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HomeMy Public PortalAboutResolution 2014-03-06 Approving the Water and Wastewater Service Agreement with Byers Peak Properties, LLC and Byers Peak Downhill Adventures LLC for an Out-of-Town Water and Wastewater Service TOWN OF FRASER BOARD OF TRUSTEES Resolution No. 2014-03-06 A RESOLUTION APPROVING THE WATER AND WASTEWATER SERVICE AGREEMENT WITH BYERS PEAK PROPERTIES, LLC AND BYERS PEAK DOWNHILL ADVENTURES, LLC, FOR OUT-OF-TOWN WATER AND WASTEWATER SERVICE, AND AUTHORIZING EXECUTION THEREOF UPON SATISFACTION OF CERTAIN CONDITIONS. WHEREAS, the Town of Fraser (the "Town"), through its staff and the Board of Trustees, has negotiated with representatives of Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC, concerning their request that the Town provided out- of-town water and wastewater service to certain property located adjacent to the Town boundaries; and WHEREAS, the parties have considered various terms and conditions for providing such service and several drafts of a proposed Agreement have been circulated; and WHEREAS, the Board of Trustees now desires to approve the terms and conditions contained in the draft Agreement prepared and presented to the Board by the Town Attorney at the Board meeting held this date, subject to certain conditions; and WHEREAS, the Board finds and determines that providing of out-of-town water and wastewater service upon the terms and conditions contained in said Agreement is in the best interests of the Town of Fraser. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO, THAT: 1. The Board of Trustees hereby approves the Water and Wastewater Service Agreement between the Town and Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC (collectively, "Byers Peak"), in the form presented to the Board this date, a copy of which is attached hereto (the "Agreement"), subject to the conditions hereinafter specified. 2. The Mayor and Town Clerk are authorized to execute said Agreement on behalf of the Town upon satisfaction of all of the following conditions: a. Preparation of all Exhibits referred to in said Agreement, agreed to as to form and substance by the Town Attorney and Town Manager and by Byers Peak; b. Due execution of said Agreement, with all approved Exhibits, by Byers Peak and delivery of an originally signed copy to the Town Clerk; c. Receipt of payment by the Town from Byers Peak, in good funds, for the prepaid Plant Investment Fees specified in Section 18 of the Agreement; d. Adoption, publication and taking effect of Ordinance No. 419, providing for out- of-town water and wastewater service and authorizing contracts for such service. 3. If all of the conditions stated in Paragraph 2 above are not satisfied within sixty (60) days after the date hereof, the Board's approval of the Agreement shall lapse and this Resolution shall be of no force or effect, unless the time for satisfaction of such conditions is extended by further action of the Board. READ, PASSED ON ROLL CALL VOTE, AND ADOPTED BY THE BOARD OF TRUSTEES THIS 26th DAY OF MARCH, 2014. Votes in favor: BOARD OF TRUSTEES OF THE Votes opposed: O TOWN OF SE LO DO Absent: Abstained: BY: Mayor ATTEST: ( SEAL. ) -)e Town Clerk TOWN OF FRASER WATER& WASTEWATER SERVICE AGREEMENT BYERS PEAK PROPERTIES, LLC; BYERS PEAK DOWNHILL ADVENTURES, LLC The parties to this Water and Wastewater Service Agreement (this "Agreement") are the TOWN OF FRASER, COLORADO, a municipal corporation of the State of Colorado ("Fraser" or "Town"), 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. Developer has secured an approved sketch plan from Grand County for residential and commercial development on its property, referred generally as Byers Peak Ranch and the Colorado Adventure Park, more specifically described in Exhibit A (referred to herein as "the Property"). The sketch plan approves 1,233 Single Family Equivalent units ("SFE") for the Property, which is located outside the Town's current boundaries, and is attached as Exhibit B; and C. The Town is authorized to provide water and wastewater service outside the Town's corporate boundaries pursuant to Colorado law, C.R.S.§ 31-35-402 (2013), C.R.S. § 31- 35-512 (2013), and the Town's Municipal Code ("Code"), Chapter 13, Article 5, regarding out-of-town water and wastewater service; and D. The Fraser Board of Trustees has had the opportunity to review with Town Staff and legal counsel the proposed extension of water and wastewater services to the Property, and on March 26, 2014, the Board found that this Agreement with Developer for out-of- town water and wastewater service is in the best interest of the Town, and therefore, passed a resolution approving the extension of water and wastewater service to the Developer's property subject to the execution of this Agreement; and E. Developer plans to develop the Property in several phases, by recording of successive final plats, and this Agreement will apply to the extension of all water and wastewater service to such approved plats; and F. The water and wastewater service for the Property will require the design, planning, permitting, construction, and installation of water and wastewater lines to connect the Property to Fraser's water and wastewater infrastructure, to be built at Developer's cost; and 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 2 of 16 G. The Town agrees to provide Developer water and wastewater utility service pursuant to the terms of the Code and pursuant to the terms and conditions specifically outlined in this agreement. H. This Agreement shall become effective upon adoption of a Resolution by the Fraser Board of Trustees approving its execution and upon execution hereof by the appropriate Fraser official and by authorized agents of the Developer entities. The date of the latest of such conditions to occur is referred to as the "Effective Date". NOW THEREFORE, for and in consideration of the premises, mutual promises and covenants herein contained, and for the other consideration offered and accepted, the receipt and adequacy of which is hereby acknowledged, the Town and Developer agree as follows: POTABLE WATER SERVICE 1. Water Service. Upon approval of this Agreement, the Town agrees to provide treated municipal water service to Developer for its approved final plat developments on the Property subject to the conditions set forth in this Agreement, the Code, and all other applicable laws, rules and regulations under local, state and federal law. While the Developer anticipates planning multiple phases, in total the final development will not exceed 1,233 SFE. Unless otherwise approved by Fraser in writing, and under cost recovery provisions noted below, such water service shall be limited to use by Developer on the Property. 2. Demand Limit and Town Capacity. The Town agrees to provide Developer sufficient water per SFE, to meet Developer's water demands for up to 1,233 SFEs, as such supply is described by the Code. Fraser's Water Rights are reasonably adequate to support the potable municipal water service for existing town users, future development and the SFEs on the Property, subject to terms and conditions set forth herein. Except as otherwise provided herein, Fraser shall be responsible for all applicable implementation, operation and accounting requirements necessary to serve the Property with sufficient water as provided by the Code. 3. Water Rights and Facilities. As partial consideration for the Town's agreement to provide water and wastewater service, and in satisfaction of Fraser's water dedication requirements in connection with the provision of municipal water service for the Property, Developer agrees to the following grants and conveyances (the "Dedicated Water Rights"): a. Conveyance of Storage Water Right. The Developer shall cause the water rights decreed in Case No. 05CW287, which provide for 25 acre feet of storage, to be conveyed to Fraser by the owners of those rights, upon the approval and execution of this Agreement. b. Conveyance of 05CW287 Storage Site and Easement. Developer agrees to secure and deliver to Fraser a special warranty deed conveying a parcel containing approximately four 4) (acres from the Grand Park developer to Fraser, so that the Town owns property where it can construct water storage pursuant to Case No. 05CW287 (the "6W Storage 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 3 of 16 Parcel"). Such parcel, as generally described in the decree in that case, is also known as Planning Area 6W, as described in the Grand Park Planned Development District Plan recorded on November 8, 2005 in the real property records of the Clerk and Recorder of Grand County as Reception No. 2005-012709, as amended from time to time (the "Grand Park PDD Plan"), and as outlined on Sheet 3, paragraph 5, referring to a site to be deeded to Fraser for the public purpose of a maintenance facility. Developer also agrees to secure an easement to be executed and delivered to Fraser by the Grand Park developer, so Fraser may construct and access such storage on said 6W Storage Parcel (the "6W Easement"). Such easement will also include the location for necessary headgates, ditches and pipelines to deliver and release water supplies for all related facilities. Such easement shall be in the form attached as Exhibit C. The specific location and description of said 6W Storage Parcel and 6W Easement shall be determined by Fraser, in consultation with the Grand Park developer, and the conveyance of said Parcel and Easement shall be completed within one (1) year from the Effective Date, and Fraser shall be permitted access to the Grand Park property during such period to conduct surveys, engineering studies and other investigations regarding the 6W Storage Parcel and the 6W Easement. Failure by the Grand Park developer to consent to the location for, and to complete the conveyance of the 6W Storage Parcel and the 6W Easement within said time shall be treated as a default by Developer hereunder. c. Conveyance of 83CW362 Storage Site and Easement. Developer further agrees to secure and deliver to Fraser a special warranty deed conveying a parcel containing approximately five (5) acres, from the Grand Park developer to Fraser, to use for developing water storage related to the Forest Meadows augmentation plan decreed in Case No. 83CW362 (the "Forest Meadows Storage Parcel"). The location of such storage parcel will be consistent with the decree entered in Case No. 83CW362 and will be located in the area of the Cozens and/or Elk Creek meadows on the Grand Park property. Developer also agrees to secure an easement to be executed and delivered to Fraser by the Grand Park developer, so Fraser may construct and access such storage on said Forest Meadows Storage Parcel (the "Forest Meadows Easement"). Such easement will also include the location for necessary headgates, ditches and pipelines to deliver and release water supplies for all related facilities. Such easement shall be in the form attached as Exhibit D. The specific location and description of said Forest Meadows Storage Parcel and Forest Meadows Easement shall be determined by Fraser, in consultation with the Grand Park developer, and the conveyance of said Parcel and Easement shall be completed within one (1) year from the Effective Date, and Fraser shall be permitted access to the Grand Park property during such period to conduct surveys, engineering studies and other investigations regarding the Forest Meadows Storage Parcel and the Forest Meadows Easement. Failure by the Grand Park developer to consent to the location for, and to complete the conveyance of the Forest Meadows Storage Parcel and the Forest Meadows Easement within said time shall be treated as a default by Developer hereunder. d. Satisfaction of Grand Park Dedication Requirements. Fraser agrees that the conveyance of the 6W Storage Parcel and Easement will satisfy the obligation of Grand Park 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 4 of 16 Development, LLC to deed Planning Area 6W to Fraser pursuant to the Grand Park PDD Plan, as outlined on Sheet 3, paragraph 5, referring to a site to be deeded to Fraser for the public purpose of a maintenance facility. Fraser further agrees that the conveyance of the Forest Meadows Storage Parcel and Easement will satisfy the obligation of Grand Park Development, LLC to deed a five (5) acre "Recreation Site" to Fraser pursuant to the Grand Park PDD Plan, as outlined on Sheet 3, paragraph 5, referring to a five (5) acre site for public purpose community recreation and/or open space. e. Byers Peak Water Rights and Storage. Developer agrees to make its best efforts to decree the storage right in Case No. IOCW309 for uses anywhere within Fraser's boundaries and Water Service Area, as it may change from time to time, in addition to uses on Developer's property and Grand Park property. It is understood that the Byers Peak storage 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. To the extent Fraser seeks to lease some of the future Byers Peak Water Rights, Developer agrees to consider such request, and any future lease shall be by separate agreement All property conveyances and easement rights to be conveyed to Fraser pursuant to this section shall be free of liens and encumbrances. All property conveyances shall be by special warranty deed, unless otherwise specified herein. The obligations set forth in this section 3 shall be fulfilled irrespective of whether Developer chooses not to develop all or portions of the Property. 4. Leased Water Storage for Fraser. In order to provide temporary augmentation storage for Fraser pending construction of the storage facilities pursuant to section 3 hereof, Developer agrees to secure a lease for physical water supplies from Grand Park Development, LLC, for water stored in the ponds decreed in Case Nos. 99CW315, and 08CW194, for 25 acre feet of releasable water, decreed for augmentation use, for Fraser's use. Such lease shall grant Fraser first priority use of such water and shall be for a term of at least eight years from the Effective Date, or until the storage ponds on Forest Meadow Storage Parcel and the 6W Storage Parcel and related facilities have been constructed by Fraser and are in operation, whichever first occurs. The water shall be leased to Fraser at a rate of$5.00 an acre foot on an annual basis. The form of the lease is attached as Exhibit E, and shall be executed and effective as of the Effective Date. The lease is intended to provide Fraser with physical water for any required releases required by the Town, either as required by the Forest Meadows augmentation plan decreed in Case No. 83CW362, or as otherwise required by the Town to meet calling senior water rights. All infrastructure that provides stored water under the lease noted in this section 4 shall be operated, maintained, repaired and replaced at Developer's sole costs. 5. Water Plant Investment Fees. Developer and other future owners of the Property shall pay Fraser's water plant investment fees at a rate equal to 1.3 times the in-town water plant investment fee rate charged generally by Fraser and governed by the Code at the time of connection. Except as provided in Section 18 with respect to prepaid fees, the water plant investment fee shall be paid in full per SFE prior to the issuance of a building permit by the County, and the specified multiple of the in-town fee per SFE in effect at the time of building 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 5 of 16 permit issuance shall be charged. Each water plant investment fee must be paid in full prior to Fraser delivering water to the SFE at issue. The Developer agrees that its County approvals shall include a requirement that a landowner demonstrate a paid Plant Investment Fee in Fraser prior to the County accepting a landowner's plan set for County review. 6. Water Service Fees. Developer and other future owners of the Property shall pay Fraser's water service fees at a rate equal to 1.3 times the in-town water service fee rate charged generally by Fraser on a quarterly or other periodic basis and governed by the Code. If water service fees are not timely paid, Developer agrees that Fraser may use any means under its Code or other state or local law, including discontinuing service to the individual connection, to enforce timely payments. Without limiting the generality of the foregoing, Fraser shall have the right to certify delinquent service fees and related charges to the County Treasurer for collection in the same manner as taxes, pursuant to C.R.S. 31-20-105. Developer agrees to include such details in any property owner association covenants. 7. Raw Water Irrigation. Developer may install, at Developer's sole cost and expense, a non-potable irrigation system to irrigate all open space or areas on the Property that are not individual lawns, so that such areas are to be irrigated in accordance with the final plat approved by Grand County. No Fraser water or water connections shall be used for such raw water irrigation. However, water supply for fire hydrants and public drinking fountains shall be made in compliance with the Code. Irrigation with Fraser's potable water shall be limited as required under the Code, and this restriction shall be noted by Developer in any property owner association covenants. 8. 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 No. IOCW309. The parties agree to discuss whether it is appropriate to file joint future water court applications in the event they both have interests in the same pond(s). 9. Raw Water Line Easement. It is important to Fraser that it utilize its water rights in St. Louis Creek for their decreed beneficial uses. As partial consideration for this Agreement, Developer agrees to assist in enabling Fraser to be able to divert and use its St. Louis Creek water rights given that water delivery under such rights may need to cross the Property once diverted as further provided in this paragraph. As a part of constructing Developer's diversion and transmission facilities from St. Louis Creek to the storage on the Property, and/or when constructing either water or sewer lines on the Property, or in conjunction with such other alignment that is cost effective to install 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 open trenches for such facilities so Fraser may divert its municipal water rights out of St. Louis Creek and convey the water to the Town water treatment facility or future storage locations. Developer also agrees to provide Fraser with any reasonably 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 6 of 16 necessary easement across the Property that will allow Fraser access to such raw water lines. Any additional costs incurred by Developer in fulfilling this responsibility will be paid by Fraser at the time that such costs are incurred. In addition, until such time that Fraser diverts and applies its St. Louis Creek water rights to the Town's beneficial uses, 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, at no cost, on the Property in order to keep such lands properly irrigated and to reduce dust within Fraser. Such use is an important municipal use for Fraser to promote the irrigation of fields adjacent to Fraser's other residential components 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 April 15 of each year. Fraser may notify Developer at any time, in its sole discretion and for any or no reason, that such water will no longer be available for use. 10. On-site Wells. Section 13-2-20 of Fraser Code provides, and Developer agrees herein that on-site wells are not permitted on the Property except as approved by Fraser or as agreed upon herein. Fraser acknowledges the Developer's ponds may intercept groundwater, and if they do, the ponds 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, Fraser hereby determines that such "wells" are not contemplated by such Section, that a franchise under the laws of the State is not necessary if the ponds are deemed to be "wells," and that the same, if deemed to be "wells" by the State Engineer, are hereby approved as exceptions to the Code. 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 payment of plant investment fees, the installation of a municipal water main line within 200 feet of the well; or 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 connected to Fraser's municipal water system, absent written agreement with Fraser, 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. Upon connecting the Adventure Park to Fraser's municipal water system, Developer agrees it shall install, at its sole cost and responsibility, 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 7 of 16 proper cross-connection and backflow prevention devices and shut-off mechanisms for well operation and maintenance. Operation, maintenance, repair and replacement of the Adventure Park well shall be at Developer's sole cost and responsibility. 11. Resolution of Forest Meadows Augmentation Plan. Grand Park Development, LLC has raised claims in the past regarding Fraser's obligations and Grand Park Development's rights under the water rights and augmentation plan decreed in Case No. 83CW362, under the Annexation of the Forest Meadows property dated October 21, 1981, and under the Meyer Agreement dated June 6, 1990 (the "Forest Meadows Water Matters"). These claims have been denied by Fraser. As partial consideration for this Agreement, the Developer has secured Grand Park Development, LLC's and Cornerstone Winter Park Holdings' (collectively referred to herein as "Grand Park") agreement to waive any and all claims regarding the Forest Meadows Water Matters. In addition, Developer has secured Grand Park's agreement that the storage leased herein and storage water right conveyed herein both may operate as the stored local augmentation water required by the Forest Meadows augmentation plan. Further, Developer agrees and has secured Grand Park's agreement that neither will enter opposition to any change of water rights cases, any other water rights cases, or substitute water supply plans that may be necessary to operate the Forest Meadows augmentation plan decreed in Case No. 83CW293. Such agreement by Grand Park is attached as Exhibit F. WASTEWATER SERVICE 12. Wastewater Service. Upon approval of this Agreement, Fraser will provide municipal wastewater/sanitary sewer service to the Property to serve the final plat adopted by Grand County, up to a maximum of 1,233 SFE, subject to the terms and conditions set forth herein and the applicable provisions of the Code. 13. Wastewater Plant Investment Fees. Developer and other future owners of the Property shall pay Fraser's sanitary sewer plant investment fees (also referred to as wastewater plant investment fees) at a rate equal to 1.3 times the in-town sanitary sewer plant investment fee rate charged generally by Fraser and governed by the Code at the time of connection. The wastewater plant investment fee shall be paid in full per SFE prior to the issuance of a building permit by the County, and the specified multiple of the in-town fee per SFE in effect at the time of building permit issuance shall be charged. Each wastewater plant investment fee must be paid in full prior to Fraser connecting its sewer service to the SFE at issue. The Developer agrees that its County approvals shall include a requirement that a landowner demonstrate a paid Plant Investment Fee in Fraser prior to the County accepting a landowner's building permit application for County review. 14. Wastewater Service Fees. Developer and other future owners of the Property shall pay Fraser's sanitary sewer service fees (also referred to as wastewater service fees) at a rate equal to 1.3 times the in-town sanitary sewer service fee rate charged by Fraser on a quarterly or other periodic basis and governed by the Code. If wastewater service fees are not timely paid, Developer agrees that Fraser may use any means under its Code or other state or local law, including discontinuing service to the individual connection, to enforce timely payments. 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 8 of 16 Without limiting the generality of the foregoing, Fraser shall have the right to certify delinquent service fees and related charges to the County Treasurer for collection in the same manner as taxes, pursuant to C.R.S. 31-20-105. Developer agrees to include such details in any property owner association covenants. 15. 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 a public sewer main within 200 feet of the ISDS; or (b) at such time that the Colorado Adventure Park facilities are connected to the municipal water system of Fraser. Prior to connection, the landowner is required to pay the Plant Investment Fee required by the Town. 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, in accordance with local and state laws and regulations. TERMS APPLICABLE TO BOTH WATER AND WASTEWATER SERVICE 16. Minimum Density. Notwithstanding anything contained herein to the contrary, Fraser shall not be required to provide water or wastewater service, and no connection shall be made to Fraser's water or wastewater systems, for any development on the Property that will have a Net Density (as defined in the Grand County Subdivision Regulations as of the Effective Date) of less than two (2)units per acre. 17. Basis for Plant Investment and Service Fees. The water and wastewater plant investment fees and service fees provided in this Agreement are higher than the in-town rates, because providing out-of-town service will entail additional utility-related costs to Fraser that are difficult to quantify with precision and because Fraser is entitled to recoup a reasonable return on its prior investments in its water and wastewater utility systems. Developer agrees that such fees provided in this Agreement are reasonable and are rationally related to the costs of providing the out-of-town services and Fraser's other legitimate, utility-related purposes. 18. Prepaid Plant Investment Fees, Accounting and Credit. In order to insure that funds are available to pay for off-site water infrastructure needed to serve the Property, Developer agrees to prepay water plant investment fees for one hundred (100) SFEs, at the rate specified above, concurrent with the execution of this Agreement. The amounts paid for such prepaid plant investment fees may be used by Fraser for any water capital outlay purposes. Fraser shall account for such prepaid plant investment fees and allow credit for same when individual lots or other SFE units at the Property are connected to the Fraser system. Developer may utilize prepaid plant investment fees for connection of a designated lot or other SFE unit at the Property, or it may assign such prepaid plant investment fees to purchasers or owners of such lots or units at the Property for purposes of such connection. A written designation or assignment of such prepaid water plant investment fees to be used for a connection to the system shall be provided to Fraser and to the County as proof of the payment of the applicable plant investment fees required for the connection, and Fraser shall thereupon deduct such designated or assigned plant 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 9 of 16 investment fees from the Developer's prepaid plant investment fee account balance. In no event shall Developer be entitled to any refund or reimbursement for any prepaid plant investment fees purchased pursuant to this section, nor may any such prepaid plant investment fees be used or credited for lots or other SFE units located anywhere except within the Property. 19. Mill Levy Equivalent Surcharge. As provided in the Code, if Fraser subsequently imposes a property tax mill levy for water and/or sewer improvements or operations, a surcharge shall be added to the water and/or wastewater service fees payable pursuant to this Agreement to account for such mill levy. The surcharge will be in an amount determined by the Fraser Board of Trustees, so that owners of the Property pay the same or approximately the same amounts as they would if the Property was subject to such mill levy. 20. Review of Plans. Developer agrees that all subdivision plats and plans submitted to the County for the Property shall also be submitted to Fraser for review and comment, not only as to water and wastewater connections to the municipal systems, but also other matters that may affect Fraser. Developer further agrees that all final subdivision plats for the Property shall include a requirement that all applications for building permits shall be forwarded to Fraser for review and that all Fraser Code requirements must be satisfied and all applicable fees must be paid to Fraser before a permit or certificate of occupancy will be issued. Developer agrees to reimburse Fraser for all costs, including consultant fees, incurred for review of such plats and plans, for review of the design plans for water and wastewater facilities submitted pursuant to Section 21 hereof, and for inspections of facilities constructed pursuant to such plans and designs. Payment of such reimbursement shall be due within thirty (30) days after billing by Fraser. 21. Connection to Fraser's Water and Wastewater Facilities. a. Phased Extensions. Development of the Property shall be phased in such a manner that initial development occurs adjacent to or as near as feasible to Town boundaries and existing Fraser water and wastewater infrastructure to be connected to the Property, and subsequent phases shall be developed in a similar manner, so that maintenance expenses relating to the new mains and related facilities are minimized. Any deviation from this requirement may occur only with Fraser's written approval. b. Design for Connection. Developer shall provide design and engineering information for the water main line connections and/or wastewater main line connections and all related facilities and easements to Fraser not less than 60 days prior to construction for Fraser's approval, which shall not be unreasonably withheld. Such designs and plans shall be in compliance with the Grand County development approvals. The parties agree that all design and construction shall also be in compliance with Town water and sanitary sewer standards and sizes and installation requirements, as governed by the Code and Town regulations. Developer shall be required to execute an improvement agreement in the form customarily used by Fraser for subdivision development, with security acceptable to Fraser, prior to the start of construction. Upon Fraser's approval of the construction plans and improvement agreement, and after any required easements are secured and 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 10 of 16 demonstrated to Fraser (and compliance with other terms of this Agreement and requirements of the Code), then construction can begin. c. Connection Costs. Developer shall be solely responsible for all costs, materials, labor and fees required to construct water main lines on the Property and connections to Fraser's water main lines, and for constructing wastewater main lines on the Property and connections to Fraser's wastewater main lines, including Town inspection charges. Except as provided above with respect to Dedicated Water Rights, the Plant Investment Fees, referenced above, constitute Fraser's revenue source for all other off-site water and wastewater infrastructure that may be needed to provide water and wastewater service to the Property, including but not limited to, additional capacity, regional facilities, wells, water treatment plants, water storage, and water tanks. d. On-Site Improvements; Inspections and Fees. Developer shall install all water and wastewater main lines, service lines and stub-outs, meters and necessary improvements and facilities upon the Property at its sole cost and expense, including provision of all insurance, without any reimbursement from the Town. Such water and wastewater service lines and connections, including water metering, shall be subject to all requirements of the Code and other regulations generally applicable in Fraser, including but not limited to required inspections and requirements for installation and testing of backflow prevention devices. Fraser may establish and collect reasonable application and inspection fees for water and wastewater connections on the Property. e. Easements. All required easements for water and wastewater service lines, both on-site and off-site of the Property shall be obtained by Developer, and proof of such easements shall be provided to Fraser prior to constructing such lines. Such easement agreements shall be in the customary and usual form required by Fraser for water and wastewater service lines and infrastructure, and shall be obtained and finalized at Developer's sole cost. f. Ownership. Developer shall provide the Town with reproducible as-built drawings and AutoCAD drawing data on electronic media, easements for all water and wastewater lines and facilities in scope and form reasonably acceptable to Fraser, and as required by the Code. Developer shall also assign all material and labor warranties and certification by a Colorado professional engineer that facilities have been built in accordance with the Code and related Town standards and are in proper condition. The requirements of the Code for acceptance by Fraser of any water main lines, wastewater main lines, or other required improvements shall be met prior to Fraser providing service to any of the lines or required improvements. Developer shall convey all water and wastewater main lines, related infrastructure and easements as required by the Code, upon approved completion of such lines. g. Outside Connections. Developer agrees that it will not allow any water or wastewater users, other than landowners within the approved County final plats for the Property, to 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 11 of 16 access any water or wastewater main lines, any water or wastewater improvements, or service without written consent from the Town. 22. Infrastructure Construction, Conveyance and Warranty. Developer agrees to conform to the development standards in the applicable provisions of the Code with regard to infrastructure construction and acceptance related to water and wastewater service. For a period of one year after dedication and acceptance of all of the required improvements to the Town, which approval shall not be unreasonably withheld, Developer shall warrant the construction, installation and survivability of the required improvements to the standards required by the Code. At Developer's sole cost and expense, Developer agrees to make all needed and necessary repairs and replacements required for Code compliance, including but not limited to, defective materials, design or workmanship, breach of contract, failure to abide by approved plans or standards, but not associated with ordinary and normal wear and tear. Developer agrees that notice of completion, all inspections and warranty notice timing shall be as dictated by the Code and Fraser's regulations. 23. Excess Capacity. Developer is only responsible for costs associated with on-site water and wastewater main lines that are reasonably required to service the Property. If Fraser requests that the water or wastewater main lines be constructed by Developer with extensions or excess capacity to serve property not within the Property, the parties shall enter into a supplemental written agreement to confirm the details and the additional costs of the proposed extension or excess capacity and arrangements for reimbursement of the additional costs to Developer by Fraser or the other property to be served. Developer shall not be entitled to any reimbursement for on-site water and wastewater infrastructure except pursuant to such a supplemental agreement. 24. Future Annexation. Pursuant to the provisions of C.R.S. 31-12-121, Developer agrees, for itself, its successors and assigns, to apply for or consent to the annexation of the Property, or a portion thereof, to the Town of Fraser at a future date when such Property or portion thereof is or becomes eligible for annexation and the Board of Trustees, by resolution and at the Board's sole discretion, requests that the Property or designated portion be annexed to the Town. Fraser agrees that no request for annexation shall be made until Grand County has approved a final subdivision plat or plats for the area to be annexed, or until the expiration of twenty (20) years after the Effective Date, whichever comes first, unless otherwise agreed by Developer or a future owner of the area proposed to be annexed. Contiguity may be established by the annexation of one or more parcels within the Property in a series as contemplated in C.R.S. 31-12- 104(1)(a). Such annexation shall not divest or diminish any land use approvals, grants of exemption, variances, design approvals or any other development rights awarded by Grand County for the Property, including but not limited to the vesting periods for such land use approvals or development rights, to the extent such approvals and rights are legally vested on behalf of Developer prior to annexation to the Town. Upon adoption by Fraser of a resolution requesting annexation, the owners of the Property or portion to be annexed shall submit a petition for annexation that complies with applicable requirements of state law to commence annexation proceedings. Failure of Developer and/or its successors in interest to commence annexation proceedings as herein required shall authorize the Town to commence such annexation on their 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 12 of 16 behalf, in which event the Town shall charge, and Developer (or if such property has been transferred, its successors in interest) shall pay all costs and fees associated with such annexation. Nothing contained herein shall obligate Fraser to annex the Property or any portion thereof, and any such annexation shall be at the sole discretion of the Fraser Board of Trustees, if and when the conditions specified in this section are satisfied. Should any portion of the Property ever be annexed to the Town, then Developer or its successors in interest agree to comply with various annexation obligations as may be required by the Town at that time, including without limitation, those obligations relating to water rights and land dedications. Developer agrees that it will not annex the Property to any other municipality without Fraser's written consent. 25. Term. Unless sooner terminated as provided herein, this Agreement shall continue in effect for a period of thirty-five (35) years from the Effective Date. Upon expiration or termination of this Agreement, any portions of the Property connected to the Towns' water service and wastewater service pursuant to this Agreement shall not be disconnected, but any such connections shall be subject to the then-existing provisions of the Code relating to out-of-town water and wastewater service, as those provision apply in the absence of a contract for such service. 26. No Guarantee of Quality, Quantity or Pressure. The Town's agreement to provide water and wastewater service pursuant to this Agreement does not constitute a guarantee that such service will be of a certain quality or that it will not be subject to periodic interruption due to natural or other causes beyond Fraser's control. Fraser shall not be liable for any such conditions affecting the water or wastewater service hereunder, except as provided by and to the extent allowed under the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq. or any successor statute. 27. Enforcement. Time is of the essence hereof. The parties recognize and agree that the Town has the right to enforce its rules, policies, regulations, Code provisions and the terms of this Agreement by disconnecting the water and/or wastewater service provided hereunder. Without limiting the foregoing, Developer agrees that the Town may also enforce any violation of the Town's rules, policies, regulations, ordinances, or Code provisions and the terms of this Agreement by mandatory or prohibitory injunction or specific performance as allowed by Colorado law. It is further agreed that, in the event Developer fails to provide the Dedicated Water Rights to Fraser in the time frames provided for herein, Fraser may also refuse to allow additional water and wastewater main and service line connections until such default is fully cured. If such cure is not made within sixty (60) days after notice of the default is given, Fraser may terminate this Agreement by notice to Developer, in which case Fraser shall retain any and all sums paid by Developer hereunder and may recover such damages from Developer as may be proper. 28. Public Utility Status. The parties agree that for purposes of this out-of-town service, the Town is not a public utility for water and wastewater service compelled to serve other properties, or subject to review by Colorado's Public Utility Commission. To the extent allowed by law, Developer agrees that neither it, nor its successors in interest or assigns shall at any time petition 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 13 of 16 the Colorado courts, the Board of County Commissioners of Grand County, the Town, or the Public Utilities Commission or any other governmental entities to require service to any property or to acquire jurisdiction over the water treatment and distribution systems or wastewater collection and treatment systems of the Town. 29. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be deemed a waiver of any such right and shall not affect the right of such party to exercise at some future time said right or any other right it may have hereunder. 30. Notices. All notices required to be given shall be deemed given upon deposit in the United States mail, first class postage prepaid, properly addressed to the person or entity to whom directed at the address shown herein, or at such other address as shall be given by notice pursuant to this paragraph: Town of Fraser: With copy to: Fraser Town Manager Rodney R. McGowan, Esq. P.O. Box 370 Cazier, McGowan &Walker 153 Fraser Avenue P.O. Box 500 Fraser, CO 80442 Granby, CO 80446 rmcgowan@qwestoffice.net Developer: Byers Peak Properties, LLC With copy to: Byers Peak Downhill Adventures, LLC Ramsey Kropf, Esq. P.O. Box 30 PatrickOMillerlKrop flNoto P.C. Winter Park, CO 80482 197 Prospector Road, Suite 2104A Attn: Clark Lipscomb Aspen, CO 81611 clark@cstoneholdings.com kropf@waterlaw.com 31. Force Majeure. No party shall be held liable for a failure to perform hereunder due to wars, strikes, acts of God, natural disasters, floods, drought or other similar occurrences outside of the control of that party. 32. Severability. If any provision of this Agreement shall be or become invalid or unenforceable, the remainder of the provisions of this Agreement shall not be affected thereby, and each and every provision shall be enforceable to the fullest extent permitted by law. 33. Amendment. Except as expressly provided for herein to the contrary, this Water and Wastewater Service Agreement may not be amended, except by subsequent written agreement of the parties. 34. Indemnity. Developer shall indemnify and hold the Town harmless from any liability for events or occurrences arising from the Town entering this Agreement and/or providing water or wastewater service to Developer, except where such liability arises due to the negligence or willful misconduct of the Town. Nothing contained herein, however, shall constitute or result in 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 14 of 16 any waiver or diminishment of and defense or limitation available to the Town under the Colorado Governmental Immunity Act or other applicable law. 35. Contractual Obligations. 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. 36. Assi ng ment. This agreement shall not be assigned by Developer without the written consent of Fraser, and Developer agrees that such consent may be withheld in the event Fraser determines in its reasonable discretion that the proposed successor or assign does not have financial capacity to perform the obligations of Developer herein. 37. Entire Agreement. This agreement constitutes the entire agreement between the parties with respect hereto and supersedes all prior written and oral agreements and representations of the parties. 38. Authorization. By executing this agreement, the parties acknowledge and represent to one another that all procedures necessary to contract and execute this agreement have been performed and that the person(s) signing for each party have been duly authorized to do so and to bind said party to the terms and conditions hereof. 39. Execution. This Agreement may be executed in multiple parts as originals or by email or facsimile copies of executed originals; provided however, if executed and evidence of execution is made by electronic copy, then an original shall be provided to the other party(ies) within seven days of receipt of said electronic copy. 40. Recording; Binding_Effect. This Agreement shall be recorded in the real property records of the Clerk and Recorder of Grand County, Colorado, and shall constitute constructive notice of this Agreement and all of its individual provisions. 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. (Remainder of page left blank intentionally) 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 15 of 16 IN WITNESS WHEREOF, the parties have set their hand and official seals the day and year first above written. TOWN OF FRASER, COLORADO By: Margaret"Peggy" Smith,Mayor 153 Fraser Avenue P.O. Box 370 Fraser, CO 81637 ATTEST: Lu Berger, Town Clerk BYERS PEAK PROPERTIES, LLC C. Clark Lipscomb, As Authorized Agent for and on behalf of Byers Peak Properties, LLC BYERS PEAK DOWNHILL ADVENTURES, LLC C. Clark Lipscomb, As Authorized Agent for and on behalf of Byers Peak Downhill Adventures, LLC 2014-03-26 Out-of-Town Water&Wastewater Service Agreement Town of Fraser and Byers Peak Properties,LLC;Byers Peak Downhill Adventures,LLC Page 16 of 16 STATE OF COLORADO ) SS. COUNTY OF GRAND ) The foregoing instrument was acknowledged before me this day of , 2014, by Margaret "Peggy" Smith, as Mayor, and by Lu Berger, Town Clerk, Town of Fraser, Colorado. 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 , 2014, by C. Clark Lipscomb as authorized agent for and on behalf of Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC. Witness my hand and official seal. My Commission expires: Notary Public 2014-03-26