RECORDS Retreats Under the OML's expansive definition of"meeting,"any kind of"gathering"to discuss public business can qualify, regardless of how it may be labeled.Thus,if the retreat is attended by three or more members of the local public body,or by a quorum of the body(if fewer than three),the retreat qualifies as an open meeting,to which requirements for notice may also apply.23 However,an unlimited number of administrative staff members may attend the retreat without triggering OML requirements,due to the specific exclusion of administrative staff from the"local public body'definition.14 See Appendix 1 for sample meeting procedures. The "openess"requirement Whenever three or more members(or a quorum of the members,if fewer than three)of the"local public body"get together and public business is discussed,or formal action may be taken,the gathering is a meeting that the OML directs shall be open to the public.25 Providing notice of the meeting The public cannot exercise its right to attend open meetings unless given sufficient notice.Therefore,the Open Meetings Law requires that the public receive"full and timely notice"of any meeting held.26 The statute prescribes the notice requirement as follows: Any meetings at which the adoption of any proposed policy,position,resolution,rule,regulation,or formal action occurs or at which a majority or quorum of the body is in attendance,or is expected to be in attendance,shall be held only after full and timely notice to the public.In addition to any other means of full and timely notice,a local public body shall be deemed to have given full and timely notice if the notice of the meeting is posted in a designated public place within the boundaries of the local public body no less than twenty-four hours prior to the holding of the meeting. The public place or places for posting such notice shall be designated annually at the local public body's first regular meeting of each calendar year.The posting shall include specific agenda information where possible." "Full and timely"Notice The statute does not specify or limit what may constitute"full and timely"notice.The statute does provide,however,as an example of full and timely notice,posting notice of a meeting in a designated public place twenty-four hours before the meeting 21 There are doubtless other forms of"full and timely"notice. Indeed,the courts have found that the notice provisions of the Open Meetings Law establish a"flexible standard",the requirements of which may vary depending on the particular type of meeting involved. The Supreme Court has explained that,in determining whether a given notice is"full,"for purposes of the OML,courts will apply"an objective standard,meaning that a notice should be interpreted in light of the knowledge of an ordinary member of the community to whom it is directed."30 See Appendix.2 for examples of meeting notices. Emergency meetings Unlike similar statutes from other states,the Colorado Open Meetings Law contains no reference to emergency meetings, which by their very nature present a challenge in terms of public notice.The Colorado Court of Appeals has recognized the need for municipalities to hold emergency meetings on occasion,and has upheld an ordinance providing for such meetings without prior public notice.where action taken would be ratified at a subsequent public meeting for which full and timely notice is provided.31 The court defined an emergency as"an unforeseen combination of circumstances or the resulting state that calls for immediate action,"' and acknowledged that the notice requirement may be affected by the type of 23 §24-6402(2)(c).C.R.S. 24 §24-6402(1)(a),C.R.S. 25 §24-6402(2)(b),C.R.S.Note that while the participationo f three or more members will trigger"openness"requirements,an anticipated "majority of quorum'is required in order to trigger notice obligations.See 24-6402(2)(c),C.R.S. 26 §24-6402(2)(c),C.P..S. 27 Id. 28 The Supreme Court has clarified the OML requirement that posted notices include"specific agenda information where possible." It is "possible"to include in such notice only whatever specific agenda information was"available at the time of posting"the notice.Town of Marble v.Darien,181 P.3d 1148,1155(Colo.2008). Furthermore,the Court in Town of Marble found that general agenda topics permit- ted action thereon,as"the possibility of formal action is inherent in consideration of topics at public meetings'The fact that the agenda did not specifically forecast action on the topic did not render the notice less than"full" Id. 29 Town of Marble.supra,181 P.3d 1148,1152(Colo.2008):Benson,supra,195 Colo.at 383,578 P.2d at 653(1978);Lewis,supra.934 P.2d at 851;VanAlstyne v.Housing Authority of the City of Pueblo,985 P.2d 97,100(Colo.CL App.1999), 30 Town of Marble,supra,188 P.3d 1148,1152(Colo.2008) 31 Lewis,supra. But see:VanAlstyrl supra,as to the limits of subsequent ratification of action taken in prior non-emergency meeting held without proper notice. 32 Id.(quoting Webster's Third New international Dictionary(2005)). COLORADO MUNICIPAL LEAGUE 5 meeting involved.33 While this decision finds no conflict between a local emergency meeting ordinance and the Open Meetings Law,officials should remain mindful of the law's intent and give as much notice as possible under the circumstances. Direct notification requirement The Open Meetings Law contains a provision requiring the clerk to maintain a list of persons who have requested,within the previous two years,direct notification of meetings."The person requesting direct notification can designate all meetings,or can limit the request to meetings when specified policies will be discussed.31 The clerk is required to provide these persons with"reasonable advance notice"of such meetings.The statutes specify neither what type of notice nor what time frame will be considered"reasonable;"36 however,it is provided that unintentional failure to give this direct notification will not invalidate actions taken at an otherwise properly noticed meeting.37 Minutes The clerk,or other official in the clerk's absence,must take the minutes of any meeting of the local body"at which the adoption of any proposed policy,position,resolution,rule,regulation,or formal action occurs or could occur."38 Thus,while the Open Meetings Law requires that most meetings at which public business may be discussed are open,the possibility of some sort of formal action is necessary to trigger the minutes requirement.If an executive session is called at any point during the meeting,the minutes must reveal the topic of discussion in the executive session39 After the meeting,the minutes must be promptly recorded and are considered a public record open to inspection.40 Many clerks utilize recording devices from which the actual"minutes"are transcribed at a later date.If an electronic recording serves as the actual minutes of the jurisdiction,the OML requires that,if electronic recording was the practice as of Aug.8, 2001,the jurisdiction must continue to electronically record its open meeting minutes.41 Executive sessions Because the underlying principle of the Open Meetings Law is that the formation of public policy is the public's business and,therefore should not(generally)be conducted in secret,the exceptions to"openness"provided in the OML,are limited to topics where the General Assembly has determined that private discussion may better serve the public interest. Topics of executive sessions Executive sessions are private meetings of the public body from which the general public is excluded.Executive sessions are permitted under the OML for consideration of the following topics: Property transactions:An executive session may be held to discuss the purchase,acquisition,lease,transfer or sale of real,personal or other property interests,so long as the executive session is not held to conceal an official's personal interest in the property.42 Attorney conferences:Although the mere presence of an attorney does not justify an executive session,the governing body may call an executive session"for the purposes of receiving legal advice on specific legal questions."43 Confidential matters under state or federal law:If any state or federal law requires confidentiality of a particular matter to be discussed,an executive session may be called.When announcing that it will go into executive session for this purpose,the governing body must announce the specific statutory citation or rule that requires the confidentiality of the matter to be discussed."' Security arrangements or investigations:The specialized details of security arrangements or investigations may be discussed in executive session." Negotiations:A governing body may call an executive session to"determine positions relative to matters that may be subject to negotiations,"develop a"strategy for negotiations,"and instruct the negotiators.4 33 Id. 34 §24-6-402(7),C.R.S. 35 Id. 36 Id. 37 Id. 38 §24-6-402(2)(d)(II),C.R.S. 31) Id. 40 Id. 41 9 24-6.402(2)(d.5)(II)(A),C.R.S. 42 §24-64102(4)(a),C.R.S. 43 §24-64102(4)(b),C.R.S. 44 §24-6A02(4)(c),G.R.S.See e.g..Gi/lies v Schmidt,556 P.2d 82,86(Colo.Cf.App.1976). 45 §24-6-402(4)(d),G.R.S. 46 §24-6-402(4)(e),C.R.S.This is an apparent exception to the general prohibition on adoption of a formal position in executive session. See§24-6A02(4),C.R.S. 6 OPEN MEETINGS,OPEN RECORDS Personnel matters:Personnel matters may be discussed in executive session.However,if the discussion involves a specific employee,that employee may request an open meeting.If the discussion involves more than one employee, an executive session may be held unless all of the employees request that the meeting be open to the public.47 While "personnel matters"is not defined,it is provided that this term does not include discussions of any member of a local public body,any elected official,the appointment of any person to fill a vacancy in a local public body or elected office,or discussion of personnel policies that do not require discussion of particular employees.41 Documents protected under Open Records Act:Discussion that involves consideration of documents protected by the mandatory non-disclosure provision of the Open Records Act may be held in an executive session.However, discussion of documents protected under the"work product"or"deliberative process"privileges in the Open Records Act must occur in an open meeting unless an independent basis for an executive session concerning such documents exists.'a The sections of the Open Meetings Act specifying the permitted topics for discussion in executive session have not been interpreted by the courts,and many are open to varied interpretations.Councils or boards often consider other factors, beyond the legal question of whether an executive session may lawfully be held when determining whether to close a meeting to the public.Executive sessions are often controversial.While the statute may permit an executive session for discussion of a particular topic,sometimes the most politically productive way to confront an issue is during an open meeting. Procedure for calling an executive session The governing body may only call an executive session at a regular or special meeting.50 While the Open Meetings Law requires"full and timely notice"of the regular or special meeting,nothing in the statute requires any particular notice of the governing body's intention to hold an executive session as part of that meeting.Thus,there is apparently no notice requirement that would impair the governing body from spontaneously calling an executive session during one of its meetings. The governing body must first announce the topic of discussion,including the specific citation to the OML that authorizes consideration of the announced topic in executive session,as well as"identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized."The body must then vote on whether to hold the session for discussion of the topic(s)announced.Two-thirds of the quorum present must vote affirmatively before the governing body can close the meeting to the public."The minutes of the regular or special meeting must reflect the topic of discussion at the executive session.vz Colorado's Court of Appeals has held that failure to comply with the procedural prerequisites of an executive session can result in an executive session not being convened.The session is simply part of the open meeting,and the record of such session is thus open to full public inspection,under the Colorado Open Records Act s3 Sample executive session procedures are provided in Appendix 1. Deliberation is the purpose... The purpose of calling an executive session is merely to deliberate on sensitive matters that could be compromised by premature public disclosure,and no"adoption of any proposed policy,position,resolution,rule,regulation or final action" may be taken in executive session.54 The discussion on the record at the open meeting must indicate what policy considerations and motivations led to the final decision.55 Further,the governing body cannot utilize a subsequent open meeting to simply"rubber stamp"the position adopted by it while in executive session."The public cannot"participate in a public meeting if[it]witnesses only the final recorded vote."s7 47 §24-6-402(4)(f)(1),C.R.S.See also Gumina v City of Sterling,119 P.3d 527,532(Colo.CL App.2004). (Finding,by extension,that prior notification of employee to be discussed is a condition precedent to a lawful executive session,if the session is announced to discuss personnel matters). 48 §24-6-402(f)(11),C.R.S. 49 §24-6-402(4)(8),C.R.S.;See also infra pages 20 to 26(discussing items falling under the mandatory non-disclosure provisions of the Open Records Act). 50 §24-6-402(4),C.R.S. 51 !d. 52 §245-402(2)(d)(II),C.R.S.;Prior to a 1996 amendment this statute required the minutes to reflect the"general topic'of the executive decision.The effect of this amendment is unclear. Presumably,the minutes should indicate the topic of discussion at the executive session with at least the same specificity as the public announcement of the topic prior to the session pursuant to'24-6-402(4),C.R.S. 53 Gumina,119 P.3d at 527 54 §24-6-402(4),C.R.S.;Hudspeth v.Board of County Commis,667 P.2d 775,778(Colo.Ct.App.1983);Einarsen v City of Wheat Ridge, 604 P.2d 691,693(Colo,Ct.App.1979). But see Note 46 regarding negotiating positions. 55 Hudspeth,supra,667 P2d at 778 56 Littleton Educ.Assoc.v Arapahoe County Sch,Dist.No.6,553 P.2d 793,798(Colo.1976):Bagby v School Dlst No.1,528 P.2d 1299, 1302(Colo.1974);Hudspeth,supra,667 P.2d 775(Colo.Ct.App.1963). 57 Sagby,supra,528 P.2d at 778 COLORADO MUNICIPAL LEAGUE 7 The executive session record The Open Meetings Law requires that executive sessions be electronically recorded.SB The executive session record must be retained for at least ninety days following the date of the executive session.59 The record may then be disposed of,as are other government records,consistent with the local government's records retention policy.60 The requirement that a record be made of the executive session is solely to permit policing of the requirements that discussion in an executive session focus solely on the matter(s)for which the session is called and that the session be used for deliberation only,rather than for decision making.Thus,the Open Meetings Law provides that the executive session record is not a public records'and may only be reviewed by a judge,following certain preliminary showings,to determine if the body stayed substantially"on topic"and did not engage in unlawful decision making 6z Penalties for violation of Open Meetings Law The underlying goal of sunshine laws is to create an atmosphere of openness in public matters,not to"punish"those who violate the provisions.In keeping with this prevailing philosophy,the Colorado law contains no criminal sanctions for noncompliance.Persons seeking redress for alleged violations of the Open Meetings Law must satisfy conventional "standing"requirements,that is,they must show an"injury in fact to a legally protected interest."" Although members of governing bodies do not risk criminal punishment for transgressions,any action taken at a meeting that does not comply with the Open Meetings Law requirements is void ea Courts may also enforce the requirements of the Open Meetings Law through injunction.66 Of course,there is also the potential for a serious loss of confidence in the government when official actions are invalidated because laws aimed at assuring open government are violated. Furthermore,after in camera review of an executive session record,the court may make public any portions of the record that reveal the body getting substantially"off topic"or engaging in unlawful decision-making while in executive session,', Finally,if the court finds that a public body has violated the Open Meetings Law,it must award the prevailing citizen or citizen's costs and reasonable attorney fees-67 A prevailing public body,on the other hand,may only be awarded costs and attorney fees if the court finds the action frivolous,vexatious or groundless 6, Special provision regarding chief executive officer search committee procedures A"search committee"of a local public body is required to take the following steps,in connection with a search for a"chief executive officer of an agency,authority,institution,or other entity,"in an open meeting: establish job search,including writing the job description; set the deadline for applications;and • formulate the requirements for applicants,the selection procedures,and the time frame for appointing or employing the chief executive officer.G9 A list of finalists must be made public no less than 14 days prior to the date on which one of the finalists is appointed or employed.70 58 §24-6-402(2)(d5)(I1)(A),G.R.S. 59 §24-6-402(2)(d.5)(II)(E),C.R.S. 60 Required pursuant to§§24-80-101-112,C.R.S. 61 §24-6-402(2)(d.5)(II)(D),C.R.S, 62 See,generally,§24-72-204(5.5),C.R.S. The Open Records Act requirements concerning how executive session records are reviewed are discussed on page 32. 63 Pueblo School Dist.v Colorado High School Activities Assoc.,30 P3d 752,753(Colo.Cf.App.2000)(Plaintiff with actual notice of meeting lacks standing to complain of district's alleged failure to provide"full and timely notice"). 64 §24-6-402(8),C.R.S.;Seg Gray v.City of Manitou Springs,598 P,2d 527,529(Colo.CL App.1979). 65 §24-6-402(9),C.R.S. 66 §24-72-204(5.5),C.R.S.and page 30 infra. 67 Id.Furthermore,this award does not require that the violation be"knowing or intentional."Zubeck v.E)Paso County Retirement Plan, 961 P.2d 597,601-602(Colo.Ct.App.1998) 68 §24-6-402(g),C.R.S. 69 §24-6-402(3.5),C.R.S.Among the questions raised by this language,which was first added to the statute in 1996(H696-1314;1996 Colo.Laws,Ch.147)is the extent to which this statute may apply when a local government does not formally designate a"search committee,"as when the governing body itself conducts the process of hiring a chief executive officer.Also unclear is the potential scope of the term"chief executive officer;"it seems clear that at least city managers,in municipalities utilizing the council-manager form of government,would be included. 70 §224-6-402(3.5),G.R.S.The statute does not specify how this list is to be made public.For the definition of"finalist,"as used in this statute,see§24-72-204(3)(a)(XI),C.R.S. 8 OPEN MEETINGS,OPEN RECORDS ---------------—------—------------------------—--------------------- -----------------------—-------- I ' is COLORADO INTERGOVERNMENTAL RISK SHARING AGENCY a.. LINE ELECTED OFFICIALS CIRSA LIABILITY BULLETIN SPECIAL INSERT �1't�at,/a,Tanoue,General crwalffms fiAa� } Recently,CIRSA management staff became That Make a Difference:A New Design a source of frustration for both the bodyrs acquainted with John Carvers Polity for Leadership in Nonprofit and public members and the staff who serve it. Governance®model(Model)for boards of Organizations(3rd ed.2006),is highly public and nonprofit bodies.This month's recommended reading. DO ANY OF THESE column provides some observations about the tough job of governing body members, For those who've labored in local PRACTICES RING A and some of the ways in which a council or government for any length of time,Boards That Make aDif/erence will provide BELL? board can allow its effectiveness to be some laugh-out-loud moments of self- diminished or compromised.To understand recognition.It describes a number of the Model,how it works,and how it common practices that are a drain on the Spending time on the trivial.As the is implemented,Carver's book,Boards effectiveness of the governing body and author describes it,"Major program issues go unresolved while boards conscientiously grapple with some small detail." How many times have you gotten mired in the tiniest detail of a purchasing decision,or the proposed budget? a Foreshortened time horizons.The boards decision-making time horizons � m should be the most distant of anyone in the organization.Yet,as Carver says,"we find boards dealing mainly with the near term and,even more bizarre,with the past." -} How many times have the pennies spent ' in the prior months,as reflected in the t "bills for approval"portion of the agenda, received undue attention at your meeting? Reactive rather than proactive stance. The"seductive intrigue of Is the idea that the board should make organizational activity."You know proactive decisions,rather than merely how,when you're faced with a huge react to staff initiatives,completely project,sometimes the easiest way to foreign?Would,as the author says,your procrastinate is to divert your attention to board"cease to function"if it were asked desk-cleaning or some other trivial task? to create its own agenda? ThaYs the"seductive intrigue"that can pull you into involvement in the organization's Going over what the staff has already internal minutiae. It can be a heck of a doom."Reviewing rehashing redoing;' ( lot easier to divert your attention to those is what the author calls it Some boards details than to grapple with the big issues spend a great deaf of their time going over involved in governing your entity.But what the staff has already done.But as the ' governance shouldn't be about bringing author says,"reviewing rehashing,and the council/board more knowledgeably redoing staff work—no matter how well into the process of administration.A —do not constitute leadership"! governing body need not and should not tag along behind management,or try to Problem-based prescriptions.If you become"superstaff"in a"conscientious prescribe a specific solution based on + � + attempt to tag along more professionally." the details of a specific problem that has You've got grander things to do as the occurred in the past,you may wind up ""` governing body! with a"pendulum swing"that creates responsibility are not clearly delineated, unintended consequences in the future. the staffs knee-jerk response for every As Carver says,"Correcting insufficiencies issue in a gray area may be,"Lets take SO WHAT'S THE by looking backward at what they have it to the council."If you allow this,you'll been simply invites the next,perhaps continually increase your own workload ANSWER? opposite error.It is like trying to drive without ever clarifying the appropriate down the highway with a firm grip on the boundaries between council/board rearview mirror." governance and staff decisions. Well,no doubt John Carver would say, Adopt and implement my Model!"Of Accountability being allowed to The Approval Syndrome."Does your course,that will require time and effort, leak.Have you established a City/Town agenda call for the governing body's an unswerving commitment,and probably Manager or Administrator position?If approval of documents containing a the help of a Policy Governance® so,great!But are you still continuing multitude of paralyzing details Qine consultant.In the meantime,here are a to encourage or allow council board item budgets,detailed personnel and few suggestions from Boards That Make a member interactions with subordinate administrative policies,job descriptions, Difference to ponder. staff,or subordinate staff members to etc)?How does this make you feel?The bypass their supervisors and directly go to document has already been created,and •view yourselves as an extension coundl/board members with their issues you're just reacting to it.Then,to avoid downward from ownership,rather or complaints?if so,you may be keeping feeling like"rubber stamps,"board members than an extension upward from the Manager/Administrator from being may start nitpicking. But as the author says, management. As mentioned,your able to do his or her job,or you may be "no matter how much intelligence goes job is not to be"superstaff,"much less interfering in such a manner that you into playing this reactive role,it is clearly not "supermanagement"As the representative can no longer credibly hold him or her leadership."Moreover,by its approval,the body for the citizens—the true"owners" accountable for performance, board has been co-opted into assuming of the community—your job is to exercise ownership of the document,and staff is let ethical and trusteeship responsibilities on Diffuse authority.When the governing off the hook in terms of accountability for behalf of the ownership, Viewed in that body's and staffs respective areas of the results expected from the document! light,it becomes apparent that neither the championing of management decisions, impairing your staffs ability to exercise prohibited as imprudent or unethical is nor substituting your judgment for that of their best judgment,and crippling your a more effective and efficient means of staff,are part of those responsibilities. To ability to hold them accountable for the putting a boundary past which means be true leaders,you need to"develop a achievement of the ends.Who's to blame cannot go. taste for the grand expanse of the larger if you dictated the"how"and the result context,"as Carver says. was a shortfall in achieving the"what"? •Govern Yourself before governing others.Carver recommends that the •You determine the"ends."Leave the •Set appropriate boundaries on the governing body take the time to design "means"to the staff. Its important to °means.°Leaving the means to staff and codify its own processes,including read Boards That Make a Difference in doesn't mean unbridled discretion.We a board member code of conduct.One order to understand fully what Carver all know that there's a limit to the idea of the many helpful examples in Boards means by"ends.' Briefly,"ends"are that"the ends justify the means."Carver That Make a Difference is a sample code the results or outcome to be obtained maintains that the governing body's of conduct.Anyone what experienced or the impact to be made,for whom, legitimate involvement in means is to dysfunctional behavior within a governing and at what cost or relative worth.You prohibit any means that are imprudent or body knows that negative interpersonal could call the"ends"the"what and the unethical.But the way to do that is not dynamics can destroy the governing body's why." Everything else falls into"means," with a set of prescriptions—what must effectiveness as well as its credibility with or the"how."Once you determine the be done.Rather,the right way to do that its constituents.But how can a board deal "ends,"give staff the latitude to determine is with proscriptions—what must not be with inappropriate behavior among its own the"means."After all,they were hired done.Why?Well,there aren't enough if it hasn't first determined what constitutes for their skill and expertise in means, hours in the day or enough specialized appropriate behavior?With a sound and weren't they?Aren't they in the best knowledge on the board to define all the mutually agreed process,personality need position to determine the means?if things that must be done.But the board not become the dominant force in shaping the governing body becomes involved certainly has a legal,moral,and ethical issues and dealing with disagreements and in means,you may be simultaneously compass.That's why defining what's confrontations. 'a. dt�)i�r Ii'!I I� S' WHAT'S THIS liability for elected officials. For instance, on one another,maintain appropriate if your role in relation to staffs is unclear, accountability,and ensure that the work of HAVE TO DO WITH how are you or staff going to know what the public entity will be carried out within is within the scope of your authority the boundaries of prudence and ethics. LIABILITY ANYWAY`: and what is within the scope of theirs? Falling outside the scope of your lawful CONCLUSION Since this is a CIRSA Coverage Line article, authority is one of the sure ways to lose you may be wondering what linkage to your liability protections. And it follows This article has pulled out bits,albeit liability issues justifies its existence on that Carver's approach to good governance helpful bits,of Boards That Make a these pages. Well,its easy to see that also provides excellent risk management Difference for you to consider.Reading the the problems identified by Carver as suggestions. Both board and staff book is highly recommended,because the obstacles to good governance are also can flourish within their respective Model really makes the most sense when problems that can lead to increased spheres of authority without stepping viewed in its entirety. 3665 CHERRY CREEK NORTH DRIVE•DENVER,CO 80209 303.757.5475-800.228.7136^FAX 303.757.8950•www.cirsa.org GREG MCFADDEi4-] 152 K ienlar�ii,er°gears b Epley, FRASER, COLORADO Apr 3,2013 Town Council Open Public Meeting for Annexation of Byers Peak Development. Dear Council Members, I lived in valley since 1991 but have had a deep relationship with it since 1974 when I first learned to dance on mountainsides at the little ski hill known as Idlewild. I must first deeply thank each of you individually for giving this community not only your time and energies,but also for helping to shape the tomorrows of the Fraser Valley.As the ideals of a semi-quaint,never changing,slow paced,small, funky,unpolished,real,connected,and endlessly beautiful,mountain ski town become more and more challenged by the"need"for development,your roles as council members,as well as those of town planning and all our current officials,have the great honor and challenge of shaping this very formative time in the valley. As far as the Annexation of the Byers Peak Ranch development, I would like to formally submit that I am in favor of the annexation...on these and many other certain terms. It seems as those the developers of this site obviously have different visions than those of many of the current Fraser towns people.Unfortunately this is private land and under county regulations it is permitted to be developed.I cant help by scratch my head as to why the developer has not utilized the county to move forward and seems to keep coming back at the annexation in to Fraser as the only way to make his property so called"work"for him.It seem sto me that if you had the finances you would push forward and develop as you wanted as we have clearly seen this developer do already. The reason I would suggest and encourage annexation is so that the town of Fraser actually has a voice in perhaps how this would be developed. It is clear that if the Byers Peak wants the utilities and services the town provides they should not only pay for these to be put in to place but perhaps there is a better way to look at how the town could benefit from this and set the ground rules abiding by many current and any updated regulations that should be consistent with the town.Certainly,height restrictions,open space,water,and green responsibilities should all be in the voice of our town and not set forth on the wants of the developer.As well the developer should be held accountable and only be granted services,and most importantly the developer should be performance based according to what permits are decided upon.For example,the current developments gravel and eyesore woudl have to go away before any thing was granted in new development. Further more,the guidelines for annexation of a property of this size in to a town of this size has perhaps not yet been developed but further studies with cost recovery for these being funded by the developer to the town itself as wellas ballot issues in town expenses should be in place. A master development in a 30 year period is key for accountability,but also a financial plan to benefit the town should also be in place.This economic developmental process is crucial to the town and will give it the backbone and stance to keep development on track.This too should have cost recovery specific to the new annexation real estate. But really far beyond the obvious that the town of Fraser should be empowered through delivering its needs rather than the developer just plowing forward on his own agenda thinking its all for free for being part of Fraser.There should be a great cost for this because the town itself had had a great cost at what changes have happen already and take s a risk at a not so great track record of a developer. But here's the thing,change happens and if we are smart about it and work together rather than apart maybe change isn't so bad after all. For you,Clark,here's a piece of fools advice. First,maybe take a walk through old down town Fraser. Its really not like any other town. Its that unpolished funky mountain town that I spoke to earlier. Its git a lot going on in a few small blocks.Yes there are probably more dogs than people,and yes non-conformity is definitely happening in a big way.But underneath the somewhat tattered veneer,under the ski fences,glass blocks,purple,green and blue houses,under the quaint last few remaining historic buildings,under the last few chicken coups and old POW cabins and Arrow cabins that were moved by horse and wagon,and under the tracks of the great railway that made this town even happen,are stories.Stories that connect a community whether spoken often or not.Fraser is a hardy town that had always taken a hardy person to live here and see what we all see. It was easy to settled in the golds towns back in the day and raise a glass to development again and again.But the Fraser valley has always been a bit different.Whether it was folks involved with lumber,trains,or skiers, throughout time Fraser has kept it simple.You can still leave cold hard cash in a cigar box outside to buy a tree from Andy Miller,you can still see Vesta walking everywhere from 4 blocks away just because her sequined burret nearly blinded you with catching the sun,you can still look your neighbor in the eye at the grocery store and post office and know they genuinely care,and you can still be mid sentence in a deep conversation riding bikes through town and simply have to stop because the train is too loud to keep talking and be heard,just like Doc Suzie dad some zoo years ago.The reason is tell you this and paint this picture is to take pride in our passion for this town and this valley and realize that now after all these years Fraser is not only defining what it is but is is saying what it wants to be.Really Fraser's time has come. And even now today,just finally reenacted,the town limits say leaving planet earth,taking us right back to our roots here. Fraserites are proud of that sign and quite frankly,Clark so should you. The possibilities are endless here yes.But lets for a minute think outside the box. I will commend Clark on his local choice of arcitects by the way. z Back to that box.Yes Byers Peak is Private land,but once again lets us look at why Fraser and the Valley have become what hey are today. If we had decided to build homes up to tree line on everypeak around,the valley would look quite different.But fortunately our past held a promise that these lands would be protected.They were smart.They had integrity.They understood the value of connection to landscapes that once changed by man are never the same again.This is part of why we live here.We can look up at any time and feel pride in these landscapes and feel motivated by the power they command.Well let me remind you that where we call ourselves,is here in the valley.The valley itself is mostly comprised of meadows that allow those peaks to speak to its community.These meadows too hold greater value to give the town is sense of self to create that Island in the Sky. I encourage our developer to look more carefully at that ideal and value his decisions to forever change a landscape all in the name monetary gains.perhaps the more value you recognize in the rareness of landscapes the more that would payoff for your children'd children to just know that their grandfather did it right. Allow that to happen. And if the developer will allow that well so will the town.The time is now to bridge the gap and work together as the real investment of community,not just land. Hopefully,with annexation the town of Fraser will hold accountability,investment,and responsible town development with great protections on our precious landscapes. Here are some ideas to perhaps work together on. -If developing Fraser,the idea of having another down town or market place area would not be zoned until accomplished and green built adjacent properties with the town restrictions in place. -For every new well and developed plot,there should be a super fund that collects a building tax that goes back into Fraser parks and trees as well as cultural and historic preservation funds for town beautification. -Penalties and large fines would be enforced if the developer was off track in the projects.These funds would also go in beautification funds and local art grants for the town of Fraser. 3 -May be in the town development plan annexation would have to include some sort of cenetr for teh performing arts and the town would benefit by having a user fee or tax for event there.try envisioning the Olympic lighted tubing hill as a concert venue with the majority of the meadows set aside as parks and parking for events. -Think about the town setting new parameters that any new building after 2013 have a set standard for green building and a direct system to create energy that goes back to the town. I have had dreams,literally,foe years about small wooden wind mills that are made from pine beetle and scattered across the town landscape in a very thoughtful way.And i mean small windmill that have architectural appeal and resemble that of another time.Ie Amish windmils.The energy produced could eventually harness the town or beyond. -Get back to our roots and realize the power and great resource of having a train station down town. Perhaps use trolleys to connect Fraser to the resort.Make this town walkable and inviting and then Clark you will create value in your role helping to shape the land. Bottom line,what ever the ideas become is that it is time for the town to set the ground rules and the the goals with annexation. If these parameters are met there is a great probability that all can flourish together. I do encourage this annexation but only if done responsibly and with the highest of accountability. After attending the last town meeting on this matter, I had thought I would come here tonight and perhaps make an offer to Mr Lipscum,particularly in the direct loss of St Louis Creek.I though I might just ask how much is a river worth these days,just what is that price tag? But I realized that fighting this would just be un uphill battle over some mystery person's private land.So I decided I would do what I tell my river guides when they have a issue.To not just come to me with the problem but to come with a solution,as well. I encourage all of us to do that. It is time this town,its people, and its very definition,come together with all its partners and think smart and wise but mainly communicate through solution and not disregard.There is so much value all around us.Recognize it. Thanks for entertaining the idea of thinking outside the box of development that shows no integrity as our sweet town of Fraser and the Valley we so love, deserves more. Respectfully submitted, Greg McFadden 4 Apr. 3 meeting Perhaps the saddest development to come as a result of the proposed Byers Peak Ranch annexation is the plethora of closed meetings held by our public representatives. Citizens have been left to sort through mountains of paperwork and pepper the town manager with questions—largely because we have not been privy to trustee discussions. It appears these executive sessions—count two scheduled this evening and one almost every meeting during this annexation process—may be legal, but this does not make them right.Are these executive sessions inspired by the applicant's propensity to litigate contentious issues?We are only left to reach an apparently obvious conclusion. No matter what the cause, it remains an extremely poor practice to conduct the public's business behind closed doors. I continue to believe approval of this annexation will end up costing every Fraser resident money. We will be forced to, at town expense, improve our water infrastructure to serve the annexation as the agreement puts the responsibility for providing water for the development on the existing town. Normally tap fees would help pay for this cost, but the agreement calls for the donation fees totaling almost 1,300 free taps to the developer. Most importantly,the developer is apparently not bringing any actual water rights to the table. I have attached a copy of the May 29, 2003 Northwest Council of Governments (COG)Study Area Water Demand and Shortages. Fraser is a member of COG, meaning this study was partially sponsored by the town. In short,this study finds Fraser will fall short by 27 acre feet of water just to build out the existing community.Water storage will help this situation, but in no way will it provide actual water for this proposed annexation. The annexation agreement makes it clear—Fraser is responsible for providing water for nearly 2,000 dwelling units and 200,000 square feet of commercial space equaling about 1,100 acre feet. In stark terms,this means the town will be on the hook to not only come up with the shortfall in serving a possible 1,000 units to build out the existing town, but will also have to purchase water to serve a community a third larger than Fraser at full build-out. The developer is not offering actual wet water, he is offering water storage.Water storage does help us meet our obligations in dry years, but it does not increase the number of taps the town can sell. A value of$4.5 million is attached to the developer's storage—this value is suspect in that storage is currently available in two west slope reservoirs—Wolford and Green Mountain—both of which were constructed specifically to augment western slope water supply systems.The cost of leasing storage in these reservoirs is kept at a reasonable level in recognition of their public purpose. Imagine the future as subdivision plats come in from Byers Peak Ranch. Under the terms of this agreement, Fraser is obligated to provide water for these subdivisions. Under Colorado law,the developer must prove he has water for the development.The developer will point to this annexation agreement, asserting correctly that Fraser is responsible for supplying water. Fraser will then be faced with attempting to buy water rights. Every diverter will then protest -the Fraser River is over allocated. Note in this COG study that the town of Winter Park is currently short 1,903 acre feet of water to meet its build-out obligations.One other lovely scenario to ponder is water is allocated to meet Byers Peak obligations, leaving none for existing town lots.You could be faced then with owning a vacant or underdeveloped lot in Fraser which will have no value, because it has no water. This development could easily cause the town wells to run dry—no hydrologic study has been produced to prove drying up the Byers Peak meadow will not affect ground water. If the wells cannot meet town demand,we will have to return to drawing water from St. Louis Creek. Town service lines will again freeze —winter creek water will lower water temperature in the system. Fortunately the state will require we install a $2 million plus filtration system so we don't have to endure spring bouts of giardia. We can only hope another year like 2002 doesn't find the St. Louis Creek plant shut down by a call on the river,a scenario which almost shut off Winter Park's water that year. Here's hoping we collect full tap fees from new developments to pay for this water treatment plant. The 35 year life of this approval is terrifying. Imagine Winter Park moves to build out Arrow, which is not even calculated into their nearly 2,000 acre foot shortage. Fraser will attempt to purchase the last few drops of a dry riverbed—at astronomical prices—fish be damed.Again,we will have to by water—or face legal battles which will bleed a parched town completely dry. Until these water questions are resolved,we should not even considering this annexation. Not that long ago Fraser annexed the Maryvale property and received a per acre fee for the annexation, along with fully paid tap fees. Why is this not the model being followed now? Normally developers pay towns,towns don't pay developers. Finally, it is plain the citizens of Fraser will have the right—after a petition is submitted—to vote on this annexation if it is approved by the town Trustees. I have yet to find a town resident who favors this action.The annexation agreement states that the applicant can withdraw if action is taken against a town approval. My statement concerning an annexation review election is an honest attempt to let the proponents know where responsible citizens are headed. UPCQ Final Report May 29,2003 Executive Summary Page v Study Area Water Demands and Shortages dverage tnuat an _'. tljeriiitttsho_ �u,� <` i. Existing Futt Use Demand Full Use with New FuII Use Maximum With Demand N. wilh New Annual Existing Future Existing Of Existing System S.System Shortage Water Provider .2000 Buildout S GRAND COUNTY Columbine take WD 157 303 0 0 0 0 0 Town of Grand lake 199 1,262 0 0 0 0 7 Hot Sulphur Springs 116 1,567 0 41 41 41 44 Town of Kremmling 441 $tl$ 0 18 1$ 18 18 Winter Park Rec.and W&S District 151 500 2 52 55 50 204 (Indoor) Winter Park Rec.(Snowmaking) 199 477 0 10 —8f 8 70 Grand County W&SD 687 3,711 1 977 IMS 973 1.903 Winter Park West W&SD 454 618 0 2 2 2 23 Town of Fraserkal 309 1.326 0 8 8 8 27 Silver Creek R 189 2,950 0 19 19 19 68 Town of Granby 230 465 0 0 0 p 5 Grand Pgunk Totals 3132 14167 3 4127 1 147 1119 369 SUMMIT COUNTY Arapahoe Basin Snowmaking 0 351 0 133 133 133 330 Keystone-Montezuma Qomesfic Q 30 0 2 2 2 11 Ke Snake River Snorwnaking 485 1,157 27 207 207 207 66BAl Keystone Gulch 0 78 0 11 11 11 2 Keystone Gokf Cottrse 170 170 0 0 0 0 2 Keystone Ranch 268 274 0 0 0 0 6 Snake River WD 555 1,903 1 35 35 35 239 East Dition WD 290 623 1 111 11 11 106 Town of Breckehridge 2,062 3,355 0 01 0 0 0 Breckenridge Golf Course 176 365 7 121 12 6 88 Breckenridge Sid Resort 546 685 0 4 4 4 24 Copper Mountain W&Sp 381 876 46 101 100 96 282 Copper Mountain Inc(outdoor and 500 689 6 13 12 12 99 snowmakln Town ofFrisca 846 1,976 0 0 0 0 0 Dillon Valley Metro District 333 406 0 0 0 7 .own of Dillon 327 878 0 0 0 0 0 Buffalo Mountain 1 Mesa Cortina 296 755 0 0 0 0 0 Town of Siiverthome 466 2,298 0 0 0 0 0 Eagle's Nest 327 1,002 0 0 0 0 3 SummitTotais 1 8,027 1 17,8711 88 529 5271 5171 1,908 Totals of Both Counties 1 111591 32,038 9`11 1,6NI i,Mj 1,636 4,269 l) Hot Sulphur will experience July shortages wheel 4 cfs demand exceeds 33 efs right 2) Shortages exist in some months when demand exceeds 1 cfs right.Based on Colorado River supplies. 3) December shortages. 4) December shortages. 5) Demands include domestic and snow ma1mg.Future snowmaking demand is 350 af/year. 6) This shortage can be eliminated by operation ofthe eaishngMonumuna.shaftpumps 7) PASCM develops historical flows ending in 1991-golf course irrigation began 1999. 8) Demands for domestic,commercial,golf course and greenbelt 9) Shortage when the juniorrightusing Dillon exchange cannot operate because Dillon has reached its minimum camtent in dry years. Hydmsphere Resource Consultants,1002Walnut Suite 200,Boulder,CO 80302 BYERS PEAK RANCH , LLLP February 29,2012 Town of Fraser Planning Department PO Box 370 Fraser,CO 80442 And by e-mail-;n'Wi� :'r-w, To whom it may concern: We are the managing partners of Byers Peak Ranch,LLLP,who owns abutting property to the property owned by Byers Peak Properties, LLC. We are writing to comment on the application for annexation submitted by Byers Peak Properties. Our first comment is with regard to ownership and naming. The subject property that this application refers to is owned by Byers Peak Properties LLC,not by Byers Peak Ranch,as is indicated on their application. The subject property was,at one time,owned by Byers Peak Ranch,but was sold off several years ago. Byers Peak Ranch is still in existence, still owns the original property and continues to operate with the name of Byers Peak Ranch,LLLP. Our family has owned Byers Peak Ranch since the 1940's and we have a long history in the valley and with the town of Fraser. We feel calling this application for annexation "Byers Peak Ranch Annexation"misleading and that it should be referred to as Byers Peak Properties Annexation—which is what is being requested. As a point of information,this is not the only property that was once a part of Byers Peak Ranch and now is owned by others so we feel our point has merit—this annexation request is specific to the property owned by Byers Peak Properties. Our second comment is with regard to the development plans. We would simply request that as these plans move forward that some consideration be given to creating a buffer zone between the residential use that this plan contemplates and the agricultural use that we continue to employ. We run cattle on our property and it would seem wise that this not abut directly up against a heavy residential use. If you wish to speak to us directly,we can be contacted at 508-380-5829 Qudy Pemstein)or 303-880-5459 (Pam Powell). Thank you for your consideration. Sincerely, J2thM.Pemstein Managing Partner Byers Peak Ranch,LLLP JUDITH PEMSTEIN 1148 DRIFT ROAD WESTPORT, MA 02790 OR PAM POWELL • 5775 OAK LEAF LANE • GREENWOOD VILLAGE, CO 80121 April 31VI ^Gh 25, 2013 Town of Fraser Board of Trustees PO Box 370 Fraser, CO 80442 1 am writing to express concerns I have about the proposed Byers Peak Ranch Annexation and Development Agreement. They are many and they are fundamental in nature beginning with the GhffaeteF and to his agreements,via other LLCs under his control of the person responsible for the performance of Byers Peak Ranch, LLC to its agreements, Clark Lipscomb. Any agreement is only as good as the intention, integrity and performance of the people behind it. There is no better indication of how someone will perform in your agreement than considering what he has done in the past. I read with interest Jeff Durbin's February 28, 2013 letter to the Trustees that sought to address questions posed by the public. In particular, in response to the Nature Chicks'shared information that they have yet to receive their court-awarded judgment against Winter Park Market, LLC and Winter Park Services, LLC, LLC's created and controlled by Clark Lipscomb, who is also the President of Byers Peak Ranch, LLC. de#D -sThe Town-Gbsep4at+er.Manager's observation that this is a private matter and of no concern to the Town of Fraser should be reconsidered. The magnitude and importance of the proposed Agreement and, more importantly, its reliance on promises,guarantees(Section 9.8 for example)future good faith in negotiations,etc.,to the future well-being of Fraser and its citizens demand an assessment of the people responsible for its performance. Mr. Lipscomb has a track record now,earned in a surprisingly short period of time,for creating legal entities, sometimes within other legal entities,to avoid performing to his agreements and to shield those entities and himself from having to pay court-awarded judgments when he fails to do so. For example, I have a court-awarded judgment against Winter Park Real Estate LLC controlled by Mr. Lipscomb has that he has not beets-paid just as Winter P12ark Real Estate LLC avoided paying Grand Mountain Bank on another court-awarded judgment,that one in excess of$600,000 and an obligation he assumed in partnering with Dan Cheek and Century 21 Winter Park Real Estate. That partnership resulted in Dan Cheek having to file personal bankruptcy to protect himself from the remaining personal guaranty when Clark, in his capacity as controlling member of Winter Park Real Estate, LLC,simply disregarded that company's lease obligation to the property owner and moved out (and into other property that I believe Mr. Lipscombe Jae personally controls) prior to the expiration of that lease commitment. He owes an entity that I own in excess of$70 000.001@GQW for that and he has forced them to pursue legal remedies of greater than$100,000 on which he reneged. This will likely also be fruitless since Mr. Lipscombe 4asaccepts no personal responsibility for the performance of his LLCs so it is likely that I will spend legal fees,time,stress,etc., obtain another judgment and not be able to collect anything on that either. Mr. Lipscombe has said to me that he will not pay any 4gefl a 4iudgment I receive.Ne has Three unpaid h judgments may indicate a4t-is characteristic of how Mr. Lipscombelae operates and it's a strategy and behavior proven effective by many other developers °i t-lAe"'w° To disregard this person's recent track record and patterns of behavior is a reckless approach at best. I believe the Town of Fraser should insist upon receiving references and contact information for other developments in which Mr. Lipscomb has had involvement in other areas of the country like Aspen, Florida, and X+a-u+Kauai. I have not found any such references in the Town documentation so far. If you know he's operated in other locales,and you do,then why wouldn't you obtain references and information from those locations? There's plenty of history out there and to ignore or disregard it as irrelevant to the town of Fraser's consideration of doing business with him for the next 35 years of build out is,at the very least, not safe guarding the public trust and well being. For evidence of how'community minded' Mr. Lipscomb really is,one need only look at the fabulous recreation center that the great citizens of the Fraser Valley Recreation District paid for. How has it come to be named 'The Grand Park Recreation Center'? I know that many, many citizens,while appreciating that this fabulous resource is there,deeply resent how Mr. Lipscomb caused it be named as such. The fact that the land came with the conditions that it feature future integrate ability with a hotel he intends to build, pursuant to the architectural guidelines he established (so it would look like it belongs to the hotel in the future) and that, should the Fraser Valley Recreation District fail on a technical point in the current(and, now second) land donation agreement in the future,the Rec Center would be GIVEN to Grand Park, at no charge,for its own use. Bear in mind,the alleged failure of the District and Fraser to perform on one of two conditions in the original Rendezvous annexation agreement for the land donation caused the land donation provision of that agreement to be terminated and the naming condition be newly introduced in the second and current agreement. That came about only after the District had spent in excess of a million dollars in analysis and design, assuming the Developer would honor its commitment to donate the land. The District was, practically speaking, placed over a barrel by Clark and he got to name the rec center we paid for and built as it is named now as if he paid for and built it. I have concerns about the Water Infrastructure Agreement as articulated in the Holland and Hart draft letter dated February 1, 2013 in that it seeks to prorate the costs over an eventual total number of SFE's rather than just to the new need created by the annexation. The analysis points out that the Town currently utilizes only 40%(200 gpm) of its current capacity(505 gpm)and that it could add 160 SFE and still only be at 236 gpm. . .less than half of current capacity.Yet, it goes on to say that,with the additional plant investment required with the proposed annexation, a total of 1428 SFE could be served and says that Town SFEs could be 1049 of that. Therefore, it allocates 25%of the cost of building additional capacity to BPR and 75%to the Town. This allocation ignores the current capacity the Town has which provides for substantial expansion. In short,this investment would not be needed were it not for BPR,yet the Town is asked to pay for 75%of the building of added capacity. The proposed allocation basically has the Town paying for its existing capacity(that for which it obviously already paid) again. This allocation should be 70% BPR and 30%Town and would be if it were calculated as percentages of NEW capacity resultant of annexing BPR as it should be. By the letter's analysis,the Town of Fraser could triple in size before it would need additional water plant capacity! There are many other aspects of this proposed agreement that need to be addressed before it can conscientiously be agreed to. The allocation of costs to review future submittals is faulty for example. While the Town points out that the use of any outside consultants will be billed to the Developer,there is no provision to bill the Developer for time spent by Town staff and engineering for which the tax payers pay. These costs,the need for which is created by the Developer, are always inflated as it is a very common strategy(we've already seen this in play in this Developer's Leland Creek development,for example)for the Developer to initially seek far more from the approving body(whether it's density, concessions, etc.)than he actually believes will be approved so that,when he reduces his requests, he looks to be concessionary himself. These costs,therefore,are frivolous and unnecessary were it not for that time proven strategy, and should be borne by the Developer as well. Further, is it responsible for Fraser to 'waive all permit and review fees associated with the permitting for the grading and excavation and construction of the PDD Plan' (middle of Page 8)? There are references to Operating Agreements as attachments(Attachment G,for example)to the proposed Agreement and they are not attached and so are not available for review. There are no financial models of any kind provided. The citizens have a fundamental right to know that the Trustees are evaluating this huge agreement from a responsible financial perspective. The numbers referenced in Staff's cover letter tell the story of a desperate lack of informed and credible financials. For example,the Town Manager's letter, dated February 28, 2013 refers to the Developer's projection of$50M in total project revenues. It cites its own analysis as far less but'still positive'. . .What is the town's projection and how does a variance impact financial benefit to the Town. For that matter, how do revenues to the Developer affect revenue to the Town at all? Property tax revenue, at build out are projected at$150,000-350,000 and it is suggested that these revenue should be relied upon for operational expenditures related to the project. Rea4y2-To which number do you plan? You've got a range of over 100%!!! I'm uncomfortable that a finer point has not been put on this. The last paragraph on the first page defies GFedibiWhighlights the problem. Projected expenses are an additional$175,000 annually. 'There would be minor increases in administrative and law enforcement service demands, but the development is not expected to require any additional capacity in these areas.' _Rea4y?� ?'? How is that possible possible when build out will mean basically doubigniog the Town?? Is there that much excess capacity right now? This projection, as obviously baseless as it is,then projects anywhere from a $25,000 loss to a $175,000 profit annually. That simply doesn't 'Planning' in any responsible sense of the word, needs to be more precise than that or there is unwarranted risk for the citizens.-. While the expenses for the Town's participation in this annexation are largely to be borne, up front, by the Town, Paragraph 1.6 of the proposed agreement states that the Developer literally has'no obligation'to 'develop all or any portion of the PDD Plan. Paragraph 3.1 states that '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' (M) even though the Developer has no obligation to actually develop anything. Last paragraph of page 7 "The obligations set forth in this Section shall be fulfilled irrespective of whether Developer chooses not to develop all or portions of the Property." Further, any development would be pursuant to separate and different subdivision improvement agreements(SIA) a template for which is not provided and could bear little to no resemblance to provisions of this proposed Annexation Agreement. The SIAs could,as a practical matter, re-write this proposed annexation agreement. Section 3.2 Paragraph c states Fraser's agreement that it will not oppose future diligence cases related to water rights that serve the Property. Will this have the effect of the Town working against other citizens who do have objections? Section 3.3 gives the Developer a blank check with respect to the Water Infrastructure Plan in that it is a self-described 'Conceptual'document currently yet Fraser agrees to pay for however it becomes to be defined! Who are 'Fraser's traffic consultants' mentioned in Section 7.2? Section 8.4 refers to the Developer's option to pay School Impact Fees or to dedicate land in lieu of these payments. The public has a right to know what these fees would be. Once again, build out would double the size of Fraser and, if the Rendezvous Annexation Agreement is instructive at all in this regard, there could be a hugely inequitable agreement on this point. Rendezvous paid a total of$200,000 in school impact fees. That's all. What would Fraser agree to accept from BPR? Without this commitment, how can the Town evaluate this deal? Section 8.3 speaks to Fraser committing to pay for improvements in parks. . .parks that are actually entirely surrounded by BPR property,thereby and like the financing and building of the Rec Center, paying for the creation of amenities that, de facto, only largely benefits the Developer. Section 8.5. . .any MuniepaNunidRal Parcel dedication would be via Special Warranty Deeds. . .that was the mechanism used to convey the Rec Center land and put the name restriction upon it. . .count on the same being done with these parcels. . .there will be some restriction such that the benefit would accrue to the Developer. Is there a proposed Special Warranty deed for these for current review? Section 8.6 asserts that the Colorado Adventure Park has operated in accordance with the special use permit. . .is this true? Has anyone actually been monitoring it? Of grave concern should be the vesting of the right in the Developer to create Metropolitan Districts. . .the history of these kinds of districts is replete with instances of abuse and graft by Developers. There are many, many examples of property owners getting stuck with very large bills for subdivision improvements for which they thought they were paying in the purchase of their properties only to find out that these special districts were created to vest the property owners with the responsibility to pay for amenities and improvements later. You don't have to go far or look back very long to recall the creation and use of the water and sanitation district mechanism at Pole Creek Valley,its ability to sell municipal bonds,and then the default on those bonds by the developer,leaving property owners there to stress through legal wrangling of long and expensive duration,eventually left holding the bag for that which the developer was to pay. These financing mechanisms e°^^ ^lly iR;he",^d,�„m developer like thi one,could have a very,very expensive and incapacitating effect on property owners in the districts. In Article II,Fraser commits to not commence any rezoning action to reduce the maximum number and location of residential dwelling units,or to embark upon moratoria,etc....regardless of conditions and what is learned. For example,what if the Developer fails to perform to its agreements,does it make sense to not allow Fraser to establish a moratorium on its activities pending resolution of any legal proceeding that may ensue? The President of this LLC has a history of embroiling people in expensive and protracted litigation presumably in the hopes they'll simply give up and let him have his way. Fraser can count on the Developer's use of this strategy if things don't go his way and Fraser would be well advised,in that event,to be able to halt the Developer's development for a time while any such issues are resolved. This proposed agreement doesn't seem to give Fraser that necessary mechanism. Section 12.3 speaks to the underlying and primary concern with all of this. While this proposed annexation may have some understandable appeal, that the Town weuld PFOEeed with this paFtiGular peFSOff hisbUSiR---1.--..---. this 'Developer'is an LLC...the person in charge of this LLC has a track record for not performing to his agreements and then eluding responsibility to other good people for defaults and breaches of those agreements by using these legal structures. If the Town wants a+a-agreements that more reflects what will R€,4L Y-Egally happen,get the principals of these LLCs to provide their personal guarantees of their performance. Get Tom MeGlesl(ey and Clark L i mb to r t their .)..^1 ntees RR this r„d- anyth+rt ement than this one and it will be far more realistic and enforceable as to the promises,obligations, agreements,guarantees,etc.that populate this present proposed agreement which: ifexpeFienee is This agreement is to be signed by Clark Lipscomb for Byers Peak Properties,LLC and Byers Peak Downhill Adventures,LLC and--these Operating Agreements nor the requisite Statements of Authority are provided. These are some of my concerns and I know,speaking from painfully obtained personal experience and from speaking with others around the Valley,that they are shared by many. pFeeeeds;R YeUF dirr-J-550ARS vAth!his Develeper with your eyes epeR a-R1 y— — eensideFiRg Wh8 P*is you aFe deaIi^^wi14 ai4d Tthe magni4itude of the potential loss to the citizens of this community demands that 4-you do nnt fully flush out every detail before committing to any deal " wi*w�xarih(-m" At the very least,seek and obtain the personal guarantees of the individuals in charge of and responsible for any of the LLCs they put forth as the respective entity with whom they want you to establish an agreement. Miehael Ray