HomeMy Public PortalAboutTBP 2013-05-01 INDEX TO THE BYERS PEAK ANNEXATION AND DEVELOPMENT
AGREEMENT AND ASSOCIATED DOCUMENTS
1. Petition for Annexation, Notice and Joinder, and Annexation Map
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a. Resolution of approval i
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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
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b. Byers Peak Ranch Planned Development District Plan With
Conditions ("PDD Plan")
i. Ordinance Approving the PDD Plan
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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.]
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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
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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.]
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i. Subdivision Exemption Application (to be provided with
map)
ii. Resolution approving the Subdivision Exemption Parcel
4. Additional Documents Associated with the Annexation Agreement
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a. Service Plan Amendments for the West Mountain Metropolitan
District
i. Resolution approving the same j
b. Development Permit for Colorado Adventure Park j
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i. Resolution approving the same
c. Grading and Excavation Operations Plan
i. ResoIution approving the same
d. Non-Opposition Letter Agreement
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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 we believe
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.
Page 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 funds available in the Water
Fund or financing in place to construct these 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.
Page 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
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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.
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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.
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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
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(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.
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Respectfully submitted this day of Nnu ern her,2007.
Signature of Landowner/Petitioner:
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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
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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:
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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";
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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;
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Exhibit A
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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
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EXHIBIT B
TO PETITION FOR.ANNEXATION
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Legal Description of Property Owned by Each Petitioner
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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:
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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";
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Thence North 54°5949" East a distance of 1,167.79 feet;
Exhibit B
775094.1
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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;
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Exhibit B-2
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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.
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Exhibit B-3
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EXHIBIT C
TO PETITION FOR ANNEXATION
Affidavit of Circulator E
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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
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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.
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Exhibit C
775094.1
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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.
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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.
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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
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(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:
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(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
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701340.2 3
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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. ,
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Signature of Landowner/Petitioner:
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Byers Peak Properties,LLC
By:
C�-Cliair—k Lipscomb,President
Date of Signature; 6-I1- a-?
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Mailing Address: P.O.Box 30
47 Cooper Creek Way
Suite 321
Winter Park, Colorado 80482 f
Resident of the Property? YES X NO
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7�»4o z 4
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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;
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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
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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
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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
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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;
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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.
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Containing 12,868,892 square feet, or 295.429 acres,more or less.
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701340.2 Exhibit A-2 �
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EXHIBIT B
TO PETITION FOR ANNEXATION
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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:
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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;
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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:
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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;
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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
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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.
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701340.2 Exhibit B-2
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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:
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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
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701940.2
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
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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
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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
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their signatures this /7—day of Skt&,,,�4,2012.
PETITIONER: ADDITIONAL PETITIONER:
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Byers Peak Pro roes,VC, Byers Peak Do Properties,LLC,
,pe a Colorad zted l' ity company a Colorado ' i lia ' pany
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By: By:
_ C:.• k Lipscomb,President ame and Title)
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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.
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Circulator
STATE OIL COLORADO �
) SS
COUNTY OF )
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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
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No ary Public
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APPROVED AND ACCEPTED:
TOWN OF FRASER
BY: I
Fran Cook,Mayor
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ATTEST:
Lu Berger,Town Clerk
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TOWN OF FRASER, COLORADO
RESOLUTION NO. 2013
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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:
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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.
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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.
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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.
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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.
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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
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BY:
Mayor
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ATTEST;
BY:
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Town Clerk
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6093818 1
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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
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"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
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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.
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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.
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TOWN OF FRASER, COLORADO
ORDINANCE NO.
SERIES 2013
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")
B seeking to annex approximately 295 acres of unincorporated territory lord-south-4cpngoix
to 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—e�� (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, On [-------------------------------------------------], the Board conducted a public hearing at which it adopted
Resolution No. in which it set forth its, findings of fact and conclusions on the
Annexation 1letition with the,Joinder in accordance with the,requirements of C.R.S. §31-12-110
and:.other::appll.cabl.e..provlsl.on of.the Municipa...Ann--------------------------------------------------------xatiAct
WHEREAS, _.BPP and BPD (together, the "Developers") own one hundred percent of the
Property that is the subject of the Annexation Petition;
®....the mi E4ifffl ....J?e jj j(ffl
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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;
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.
§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(l)(g) and 111;
WHEREAS, the Board determines that it is in the best interest of the Town to annex the
Property to the Town; and
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;
NOW THEREFORE, THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO ORDAINS:
Section 1. _A.uthorizatian_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
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
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 Filinu�s; _Direction_to Town Clerk. As required by C.R.S. § 31-12-113(2),
the Town Clerk is directed as follows:
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.
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
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:
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.
6093650_1
Document comparison by Workshare Compare on Friday, April 26, 2013 3:40:10
PM
Document 1 ID interwovenSite://worksite.hoIlandhart.com/Worksite/60936
50/1
Description #6093650v1<Worksite> - Fraser Annex Ordinance
(Revised 3-15-13)
Document 2 ID interwovenSite://worksite.hoIlandhart.com/Worksite/60936
50/2
Description #6093650v2<Worksite> - Fraser Annex Ordinance (Clean
4-19-13)
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a f a L e,�A2r zl 19, 2013
BYERS PEAK RANCH
ANNEXATION AND DEVELOPMENT AGREEMENT
Town of Fraser, Colorado
1 2013
This Agreement creates a Vested Property
Right Pursuant to C.R.S. Section 24-68-103, as amended and
Pursuant to the Terms Hereof
{Client/13 23 6/1 1 6/02 414663.DOC/161
BYERS PEAK RANCH ANNEXATION AND)CDEVEI,OPME V`I AGREEmE V`I
TABLE OF CONTENTS
Article 1 ANNEXATION AND ZONING OF THE PROPERTY..................................3-2
Section 1.1 Ordinances...................................................................................... 3
Section 1.2 Effective Date of Agreement.............................................................3
Section 1.3 Annexation............_........................................................................44
Section1.4 Zoning............................................................................................4-3-
Section 1.5 Acknowledgements.........................................................................4-3-
Section 1.6 No Obligation to Develop ...............................................................4-3-
Article 2 DEFINITIONS ..............................................................................................4
Section 2.1 Definitions........................................................................................4
Article3 WATER ......................................................................................................6-5-
Section 3.1 Water Service ...................................................................................6
Section 3.2 Dedication of Water Storage Facilities............................................74
Section 3.3 Water Service Infrastructure and its Approval and Construction......12
Section 3.4 On-site Wells.................................................................................. 13
Section 3.5 Water Plant Investment Fees........................................................... 14
Section 3.6 Excess Capacity..............................................................................14
Section 3.7 Water Plant Investment Fee Accounting and Credit..................... 154.4
Article 4 SEWER................................................................................................... 16-14
Section 4.1 Sewer Service............................................................................. 16-14
Section 4.2 Individual Sewage Disposal Systems............................................. 16
Article 5 OTHER UTILITIES..................................................................................... 16
Section 5.1 Other Utilities............................................................................. 17-14
Article 6 DRAINAGE............................................................................................ 17-14
Section 6.1 Drainage..................................................................................... 17-14
Article 7 STREETS AND TRAFFIC....................................................................... 174-4
Section 7.1 Grading & Roadway Plan............................................................ 17-14
Section 7.2 Traffic Impact Analysis ................................................................ 17
Section 7.3 Street Designations..................................................................... 184-�
Section 7.4 Street Maintenance ..................................................................... 184-�
Section 7.5 Street Rights of Way................................................................... 184-�
Section 7.6 Regional Roadways....................................................................... 18
Section 7.7 Street Standards, Construction, Inspection, and Acceptance......... 1944
Section7.8 Pathways ........................................................................................ 19
Article 8 SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION.......20-14
Section 8.1 Additional Municipal Services....................................................204$
Section 8.2 Project Open Space.....................................................................204$
Section 8.3 Public Open Space......................................................................2044
Section 8.4 School Impact Fees.....................................................................20411
Section 8.5 Municipal Parcel Dedication......................................................... 20
Section 8.6 Colorado Adventure Park Facilities and Operations.....................21-24
Article 9 GENERAL DEVELOPMENT OF THE PROPERTY.................................21-24
Section 9.1 Development and Control of Development..................................212
Section 9.2 Densities.....................................................................................212-9
Section 9.3 Transfer of Water and Sewer SFEs..............................................2224
Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations
ofFraser.....................................................................................2324
Section 9.5 Grading and Excavation Operations ............................................2324
Section 9.6 Transfer of Planning Area...........................................................2424
Section 9.7 Phasing Plan...............................................................................252-4
Section 9.8 Metropolitan District. .................................................................25-4
Section 9.9 Financing of Public Improvements..............................................252-4
Section 9.10 Maintenance Cost Offsets ...........................................................252-4
Section 9.11 Hospital/Health Services District. ...............................................2624
Section 9.12 Owner's Associations. ................................................................2624
Section 9.13 Rules, Regulations and Official Policies......................................2624
Article 10 COOPER &IMPLEMENTATION.........................................................26-1--�-
Section 10.1 Statement of Intent......................................................................2624
Section 10.2 Scope of this Agreement.............................................................2624
Article 11 VESTED RIGHTS.................................................................................272
Section 11.1 Vesting of Certain Property Rights..............................................272
Section 11.2 Rights Which Are Vested............................................................272
Section 11.3 Term for Vested Rights...............................................................282
Section 11.4 Compliance with General Regulations and Limitations on
TownActions .............................................................................2924
Article 12 MISCELLANEOUS............................................................................... 30254
Section 12.1 Time is of the Essence ................................................................30251
Section 12.2 Covenants................................................................................... 30-Q4
Section 12.3 Contractual Obligations ..............................................................3024
Section12.4 Term........................................................................................... 30251
Section 12.5 Amendment of Agreement........................................................... 30251
Section 12.6 Default and Remedies .................................................................31251
Section 12.7 No Joint Venture or Partnership.................................................. 323-9
Section 12.8 No Third Party Beneficiaries....................................................... 323-4
Section 12.9 Notices.......................................................................................3234-
Section 12.10 Assignment............................................................................. 333-1
Section 12.11 Agricultural Use. .................................................................... 333-1
Section 12.12 Grant or Conveyance. Whenever a...........................................333-1
Section 12.13 Recording............................................................................... 3 43-1
Section 12.14 Authorization.......................................................................... 34-3-1
Section 12.15 Governing Law....................................................................... 34-3-2-
Section 12.16 Severability ............................................................................34-34
Section 12.17 Waiver of Breach.................................................................... 34-34
Section 12.18 Entire Agreement.................................................................... 34-34
Section 12.19 No Additional Annexation Conditions Imposed.......................34-34
Section 12.20 Drafting of Agreement............................................................ 35-34
Section 12.21 Execution of Other Documents................................................35-34
Section 12.22 Counterparts; Facsimile ..........................................................35-34
BYERS PEAK RANCH
ANNEXATION AND DEVELOPMENT AGREEMENT
The parties to this Annexation Agreement (this "Agreement") are the TOWN OF
FRASER, COLORADO, a municipal corporation of the State of Colorado ("Fraser"),
and BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company and
BYERS PEAK DOWNHILL ADVENTURES, LLC, a Colorado limited liability
company (collectively "Developer").
RECITALS
A. Fraser is a municipal corporation existing under the laws of the State of
Colorado. Developer is comprised of two limited liability companies organized and
existing under the laws of the State of Colorado;
B. 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 with the Town Clerk of Eraser seeking to annex
approximately 215 acres of unincorporated territory contiguous to Fraser in Grand.
County, Colorado, commonly known Byers Peak Ranch the "Proper "7, as more
aparticularly described in the legal description attached hereto and incorporated.herein as
Exhibit A and.was referred.b the Clerk to Eraser's Board. of Trustees the "Board."�F�r
' lre =An �atn�
s—�-"c;tx} vrr}rrsr- -i-yr`i-c;x-n-`cY-z'ri"rr'rc�£--r
lt, '' ,� r .; *r�---: kr`
°rxr'rt-z,-mrc-� *rEiii P�.r=:rci-i,ai'rEm--uiii�--r�i-r"rii' •f n�rrrcir--r�-rx�riiica�='`crew`°`,-a�-'i-"xr-•,-7.c-.,-:�;sc`ri>v-;-
C. By Resolution No. 11 O1 07 dated.November 2�, 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. S. yS 31-12-107, and
set a public hearing
D. On Eebruary 6, 200 , the Board conducted a public hearing at which it
adopted.Resolution No 02 O1 0� in which it set forth its findinas of fact and. its
conclusions on the Annexation Petition in accordance with the requirements
SS31 12 110 and other applicable provisions of the Municipal Annexation Act of 1165,
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;
E. On Eebruary 27, 2012, Byers Peak Downhill Adventures, LLC filed. a
Notice and.Joinder (the "Joinder") with Eraser to Zoin the Annexation Petition as a
landowner after portions of the Property sublect to the Annexation Petition had. been
conveyed b�Byers Peak Properties, LLC to Byers Peak Downhill Adventures, LLC in
2001;
1
F. On the Board conducted. a publiehearincy at�whieh�it
conclusions on the Annexation Petition with Joinder in accordance with the
'
the annexation d other �=-
�6 Developer owns 100Y4 of the Property;
� �J8 Fraser and Developer desire tv enter into this Agreement setting forth
more fully the terms v[the annexation and development v[the Property;
� (�,� u connection with the annexation v[the Property tv 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 v[l9D5. set forth iuChapter 16, Article 5 of Fraser
84uuioiyxl Cvde, as adopted and xu amended from time tv time 6y Fraser Board v[
Trustees (^^B/xue/ Cvde''). Sections 16-5-10 through Section 16-5-720 (the "PDD
0/diuxuoe''); contemporaneously herewith Fraser approves the Byers Peak Ranch
Planned Development District Plan with conditions (the ^^PDDPlxu''). which allows x
ouiz»u/e v[uytv 1.435 dwelling units, 550 hvml/ouvml/lvdgiuguudu and 270,000 u«ux/e
feet of commercial space, recreation facilities, and support activities on the Property, a
ovyy of which is attached hereto as Exhibit 0 and incorporated herein 6y this reference
provided that any amendments thereto may be made without amending this Agreement;
the Property will be served with municipal vme/ and sewer service by Fraser consistent
with the provisions v[this Agreement;
| I�,J1tiutheuudeotoudiugoudiuteutv[DevJvye/xudB/xue/UhmUhePDD
Plan iupreliminary in nature, xu provided iuthe B/xue/ Code, and the 6uxl xyy/vvxl of
the development v[the P/vyeoy, or any portions thereof, is subject to ovmyliouoe by
Developer with conditions set forth in the PDD Plan, applicable provisions of Fraser
Code and other applicable /egulxtivuu, rules and policies and this Agreement;
| ��KBv/the /exuvuu/eodedhe/eiu. Develvye/xudB/xue/hxvedme/ouiuedUhm
the PDD Plan is x development for which this/\g/eeouezu is oyy/vydxte;
| 4L The PDD Plan may contribute substantially to the eovuvouio growth of
Fraser and, ovuue«ueuUy, may increase tax revenues tv B/xu=
2
K:M Fraser desires to annex the Property in order to provide for orderly growth
in and around Fraser;
1 N Developer desires to receive the assurance that it may proceed with
development of the Property pursuant to the terms and conditions contained in this
Agreement and in the PDD Plan, consistent with the Fraser Code;
l\44) 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;
=.1' 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
4 4 9 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
Section 1.1 Ordinances. For purposes of this Agreement, "Ordinances" shall
mean collectively the following: (a) the Annexation Ordinance; (b) an ordinance
approved by Fraser adopting and approving this Agreement; and (c) an ordinance
approved by Fraser adopting and approving the PDD Plan.
Section 1.2 Effective Date of Agreement. This Agreement shall be executed
upon the approval hereof by Fraser and shall become effective as of the 61 st day after
after the effective date of the approving ordinance as provided in Fraser Code (the
"Effective Date"). If the approving ordinance of this Agreement or the ordinance
approving the annexation are subjected to a legal challenge, Developer may, at its
option to be exercised by written notice to Fraser after consulting with Fraser, declare
this Agreement to be null and void, in which case the annexation of the Property shall
be void and said Property shall be disconnected from Fraser and the PDD Plan shall be
void and of no effect.
3
Section 1.3 Annexation. Annexation of the Property shall be in accordance with
this Agreement and the Colorado Municipal Annexation Act of 1965, as amended
(C.R.S. §§ 31-12-101, et seq.). As provided herein, the Property shall be subject to all
Fraser ordinances, the Fraser Code, and applicable rules,regulations and policies.
Section 1.4 Zoning. Consistent with the requirements of the Act, Fraser
contemporaneously herewith zones the Property a PD District and is amending the
Official Zoning Map of Fraser accordingly.
Section 1.5 Acknowledgements. The parties acknowledge the following:
a. Development of the Property pursuant to the PDD Plan is estimated
by Developer to have a 35 year build-out period.
b. A material consideration for Developer's annexation of the
Property and development of the Property consistent with the PDD Plan is Fraser's
agreement to permit development of the Property in accordance with (i) the terms and
conditions of this Agreement and (ii) the conditions of approval of the PDD Plan,
provided that there is subsequent Fraser approval of an FPDP or subdivision within the
PDD Plan pursuant to the Fraser Code.
Section 1.6 No Obligation to Develop. Developer shall have no obligation
under this Agreement to develop all or any portion of the PDD Plan and shall have no
liability under this Agreement to Fraser or any other party for its failure to develop all
or any part of the PDD Plan,unless otherwise expressly set forth in this Agreement.
Nothing in this Agreement shall be construed as a waiver or release by Fraser of its
rights to enforce the Fraser Code as provided herein. Developer shall have no liability
to Fraser or any other party for not developing all or any part of the Property provided
that Fraser and Developer are in full compliance with the terms and conditions of any
subdivision improvements agreement(s) and this Agreement. Notwithstanding the
foregoing and Developer's decision to delay or not develop the Property, Developer and
Fraser agree to perform those specific obligations to be fulfilled that are expressly
required and provided for in this Agreement.
ARTICLE 2
DEFINITIONS
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
4
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 C+)-�, H-al l reliminary Drainage Plan
prepared by Top Knot Engineering, Inc., and approved by Fraser ftsr- r cif as
conceptual in nature as set forth in the PDD Plan.
d. FPDP. The Final Planned Development Plan of the Property
approved by the Board of Trustees of Fraser in accordance with the requirements of the
PDD Ordinance and Fraser Code.
e. Improvements Agreement. An agreement or agreements required
by the Subdivision and Zoning Regulations of the Fraser Code to provide for the
construction of required improvements pursuant to the requirements set forth in the
Fraser Code.
f. Master Plan. A plan for guiding and controlling the physical
development of land use and circulation in Fraser of Fraser and beyond to a limit of
three miles, as adopted pursuant to Part 2 of Article 23, Title 31, Colorado Revised
Statutes, and any amendment or extension of such a plan. The Master Plan is also
known as the "Comprehensive Plan."
g. Planning Area. An area specifically identified on the PDD Plan.
It. Regional Roadways. This term shall mean the following existing
regional roadways, which are located on the Property: (a) the roadway designated on
the PDD Plan as Fraser Valley Parkway (the "Parkway"); (b) County Road 72 ("CR
72"); and (c) County Road 73, also known as Mill Avenue ("CR 73").
i. Residential Unit. A residential unit is a"dwelling unit" as defined
in the Fraser Code.
j. Grad njg, Roadway Plan. The C+* tH-al-Preliminary Grading &
Roadway Plan prepared by Top Knot Engineering, Inc., as approved by Fraser*& as
conceptual in nature as set forth the PDD Plan.
k. Sanitary Sewer Investment Fee. A fee collected by Fraser pursuant
to the Fraser Code, Section 13-4-50.
1. Sewer Plan. The Preliminary Sewer Plan prepared by
Top Knot Engineering, Inc., as approved by Fraser. as conceptual in nature a
forth in 4-the PDD Plan.
m. SEE. A"single family equivalent"defined in Section 13-2-10 of
the Fraser Code.
5
n. Water Facilities. The Water Facilities include the central potable
water supply diversion structures, well primps 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 Code, which facilities shall be owned and maintained by
the property owner on which the service line is located.
o. Water Infrastructure Plan. The Water
4-n Fe.-Plan prepared by Top Knot Engineering, Inc., which describes the water
infrastructure serving the Property, as approved by Fraser as conceptual in nature as set
forth in a�._�- f-the PDD Plan.
p. Water Plant Investment Fee. A fee collected by Fraser pursuant to
Fraser Code.
q. Water Rights. The water rights decreed by Fraser for its water
supply, including without limitation, the 60 acre feet of storage decreed by Developer
for dedication to Fraser pursuant to this Agreement.
ARTICLE 3
WATER
Section 3.1 Water Service. Upon approval of this Agreement, Fraser will
provide municipal potable water service to the Property for up to 1897 SFEs to serve
the PDD Plan subject to the terms and conditions set forth herein and the applicable
provisions contained in Fraser Code.
Fraser's Water Rights are adequate to support the potable municipal water
service for up to 1897 SFEs on the Property as described in the PDD Plan, subject to the
construction and dedication of the Dedicated Storage to Fraser, the issuance of a decree
from the Water Court confirming the as-built locations of the same, and other terms and
conditions set forth herein. Fraser shall be responsible for all applicable
implementation, operation and accounting requirements necessary to serve the Property
pursuant to the PDD Plan.
a. Infrastructure Connections. The water infrastructure connections to
the existing Fraser municipal system infrastructure to serve the Property may be made
through the infrastructure that serves the "old town"portion of Fraser or the
infrastructure associated with the neighboring project known as the Grand Park project.
The determination of which point of connection will be made will be based upon the
location and phasing of the PDD Plan as set forth in applicable FPDP or subdivision
approvals. The Developer will design and construct all required infrastructure to serve
6
the Property as required by the Fraser Code and at its sole cost. The provision of water
service is subject to the Developer's obligations to construct or pay for the construction
of the necessary Water Facilities to connect to Fraser's municipal water system and to
serve the PDD Plan or portions thereof as provided for herein, in applicable
Improvements Agreement, and the Fraser Code. Reimbursement or credit to Developer
for the costs of infrastructure constructed pursuant to this Section shall be as described
in Section 3.6 and Section 3.7 below.
b. The Developer agrees to pay Fraser $60,614 for Water Facilities
needs in order to provide water service for the initial 711 SFEs of the total 1897 SEE
approved herein. By this payment, Developer has no further obligation to reimburse
Fraser for legal fees for water court processes as may be required by Fraser regarding
the Dedicated Water Rights once they are conveyed to Fraser. Such amount shall be
paid upon the Effective Date.
C. The costs for water treatment plant improvements and other
infrastructure, engineering and legal work that will have to be made from time to time
to serve the PDD Plan, or portions thereof, shall be paid through the Water Plant
Investment Fees payable to All Water Plant Investment Fees shall be
allocated between the Developer and Fraser as specified in Section 3.7 below.
Section 3.2 Dedication of Water Storage Facilities. In satisfaction of Fraser's
water dedication requirements in connection with the provision of municipal water
service for the PDD Plan, Developer, at its sole cost, agrees to design and construct
water storage facilities (ponds) (the "Dedicated Storage") and the ditches to fill the
Dedicated Storage and to release water therefrom into the Fraser River or its tributaries
upstream of the confluence of St. Louis Creek and the Fraser River to be located on the
Property and/or on adjacent property owned by Cornerstone Winter Park Holdings,
LLC, Grand Park Development LLC or affiliates as provided herein and in accordance
with the decrees for such water rights. If the Dedicated Storage fails in the first year
of operation to properly store the required amount of water for storage and operations
consistent with the decree and the provisions hereof in the opinion of the 4 cr�Fraser
after consultation with Developer and after consideration of normal and accepted
seepage for such storage facilites, Developer shall repair the subject Dedicated Storage
the summer following the first year and may, if appropriate, line the same. Developer
shall convey 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 convey or cause to be conveyed to Fraser the legal rights to fill
and store the Dedicated Water Rights in the Dedicated Storage together with all
appropriate easements for such storage space and the operation, repair,replacement,
improvement and maintenance thereof, the access rights necessary for the diversion and
transportation of water for the filling of such storage and for the release of such stored
water and its delivery to the Fraser River, and the rights of access to all facilities and
infrastructure necessary and convenient for the full utilization of the Dedicated Water
Rights by Fraser as a part of its municipal water system in accordance with the
7
applicable procedures set forth in the Fraser Code and any applicable augmentation
plan.
The two planned facilities for Dedicated Storage are the Byers Peak Ranch
Augmentation Pond and the Forest Meadows Augmentation Plan Pond. The Dedicated
Storage may be constructed in multiple ponds so long as the aggregate operational
water stored equals 60 acre feet. The Forest Meadows Augmentation Plan Pond will be
constructed to have the capacity to store 25 acre feet of the Dedicated Water Rights. It
will be designed and located by Developer, subject to Fraser's approval, no later than
five years after the Effective Date. The location will be consistent with the decree
entered in Case No. 83CW362. It will be constructed and all associated rights as
provided herein dedicated to Fraser no later than seven years after the Effective Date.
The Byers Peak Ranch Augmentation Pond will be constructed to have the capacity to
store 35 acre feet of the Dedicated Water Rights. eve loper shall
design and locate the Byers Peak Ranch Augmentation Pond, subject to Fraser's
approval, no later than 9 wars from the Effective Date, and.Developer
all construct
and. dedicate it to Fraser no later than 11 years after the Effcctivc Date. ,'-^ *ca.�rr�B
-i-a`i-c;i=ircri-c'rec-i�l3z}rr-i-.iib-=-E,`"�kri-�:!�i'''i--tii�`';-r`-crrif-�-$�ii��-`,..`-.---t�-rs r�l3c—,r'"�""��'rrr'•.,,�.., ,.F „1 .,,�,7,
?`"°*.. The Developer shall comply with all applicable local, state and
federal laws, including securing any required permits, for constructing the Dedicated
Storage. Fraser agrees to waive all aradinQ and excavation permit and review fees
associated with the permitting for the Develon ep ,T''s grading and excavation in connection
with the implementation of the PDD Plan and all construction permit and.review fees
for construction of the Dedicated. Storage.44+e r""'" ) The Dedicated Storage shall
6--a-n-i�-�-�--naT.
be constructed and operated and all releases of the Dedicated Water Rights made in
compliance with the applicable decrees (or pending decree) in Case Nos. 83CW362,
05CW287 or lOCW309, which include provisions to address groundwater that may be
intercepted, and applicable augmentation plans. The Dedicated Water Rights to be used
to fill the Byers Peak Ranch Augmentation Pond shall be the first rights diverted under
Case No. lOCW309.
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 the Property
for the purposes set forth herein in a location agreed upon by the parties and the filling
and storage of water, (b) the access thereto and to all associated facilities and
infrastructure, (c)the rights for the operation, maintenance,repair, replacement and
improvement thereof, and (d)releases and associated access therefrom to the Fraser
River tributaries. The Developer is required to grant easement rights that will burden
only the Property. 44+T�., 4J`raser recognizes that Developer is unable to grant or
change ditch easements that may currently exist on adjacent property not owned by
Developer and can only convey the same interest in easement rights it may have in
connection with the water rights to be used for filling the Dedicated Storage. The
easement rights shall be free of liens and encumbrances and shall be executed and
8
delivered into escrow with Title Company of the Rockies, Inc. —Winter Park Branch by
the owners of the respective properties on which the Dedicated Storage facilities are
located to be held in accordance with instructions to be provided consistent with the
provisions of this Agreement. The grant of easement for the Byers Peak Ranch
Augmentation Pond system is attached hereto as Exhibit C. The grant of easement for
the Forest Meadows Augmentation Plan Pond is attached hereto as Exhibit D.
The water rights decreed in Case No. 05CW287 shall be conveyed to
4:+Av*F'raser by the applicants and owners thereof upon the Effective Date in
satisfaction of the obligation to convey the Dedicated Water Rights associated with the
Forest Meadows Augmentation Plan Pond. Developer will cause the grant of easement
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. l OCW309 to fill and store 35 acre feet of
storage shall be conveyed to 44€ ' nFraser by applicants and the owners thereof
within thirty days of the 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 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 of the Dedicated Storage and
associated facilities shall consist of(a) alternative storage that is free and clear of
encumbrances, (b)retention of Water Plant Investment fees, and (c) Fraser's remedies
in the event of a default, as follows:
(a) Alternative Storage: On the Effective Date, Developer will grant
access easements and rights of first use agreements to Fraser for 30 acre feet of
storage in existing ponds at Grand Park or in a satisfactory alternate facility
("Grand Park Ponds"), which easements shall be effective only in the event the
above deadlines are not met and shall only apply to that amount of Dedicated
Storage that has not been constructed and operational; this right of first use shall
terminate with respect to the amount of Dedicated Storage that has been
constructed and operational at the time it becomes effective. It is anticipated
that such operational storage, only to the extent as may be required, shall be in
the existing pond commonly known as the "Wishbone Pond," and associated
ponds. A map of the Grand Park Ponds is attached as Exhibit E and the
Easement and First Right of Use Agreement for Grand Park Ponds and
Associated Facilities and Infrastructtiire is attached as Exhibit F.
(b) The Water Plant Investment Fees to be reimbursed to Developer as
provided in Section 3.7 shall be held in a separate account as security for the
9
costs to construct the Dedicated Storage or portions thereof that have not been
constructed and conveyed to Fraser as provided herein. It is assumed that the
costs of such construction are $75,000 per acre foot of water to be stored and the
amount of such fees held will not exceed the remaining acre feet of storage
required to be built by Developer and dedicated to Fraser that is not otherwise
secured by storage in the existing ponds times $75,000. To the 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 feet of storage to be constructed and dedicated shall be released
to Developer consistent with the provisions of Section 3.7 hereof.
(c) Fraser's Remedies in Default. To the extent that Developer fails to
provide the Dedicated Storage to Fraser in the time frames provided for herein,
Fraser may also implement its remedies set forth in Section 12.6.v.
The above security provided for in (a) and (b) shall be released after the first
year of storage and operation of the subject Dedicated Storage, if it is not lined. The
above security provided for in (a) and (b) shall together not exceed the total costs of the
Dedicated Storage to be or remaining to be constructed, based on the estimated costs set
forth in (b). By way of example, if the Forest Meadows Augmentation Plan Pond is
constructed and operational, then the total security shall amount to that required to
construct the Byers Peak Ranch Augmentation Pond.
All operations, maintenance,repairs and replacements, and water court or agency
filings or activities for such ponds shall be Developer's responsibility at its sole cost
until such time as the rights in the Dedicated Storage and the Dedicated Water Rights
are conveyed to Fraser. Upon conveyance of the Dedicated Water Rights, Fraser shall
be responsible for all operations, maintenance, repairs, and replacements, water court or
agency filings or activities of the Dedicated Storage and Dedicated Water Rights stored
therein, unless otherwise agreed upon by the parties in writing. The pond(s) may be
designed to include the storage of additional water rights, and may include storm water
detention capacity or any such other water uses that Developer may require. In such
event, the parties shall be responsible for the costs of all operations, maintenance,
repairs, and replacements, water court and agency filings or activities in proportion to
the amount Developer stores in the subject pond relative to the amount of Dedicated
Water Rights stored therein. With respect to any pond that will constitute all or a
portion of the Dedicated Storage that also will store Developer storage rights, the first
water stored in the same shall be the Dedicated Water Rights and Fraser shall have the
priority of right to use the Dedicated Water Rights over any other water stored in the
Dedicated Storage. Upon the Effective Date, the parties agree to execute the Reservoir
and Ditch Operating Agreement for the Dedicated Storage pond(s)that will provide for
Developer's ongoing use of the Byers Peak Ranch Augmentation Pond for snowmaking
and for irrigation uses on onlagricultural lands, open space and ap r•ks 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. The operating agreement shall provide that
Fraser shall have the right to use the Dedicated Water Rights stored in any such
10
Dedicated Storage ponds with priority over any other water stored in the Dedicated
Storage by and for Developer's lase. 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 e*rfof the Effective Date of this Agreement. There shall be
no fee charged by Fraser for the Developer's use of the water made available by Fraser
under its Dedicated.Water Rights for irrigation. Any irrigation useby Developer shall
be-t-se-limited.to portions of the Property that are agricultural lands, open space and/or
ap rks. Given that the irrigation use is at the same time as Fraser's uses, the operating
agreement shall provide for a mechanism for the parties to allocate the amount available
for irrigation use on an annual basis. If the Byers Peak Ranch pond system is larger
than 35 acre feet, then all capacity in excess of 35 operational acre feet shall be retained
solely for use by Developer and no fee is required for Developer's use of such excess
acre feet and the operation of the same will be as provided herein. However if water is
available Developer agrees to provide up to 10 acre feet of water stored in ponds on the
Property above and beyond the Dedicated. Water Rights stored. in the Dedicated. Storage
for lease to Fraser to use for augmentation purposes, upon Fraser's request. Fraser shall
pay Developer the then current rate of snowmaking water as described. above for such
augmentation use. A copy of the Reservoir and Ditch Operating Agreement is attached
as Exhibit G. The pond excavation operations for the Property shall be consistent with
the recorded PDD maps and approval, Grading and Excavation Operations Plan
provided for herein, and the provisions of this Agreement.
a. Byers Peak Ranch Augmentation Pond(s). The Byers Peak Ranch
Augmentation Pond(s) shall be designed, located, and constructed by the Developer, as
provided herein for not less than 35 acre feet, on the Property. The water to fill such
pond shall be diverted from St. Louis Creek and shall be capable of being delivered
therefrom by gravity to the pond. The water stored therein shall be capable of being
released to the Fraser River via its tributaries: Elk Creek or St. Louis Creek consistent
with the provisions set forth in Case No. l OCW309, WD 5. The Reservoir and Ditch
Operating Agreement, attached as Exhibit G, provides that Developer may have a right
of use to use the Dedicated Water Rights in the Byers Peak Ranch Augmentation Pond
for snowmaking purposes on an annual basis subject to the first right of Fraser to meet
its needs to use such water for augmentation and other municipal purposes, in Fraser's
sole discretion; Developer shall be responsible for all costs associated with its use of
such portion of the Dedicated Water Rights.
b. Forest Meadows Augmentation Plan Pond(s). The Forest Meadows
Augmentation Plan Pond(s) shall be constructed by Developer, as provided herein and
consistent with the decreed location described in Case No. 83CW362 as approved by
Fraser, on property that is owned by Grand Park Development, LLC and included
within the Grand Park Planned Development District Plan recorded on November 8,
2005 in the real property records of the Clerk and Recorder of Grand County as
Reception No. 2005-012709, as amended from time to time (the "Grand Park PDD
Plan"). The water used to fill such pond(s) shall be diverted and conveyed to such pond
through the Elk Creek No. 2 Ditch and Developer shall make such improvements as
necessary to implement this diversion and conveyance in connection with the
construction of the Forest Meadows Augmentation Plan Pond(s). The water stored
11
therein shall be capable of being released to the Fraser River as consistent with the
decrees in Case Nos. 83CW362 and 05CW287, WD 5. Upon Developer's conveyance of
the water rights for the 25 acre feet decreed in Case No. 05CW287 to as
provided herein, Fraser agrees it will be solely responsible for any and all further water
court proceedings and costs related to such water rights, based upon Developer's
payment made pursuant to Section 3.1.2. above. Developer agrees it will not oppose
any such water court proceedings that may be filed related to such water rights.
Developer shall cause Cornerstone Winter Park Holdings, LLC to assist it in fulfilling
its obligations hereunder for the Forest Meadows Augmentation Plan Pond(s). To the
extent Cornerstone Winter Park Holdings, LLC and Grand Park Development, LLC fail
to agree to these requirements as provided herein, the Byers Peak Ranch Augmentation
Pond(s) shall be constructed to an active capacity of 60 acre feet within the time frame
required for the Forest Meadows Augmentation Plan Pond.
C. Future Water Right Cases. The Developer agrees not to oppose any
water rights application filed by Fraser for the purpose of findings of reasonable
diligence, making absolute or otherwise utilizing the Dedicated Water Rights and/or
utilizing them as a part of its water rights inventory in connection with any plan for
augmentation or other water rights that are a part of its municipal water system. In
addition, Fraser agrees that it will not file opposition to future diligence cases related to
the water rights that serve the Property, including but not limited to Case Nos.
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.
Section 3.3 Water Service Infrastructtiire 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 Preliminary Water Plan. The Preliminary Water Plan is conceptual and will be
modified from time to time based on Developer's further engineering as approved by
Fraser consistent with the Fraser Code. Within such Preliminary Water 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.
12
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.
It is important to Fraser to utilize its water rights in St. Louis Creek for their
decreed beneficial uses and Developer agrees to assist in enabling Fraser to be able to
divert and use the same given that the delivery of water under such rights may need to
cross the Property once diverted as further provided in this paragraph. As a part of the
construction of the diversion and transmission facilities from St. Louis Creek to the
Byers Peak Augmentation Pond and of the construction of sewer lines from such pond
site to the east portion of the property as identified on the Sewer Plan or such other
alignment that is cost effective for the installation of the St. Louis Creek transmission
line as determined by Fraser and Developer, Developer agrees to cooperate with Fraser
to include the installation of a raw water transmission line in the trenches for such
facilities in order for Fraser to divert its municipal water rights out of St. Louis Creek
and convey them to the Municipal Parcel described below or its water treatment facility.
Any additional costs incurred by Developer in fulfilling this responsibility will be paid
by Fraser at the time that they are incurred. Until such time that Fraser diverts and
applies its St. Louis Creek water rights to beneficial use, Fraser agrees that, on an
annual basis, Developer may use those portions of its St. Louis Creek water rights not
otherwise committed to other uses or parties for decreed purposes on the Property in
order to keep such lands properly irrigated and to reduce dust within Fraser pending the
development of the PDD Plan as provided herein. Such use is an important municipal
use for Fraser to promote the irrigation of fields within the municipality and adjacent to
the other residential components of Fraser for aesthetic and dust control purposes,
among other municipal purposes. Fraser will notify Developer of the availability of
such water and the parties shall discuss its uses each year, as may be appropriate, on or
before May 1 of each year. Fraser may notify Developer at any time that such water
will no longer be available for use.
Section 3.4 On-site Wells. Section 13-2-20 of Fraser Code provides that on-site
wells are not permitted on the Property except as approved by Fraser. Fraser
acknowledges the Dedicated Storage ponds that are considered to intercept groundwater
will require well permits from the State Engineer. While such ponds are technically
wells if they intercept groundwater and therefore are subject to the provisions of
Section 13-2-20 of the Fraser Code, 4+e4 ° Fraser hereby determines that such
"wells" are not within the contemplation of such Section, that a franchise under the
13
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 84-4 or Planning Area 14-4-; (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 permits shall be changed as
needed by the Developer, depending upon the ultimate water uses of the same. Under
no circumstances shall the well be used for potable purposes after the Colorado
Adventure Park is connect to Fraser's municipal water system and there shall be no
cross connections. All potable uses of the well shall terminate upon the connection of
the Adventure Park potable system to the Fraser municipal water system.
Section 3.5 Water Plant Investment Fees. Water Plant Investment Fees
associated with the water service to the project shall be due and payable as provided in
Section 13-2-210 of Fraser Code.
Section 3.6 Excess Capacity. Developer is only responsible for costs associated
with Water Facilities that are reasonably required to service the Property. To the extent
the costs of any excess capacity of any Water Facilities constructed by Developer at the
request of Fraser are the subject of reimbursement agreement with other parties using
such excess capacity, Developer shall be entitled to receive all reimbursements received
and/or plant investment fees paid in proportion to the excess capacity utilized, but not
to exceed such proportionate costs. To the extent Water Facilities constructed by
Developer for the Property are utilized to the benefit of other property not within the
PDD Plan, Fraser agrees to reimburse Developer for the proportionate cost of such
Water Facilities in proportion to the use by such other property based on the cost to
Developer of such facilities and limited by the actual reimbursement or plant
investment fees paid to Fraser by the owners of such other property. The payment of
such reimbursable amounts shall be due to Developer quarterly based on the funds
received from other properties beginning with the first quarter after the subject Water
Facilities are accepted by Fraser. To the extent that Fraser requests that the Water
Facilities be constructed with excess capacity that are not the subject of reimbursement
and Fraser, in its discretion, desires to have such excess capacity created, it shall pay
the costs of the same at the time that they are incurred.
14
Section 3.7 Water Plant Investment Fee Accounting and Credit. Fraser shall
establish a separate water account for Developer and provide a specific accounting for
Developer to track all Water Plant Investment Fees paid in connection with the Property
and all certified costs incurred by Developer in the construction of Water Facilities and
the Dedicated Storage. All reasonable Dedicated Storage construction costs and all
reasonable Water Facilities construction costs incurred by Developer in connection with
the development of an approved FPDP or subdivision shall be documented and certified
by Developer and provided to Fraser for review and approval. The amount of such
approved costs shall be credited to the Developer in Developer's water account. The
amount of any Water Plant Investment Fees prepaid by Developer shall also be
separately credited in the Developer's water account. Any Water Plant Investment Fees
in Developer's water account shall not expire.
Fraser will collect the Water Plant Investment Fees for residential and
commercial water users within the Property as paid in accordance with the Fraser Code.
The amounts collected shall be accounted for in Developer's water account.
Developer shall be credited in Developer's water account the Water Plant
Investment Fees both prepaid and paid in the amounts paid. Subject to the limitations
set forth herein, Developer shall be reimbursed for construction costs of(a) all Water
Facilities which are reasonably required to service the FPDP or subdivision and (b)
Dedicated Storage. The payment of such reimbursable amounts shall be due to
Developer quarterly based on the fees received beginning with the first quarter after the
Water Facilities are accepted by Fraser and based upon the certified costs of Developer.
Water Plant Investment Fees collected by Fraser for all connections at the Property and
due to Developer hereunder shall be paid by Fraser to West Mountain Metropolitan
District and the Developer's water account shall reflect the same.
The amount of Water Plant Investment Fees to be reimbursed to Developer shall
be as follows:
a. BPR is reimbursed for all water plant investment fees generated by the
BPR project paid from 41 SFE to 4711 SFE;
b. BPR and 4+e4—o-�Fraser split equally the water plant investment fees
generated by the BPR project paid from 4712 SFE to 41,331 SFE;
C. BPR is reimbursed for all water plant investment fees generated by the
BPR project paid from 41331 SFE to 41,520 to bring to a total of 900 fully reimbursed
SFE fees to BPR;
d. BPR and 4+e4—o-�Fraser split equally the water plant investment fees
generated by the BPR project paid from 41,520 to 41,897.
In the event all of Developer's certified costs are fully paid and no other Water
Facilities and or Dedicated Storage are necessary or planned for 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
15
the amount of the certified costs of Developer paid in connection with the construction
of the Water Facilities and Dedicated Storage.
If Fraser hereafter amends its Fraser Code to allocate its Water Plant Investment
Fee between a system development fee and a water resource fee, neither Developer nor
any other owner within the Property shall be obligated to pay a water resource fee
except as otherwise identified by separate agreement between Developer and Fraser.
All other hook-up and service fees customarily charged by Fraser to its water customers
under the Fraser Code may be charged and collected to water customers within the
Property.
ARTICLE 4
SEWER
Section 4.1 Sewer Service. Upon approval of this Agreement, Fraser will
provide municipal sanitary sewer service to the Property to serve the PDD Plan subject
to the terms and conditions set forth herein and the applicable provisions of the Fraser
Code.
To the extent that Fraser requests that the sewer facilities to be constructed to
serve the PDD Plan be constructed with excess capacity that are not the subject of
reimbursement and Fraser, in its discretion, desires to have such excess capacity
created, it shall pay the costs of the same at the time that they are incurred. To the
extent that another property owner requests that the PDD Plan's sewer facilities be
constructed with excess capacity to serve such other property, such other property
owner shall pay the costs of the same at the time that they are incurred. To the extent
that properties outside of the Property utilize any sewer facilities constructed by
Developer, the users thereof shall reimburse Developer for the costs of such sewer
facilities in proportion to the uses by properties outside the Property and those within.
Section 4.2 Individual Sewage 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 ISDS may
continue in operation until the sooner of the following events occurs: (a) the
installation of sanitary sewer service infrastructure in connection with the development
of Planning Area 10 or Planning Area 11; (b)the installation of a public main within
200 feet of the ISDS; or (c) at such time that the Colorado Adventure Park facilities are
connected to the municipal water system of Fraser. After any one of the above events
occurs, the parties agree that the Colorado Adventure Park shall connect to Fraser's
municipal sanitary sewer system and the ISDS shall be abandoned.
ARTICLE 5
OTHER UTILITIES
16
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 . art Preliminary
Drainage Plan prepared by Top Knot Engineering, Ina-4.a�.'. :
P-F4H4R*ff-I4t1n ,, t gyred key=1€ -1 n€31 Engine ?n—d-ate4 ^. :rt
2-044. The applicable requirements of the Subdivision Regulations and of Section 16-5-
440(8) of the Zoning Regulations and other provisions of the Fraser Code pertaining to
drainage shall be complied with at the time of the submission of an application for an
FPDP or subdivision for all or portions of the PDD Plan. As provided in the PDD Plan,
a master drainage study for the portion of the Property submitted for FPDP will be
submitted with each application for an FPDP.
ARTICLE 7
STREETS AND TRAFFIC
Section 7.1 Grading &Roadway. Developer has submitted a Preliminary
Grading &Roadway Plan, prepared by Top Knot Engineering, Inc., as a part of its
submission of the PDD Plan ("Roadway Plan"), which has been approved by Fraser
4e+ff-d--as conceptual in nature;as set forth in the PDI)
Section 7.2 Traffic Impact Anal. Developer has provided a Traffic Impact
Analysis dated February 2011 prepared by Felsburg Holt and Uhlevig (the "Traffic
Impact Analysis"), which has been approved by Fraser's traffic consultants and
approved by Fraser Board as a part of the PDD Plan. The Traffic Impact Analysis may
be amended and updated from time to time, including at the time of the filing of an
application for an FPDP or a subdivision, as appropriate, in order to update the same as
the PDD Plan is implemented over time and to reflect material changes in assumptions
(such as the assumption that Fraser Valley Parkway will be completed to the north of
the Property past County Road 73) and results of the same and material changes in
impacts and conditions of traffic on Fraser. Fraser shall review and approve all such
amendments, in its sole discretion, to insure that the traffic impacts of the development
of Fraser and the traffic impacts of the implementation of the PDD Plan are identified
and appropriately addressed. At the time of an application, the Developer shall provide
the engineering and associated information required in Sections 16-5-430(12) and 16-5-
440(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.
17
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 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 a subdivision approval. The right of way for the roadway designated as
Fraser Valley Parkway was previously dedicated to Fraser. The rights of way for
Ce*ff4y-Ro-&4 72 and Co+i-r�-ty--Ro-&4 73 are owned by Grand County (that portion of
C€-a+irty-R4a4.73 within Fraser is commonly known as"Mill Avenue"). The rights of
way for these roadways shall be confirmed on each 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 Roadway The improvement of the Regional Roadways is
the responsibility of Grand County and Fraser based on intergovernmental agreements
and memoranda of agreement or understanding that may exist between them from time
to time. Fraser and Grand County shall work together to establish the level of
improvements desired for the Regional Roadways and the proportional responsibilities
and timing associated with any improvements. Fraser shall reassess the necessity of
such improvements at the time Developer submits its application for FPDP or a
subdivision under the PDD Plan based on the then current Traffic Impact Analysis and
Traffic Impact Study.
18
Improvement to the Regional Roadways may be required by Fraser and Grand
County or the Fraser Code or applicable regulations as a result of increases in traffic
resulting from regional use or use in connection with the development of the Property.
The design, engineering and construction of any required improvements will be the
responsibility of Fraser and Grand County. The parties agree that Developer shall only
be responsible for costs to improve Regional Roadways based on the percentage of total
trips from the development under the PDD Plan to the total trips on the subject
Regional Roadway. Such percentage of use is anticipated to increase as the
development phases are implemented and shall be considered in connection with the
appropriate improvements and allocation of total trips from the Property. It is
understood that Developer has equipment and will contribute its portion of the
improvements in kind through the use of its equipment to provide the base grading and
excavation that may be necessary for such road improvements.
No later than upon completion of the pond grading and excavation on the
Property, the parties agree Fraser Valley Parkway should be improved by chip and seal,
at a minimum. 4:4+e4-&w-rrFraser 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 4+e44�Fraser has secured appropriate funding for the
surfacing improvements and can provide for the same. Additionally, Developer shall
work together and. cooperate with Fraser and. Grand. County to resolve the grads of CR
72 and. other concerns at the intersection of CR 72 and. the Fraser Valley Parkwa .
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 seven years from the Effective Date,upon the next subdivision filing
under the PDD Plan, the path will be included as a subdivision improvement to be
constructed accordingly. As develo np Zcnt progresses, Developer will work with Fraser
in identifnQ and as aPopriate providing access to regional trail pathways or adjacent
public lands.
19
ARTICLE 8
SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION
Section 8.1 Additional Municipal Services. After the Effective Date and subject
to the provisions hereof, Fraser agrees to provide the Property such additional
municipal services currently provided within Fraser on terms and conditions by which
such services are so provided, subject to applicable terms and conditions of any
approval of an FPDP or subdivision.
Section 8.2 Project Open Space. Developer has submitted and Fraser has
approved as a part of the PDD Plan a general open space plan consistent with the
requirements of the Fraser Code. Developer agrees to further submit with each
application for an FPDP or subdivision refined and detailed provisions of the open
space plan for the property that is the subject of such application and an updated open
space plan for the PDD Plan consistent with the requirements of the Subdivision
Regulations and of the Zoning Regulations.
Section 8.3 Public Open Space. During the implementation of that portion of
the PDD Plan that includes development adjacent to the Fraser Valley Parkway from the
old town south and on the east side and after the improvements to the Fraser Valley
Parkway have been made and basic infrastructure installed in either Planning Area 2, 3,
or 8 whichever is first, Developer shall create and develop (sod/grass and irrigation
infrastructure to be installed) a"pocket"park at the south end of the viewplane shown
on the PDD Plan adjacent to the Fraser Valley Parkway for public open space use and
shall dedicate the same to +e4- wal`raser. 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 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,
ire--crrFraser shall be responsible for maintaining the same upon its dedication to
44r�Fraser.
Section 8.4 School Impact Fees. At Developer's request and subject to the
provisions of Sections 17-7-340 and 17-7-350 of the Fraser Code, Developer may
dedicate land for public schools or pay a fee in lieu based upon the calculation of
those fees as set forth in Section 17-7-350 of the Subdivision Regulations. Such fees
shall be calculated and due and payable as provided in Section 17-7-350(d) of the
Fraser Code or at such other time as agreed upon by the parties.
Section 8.5 Municipal Parcel Dedication. On the Effective Date, the Developer
agrees to dedicate, or to cause to be dedicated, 6 acres in the PA-1 Planning Area of the
PDD Plan ("Municipal Parcel") to Fraser be used for municipal purposes. The
Municipal Parcel 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 the
20
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
will discuss and mutually plan as appropriate drainage and associated issues that affect
both PA-1 and the Municipal Parcel as the project develops..
Section 8.6 Colorado Adventure Park Facilities and Operations. The parties
acknowledge the facilities and operations of the Colorado Adventure Park ("Park")
located in Planning Area 8 of the PDD Plan. The Park is an existing business that was
the subject of the public review process in Grand County in connection with the
issuance of a special use permit therefor. The Park has operated in accordance with the
special use permit. The special use permit will terminate upon the Effective Date and
Fraser shall approve by resolution, concurrent with the approval of this Agreement, a
development permit for the continued operation of the Park consistent with the
provisions of the special use permit pending the review and approval of an FPDP that
includes the Park
ARTICLE 9
GENERAL DEVELOPMENT OF THE PROPERTY
Section 9.1 Development and Control of Development. Developer has the right
to develop the PDD Plan on the Property subject to the terms and conditions of this
Agreement, the land use approvals and the completion of the land use process
consistent with the provisions of Fraser Code. This Agreement and the other provisions
incorporated as a part of the PDD Plan are intended to prescribe a general plan for the
use and development of the Property. Except as expressly provided herein and the other
provisions of the PDD Plan, whenever any action is required to be taken by Developer
hereunder at the time of or in conjunction with FPDP or subdivision review or approval,
and the FPDP and subdivision do not occur concurrently, then the action shall be
required at the time of the first approval for FPDP or subdivision for the subject
property.
Section 9.2 Densities. This Agreement and the approved PDD Plan set forth the
number of Residential Units at a maximum of 1,435 dwelling units (as defined in Fraser
Code), 550 hotel/motel/lodging house units (as defined in Fraser Code and including
without limitation recreational vehicle parking spaces and campsites that are intended
for tourist and visitor use only) and 270,000 square feet of commercial space,
recreational facilities and appropriate support facilities which Fraser agrees is
appropriate for development on the Property subject to the completion of the land use
approval process under Fraser Code. The location of such units, the sizes of the various
building envelopes, and other pertinent land use requirements shall be determined in the
land use approval process as required by Fraser Code and reflected in an approved
FPDP, subject to the provisions of the approved PDD Plan, the Fraser Code, and any
density transfers properly identified in accordance with the Fraser Code. The PDD Plan
is approved concurrently herewith and generally includes without limitation the
following:
a. a property description;
21
i. land use and development notes referring to matters to be
done relating to open space, accessory dwelling knits, density transfer, water supply
and system, wastewater collection, grading and drainage, geologic features,
development standards, sign guidelines, parking and planning area descriptions;
ii. fourteen Planning Areas that are designated areas of land
within the project and identified in the PDD Plan and that include residential use with
detached, attached and stacked Residential Units (Planning Areas 2, 3, 4, 5, 6, 7, 8, 12,
13, 14); a mix of uses of commercial retail, office, industrial, warehousing,residential,
lodging, and institutional uses and municipal purposes and facility uses (Planning Area
1), open space, park, trails and recreational uses (Planning Area 9), lodging, RV,
camping,retail, commercial recreation,restaurant uses (Planning Area 10); detached,
attached, stacked, RV, camping and cabin units (Planning Area 11); and excavation and
grading operations and ponds and gravel operations associated with the pond and
Project development(Planning Areas 4, 5, 6, 7, 8, 9, 10, 11) and other limited pond
development (Planning Areas 2 and 3);
iii. general site analysis;
iv. land use plan that is a general map showing the Planning
Areas with acres for the same and land use site data chart and two streets;
V. Lf�reliminary -s ewer f Ulan showing conceptual main sewer
line locations and a reference that a master sewer study will be prepared at platting;
vi. f reliminary Water fr'lan showing conceptual water main
locations and a reference that a master water study will be prepared at platting;
vii. fLreliminary #Grading and(Roadway fr'lan showing CR72,
CR73 and Fraser Valley Parkway;
viii. Preliminary 4 )rainage 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
22
SFEs set forth in the Fraser Code irrespective of the payment structure for SFEs
associated with the receiving property.
iii. The receiving property shall remain subject to all other
provisions of the Fraser Code.
iv. Any transfer proposed must be approved by Fraser, which
approval shall be based upon confirmation and satisfaction of these conditions.
Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations of
Fraser. Subject to the provisions of Article 11 hereof, development within the Property
shall conform to the development standards approved as part of the PDD Plan and to the
applicable provisions of Fraser Code. Prior to Fraser considering and approving an
FPDP or subdivision for the Property, Developer shall satisfy all applicable rules and
regulations of Fraser, submit all required plans and information, pay all standard fees,
and shall satisfy all applicable conditions of approval of the PDD Plan, the
requirements set forth herein, and all applicable requirements of the Fraser Code
consistent with the provisions hereof.
Section 9.5 Grading and Excavation Operations. In connection with any FPDP
or subdivision application or other activity associated with the development of the PDD
Plan, Developer shall obtain a grading and excavation permit in accordance with the
requirements of Article 3 of Chapter 18, Building Regulations, of the Fraser Code. Due
to the extent of the grading and excavation activities anticipated on the Property as a
result of the development of water storage facilities for Fraser and Developer and roads
and other components of the PDD Plan, any permit for the grading, excavation, and
stockpiling on the Property or export of excavated material from the Property shall be
subject to review and approval by Fraser for compliance with the provisions of the
applicable Fraser Grading and Excavation Operations Plan, as it may be amended from
time to time, and, if applicable for commercial sales purposes, the requirements and
conditions set forth in any applicable permit issued for such activities by State of
Colorado Office of Economic Development, Colorado Department of Natural
Resources, Division of Mining Reclamation and Safety ("DMRS").
The Grading and Excavation Operations Plan will be used to regulate grading
and excavation operations for pond excavation for sale of gravel offsite within Fraser in
addition to any DMRS permit that may be required and issued and the provisions
hereof. Prior to commencement of any grading and excavation activities on the
Property, Developer, its lessee or its operator, as appropriate (references to "Developer"
shall include its lessee or operator), shall comply with the following, subject to
Developer remaining responsible for insuring that such compliance occurs:
i. DMRS Permit. Developer shall submit any required DMRS
permit application and permit, if applicable.
ii. Fraser Grading and Excavation Permit. Developer shall
submit an application for and shall obtain a grading and excavation permit from Fraser
23
in accordance with the requirements of Article 3 of Chapter 18, Building Regulations,
of the Fraser Code. Such application shall include, without limitation, a copy of any
DMRS permit application. A copy of the DMRS permit shall be filed with Fraser when
issued. The grading and excavation permit issued by Fraser shall include a condition
that it is subject to the Grading and Excavation Operations Plan.
iii. Compliance with Laws. Developer shall comply with all
applicable Fraser, state and federal rules, regulations and statutes, including, without
limitation, those enforced by the Colorado Department of Natural Resources, the
Colorado Division of Reclamation, and the Colorado Division of Public Health and
Environment. The Developer will apply for any other required permits and shall provide
such permits to Fraser as a part of its application for or implementation of its grading
and excavation permit.
iv. Best Management Practices. Best management practices
will be employed with regard to soil erosion, drainage, and other impacts on the site
and mitigation of the impacts shall be included as a part of such practices; a summary
of best management practices will be provided to Fraser with the grading and
excavation permit application.
V. Duration of Operation. Pond grading and excavation
operations shall commence within six months of obtaining any required permit from the
State and a grading and excavation permit from Fraser. Developer agrees that any
permits for pond excavation and any resulting sale 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 sale of gravel offsite shall discontinue entirely after the 15 year
anniversary of the issuance of the first grading and excavation permit for pond
excavation and any resulting sale of gravel offsite. It is understood that additional
grading and excavation activities may occur thereafter in connection with the phasing in
of the PDD Plan and not including any resulting sale of gravel offsite. Developer shall
apply for and obtain appropriate grading and excavation permits in accordance with the
Fraser Code for such activities. During periods of inactivity (six months or more),
equipment associated with the grading and excavation operation must be moved off-
site.
Section 9.6 Transfer of Planning Area. Developer shall have the right to create
a separate legal parcel of a Planning Area or portion thereof under the Subdivision
Regulations. In the event the subject parcel satisfies the subdivision exemption criteria
set forth in Section 17-3-10(a) of the Subdivision Regulations, the plat creating the
same shall include a notation that approvals of the plat by Fraser do not indicate an
approval of any access rights, availability of utilities or the ability of the parcel or
parcels to be served by utilities and that such parcel or parcels are subject to the terms
and conditions of this Agreement and the Fraser Code. In the event such parcel or
parcels are transferred to a third party, any proposed changes to the PDD Plan by the
transferee with respect to the transferred parcel or parcels shall require the confirmation
of the Developer that such changes do not affect its property.
24
Section 9.7 Phasing Plan. Consistent with the requirements of Section 16-5-430
of the Zoning Regulations, a development schedule indicating an approximate date
when construction of the planned development or phases of said development may
begin shall be submitted with each application for an FPDP or subdivision, together
with proposed amendments to the PDD Plan general phasing plan, as appropriate.
Section 9.8 Metropolitan District. Developer has previously organized the West
Mountain Metropolitan District (the "District"). The purpose of the District is to
provide a means of financing various infrastructure improvements or operating
infrastructure within its boundaries but not to compete or conflict with the services and
responsibilities of Fraser. Fraser has received a request from the District to include the
Property within its service area. Contemporaneously herewith and pursuant to the
provisions of C.R.S. Title 32 Article 1, Special District Act, Fraser has approved by
resolution the petition to include the Property in the West Mountain Metropolitan
District service area under C.R.S. Section 32-1-401 and approved by resolution an
amendment to the service plan consistent with the requirements of C.R.S. Section 32-1-
204.5. It is understood that such service plan amendment includes without limitation
an increase of the debt authorization, subject to District voter approval, to be equal to
the application of a maximum District tax rate of 35 mills for the Property based upon
the financial information provided under C.R.S. Sections 32-1-202(2)(b) and (f) and
32-1-203(3)(d). No more than 35 mills shall be imposed on the Property and this
restriction shall run with the land the District shall include this Property with this
restriction.
Developer shall not be relieved of any of its obligations hereunder or under any
land use approvals granted with regard to the Property. In connection with the approval
of an FPDP or subdivision and the negotiations of a subdivision improvements
agreement, development improvements agreement or Improvements Agreement, Fraser
shall review the financing mechanisms and security proposed by Developer and the
District for the financing of the infrastructure required by such agreement and may
approve the same if consistent with the requirements and intent of the Fraser Code and
this Agreement.
Section 9.9 Financing of Public Improvements. As requested by Developer from
time to time, Fraser, in its discretion, agrees to consider public infrastructure financing
techniques to assist in the costs of improvement that are of a regional nature.
Section 9.10 Maintenance Cost Offsets. Developer and Fraser recognize and
agree that the development contemplated by the PDD Plan may entail significant
increased road maintenance and capital expenditures to be the responsibility of Fraser.
Fraser may, as a condition of approval of any FPDP or subdivision require that the
applicable Improvements Agreement provide for the Developer to provide a means of
road maintenance necessary to serve the FPDP or subdivision or utilize other means of
addressing the maintenance needs for such roadways other than the Regional Roadways,
for a reasonable period of time not to exceed two (2)years.
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Section 9.11 Hospital/Health Services District. Developer may wish to form a
Hospital/Health Services District and currently intends to include the Property within
its service area. Fraser agrees to review any service plan prepared for such a special
district at the time that it is submitted to Fraser for review and approval in connection
with the inclusion of the Property within the district. A condition of approval of the
creation of such a district is that the district and Fraser enter into an intergovernmental
agreement that restricts the district from entering into any other contracts or assessing
any property or sales taxes without subsequent Fraser approval. The district's service
plan shall also contain such a restriction.
Section 9.12 Owner's Associations. Developer reserves the right to impose
covenants upon any portion of the Property and to form one or more owner's
associations for all or any portions of the Property which shall assume responsibilities
for collecting common expenses and enforcing restrictive covenants. All such
covenants and declarations must be provided as required by the Fraser Code.
Section 9.13 Rules, Regulations and Official Policies.
i. Fees, Conditions and Dedications. Developer shall make
only those dedications and pay only those fees expressly described in this Agreement
and the PDD Plan and those otherwise set forth in the Fraser Code, including without
limitation the reimbursement of Fraser's expenses incurred in connection with Fraser's
review of this Agreement and of any zoning and subdivision applications filed by
Developer. Notwithstanding the foregoing, Developer, as appropriate and consistent
with the provisions hereof, will be subject to such other normal fees, such as service
fees, that all developers and citizens are required to pay for municipal services.
ii. Land Use Approvals. Developer agrees to fulfill the
provisions, terms and conditions of the PDD Plan as provided therein and as
conditioned by Fraser.
ARTICLE 10
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
26
serve the Property, the responsibilities of the parties for various costs, fees and charges,
and such other matters the parties believe can be addressed at this time.
ii. Except as otherwise provided in this Agreement, this
Agreement is not intended to address those additional matters which are properly
considered at the time Developer submits to Fraser for its review and approval an
FPDP, subdivision applications for each development phase of the Property, or both.
Contemporaneously herewith, Fraser has approved the PDD Plan. Except as otherwise
set forth in this Agreement, Fraser reserves all rights to review, approve or deny any
future zoning application, FPDP application, or future subdivision application on any
portion of the Property, in accordance with state law and applicable provisions of the
Fraser Code, ordinances,rules,regulations, standards, and policies.
iii. It is not the intention of the parties in any way to diminish or
limit Fraser's legislative,judicial, quasi-judicial or other non-delegable discretionary
powers except as to the matters specifically set forth in this Agreement. Except as
otherwise provided in this Agreement, it is not the intention of the parties to impose on
Fraser any duty, beyond the Fraser Code and regulations as they may from time to time
exist, nor to impose any special obligation on Fraser to approve or accept any items
submitted by Developer or its successors and assigns including, but not limited to,
plans, drawings, engineering,reports, security documents, improvements, agreements,
and conveyances.
ARTICLE 11
VESTED RIGHTS
Section 11.1 Vesting of Certain Property Rights. The parties hereby agree
i. that this Agreement shall constitute a development
agreement as defined in C.R.S. 24-68-104(2) and shall constitute a site specific
development plan under C.R.S. 24-68-102(4)(a);
ii. that certain rights under this Agreement shall be vested
property rights to the extent permitted by Colorado law as provided in this Agreement;
and
iii. because the development of the Property under this
Agreement is sizable and requires phasing over 35 years according to the Developer and
because of evolving market conditions, a vested property right is hereby established
with respect to the Property in connection with the approval of this Agreement to
undertake and complete development and use of the Property under the terms and
conditions of this Agreement.
Section 11.2 Rights Which Are Vested. Having provided notice and conducted
a hearing in accordance with the requirements of C.R.S. Sec. 24-68-103(b), only the
specific rights which are identified herein and in the PDD Plan attached hereto shall
constitute the vested property rights established under this Agreement for the Property.
27
Subject to the terms and conditions set forth in this Agreement and in the approval of
the PDD Plan, these rights include the following:
a. No Downzoning. Fraser shall not initiate any zoning action to
reduce the maximum number and location of residential dwelling units, lodging units or
allowable commercial space, to limit the free market nature of the various properties or
interests therein offered, to impose any affordable housing fees or housing
requirements, to limit sales, or to change or limit the permitted commercial activities as
set forth in the PDD Plan.
b. Residential Dwelling Units, Lodging and Acreage. The right to
develop up to the total number and type of residential dwelling and hotel/motel/lodging
units set forth on the PDD Plan and the right to utilize substantially the total gross acres
for residential and hotel/motel/lodging use as set forth herein and in the PDD Plan.
C. Commercial Acres and Density. The right to utilize substantially
the total gross acres for commercial use as set forth on the PDD Plan and the right to
develop up to the gross floor area for commercial use as set forth herein and in the PDD
Plan.
d. Land Uses. The right to develop land and engage in land uses in
the manner and to the extent set forth in the PDD Plan.
e. Timing and Development. In recognition of the size of the
development contemplated under the PDD Plan, the time required to complete
development, the need for development to proceed in phases, and the possible impact of
economic conditions and economic cycles and varying market conditions during the
course of development, the right to develop the Property in such order and at such time
as the market dictates within the structure of this Agreement and the PDD Plan.
f. Moratoria. Fraser will not impose a moratorium except Fraser may
impose a temporary moratorium if, (i) the moratorium is non-discriminatory, (ii)the
moratorium is based upon a set of circumstances or a situation that has created a serious
and documented issue that threatens public health and safety and (iii)the moratorium is
only so long as required to correct or remedy the situation. In no other event shall any
type of general growth moratorium, product type, or building permit limitation of any
kind enacted in any manner by Fraser be applicable to the Property.
Section 11.3 Term for Vested Rights. In recognition of the size of the
development contemplated under the PDD Plan, the time required to undertake and
complete development, the need for development to proceed in phases, and the possible
impact of economic cycles and varying market conditions during the course of
development, Fraser agrees that the rights identified in Section 11.1 Seetio4i I I.r and ,,- Formatted:Expanded by 0.5 pt
Section 11.2 Section " ' of this Agreement, as vested property rights, shall continue _ Formatted:Expanded by 0.5 pt
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:
28
I. filing of voluntary petition in bankruptcy or for reorganization or for the
adoption of an arrangement under the Bankruptcy Code (as it may be amended from
time to time) or an admission of seeking the relief therein provided;
2. making a general assignment for the benefit of its creditors;
3. consenting to the appointment of a receiver for all or a substantial portion
of the Property;
4. in the case of the filing of an involuntary petition in bankruptcy, the
failure to have such petition stayed or dismissed within 60 days of filing;
5. the entry of a court order appointing a receiver or trustee for all or a
substantial part of the Property; or
6. the assumption of custody or sequestration a court of competent
jurisdiction of all or substantially all of the Property.
Section 11.4 Compliance with General Regulations and Limitations on Town
Actions. 4:4+e4-&w-rrFraser shall not take any zoning, subdivision or other land use
action that would alter, impair, prevent, diminish, impose a moratorium on
development, or otherwise delay development or use of the Property in accordance with
this Agreement. Except as otherwise provided herein, the Fraser Code, ordinances,
policies, procedures,regulations, standards, and requirements in effect as of the
Effective Date shall be applicable to the use and development of the Property.
i. The establishment of the rights vested under this Agreement
shall not preclude the application of Fraser ordinances,regulations. standards, or
requirements which are general in nature and applicable to all properties within Fraser
including, but not limited to, public works and sign regulations, impact fees,rate, toll,
charge, tax, service fees, user fees, local improvement districts rules and regulations,
building permit application requirements, building, fire, plumbing, engineering,
electrical and mechanical codes, as such exist on the Effective Date or may be enacted
or amended after the Effective Date.
ii. In addition, the provisions of the Fraser Code, ordinances,
policies, procedures,regulations, standards, and requirements may be amended from
time to time and will be applicable to the development of the Property as provided
herein if such amendments (i) are consented to by Developer or (ii) are general in
nature and applicable to all properties in Fraser and do not have the effect of denying,
altering, impairing, preventing, diminishing, imposing a moratorium on development, or
otherwise delaying development or use of the Property in accordance with the PDD
Plan and this Agreement.
iii. It is understood that Fraser will apply the current business
district standards to any applicable development within the PDD Plan either by way of
reference to such standards or by amendment to the PD District zoning regulations. In
applying the same, Fraser shall not impose a duplicative process 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
29
areas. Accordingly, the review procedures of the Fraser Code for the PD District shall
apply to the approval of any FPDP or subdivision plats for the Property.
Within 14 days after Fraser has approved the ordinance approving this
Agreement and in accordance with C.R.S. Sec. 24-68-103(1)(c), Fraser shall cause to be
published a notice in a newspaper of general circulation advising the general public of
the site specific development plan approval and creation of a vested property right
pursuant C.R.S. Sec. 24-68-101 through 106.
Nothing contained in this Agreement shall constitute or be interpreted as a repeal
of existing codes or ordinances or as a waiver or abnegation of Fraser's legislative,
governmental or police powers to promote and protect the health, safety, or general
welfare of Fraser or its inhabitants.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Time is of the Essence. Time is of the essence with respect to the
performance of each party's obligations hereunder. However, neither party shall be
liable for delays or failures to perform due to acts of God, strikes, civil commotions,
epidemics, quarantines, freight embargoes, or other cause of similar nature not
reasonably within such party's control
Section 12.2 Covenants. The provisions of this Agreement shall constitute
covenants and servitudes which shall burden and run with the land comprising the
Property and the burdens and benefits hereof shall bind and inure to the benefit of all
estates and interests in the Property and all assigns and successors in interest to the
parties hereto.
Section 12.3 Contractual Obligations. Fraser and Developer agree that the
agreements contained herein, are imposed by contract as terms and conditions of
Fraser's annexation of the Property, independent of the continued validity or invalidity
of any of the provisions of Fraser Code. Each of the Developer entities agrees to be
jointly and severally obligated under this Agreement to fulfill the responsibilities,
obligations and provisions agreed upon by Developer, including without limitation
those provisions relating to default and the remedies and cures associated with the
same. Notwithstanding the foregoing, Fraser shall have the right to look to only one
Developer entity for compliance herewith, as appropriate, and to seek remedies in the
event of a default against only one of the Developer entities and shall not be obligated
to include both in any effort, proceeding or action to secure the same.
Section 12.4 Term. The term of this Agreement shall commence upon the
Effective Date and shall extend in perpetuity. .
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
30
Fraser. Neither any amendment of the PDD Plan nor any approval of an FPDP,
subdivision or resubdivision of the Property (or any part thereof) shall require an
amendment to this Agreement.
Section 12.6 Default and Remedies.
i. Default by Fraser. A"breach" or"default"by Fraser under
this Agreement shall be defined as (a)pursuant to Section 24-68-105, C.R.S., in effect
as of the Effective Date, any zoning or land use action by Fraser or pursuant to an
initiated measure that alters, impairs, prevents, diminishes, imposes a moratorium on
development, or otherwise delays the development or use of the Property as set forth in
the PDD Plan, subject to the exceptions set forth in said statute, or(b) Fraser's failure
to fulfill or perform any material obligation of Fraser contained in this Agreement.
ii. Default by Developer. A"breach" or"default"by
Developer shall be defined as Developer's failure to fulfill or perform any obligation of
Developer contained in this Agreement.
iii. Notice of Default and Opportunity to Cure. In the event of
default by one party in the performance of its obligations under this Agreement, written
notice of such default shall be given to the defaulting party by the non-defaulting party.
If the default is a failure to pay any amount of money due pursuant to the terms of this
Agreement or to post a letter of credit as provided herein, then such default shall be
cured within 10 days after notice of default is given to the defaulting party. If such
default constitutes a breach or violation of any term or provision of this Agreement
other than the payment of a monetary amount or the posting of a letter of credit, the
defaulting party shall have 15 days within which to institute corrective action and shall
proceed diligently thereafter to cure the default within no more than 90 days from the
date of the notice of default.
iv. Remedies- Default by Fraser. In the event of a default by
Fraser that is not timely cured as provided herein, the Developer shall be entitled to
specific performance and mandatory prohibitory injunction and the remedies set forth in
C.R.S. Sec. 24-68-105, except Fraser shall not be liable for any compensation, if such
default pertains to the vested rights established herein.
V. Remedies- Default by Developer. In the event of a default
by Developer that is not timely cured as provided herein, Fraser shall be entitled to
specific performance, and mandatory prohibitory injunction. Fraser shall also have the
right to (a) stop the processing of any application of any type or nature filed or pending
before it with regard to the Property, (b) not approve any permit, application, or other
required authorization associated with the development of the Property, and (c) pursue
any remedies set forth in applicable development or subdivision improvement
agreements as provided therein.
31
Section 12.7 No Joint Venture or Partnership. Fraser and Developer hereby
agree that nothing contained herein or in any document executed in connection herewith
shall be construed as making Fraser and Developer part of a joint venture or partners.
Section 12.8 No Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon, or to give to, any legal
person other than the Parties, any right,remedy, or claim under or by reason of this
Agreement or any covenants, terms, conditions or provisions hereof, and all of the
covenants, terms, conditions and provisions in this Agreement by and on behalf of the
Parties shall be for the sole and exclusive benefit of the Parties. Nothing in this
Agreement is intended to interfere with the agreements of the Parties with third parties
Section 12.9 Notices. Any notice or communication required hereunder between
Fraser and Developer must be in writing, and may be given either personally, overnight
by UPS or FedEx, or by registered or certified mail,return receipt requested. If given
by registered or certified mail, the same shall be deemed to have been given and
received on the first to occur of(i) actual receipt by any of the addressees designated
below as the party to whom notices are to be sent, or(ii)five (5) days after a registered
or certified letter containing such notice, properly addressed, with postage prepaid, is
deposited in the United States mail. If personally or overnight delivered, a notice shall
be deemed to have been given when delivered to the party to whom it is addressed.
Any party hereto may at any time, by giving written notice to the other party hereto as
provided herein, designate any other address in substitution of the address to which
such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to Fraser: Town of Fraser
153 Fraser Avenue
P.O. Box 370
Fraser, CO 80442
Attention: Manager
with a copy to: Rodney R. McGowan, Esq.
Cazier, McGowan &Walker
P.O. Box 500
Granby, CO 80446
Arthur B. Ferguson, Jr., Esq.
Kylie J. Crandall, Esq.
Holland &Hart LLP
600 East Main Street, Ste 104
Aspen, CO 81611
If to Developer: Byers Peak Properties, LLC
Byers Peak Downhill Adventures,
LLC
P.O. Box 30
32
Winter Park, CO 80482
Attention: C. Clark Lipscomb
with a copy to: Lee F. Sachnoff, Esq
Krendl Krendl Sachnoff& Way, P.C.
370 Seventeenth Street, Suite 5350
Denver, CO 80202
And
Ramsey L. Kropf, Esq.
Patrick, Miller, Kropf&Noto, P.C.
229 Midland Avenue
Basalt, CO 81621
Section 12.10 Assignment. This Agreement shall be binding upon and inure to
the benefit of the successors in interest, assigns, transferees or the legal representatives
of the parties hereto. Developer shall have the right to assign or transfer any portion of
its interests,rights or obligations under this Agreement to third parties acquiring an
interest or estate in the Property, including but not limited to purchasers or long-term
ground lessees of individual lots, parcels, or of any improvements now or hereafter
located within the Property. In connection with any such assignment, the express
assumption of any of Developer's obligations under this Agreement and the PDD Plan
personally by its assignee or transferee may thereby relieve Developer of any further
obligations under this Agreement with respect to the matter so assumed, provided that
such assignee or transferee shall have sufficient financial capability and resources to
fulfill such obligations as determined by Fraser and confirmed by the Developer. In
such event, Fraser agrees to execute a written release of such obligations upon receipt
of a written confirmation to undertake such obligations by the assignee thereof. Any
approved assignment shall not be effective on Fraser for the transfer of the rights of
Developer to such assignee until written notice of the same is delivered to Fraser
executed by both the assignor and assignee.
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 limited to plowing,
tilling, irrigating, planting, haying and grazing, shall be exempt from Fraser permitting
requirements to the extent any may be applicable. Developer may continue such uses
during the phasing of the development notwithstanding the zoning of the Property under
the PDD Plan.
Section 12.12 Grant or Convey. Whenever a grant, dedication or
conveyance is required in this Agreement free and clear of encumbrances and liens,
Developer may make such conveyance subject to encumbrances or liens that Developer
is contesting in good faith provided that adequate assurances acceptable to Fraser are
given to provide that the lien or encumbrance will be satisfied and released in the event
Developer is not ultimately successful in its contest of the lien or encumbrance. Fraser
in its sole discretion shall determine whether such assurances are acceptable and
accordingly whether the grant, dedication or conveyance will be accepted by Fraser.
33
Section 12.13 Recording. This Agreement shall be recorded with the Clerk and
Recorder in Grand County, Colorado.
Section 12.14 Authorization. The signatories to this Agreement affirm that they
are fully authorized to enter into and execute this Agreement, and all necessary actions,
notices, meetings and/or hearings pursuant to any law required to authorize their
execution of this Agreement have been made.
Section 12.15 Governing 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 12.16 Severability. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall continue in full force
and effect so long as enforcement of the remaining provisions would not be inequitable
to the party against whom they are being enforced under the facts and circumstances
then pertaining and the parties shall use good faith efforts to modify such term,
provision, covenant or condition to the minimum extent necessary to be enforceable.
Section 12.17 Waiver of Breach. The waiver by any party to this Agreement of
a breach of any term or provision of this Agreement shall not operate or be construed as
a waiver of any other term or provision or of any subsequent breach by any party.
Section 12.18 Entire Agreement. This Agreement represents the entire
agreement between the parties and incorporates or supersedes any previous oral,
written, or collateral agreements, communications,representations or understandings
between the parties with respect to the matters set forth in this Agreement excepting
those agreements pertaining to the funding of Fraser's cost of review of this Agreement
and the PDD Plan. Except as otherwise provided herein, this Agreement does not
abrogate or modify any existing improvements agreement, subdivision improvements
agreement, development improvements agreement, or other annexation agreement
among the parties pertaining to properties other than the Property. In case of any
conflict or inconsistency between the provisions of this Agreement and the provisions
of such other graphic and written documents approved as part of the PDD Plan, the
provisions of this Agreement shall control.
Section 12.19 No Additional Annexation Conditions Imposed. Fraser and
Developer acknowledge and affirm that this Agreement does not impose additional
terms and conditions within the meaning of Section 31-12-107(1)(g), C.R.S. To the
extent that Section 31-12-107(1)(g), C.R.S. might be construed as being ambiguous as
to what might be considered additional terms and conditions, Developer, as the owner
of 100% of the Property, hereby declares that it has voluntarily entered into this
Agreement and states that if an election were held, Developer would approve the terms
and conditions of this Agreement at such election.
34
Section 12.20 Drafting of Agreement. This Agreement is the product of a
cooperative drafting and negotiating effort by Fraser and Developer and shall not be
construed or interpreted against either party solely on the basis that one party or its
attorney drafted the Agreement or any portion thereof.
Section 12.21 Execution of Other Documents. The parties agree to execute any
additional documents and to take any additional actions necessary to carry out this
Agreement.
Section 12.22 Counterparts; Facsimile. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. This Agreement may be
executed by copies of signature pages sent by email or facsimile.
[Signature Pages Follow]
35
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
36
For good and valuable consideration, Grand Park Development, LLC, hereby agrees to
be responsible for and fulfill the obligations specifically relating to the Forest Meadows
Augmentation Plan Pond(s), associated easements, the easements and rights of use in
the Grand Park Ponds and associated system, and any 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
For good and valuable consideration, Cornerstone Winter Park Holdings, LLC, hereby
agrees to be responsible for and fulfill the obligations specifically relating to the
Dedicated Water Rights that are the subject of Case No. 05CW287 and any 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.
Cornerstone Winter Park Holdings, LLC
By:
C. Clark Lipscomb, President
STATE OF COLORADO )
) SS
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this day of
2013, by , as Mayor, and _ _, as
Town Clerk, of Town of Fraser, a municipal corporation of the State of Colorado.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
37
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of BYERS PEAK
PROPERTIES, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of BYERS PEAK
DOWNHILL ADVENTURES, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of CORNERSTONE
WINTER PARK HOLDINGS, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
38
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of GRAND PARK
DEVELOPMENT, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
39
BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT
LIST OF EXHIBITS
EXHIBIT A—Legal Description of Property (to be provided from Annexation Petition)
EXHIBIT B —Byers Peak Ranch Planned Development District Plan With Conditions
(attached).
EXHIBIT C—Easement Grant and Agreement for the Byers Peak Ranch Augmentation
Pond and Associated Facilities and Infrastructtiire (attached).
EXHIBIT D—Easement Grant and Agreement for the Forest Meadows Augmentation
Pond and Associated Facilities and Infrastructtiire (attached).
EXHIBIT E—Map of Grand Park Ponds (attached).
EXHIBIT F —Easement and First Right of Use Agreement for the Grand Park Ponds
and Associated Facilities and Infrastructtiire (attached).
EXHIBIT G—Reservoir and Ditch Operating Agreement (attached).
EXHIBIT 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).
5991316_7
40
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
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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.
Contdaing 12,968,892 Rq=re font,or 295,429 aom,moro or loss.
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TOWN OF FRASER, COLORADO
ORDINANCE NO.
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�
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.
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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").
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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,
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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.
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(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,
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(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.
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6. Temporary Easement Provision. Because the parties contemplate that Grantor
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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.
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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
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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
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If to Grantor; Grand Park Development, LLC
P.O. Box 30
Winter Park, CO 80482
Attention: C. Clark Lipscomb
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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.
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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.
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GRANTOR:
GRAND PARK DEVELOPMENT,LLC, a
Colorado limited liability company
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By:
Name:
Title:
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GRANTEE:
TOWN OF FRASER, COLORADO, a Colorado
municipal corporation,
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By:
Mayor of the Town of Fraser, Colorado
ATTEST:
Town Clerk
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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:
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Notary Public
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EXHIBIT A
TO
EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
Depiction of Easement Property
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EXHIBIT B
TO
EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
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Surveyed MLap and Legal Description for Final Easement Location
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5977147 7
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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.
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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").
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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.
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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")
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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.
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(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.
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(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.
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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,
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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,
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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,
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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
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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.
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(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
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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
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By:
Name:
Title:
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GRANTEE:
TOWN OF FRASER, COLORADO, a Colorado
municipal corporation,
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By:
Mayor of the Town of Fraser, Colorado
ATTEST:
Town Clerk
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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.
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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.
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Witness my hand and official seal,
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My commission expires:
Notary Public
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EXHIBIT A E
TO
EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
E
Depiction of Easement Property
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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
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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
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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-�-
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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
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By:
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Name:
Title:
GRANTEE:
TOWN OF FRASER,COLORADO,a home rule
municipality,
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By:
Mayor of the Town of Fraser,Colorado
ATTEST:
Town Clerk
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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
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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.
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Witness my hand and official seal.
My commission expires: j
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Notary Public
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EXHIBIT A
TO
EASEMENT GRANT AND AGREEMENT
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DECREED LOCATION
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DECREED LOCATION a ��
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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
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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
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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
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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
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H&H DRAFT 3/185/13
EXHIBIT A
TO
EASEMENT GRANT AND AGREEMENT
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RESERVOIR K-1 R&K-2
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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 ��
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DECREED LOCATION �w
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SCALE: 1"=1,000'
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Draft dated 4-26-13
EXHIBIT G
TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT
AGREEMENT
RESERVOIR AND DITCH OPERATING AGREEMENT
THIS RESERVOIR AND DITCH OPERATING AGREEMENT
("Agreement") is made and entered into as of the — day of
2013, by and between BYERS PEAK PROPERTIES,
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
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
"Property", 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. lOCW309, Water Division 5. GPD is the owner of certain real
property located in Grand County, Colorado, commonly known as the Forest
Meadows property and Grand 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.
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
infrastructure and associated easements 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.
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.
2. Excess Pond Capacities. The parties agree that the Ponds may be
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:
a. FM Pond. After the FM Pond is constructed and dedicated to
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
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.
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
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. IOCW309 (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.
lOCW309, and does impact any water rights delivered by the same ditches that
are owned by either Fraser or Developers.
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 lOCW309, 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.
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 (35/50), and the
Developers are responsible for 30% of such costs.
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,
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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.
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.
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.
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,
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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. Failure to Operate, Maintain, Repair, Replace or Improve or
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,
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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.
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.
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b. Irrigation. After such time as the Developers dedicate the BPR
Pond to Fraser, Developers may use water stored in the BPR Pond for
irrigation of only agricultural landsmen e and/or pALks on the
ELqpert Lon 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 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.
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.
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Such plan must cure the default within a 30 day period, or in a time frame that
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.
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
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
P.O. Box 370
Fraser, CO 80442
Attention: Manager
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Email: jdurbingtown.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 cthorneghollandhart.com
Email kicrandallghollandhart.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 Kropfgwaterlaw.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
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:
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BYERS PEAK PROPERTIES, LLC, a
Colorado limited liability company
By:
Name: C.Clark Lipscomb
Title: President
BYERS PEAK DOWNHILL
ADVENTURES, LLC, a Colorado
limited liability company
By:
Name: C.Clark Lipscomb
Title: President
GRAND PARK DEVELOPMENT,
LLC, a Colorado limited liability
company
By:
Name: C.Clark Lipscomb
Title: President
FRASER:
TOWN OF FRASER, COLORADO, a
home rule municipality,
By:
Mayor of the Town of Fraser,
Colorado
ATTEST:
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Town Clerk
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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:
Notary Public
STATE OF )
SS.
COUNTY OF )
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
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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.
Witness my hand and official seal.
My commission expires:
Notary Public
6062470_3
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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.
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Subdivision Exemption Application to be provided as soon as survey of the legal
description of the Municipal Parcel is complete.
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TOWN OF FRASER, COLORADO
RESOLUTION NO. 2013----
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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;
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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:
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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.
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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.
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INTRODUCED, READ, APPROVED, ADOPTED AND RESOLVED this day of
February, 2013.
TOWN OF FRASER
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By:
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Mayor
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ATTEST: j
Town Clerk
6052007 1
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FRASER BOARD OF TRUSTEES
MINUTES
DATE: Wednesday, April 17, 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; Finance Manager Nat
Havens; Public Works Director Allen Nordin; Town Planner, Catherine
Trotter; Police Chief, Glen Trainor, Plant Supervisor Joe Fuqua,
Mayor Smith called the meeting to order at 7:00 p.m.
1. Workshop: National Flood Insurance Program
2. Regular Meeting: Roll Call
3. Approval of Agenda:
Trustee Naill moved, and Trustee Cwiklin seconded the motion to approve the Agenda
as amended, moving the minutes to #8. Motion carried: 7-0.
4. Consent Agenda:
a) Minutes—April 3, 2013— moved to a discussion item
b) Resolution 2013-04-03 Authorizing Expenditures for the 2013 Sewer
System Annual Inspection and Cleaning Contract
C) Resolution 2013-02-02 Winter Park Ranch Line Share Agreement
Trustee Naill moved, and Trustee Cwiklin seconded the motion to approve the consent
agenda. Motion carried: 7-0.
5. Open Forum:
6. Updates:
7. Public Hearings:
8. Discussion and Possible Action Regarding:
a) Resolution 2013-04-01 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
Page 2 of 3
Trustee Waldow recused herself from the discussion due to a conflict of interest
regarding her company's involvement as a sub-contractor for JT Kopp.
TM Durbin briefed the Board on his level of confidence on awarding the bid to JT Kopp.
Trustee Sumrall moved, and Trustee Naill seconded the motion to approve Resolution
2013-04-01 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. Motion carried: 6-0.
b) Resolution 2013-04-02 A Resolution Authorizing Expenditures for the 2013
Street Projects
PW Nordin briefed the Board on the current status of chip seal program. Plans are to
continue the process on the remaining streets with the exception of the Village at Grand
Park.
Phase 3, the final phase, of the Wapiti Drive drainage improvements would be
completed in 2013.
Trustee Sumrall moved, and Trustee Waldow seconded the motion to approve
Resolution 2013-04-02 A Resolution Authorizing Expenditures for the 2013 Street
Projects. Motion carried: 7-0.
C) Resolution 2013-04-04 Authorizing Expenditures for 2013 Water System
Improvement Projects
Specifically for a radio transmitter unit for the Town wells. This was originally approved in
2012 the contractor chosen for the work exceeded the contract due date so it was
brought back in 2013.
Trustee Cwiklin moved, and Trustee Waldow seconded the motion to approve
Resolution 2013-04-04 Authorizing Expenditures for 2013 Water System Improvement
Projects. Motion carried: 7-0
d) Resolution 2013-04-05 Authorizing Expenditures for the Purchase of a
New Compact Excavator and Attachments
PW Nordin outlined the need for an excavator and street sweeper.
Trustee Cwiklin moved, and Trustee Waldow seconded the motion to approve
Resolution 2013-04-05 Authorizing Expenditures for the Purchase of a New Compact
Excavator and Attachments. Motion carried: 7-0
e) Resolution 2013-04-06 Authorizing Expenditures for the Purchase of a
New Street Sweeper
PW Nordin briefed the Board on the need to purchase a new street sweeper due to the
inability to find replacement parts and the condition of the 21 year old sweeper.
Page 3of3
Trustee Cwiklin moved, and Trustee Sumrall seconded the motion to approve
Resolution 2013-04-06 Authorizing Expenditures for the Purchase of a New Street
Sweeper by pursuing Option 2 with the caveat of Option 2 falls through the Resolution
will come back to approve option 1 with a max of not to exceed $260,000. Motion
carried: 6-1.
f) Minutes—April 3, 2013
The Town received a request to add information to the April 3 d minutes. TM Durbin
outlined the Town's process of taking action minutes. Trustees requested the sign-in
sheets be attached to the draft minutes in the Board packet.
Trustee Naill moved, and Trustee Shapiro seconded the motion to approve the minutes.
Motion carried: 7-0.
9. Community Reports:
Trustee Naill reported Wipeout was successful.
10. Other Business:
Trustee Shapiro moved, and Trustee Sumrall seconded the motion to adjourn. Motion
carried: 7-0. Meeting adjourned at 8:40 p.m.
Lu Berger, Town Clerk
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FRASER BOARD OF TRUSTEES
MINUTES
DATE: Wednesday, April 24, 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; Town Clerk, Lu Berger; Finance Manager Nat
Havens; Public Works Director Allen Nordin; Town Planner, Catherine
Trotter; Police Chief, Glen Trainor, Special Attorney Boots Ferguson and
Kylie Crandall
Mayor Smith called the meeting to order at 4:10 p.m.
1. Regular Meeting: Roll Call
2. Approval of Agenda:
Trustee Sumrall moved, and Trustee Sanders seconded the motion to approve the
Agenda. Motion carried: 7-0.
3. Open Forum:
Chief Trainor addressed the Board.
4. Updates
5. 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 &
Crandall, Town Manager Durbin, Town Clerk Lu Berger, Public Works Director Nordin,
Planner Trotter and Finance Manager Havens
Open: 4:30 p.m.
Trustee Sumrall moved, and Trustee Cwiklin seconded the motion to enter into
executive session. Motion carried: 7-0.
Exit: 7:54 p.m.
Trustee Shapiro moved, and Trustee Sumrall seconded the motion to exit executive
session. Motion carried: 7-0.
Page 2 of 2
At
As the attorney representing the Town of Fraser, I am of the opinion that the entire
Executive Session, which was not recorded, constituted a privileged attorney-client
communication.
Boots Ferguson, Special Attorney
6. Adjourn:
Trustee Shapiro moved, and Trustee Walclow seconded the motion to adjourn. Motio
carried: 7-0. Meeting adjourned at 7:58 p.m.
Lu Berger, Town Clerk
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/)
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
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Byers Peak Ranch
Grading and Excavation Operations Plan — -26-13
This Grading and Excavation Operations Plan regulates grading and excavation for
specific Planning Areas within the Byers Peak Ranch Planned Development District per the
Annexation Agreement between the Town of Fraser (the "Town") and Byers Peak
Properties, LLC and Byers Peak Downhill Adventures, LLC (collectively, the "Developer").
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 a permit from the State and a Grading Permit (and providing
the required surety) from the Town- Such grading and excavation operations
may continue for a period of 10 years_,. During periods of inactivity (six months
or mare), the Developer shall move all equipment associated with grading and
excavation;operations off site......
4. Hours of Operation.
Monday through Saturdays 7:00 AM to 7:00 PM. Developer shall not allow truck
traffic to and from the gradin arid:excavation operations on Saturdays from Jul1
through Labor Day of each Beare
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 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.
1
C. The developer shall limit the amount of equipment and minimize its 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.
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 lbs 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;requirementsshall 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'rcadways. To the extent that there is identifiable
damage front 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
Developerwill 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 following Planning Areas within
the Byers Peak Ranch PDD:
2
Planner Briefing for TB May 1 st, 2013
The briefing below was included in the February 6, March 6, and April 3, 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
Lu Berger
From: Peggy Adams <peggyladams @gmail.com>
Sent: Wednesday,April 17, 2013 4:47 PM
To: Lu Berger
Subject: in consideration of the Byers Peak Ranch annexation
In these times, all communities are looking for ways to sustainably but responsibly capitalize on the economy's
slow shift towards recovery and for opportunities that have a lasting strengthening effect.
I've recently become aware of the Byers Peak Ranch annexation before the Town of Fraser. As a summer and
winter visitor and great fan of the Fraser area, I've watched its attempt to stay relevant and compete in a
challenging economy and market. This annexation seems the perfect opportunity to take advantage of when not
many present themselves. It seems certain the benefits of annexation far outweigh any of the disadvantages,
most certainly increasing positive growth in general,particularly in added attractions, more and vibrant retail,
eating establishments and energy to the area enabling it to attract the demographic Fraser needs in order to not
just survive, but thrive. Many of Colorado's towns and resorts are at a tipping point. This is a chance of a
lifetime for Fraser to improve on its appeal and set itself apart from other choices and its competition.
Fraser is poised to strengthen and reposition itself in a premier spot as THE choice for families to live, as well
as visitors to come to with its easier "commute" from Denver than any of the other resorts. This annexation
would bring a new and permanent draw for full time residents looking for a stable, supportive environment to
come to, bring their businesses, have and raise their young families,pay their taxes and live the life they're
dreaming of. But they need the security that their choice in Fraser is sustainable and one they can count on. The
annexation will not only provide a new and desirable place to live, work and recreate, but generate jobs and
result in a positive economic impact that is far reaching and long term with the additional benefits of resolving
water system, storage and drainage issues that the developers are financially responsible for.
Hopefully, with foresight, the Town of Fraser through a thorough review of the Byers Peak Ranch annexation
proposal will see it as the win\win it is and grant its approval.
Respectfully,
Peggy Adams
i
April 19, 2013
Fraser Town Board
PO Box 370
Fraser, CO 80442
Dear Trustees,
We write in support of the Byers Peak Ranch Annexation. Annexation is a
logical extension of Fraser and will provide needed revenues and expanded
water resource capability to the town. It will also allow Fraser to control use
and development of the property.
We've seen the objections and threats before. in 2009, volunteer board
members of the Fraser Valley Metropolitan Recreation District were subjected
to a recall election for advancing the Recreation Center at Grand Park. Voters
soundly rejected the personality-based, anti-development campaign. The
Recreation Center today is a valuable asset—making Fraser a more desirable
place to live and visit.
Byers Peak Ranch will provide jobs and economic opportunities, things that
are in scarce supply in the Fraser Valley. it will not take away from the scenic
quality or quaint character of Fraser.
The owner has a Plan B® proceed with the county. In that event, Fraser would
lose all of the benefits it negotiated.
We urge the Town Board to approve the Planned Development District and
Annexation Agreement.
Sincerely,
Rich Devlin and Kim Linin
144 Engleman Stand, Fraser
copy: Peggy Smith (by email)
Jeff Durbin (by email)
Lu Berger(by email)
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Lu Berger
From: Catherine Trotter
Sent: Monday,April 08, 2013 9:20 AM
To: Lu Berger
Subject: FW: Annexation of Byers Peak Ranch by Fraser
Catherine E. Trotter, AICP
Town Planner
Town of Fraser
From: Steve Radcliffe [mailto:ridaecliffe756Ca)amail.com]
Sent: Saturday, April 06, 2013 8:46 AM
To: Catherine Trotter
Subject: Fwd: Annexation of Byers Peak Ranch by Fraser
Denis and Jeryln Bensard of Rendezvous also agree with my letter on Byers Peak Ranch.
---------- Forwarded message ----------
From: <jerilynbensardggmail.com>
Date: Fri, Apr 5, 2013 at 9:06 PM
Subject: Re: Annexation of Byers Peak Ranch by Fraser
To: Steve Radcliffe<ridgecliffe7569gmail.com>
Hi -
Denis said to add our names - thanks for staying involved as we all have financial interest in Fraser.
Hi to Janie.
Jerilyn
Sent from my iPhone
On Apr 5, 2013, at 12:06 PM, Steve Radcliffe<ridgecliffe756ggmail.com>wrote:
> I have attached a letter that I wrote to the Fraser Town Board encouraging them to approve the annexation of
Byers Peak Ranch into Fraser. I think this is important. If Fraser does not approve this, the development will
be in Grand County, and that will harm the ability of Fraser to be a viable town in the future. That would not
be good for any of us.
>Please read the letter and let me know what you think. If you would like to be added as a signer I will add
your name. If you would like to write your own letter please be my guest. We have until May 1 st to respond.
> There is a group actively campaigning against this annexation (the usual suspects - the ones who were against
the Rec Center) so the Town Board needs to hear other viewpoints or they will turn it down.
i
• Steve Radcliffe
• Home Phone: 970-726-4454
• Cell Phone: 970-509-9678
• <Letter to the Fraser Town Board.docx>
Steve Radcliffe
Home Phone: 970-726-4454
Cell Phone: 970-509-9678
2
Byers Peak Ranch Annexation—Clearing the Muddy Water
By Jack Bestall
To the Editor:
In a previous letter I noted that comments made at recent Byers Peak Ranch annexation hearings sounded like stories
you hear around a campfire; the facts change to fit the bend around the circle. In some cases the facts wouldn't bend
and they flopped out of the circle - yep, like fish. The thing is that some people will do anything to keep Fraser like it is
and to try to influence the Fraser Board's decision on the annexation even if it means telling big fish stories — you know,
whoppers.
One of the stories you will hear is that Fraser has been soft on the agreement. To determine if they have, ask yourself if
you would be willing to pay for and guarantee 60acft of water storage, or invest $40mil in infrastructure without any
subsidy or guarantee of success - recognizing that the town you are investing in has had a steady decline in revenue for
the last 10 years? This is what Fraser is requiring in the annexation agreement — is that soft?
A story bordering on a whopper is that Fraser will place itself at risk if it makes an agreement with the owners of Byers
Peak Ranch. These are the same owners that live and work in the Fraser Valley and have been involved with
development since 1999 — taking the Maryvale plan and working with their partners to make it a reality. They have kept
their commitments and complied with Fraser's regulations while completing Cozens Meadow Neighborhood; Cozens
Pointe Condominiums;Village at Grand Park General Store; the Grand Park Community Recreation Center; and the
Foundry Bowl & Cinema. These owners helped Fraser with the Consolidated Sewer Treatment Plant by guaranteeing the
Town's debt on its construction which resulted in making water releases to the Fraser River compliant with State water
quality standards.
You will also hear fishy tales about environmental impacts—even in the face of ground-breaking work like the biological
assessment of the Lynx for USFWS and a boatload of projects that speak to the owner's genuine concern about the
environment and their support of the local recreational lifestyle. Projects include the Fraser River Open Space dedication to
the Town; construction of new wetlands and water storage ponds; 15 miles of barbed wire replaced with wildlife friendly
wood fences similar to the original at Cozens Ranch; 5 miles of public accessible hiking/biking, cross country skiing,
snowshoeing trails and a Frisbee golf course; and a forest management plan that led to the removal of 1,200ac of pine
beetle infested trees.
Another whopper has been perpetuated about not caring about the community—and yet the focus on education,
recreation, cultural, and social projects through the Cornerstone Community Foundation, a 501 C non-profit initially funded
by Cornerstone with $500,000 has contributed nearly$200,000 to Grand County non-profits like the Fraser Valley
Elementary School, Fraser Creative Learning Center, Grand Kids, Winter Park Horseman's Association, and the Grand
Foundation. Many events have also been hosted for groups like the Grand Kids Fall Festival; Fraser Valley Rec Duathlon;
Habitat Hobble; MS Society-Muckruckus; Run for Independence-Children's Hospital; and NSCD Cross Country races.
It's not like it's all been calm water fishing and there haven't been rapids along the way—which is typical if you are getting
something done, but the record of commitment, investment and giving-back is clear. Byers Peak Ranch will be developed
and the risk for Fraser is if it doesn't benefit. If Fraser annexes Byers Peak Ranch and it never develops, the worst case
for Fraser would be that it secured critical water storage; a 6ac municipal parcel; and long term development control for the
Town at no cost. There will always be fish stories—it's tradition, the Fraser Board has a fiduciary responsibility — basing
decisions on whoppers isn't prudent unless you want to pretend that things can stay the same — but that means muddy
water.
Jack Bestall—Bestall Collaborative Limited 720 810 6480
Owner's Representative to BPR LLC, Downhill Adventures LLC
1
BP Annexation
By Jack Bestall
To the Editor:
Statements and questions at last week's Byers Peak Ranch (BPR) annexation public hearing could use clarification.
Working in Grand County since 1997— living here for 10 years - I participated in annexations in Fraser and Winter Park
and know these processes do not make for easy communication. Much like the campfire story, content can get lost in
translation as it bends its way around the circle — sometimes resulting in falsehoods meant to influence the outcome of
the story. There is a vision of partnership that can be fulfilled by BPR and Fraser and this is written in that spirit.
The annexation process began in 2007 and much effort has been made by both parties. The idea of developing BPR is
not new - the land was rezoned for development in the 1970's and purchased by the Wu family, who held it for a
number of years as a real estate investment. The land's scenic quality and relationship to Fraser are well established -
it should be a part of Fraser. However, if not annexed — the owners have determined to develop in Grand County.
The Plan addresses many critical issues including unresolved drainage conditions, water needs and difficult market
conditions — that impact all of Fraser. As approved by the Fraser Planning Commission it contains open space,
reservoir, residential, lodging, and commercial and recreation uses. Development of the plan will create jobs, expand
the economic base, attract families and produce revenue for the Town while spreading existing costs of the water and
sewer system beyond current residents. Historically, development in the Fraser Valley has been slow paced — the
Maryvale plan (Rendezvous/Grand Park) was approved in 1986 and is still being developed 27 years later. The 35 year
commitment attached to the land is necessary to create certainty for the Town and ownership.
Fraser has been tough -negotiating major benefits and protections for the Town and its residents. BPR seeks an agreement to
deliver market-ready, attainable development. Because Fraser's revenues have declined over the past 10 years - depleting
reserves - revenue is important to the annexation. Revenues from water/sewer tap fees, building permits, plan review fees, use
tax fees and property taxes for developing one-half of the project are estimated at $26.2mil. Looking only at the Use Tax portion,
Fraser projects revenue of$3-12mil and savings of$4.5mil on constructed water storage. If infrastructure paid for and constructed by
development serves non-project areas, there may be a reimbursement; but only when development occurs and taps are purchased.
Reimbursement would be made to a Metropolitan District approved by Fraser in 2005 from fees paid to Fraser. So,development pays
all costs and assumes all risks—there is no subsidy for development in Fraser.
The annexation secures Fraser's water future. The Town has sufficient water for the entire Town and BPR according
to its engineers, but needs local water storage to protect its water rights. Fraser is requiring BPR to provide water rights
and construct reservoirs to satisfy existing and future water augmentation requirements. As a guarantee, if the
reservoirs are not constructed, water storage must be provided to Fraser in existing reservoirs. Since the Ranch
currently diverts more water for irrigation than needed for development and reservoirs, there should be no impact to the
St. Louis Creek drainage. Drainage conditions will also be improved with controlled irrigation and facilities constructed
according to Fraser standards.
The end of this story is yet to be written. We do know that change is a slow process in the Fraser Valley—on both sides of each issue it
comes hard -even on decisions made 30 years ago.According to the NCCOG Transitions in Mountain Communities Report,
development of market-ready local and visitor housing, recreation and commercial uses, and protection of scenic values are key
elements of sustainable mountain resort towns.The Fraser economy relies on this, moving from agriculture in its early history to
recreational tourism. A successful partnership with Fraser and Byers Peak Ranch offers a revived economy-opportunities for residents
and businesses, and long term water security.
Jack Bestall—Bestall Collaborative Limited 720 810 6480
Owner's Representative to BPR LLC, Downhill Adventures LLC
1
April 19th, 2013
To whom it may concern!
I am writing in support of the Byers Peak Ranch Annexation to the Town of Fraser.
I feel this annexation will have the opportunity to play a large role in the financial growth of the
community as well as creating a more inviting and sustaining community for current and future
residents.
Realizing there are financial implications to any project, the financial risks and burden fall on the
developer, in this case, Byers Peak but will pass the financial benefits on to the Town of Fraser with only
a fraction of the initial cost commitment development from the Town.
The revenue potential for Fraser is an obvious benefit. Short and long term job growth will be
stimulated in and around Fraser. Seen as Jobs in the short term and new economic development
opportunities for long term growth can be realized immediately, which benefits the entire community.
Generally, the quality of life in Grand County will be enhanced as a result of the improved services the
infrastructure provided by this annexation will make possible.
In conclusion, I fully support the efforts of the Byers Peak Ranch annexation as they seek
opportunities to improve the Fraser valley and strengthen the community.
Sincerely!
Jenni Bonenberger
Account Executive, Summit and Grand Counties
130 Ski Hill Rd. Breckenridge, CO 80424
(970)368.0098
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Lu Berger
To: Catherine Trotter
Subject: RE: Byers Peak Ranch Annexation
From: Ryan J. Elston [mailto:ryan aspenlocal.com]
Sent: Tuesday, April 23, 2013 3:32 PM
To: Catherine Trotter
Subject: Byers Peak Ranch Annexation
Ryan Elston
1242 Snowbunny Lane
Aspen, CO 81611
April 23, 2013
Lu Berger, Town Clerk
Town of Fraser
P.O. Box 370
Fraser, CO 80442
Dear Ms. Berger:
I am writing this letter in support of the annexation of Byers Peak Ranch into the town of Fraser.
I spend time in the Fraser skiing and mountain biking and I believe the annexation would allow for greater
economic growth in the area and will allow Fraser to attract more tourist dollars. Without more retail,
restaurants, lodging, etc., Fraser won't be in a position to compete with the other resorts. Fraser has a unique
opportunity to widen its yearly tourist visits both for summer and winter activities because of its proximity to
Denver.
Places much more affluent, like Aspen, have already seen the benefits in creating an affordable alternative for
year-round locals, they are what make the town viable. Annexation would benefit Fraser economically and
the improved infrastructure would also create an attractive draw for tourists and seasonal
visitors/employees.
Thanks for your time and consideration. Feel free to contact me if you have questions.
Sincerely,
Ryan Elston
i
Ryan J.Elston
Aspen Associates Realty Group
Partner/Broker
970.379.3072-mobile
970.544.5800 -office
970.544.8185 -fax
rvank,aspenlocal.com
www.aa-rg.com
2
Lu Berger
From: Emerson,Jack <JackEmerson @CEAVCO.com>
Sent: Tuesday, April 09, 2013 5:23 PM
To: Lu Berger
Subject: Byers Peak Ranch
As a second home owner in Fraser now and in the area since 1980, 1 urge you to support the annexation of the
Byers Peak Ranch. Further development of the Fraser valley is inevitable and Fraser has done a great job of
managing the expansion of housing and commercial development. We love Fraser and the entire valley, let's
grow it in a sustainable manner and insure the future for everyone to enjoy.
Thank you for your dedication to our community,
John Emerson
1835 Pioneer Trail
Fraser, CO 80442
Denver
500 Cook St, 80206
Phone: 303 539 3403
i
Bob and Laura Frank
10443 Santa Fe Street
Northglenn, CO 80234
303-885-5363
April 9, 2013
Lu Berger, Town Clerk
Town of Fraser
P.O. Box 370
Fraser, CO 80442
Dear Ms. Berger:
We understand that there is a matter before the Town of Fraser regarding the annexation of Byers
Peak Ranch into the town. I am writing this letter in support of the annexation.
We own a timeshare at Twin Rivers and spend time in the Fraser area for tubing, scenic drives,
fishing and other recreational activities. We believe the annexation would allow for greater
economic growth in the area and will allow Fraser to attract more tourist dollars. Without
increases in available activities, retail, restaurants, lodging, etc., we don't feel Fraser will be in a
position to compete with the other resorts. With its proximity to Denver, Fraser has a unique
opportunity to widen its yearly tourist visits both for summer and winter activities. The beauty
of the valley is a draw in itself.
Additionally, we feel it is in the Town's best interest to be able to control the development of the
Byers Peak property, rather than the control being in the County's hands.
We understand from the annexation proposal that the Town stands to benefit both economically
and in its infrastructure. We think both would put the Town in great stead for the future.
Thanks for your time and consideration on this matter. Feel free to contact me if you have
questions.
Sincerely,
Y
Laura Frank
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Lu Berger
From: Rita Harth <rharth @g rand parkco.com>
Sent: Wednesday,April 24, 2013 6:08 PM
To: Lu Berger
Subject: Fraser Annexation
Mr. Berger
I would like to support the Annexation, it will bring more jobs and revenue to the town.
Thanks
Rita
1
Lu Berger
From: joanne@j-jewell.com
Sent: Monday,April 22, 2013 8:29 AM
To: Lu Berger
Subject: Support Annexation
Hello Lu,
Just wanted you to know that I fully support the Byers Peak Ranch Annexation. Hopefully this will
happen in a reasonable timeframe.
Regards ... Toanne
Joanne Jewell
Associate Broker
Century 21 Winter Park Real Estate
46 Market Street
P.O. Box 2101
Winter Park, CO 80482
Mobile: 970-531-3647
Phone: 970-722-2121 (office)
Toll Free: 1-866-726-2121
FAX: 970-726-5732
Email: moanne(&-iewell.com
i
Michael Karpowicz, Esq.
33 Sunshine Avenue
San Francisco,CA 94965
michaelkarpo @gmail.com
April 18,2013
Lu Berger,Town Clerk
Town of Fraser
P.O. Box 370
Fraser,CO 80442
Dear Ms. Berger:
I have been told that there is a matter before the Town of Fraser regarding the annexation of Byers Peak
Ranch into the town. I wanted to show my support for the annexation because of the many benefits the
Town of Fraser stands to gain.
I worked in the Fraser area for a few months in the winter of 2010 and have visited the area numerous
times on vacations since. While there are many resort towns for visitors to choose from in picking a
destination, the area of Fraser is unique in both its beauty and proximity to Denver. I believe with the
right infrastructure, Fraser has the potential to grow its population and become a much more popular
tourist destination.
However, as it is now, Fraser is lacking in the amenities that tourists and homeowners find appealing
when choosing a place to travel and live. The piecemeal development of these amenities is not likely
today because the Town's infrastructure(water storage system) is inadequate and there is no money to
correct it. If the annexation were approved,the developer would solve this problem on their own dime
and put the Town on solid footing to grow organically going forward. The annexation and future
development would also substantially increase the revenues to the Town of Fraser in the form of
property taxes and development fees.
I believe the future benefits to the Town of Fraser and surrounding areas significantly outweigh any
costs the Town will incur from the annexation.
Thank you for your time and consideration on this matter.
Sincerely,
Michael Karpowicz, Esq.
Letter to the Fraser Town Board
Five years ago my wife Olga and I moved from New York to Fraser to enjoy the
mountains. We have built our retirement home here in Rendezvous and look
forward to many years of enjoyment in the Fraser community. We have also
invested our time in the community through my wife's membership in Rotary and
volunteering in the library and my five years of service in Grand County Search&
Rescue. We want to see Fraser grow and prosper.
We understand that Cornerstone Holdings has asked the Town of Fraser to annex
Byers Peak Ranch. We urge you to grant that request. I have seen many of our
young families, including my home builder, leave Grand County after living here for
many years due to the lack of job opportunity. As a resort town that depends on
tourism,we need to compete with other communities to strengthen the town and
restore our growth. We believe that Byers Peak Ranch is an opportunity to create
reasonably priced development that will maintain the vitality of the community in a
responsible way.
Cornerstone Holdings has demonstrated that they are a responsible developer with
Grand Park. We need to nurture and support the efforts of such people if we want
Fraser to grow and prosper.
The last few years have been difficult for our residents and our businesses. With the
economy finally starting to heal, the future will belong to those who look
optimistically to the future and will take some risk. From what we have read about
the Cornerstone offer,they are willing to commit capital to improve our
infrastructure; which we need and will add to the attractiveness of the Fraser valley.
We urge you to approve this annex.
Chris and Olga Laursen
659 Pioneer Trail
Fraser, CO.
Lu Berger
From: Richard C. Liberali <rcliberali @gmail.com>
Sent: Wednesday,April 24, 2013 11:11 AM
To: Lu Berger
Subject: Byers Peak annexation
Dear Fraser Town Board--
Writing to urge you to vote "no," blocking the annexation of the Byers Peak Ranch property.
Thank you,
Richard C. Liberali
i
r
Rotary Talk 4/16/13 -Clark Lipscomb
Cornerstone/Grand Park Accomplishments—May 2004 to Present
1. Leland Creek Subdivision Developed 73 custom home lots—sold out
2. Cozens Meadow Neighborhood developed—48 lots (23 homes completed and 22 sold)Three new homes
under construction
3. Cozens Pointe Condominium Project—24 condominium units completed and sold out
4. Village at Grand Park Commenced:
a. General Store Building
i. Icebox Liquors
ii. Shell Gas Station
iii. Century 21 Winter Park Real Estate
iv. Cornerstone Holdings development office
b. Grand Park Community Recreation Center
c. The Foundry Bowl and Cinema
5. Colorado Adventure Park
6. Ecological/Recreational improvements:
a. Constructed wetlands totaling approximately 4.25 acres
b. Piped the Cozens Ditch in Lions Gate Road through Winter Park from Vasquez plus numerous
other irrigation and field improvements
c. Constructed five ponds storing 32.8 acre feet of water, serving recreational, agricultural, and
domestic water needs
d. Removed miles of barbed wire fence replaced with wildlife friendly wood rick rack fencing.
e. 4.8 miles of improved trails constructed in the meadow
i. Hiking and biking during the summer
ii. Cross country skiing and snowshoeing in the Winter
f. 18 basket Frisbee golf course
g. Landscaping and berming along U.S. 40 bike trail
h. Forest Management- pine beetle infested trees/removed on approximately 1,200 acres
7. Infrastructure Improvements:
a. Sewer Treatment Plant Construction/Consolidation—guaranteed Fraser's debt portion (now paid
off) and installed new sewer lines from south Grand Park to Cty Rd. 8
b. Water System Constructed for Grand Park and connected to the Town of Fraser system to create
system redundancy
c. Main arterial roads constructed to rough finished grade on Grand Park(served all forestry
management activities. All roads and neighborhoods are designed to accommodate bus
transportation when available.
Rotary Talk 4/16/13 Page 1
r
d. Second parking lot added at the Colorado Adventure Park utilizing gravel from the ponds
constructed in the meadow
8. Agricultural activities:
a. Hay production in the Grand Park meadow and Byers Peak Ranch
b. Cattle grazing—100-150 head of cattle grazed June through October annually
c. Meyer lots behind the Alco that were heavily disturbed in 1986 and never reclaimed were cleaned
up, regraded, topsoiled and reseeded last year to provide a more functional pasture and aesthetic
improvement to the area.
9. Events Hosted:
a. Grand Kids Fall Festival
b. Farmers Market
c. Fraser Valley Rec Duathlon
d. Kids for Kids Triathlon
e. Race Across America Cyclacross
f. Habitat Hobble
g. Pet Pals - Doggie Drag
h. MS Society—Muckruckus
i. MS Society—MS Hike
j. Dog Days of Winter—Dog Sled Races
k. Run for Independence benefitting Children's Hospital
I. NSCD Cross Country races
m. Snowball Music Festival
n. Colorado Dirt—Bike Race (this summer)
10. Cornerstone Community Foundation—a 501C3 non-profit created in 2004 by Cornerstone Winter Park
Holdings
a. $500,000- Initial Funding from CWPH
b. Additional funding since inception derived from investments and % point real estate transfer fee
in the Leland Creek and Grand Park project in perpetuity
c. $186,484 in donations over the past 8 years to Grand County non-profits focused on education,
recreation, cultural, and social projects including:
i. Advocates Assistance Team;Advocates for a Violent Free Community;American Red
Cross; Kids for Kids Triathlon; Colorado CASA; Ducks Unlimited; East Grand Gridiron Club;
Fraser Creative Learning Center; Fraser Valley Elementary School; Fraser Valley Recreation
Foundation; Friends of the Fraser Valley Library; Grand Community Gardens; Grand
County Historical Association; Grand Foundation; Grand Kids; Grand County Concert
Series; Grand County Pet Pals; Lion's Club Foundation; Middle Park Fair& Rodeo;
Mountain Family Center; National Sports Center for the Disabled; Pregnancy Resource
Rotary Talk 4/16/13 Page 2
r
Connection; Shining Stars Foundation; Winter Park Horseman's Association; Winter
Park/Fraser Valley Rotary Foundation; Winter Park Ski Education Foundation.
d. $$593,592 Current foundation assets as of March 31, 2013
2013 and Beyond:
1. Village at Grand Park
a. Traffic Signal on U.S. Highway 40 at First Street
b. Market Street Buildings
i. Restaurant/ Retail/ Entertainment Focus
2. Cozens Meadow Subdivision
a. Build out the remaining 22 home sites
b. 12 unit Townhome Triplex Project
3. Willows Subdivision
a. Duplex product(under development)
4. Infrastructure Projects
a. Railroad Underpass at Leland Creek
i. Replaces the existing at grade crossing on Kings Crossing road and includes a separate 12'
wide trail linkage to connect the trail system east and west of the UPRR tracks
ii. Services the west side of Winter Park and Grand Park/Fraser
iii. Design approval anticipated in October 2013
iv. Estimated Construction Cost—
v. Project partners:Winter Park, Fraser, Grand Park/Cornerstone, & UPRR
vi. Construction planned for 2015
b. Snowmaking—Colorado Adventure Park
5. Ecological/Recreational improvements:
a. Complete the forestry management& reclamation project west of the UPRR
i. Stump grinding
ii. Reseeding with native grasses
iii. Noxious weed management
b. Water storage pond at the Village
c. Hay meadow production improvements
d. Continued trail improvements in the meadow
e. Grand Park West Mountain trail to the USFS boundary constructed by Grand Park for the
duathlon will be further improved
f. Horseback Rides—Colorado Adventure Park
6. Continued effort to bring new real estate offerings to the market as market demand exists.
Rotary Talk 4/16/13 Page 3
r
7. The Bigger Picture Focus
a. A concentrated commercial core in the Village at Grand Park incorporating residential,full service
lodging, conference facilities, and recreational amenities with the planned shopping, retail, and
entertainment buildings
b. Schools—6th grade through 12th grade education in the upper Fraser Valley planned to also
accommodate higher education
c. Medical facilities
d. Improved transportation serving the Upper Fraser Valley
i. Bus service
ii. Air service
iii. Train corridor
8. Byers Peak Ranch
a. Complete the annexation to Fraser or proceed with development in the County
b. Planned as a community of small inexpensive residences providing a quality new housing base to
attract full time residents and second homeowners that will add jobs to the area and afford Fraser
the opportunity to attract more families, expand its economic base, and broaden the
demographic profile for the area.
c. If annexed to Fraser the project/developer provides Fraser with the following:
i. Water storage
ii. An improved water system
iii. Trail connections
iv. Drainage improvements
v. A new open space park
vi. 6 acre municipal facility
vii. $52.7 million in estimated fee revenue at 100% build out
viii. Longterm well planned development
Rotary Talk 4/16/13 Page 4
Lu Berger
From: Mike Loomis <mikeloomis @hotmail.com>
Sent: Wednesday,April 17, 2013 4:26 PM
To: Lu Berger
Subject: Our input on the Byers Peak Ranch Annexation
Dear Lu,
Please see below, our letter regarding the proposed annexation. Please confirm receipt.
Thank you!
Mike and Chris Loomis
Fraser, CO
April 17, 2013
RE: Proposed Annexation of Byers Peak Ranch
My wife and I are writing to express our enthusiastic support for this proposal.
Since we moved to Fraser almost four years ago, I've tried to be involved in the community - from becoming a
member of the WPFV Chamber, to attending several development meetings in Fraser, and serving with Grand
County's new Economic Development Council.
We believe in Fraser!
Professionally, I have been helping business owners for many years, and have volunteered time to help a few
local businesses. As a recent arrival here, and having spent two years looking for a suitable home to buy, it's
clear to me that "critical mass" required for a healthy local economy is not being reached. I've monitored the
annexation debate and appreciate both sides.
It is a"chicken or the egg" situation, but the town of Fraser has room to grow, and growth does not need to
disrupt the qualities we love about this town. We have complete confidence in our community to guide this
annexation in away that brings an overwhelming majority of positives.
We need this. Businesses, and their employees, need growth. Careful growth will enhance the aspects of Fraser
that we ALL appreciate.
Thank you,
Mike and Chris Loomis
Fraser, CO
i
Lu Berger
From: Doug McPhail <dmcphail @indianarecords.com>
Sent: Wednesday,April 10, 2013 9:57 AM
To: Lu Berger
Subject: Byers Peak Annexation
Hello Lu Berger. My name is Doug McPhail.Together with my wife Dotty,we purchased the first cabin house in
Rendezvous. We spend about five months a year there. It has been a wonderful experience.The people of Fraser have
always been very accommodating and helpful to us. We were never viewed as outsiders.
Over the past few years, because of a difficult economy and real estate environment, we have noticed a number of
businesses struggling. A slowly improving economy may help somewhat, but I don't see real estate, or county
development, approaching the levels of 2008 anytime soon. I will share with you that many friends and neighbors in
Fraser agree with me.
I understand that there is, as usual, a difference of opinion regarding the annexation of Byers Peak Ranch. I remain on
the positive side of this, and that Fraser should absolutely move forward with this annexation. As long as the acquiring
entity is contractually engaged to provide extended utilities and anything else that Fraser needs, this property should be
annexed.
The annexation will bring more people to support Fraser businesses. If there is a transfer tax of property to buyers of the
property, that just helps Fraser. Many mountain towns do this, and maybe Fraser is doing this already.
Anyone that suggests this annexation will bring too much traffic, congestion, or too much change, the usual objections,
is being nothing more than obstructive. There is no traffic.There is no congestion. Ask the business owners what they
want.They want more customers.They want to improve their lives, and their children's lives.
As Nike states....Just Do It.
Thanks!
i
Neville and Carrie Vere Nicoll
572 Arapahoe Ave
Boulder, CO 80302
info(wyerenicoll.com
April 9, 2013
Lu Berger, Town Clerk
Town of Fraser
P.O. Box 370
Fraser, CO 80442
Dear Ms. Berger:
We understand that there is a matter before the Town of Fraser regarding the annexation of Byers
Peak Ranch into the town. I am writing this letter in support of the annexation.
We spend time in the Fraser area for skiing, hiking and concerts, and we believe the annexation
would allow for greater economic growth in the area and will allow Fraser to attract more tourist
dollars. Without increases in available activities, retail, restaurants, lodging, etc., I don't feel
Fraser will be in a position to compete with the other resorts. With its proximity to Denver,
Fraser has a unique opportunity to widen its yearly tourist visits both for summer and winter
activities. The beauty of the valley is a draw in itself.
I understand from the annexation proposal that the Town stands to benefit both economically and
in its infrastructure. I think both would put the Town in great stead for the future.
Thanks for your time and consideration on this matter. Feel free to contact me if you have
questions.
Sincerely,
Neville Vere Nicoll
The Ord Family
3102 S. Fillmore Street
Denver, CO 80210
303-808-0467
April 9, 2013
Lu Berger, Town Clerk
Town of Fraser
P.O. Box 370
Fraser, CO 80442
Dear Ms. Berger:
I understand that there is a matter before the Town of Fraser regarding the annexation of Byers
Peak Ranch into the town. I am writing this letter in support of the annexation.
As someone who spends time in the Fraser area for skiing, tubing and biking, I believe the
annexation would allow for greater economic growth in the area and will allow Fraser to attract
more tourist dollars. Without increases in available activities, retail, restaurants, lodging, etc., I
don't feel Fraser will be in a position to compete with the other resorts. With its proximity to
Denver, Fraser has a unique opportunity to widen its yearly tourist visits both for summer and
winter activities. The beauty of the valley is a draw in itself.
I understand from the annexation proposal that the Town stands to benefit both economically and
in its infrastructure. I think both would put the Town in great stead for the future.
Thanks for your time and consideration on this matter. Feel free to contact me if you have
questions.
i 7 ere ,
John R. Ord
Lu Berger
From: Catherine Trotter
Sent: Thursday, April 04, 2013 11:48 AM
To: Jeff Durbin; Lu Berger
Subject: FW: Annexation of Byers Peak Ranch
Follow Up Flag: Follow up
Flag Status: Flagged
Catherine E. Trotter, AICP
Town Planner
Town of Fraser
From: Steve Radcliffe [mailto:ridgecliffe7560gmail.com]
Sent: Thursday, April 04, 2013 11:19 AM
To: Catherine Trotter
Subject: Annexation of Byers Peak Ranch
Letter to the Fraser Town Board
My name is Steve Radcliffe and with my wife Janie we have made a significant investment here in Fraser,
Colorado. It started with a financial investment in our dream home in Rendezvous. And, both of us have made
substantial personal investments in time and money to the community. For these reasons, it is important to us to
see Fraser grow and prosper.
Cornerstone Holdings is really the only group that is making any investment in our community and with Grand
Park they have shown that they are good at what they do. I think that the Fraser Town Board should be
supporting their development efforts. There is a saying that if you don't grow you will die. I believe this
applies to us here in Fraser. It is not just individual property owners that depend on this growth but all of the
businesses that are here and struggling to survive.
Cornerstone Holdings has asked that the Town of Fraser annex Byers Peak Ranch. You should grant that
request. This project will help make Fraser a stronger town financially and more jobs will be created here in
Fraser Valley. Fraser needs a more sustainable base. Without a larger population of younger families,
attracting new business and creating new jobs in the area, will remain challenging. In order for Fraser to
compete with other Colorado resort communities, it needs a higher quality affordable development and Byers
Peak Ranch will be a step in that direction.
i
I also believe that Cornerstone has made a very generous offer to improve our water system by adding
additional water storage and improving the water drainage. We need these improvements. Furthermore, the
future development of this property will add significant revenues to the town that we desperately need to make
this an attractive place to move to.
I urge you to approve this annexation for the benefit of all of us who live here and care about the future of
Fraser.
Steve and Janie Radcliffe
Steve Radcliffe
Home Phone: 970-726-4454
Cell Phone: 970-509-9678
z
Saffell&Huster
Dennis R.Saffell
Stuart S.Huster
® ® ' 78491 US Highway 40 1 PO Box 900
- Cj - C= 'Xinter Park,CO 80482
(970)726-0123
MOUNTAIN www.SaffellTeam.com
PROPERTIES
Town of Fraser Board of Trustees
I am writing to comment on the proposal to annex a portion of Byers Peak Ranch.
I moved to the Fraser River Valley in 1982, over 30 years ago. I came for the quality of life and to take advantage of the coming
financial and economic boom. Ski resort towns throughout the state were growing rapidly providing a climate of prosperity.
My father and I rented a small office for our real estate business in Cooper Creek Square at a cost of$16.50 per square foot. Today,
over 30 years later,that same space can be rented for$12.50 per square foot, a decrease in value of 25%. Thirty years ago, the town
of Fraser had dirt streets, old broken down cars parked on vacant lots, rusting trailer homes, wandering dogs and many of the
commercial buildings were vacant because businesses could not make it. Fast forward 30 years: The streets are paved and you can
buy really great pot but everything else is the same. The boom I moved here for 30 years ago,which occurred in every other Colorado
mountain ski resort community, never happened in the Fraser Valley.
I raised two sons in the Fraser Valley who are now both in college. I had hoped they could return to the valley to begin a career if they
chose, but there are no opportunities in the Fraser Valley due to the lack of leadership to develop commerce, provide a base level of
population which business could thrive on, or drive economic development.
The leadership of both Winter Park and Fraser has failed miserably to create a business environment that attracts and sustains small
businesses. Consider how many nationally franchised businesses that thrive in other communities have failed in our community; Pizza
Hut, 7-11, Quizno's, Dominos and Kinko's to name a few. The reason is simple,the town boards are not"business-friendly", do not
really care about growth,do not even think growth is necessary and are content to keep things"just the way they are". It is a selfish
attitude which is self-serving for the few individuals that make the decisions which the rest of us have to live with.
Finally, we may have a chance to make the next 30 years better. We have a quality developer ready to take a risk on Fraser with the
money to back his vision. Clark and his company have already done more to help the economic development of Fraser than anyone
else in the town's history. He has proved that he can build quality developments, both commercial and residential and has created a
new town center, which is home to a great new viable family oriented business(The Foundry). Clark was instrumental in getting our
world class Rec Center built. Everything he has done today has led to economic enhancements that we can all be proud of.
Is this not reason enough to take a chance on this annexation?To get behind the developer?Send a message to them that we want to
grow and we want this development to succeed?
Yes it is! Please approve the Byers Peak annexation, do it for the next generation.
Dennis R. Saffell, ALC
Broker/Owner
Each Office Is Independently Owned and Operated.
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Lu Berger
From: Catherine Trotter
Sent: Tuesday, April 23, 2013 7:48 AM
To: Lu Berger
Subject: FW: Byers Peak Ranch Annexation
Catherine E. Trotter, AICP
Town Planner
Town of Fraser
From: John Stenicka [mailto:stenickajohn(a)me.com]
Sent: Thursday, April 18, 2013 2:31 PM
To: Catherine Trotter
Cc: Peggy Smith (WP)
Subject: Byers Peak Ranch Annexation
Hello Catherine,
As a 5 year resident of the Town of Fraser we have seen some great development in and around our
neighborhood, Grand Park.
When you consider that most of the absorption of the Grand Park residential product built has occurred in the
difficult post 2008 economic times, it is, we believe a testimony to the quality and design that is Grand Park.
When we moved in to Fraser, the Rec Center was just a plan, our exciting new theatre and bowling alley were
nowhere on the horizon. The owner/developer of Byers Peak has helped shepherd this development and while
much of construction base within Grand County has not returned, there remains strong enough interest in the
Fraser/Grand Park that the once idle home inventory is now sold with the new occupants of our neighborhood
contributing to the local economy in so many varied way (and there is even construction of 3 new homes
underway).
As we have been following the discussions pro and against the annexation of Byers Peak Ranch, we believe the
Town of Fraser should throw its full force and support to the project.
We have personally ridden through many parts of Byers Peak Ranch and it truly is a wonderful property and
offers Fraser one of the most outstanding developments not just in Fraser-WP but in the entire Colorado Rocky
Mountain region and with that raise the tax base, increase service opportunities and I believe local businesses
will all see rising revenues. In addition to the short term benefit to local lumber yards, architects,
subcontractors and other suppliers during the potential build out, the lasting benefit of drawing more families to
our community will make Fraser a more desirable establishment for all inhabitants.
There are always elements that oppose development of any kind. They are numb to the realities of 2013.
This is a win-win for Fraser as the ability to construct the long overdue reservoirs for the Town (and with
development related $, not taxpayer dollars)provides an opportunity that benefits BPR and the Town. There are
many folks in this community that have fought the investment in to the Rec Center and are hostile to Grand
1
Park but surely with the passage of tune, as the folks are seeing and experiencing these amenities, enjoying a
more exciting lifestyle in the eastern side of Grand County.
Karen & John Stenicka
34 Meadow Trail
z
April 15, 2013
Lou Berger
TELEVISION
Town of Fraser
Dear Lou,
I have owned and operated businesses in Grand County for more than 20 years. I am writing this letter
in support of the annexation of the Byers Peak Ranch in Fraser.
In my opinion, the Byers Peak Ranch can be huge asset to the Fraser Valley and Grand County. This
project will help make Fraser a stronger town financially, socially, and demographically. I feel strongly
that our services are lacking in Fraser and without a larger population of younger families, attracting
new business and creating new jobs in the area will remain challenging. In order for Fraser to compete
with other Colorado resort communities, it needs higher quality affordable development and Byers Peak
Ranch will be a step in that direction.
It seems that several groups have been divisive when it comes to growth within our community and we
have fallen behind other Colorado communities with similar assets. As a business owner, we depend on
a strong, diverse community to survive.
The Byers Peak Ranch property will be developed one way or another. I think it is important to make it a
part of the town. Now, more than ever it is important to look at ways to enhance the economic
stability. It is important for our political leaders to make sound visionary decisions.
Respectfully,
1,.
Michael Turner; GM and Senior Producer
Grand County TV18/Outside Television
Studio: 970-887-2771 or Mobile: 970-531-7269
email: turner @grandcountytelevision.com
PO Box 3352 Winter Park CO 80482 (970)887-2771 www.grandcountytelevision.com
UNICUME COLORADO, LLC
11476 E. PARADISE LANE
SCOTTSDALE,ARIZONA 85265
(480)998-8955/FAX(480)998-8955
April 17, 2013
Mrs. Lu Berger
Town of Fraser
Fraser, Colorado 80442
RE: Proposed Byers Peak Ranch Annexation
Fraser, Colorado
Dear Lu, Board of Trustees, Town of Fraser:
We would like to express our support of the proposed annexation of The Byers Peak
Ranch into the Town of Fraser. We believe the annexation is in the best interest of the
community and the Town of Fraser. As business owners and residents in Fraser/Winter
Park we feel it is important for the town to control the land use of this parcel given the
proximity to downtown Fraser and the annexation should result in additional fee and tax
revenue for the financial benefit of the town. Thank you for your consideration.
Unicurne Colorado, LLC
Mark Unicurne Scott Mar4hnic
602-903-5774 480-510-9447
Octavio Vargas
243 Mallow Court
New Castle Co. 81647
970-948-4428
April 9, 2013
Lu Berger, Town Clerk
Town of Fraser
P.O. Box 370
Fraser, CO 80442
Dear Ms. Berger:
I understand that there is a matter before the Town of Fraser regarding the annexation of Byers
Peak Ranch into the town. I am writing this letter in support of the annexation.
As someone who spends time in the Fraser area for hike, bike, four wheeling snowmobiling,
purposes, I believe the annexation would allow for greater economic growth in the area and will
allow Fraser to attract more tourist dollars. Without increases in available activities, retail,
restaurants, lodging, etc., I don't feel Fraser will be in a position to compete with the other
resorts. With its proximity to Denver, Fraser has a unique opportunity to widen its yearly tourist
visits both for summer and winter activities. The beauty of the valley is a draw in itself.
I wish more people can come to these towns and enjoy the beauty of our state and this at the
same time can help our economy,
I understand from the annexation proposal that the Town stands to benefit both economically and
in its infrastructure. I think both would put the Town in great stead for the future.
Thanks for your time and consideration on this matter. Feel free to contact me if you have
questions.
Sincerely,
Octavio Vargas
Lu Berger
From: Gary Warstler <gbw @talktotucker.com>
Sent: Friday, April 12, 2013 8:14 PM
To: Lu Berger
Subject: Byers Peak Ranch Annexation
This letter is to inform the Town Board and the Mayor that I agree with everything stated in a letter
you received from Janie and Steve Radcliffe in regards to the Cornerstone Holdings development.) have been
a Residential land developer and Shopping Center developer for over 40 years. Everything Cornerstone has
developed has exceeded my expectation and I urge you to approve their annexation request
Sent from my iPad. Our address is 1445 Pioneer Trail Sandy and Gary Warstler 1-317-5014205. If I can
help,please call
i
Public comments re Byers Peak Ranch annexation from Melanie Zwick. 4/23/13
I have doubts that the water being applied for in l OCW0309 is real water. The water is
over appropriated and rights with such a recent date (2007)won't really exist.
The documents related to the annexation of BPR must be rewritten. In addition to the
undesirable content there are way too many loopholes and too much loose language.
Even the smallest loopholes must be closed. It is delusional to think the Town staff will
have control over the developer. Look at the past. The next time around is not likely to
be easier.
It would be prudent of the Town to require personal guarantees from the developer.