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HomeMy WebLinkAboutC10-166 Town of Gypsum Annexation and Development Agreement~....N- TOWN OP' GI'PSUM, COLORADO ANNEXATION AND DEVELOPMENT AGREEMENT WE-IITE, BAVENER, BURTON, BOBSON AND EAGLE COtiNTX OF THE LONGVIEW SUBDIVISION DATED: , , r5 ~'~lC> C(o- f IPtP ~. TABLE OF CONTENTS Paee Article I. DEFINITIONS .................................................................................................... 2 1.1 Definitions .....................................................................................................2 Article II. ANNEXATION, ZONING, SUBDIVISION AND BUILDING ...................... 5 2.1 Annexation .............................................................................. ......................5 2.2 Gypsum Master Plan ............................................................... ...................... 5 2.3 Zoning ..................................................................................... ......................5 2.4 Conditions Subsequent ............................................................ ...................... 5 2.5 Subdivision and Building ........................................................ ...................... 5 2.6 Owners' Obfigations ............................................................... ...................... 5 2.7 Contractual Obligations .......................................................... ......................6 2.8 Condition of Annexation Approval ........................................ ...................... 6 2.9 Reimbursement of Transaction Costs and Expenses .............. ...................... 6 2.10 Compliance with Soils Assessment ........................................ ...................... 6 2,11 Required Improvernents .......................................................... ...................... 6 2.12 Engineer's Cost Estimate ........................................................ ...................... 7 2.13 Design Plans ............................................................................ ...................... 7 2.14 Approval of Design Plans ....................................................... ...................... 7 2.I5 Design Standards .................................................................... ...................... 8 2.16 Completion of Improvements ................................................. ...................... 8 2.17 Ownership of Required Improvernents ................................... ...................... 8 2.18 Underground Utilities ............................................................. ...................... 8 2.19 Construction Site Maintenance ............................................... ...................... 8 2.20 Public Improvement Installation Procedure ........................... ...................... 9 Article III. WATER .............................................................................................. 3.1 Water Utility Service ...................................................................... 3.2 Required Improvements .................................................................. ............ 9 ............ 9 .......... 13 Article IV. SEWER ................................................................... ........................................ 13 4.1 Sewer Utility Service .......................................... ........................................ 13 4.2 Sewer Service Tap Fees ...................................... ........................................ 14 4.3 Offsite Required Improvernents .......................... ........................................ 14 4.4 Amrexatiou Sewer Fee ........................................ ........................................ 14 Article V. ROADS AND ACCESS .......................................... ........................................ 14 5.1 Roads ................................................................... ........................................14 5.2 Access ................................................................. ........................................15 5.3 Required Irnprovernents ...................................... ........................................ 15 {ODI SGM127.DOC / 4} ~,,; Article VI. OTHER UTILITIES ............................................................................ ........... 15 6.1 Other Utilities ................................................................................... ........... 15 Article VII. EASEMENTS .................................................................................... ........... 16 7.1 Easements ........................................................................................ ...........16 7.2 Avigation Easements ....................................................................... ........... 16 7.3 Grant of Reciprocal Easement ......................................................... ........... 16 7.4 Landscape Easement ........................................................................ ........... 16 7.5 Access Easement .............................................................................. ........... 17 Article VIII. MITIGATION ................................................................................... ........... 17 8.1 Mitigation ......................................................................................... ...........17 Article IX. GENERAL DEVELOPMENT ............................................................ ........... 18 9.1 General Development ...................................................................... ........... 18 9.2 Deusities ........................................................................................... ...........18 9.3 Fees, Conditions and Dedications .................................................... ........... 18 9.4 Statement of Intent ........................................................................... ........... 19 9.5 Scheduling ........................................................................................ ...........19 9.6 Vested Property Rights .................................................................... ........... 20 9.7 Reimbursement by Owner ............................................................... ........... 20 9.8 Recording of Lien ............................................................................ ........... 20 9.9 Agriculhiral Use of Neighboring Lands .......................................... ........... 21 Article X. TERMINATION ................................................................................... ........... 21 10.1 Agreement Conditioned Upon Annexation ..................................... ........... 21 10.2 Failure of Gypsmn to Approve; Discomiection ............................... ........... 21 10,3 Effect of Voiding of Annexation of Ordinance by Coiut Order ..... ............ 21 10.4 Town's Obligations Subject to Amiual Appropriation . .................. ............ 21 Article XI. MISCELLANEOUS ........................................................................... ............22 11.1 Assigmnent ..................................................................................... ............22 11.2 Notices ............................................................................................ ............22 11.3 Paragraph Captions ......................................................................... ............ 23 11.4 Additional Documents or Action .................................................... ............ 23 11.5 Integration and Amendment ........................................................... ............ 23 11.6 Waiver of Breach ............................................................................ ............ 23 11.7 Binding Effect ................................................................................. ............ 23 11.8 Reinedies ......................................................................................... ............24 11.9 Covenants Running with the Land .................................................. ............ 24 11.10 No Third-Party Beneficiaries .......................................................... ............ 24 11.11 Cost of Anmexation ......................................................................... ............ 24 11.12 Joint and Several Liability .............................................................. ............ 24 11.13 Severability ..................................................................................... ............24 {0016G427.DOC / A} ii .~ ~ .~ 11.14 Duly Authorized Signatories .................................... .................................. 24 11.15 Duplicate Original .................................................... ................................... 24 11.16 Venue and Governing Law ...................................... ................................... 25 11.17 Colltractors ............................................................... ...................................25 11.18 Additional Docmnents or Action ............................. ................................... 25 11.19 Paragraph Captions .................................................. ................................... 25 11.20 Indemnification ........................................................ ................................... 25 11,21 Time is of the Essence ............................................. ................................... 25 11.22 Owners' Ereach ....................................................... ................................... 25 11.23 Waiver o£ Consequential Damages .......................... ................................... 26 11.24 Specific Per£ormance ............................................... ................................... 26 EXHIBITS A. Legal Description of the Property B. Development Plan C. PUD Guide D. Required Improvements E. Cost Estimate F. Avigation Easement (Lots 2A, 2B, 3 and 5) G. Avigation Easement (Lot 1) (00186427.DOG 4) 111 a-. ANNEXATION AGREEMENT (WHITE, HAVENER, BURTON, BOBSON AND EAGLE COUNTi') Tlus .Aimexation and Development Agreement ("Agreement") is entered into as of 2010, by the Town of Gypsum, Colorado ("Gypsum"), a home rule municipal co>poration organized pursuant to Article XX of the Colorado Constitution and the Town's Home Rule Charter effective October 21, 1982, Charlotte A. White ("White"), Dwain G. and Lisa lean Buu-ton ("Burton"), Robert E. and Patricia A. Havenener Trust ("Havener"), Steven S. Bobson ("Bobson"), Eagle County ("County") (individually "Owner" and collectively "Owners"). Gypsum and Owners are referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. Owners are the fee simple owners of real piroperty described in Exhibit A attached hereto and incorporated herehi (the "Property") which is located outside of Gypsum's boundaries, and which the Parties believe is eligible for amiexation into the Town of Gypsum. B. The current zoning of the Property is Rural Residential Zone District as provided iu the Eagle County Land Use Regulations and the present pre-amlexation use of each Lot, including all current existing nonconforming uses, is: a. Lot 1 is a vacant lot. b. Lot 2A is asingle-family home and a home huclcing occupation including storage of semi-tractor and hailers. c. Lot 2B is asingle-family home. d. Lot 3 is asingle-family home with non-conforming uses including commercial truck and equipment parking and storage. e. Lot 5 is asingle-family home. C. Owners and Gypsum desire to provide for the orderly development of the Property, and by this Agreement to provide for the construction of improvements and facilities to serve the Properly and to mitigate the impact of the Project on Gypsum. D. Owners have filed a petition to annex the Property to Gypsum in accordance with Chapter 21.02 of the Gypsum Mmucipal Code, and the Municipal Amlexation Act of 1965. {OO18G427.DOC / 4} E. Subject to substantive consideration and approval, Gypsum has accepted Owners' application for annexation and development of the Property as being timely filed, complete, and procedurally meeting the rules for submission. F. Owners wish to rezone and develop the Property if it is armexed to Gypsum. G. Gypsum may institute procedures to make the Property subject to Gypsum's zoning and subdivision regulations upon annexation in accordance with Section 31-12-115, C.R.S. H. Based on review of Owners' petition for annexation and application for development of the Property, Gypsum has made a preluniuary and non-binding determination of its desire to annex the Froperty, subject to compliance with all requirements of state law, the Gypsum Municipal Code, and the provisions of this Agreement. I. Gypsum is under no legal obligation to aimex the Property and may accept or reject the petition for annexation as a matter of its sole discretion. J. The Parties agree that it is desirable for Owners to annex the Property to Gypsum and for Gypsum to consider amnexation. IC. The Parties wish to enter into an agreement regarding the anticipated initial zoning and development of the Property should it be amrexed to Gypsurn, and the consequence o£ Gypsum not approvhig such development and zonnig, the conditions upon which Gypsurn is willing to consider annexation, and Gypsum's obligations to provide improvements arrd services to the Property if it approves armexafion. L. Owners have agreed to pay for, at their own cost, the infrastructure improvements needed to serve the Property including but not limited to the water, sewer, utilities, roads and related improvements. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties covenairt and agree as follows: AI2TICI,E I. DEFINITIONS 1.1 Defuutions. Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein shall have the following meanings. These definitions shall be equally applicable to both the singular and the plural forms of the teens so defined. {00186427.DOC / 4} i 4~.w A. "Agreement" shall mean this Annexation Agreement. B. "Ap licp ation" shall mean an application for approval filed under the Code for a development activity including but not limited to an application for zo>ung, subdivision, planned unit development, or building permit. C. "Code" shall mean the Gypsum Municipal Code as in effect on the effective date of this Agreement and as maybe amended from tune to time. D. "Design Plans" shall mean plans for the construction, installation or hnprovement of the Project, including the Required Improvements, together with all subsequently approved updates to those plans, stamped by a professional engineer registered in the State of Colorado. Design Plans must be submitted and approved by Gypsum. E. "Development Plan" shall mean the Owners' existing lot layout for development of the Property attached hereto as Exhibit B and incorporated herein subject to any modifications in such Development Plan as maybe approved by Gypsum. F. "En~hieers Cost Estimate" shall mean an estimate of tie cost of constructing Required Improvements prepared on behalf of the Owners and staznped by a professional engineer, registered in the State of Colorado, upon which, among other uses, the amount each Owner shall pay to the Town for the cost of the Required Improvements will be based. G. "Existing_Water S stem" shall mean the private water system and supply therefore teat Owners currently use to serve the Property including, but not limited to, all water rights, wells, ditches, pipelines, valves, and related appurtenances. II. "Gypsum" or "Town" shall meazi the Town o£ Gypsum, Colorado. I. "Lot" shall mean any of tie individual lots currently subdivided and existing on the Property as shown on Exhibit B. J. "Lot 1" shall mean the property owned by the County, generally located at 332 Jules Way, Gypsum, CO 81637 and as shown on Exhibit B. IC. "Lot 2A" shall mean the property owned by Burton generally located at 474 Jules Way, Gypsum, CO 81637 and as shown on Exhibit B. L. "Lot 2B" shall mean the property owned by White generally located at 374 7ules Way, Gypsum CO 81637 and as shown on Exhibit B. M. "Lot 3" shall mean the property owned by Ilavener generally located at 554 Jules Way, Gypsum, CO 81637 and as shown on Exhibit B. {D018Gh27.D0C / 4) N. "Lot 5" shall rnean the property owned by Bobson generally located at 611 Jules Way, Gypsum, CO 81637 and as shown on Exhibit B. 0. "MUYIlC1Da1 Armexation Act" shall mean the Colorado Municipal Annexation Act of 1965, Part 1, Article l2, Title 31, Colorado Revised Statutes, as currently in effect and as maybe amended from time to lime. P. "Petition" shall mean the petition dated November 12, 2008, including all items set forth under Code Section 21.02.020, which Owner filed with Gypsum for armexation of the Property to Gypsum. Q. "Prof ect" shall mean the development of the Property pursuant to the Developrnent Plan. The Project is anticipated to consist of up to a combination of 5 single family residential units or uses permitted under the Code for Light Industrial. R. "Pro e "shall rnean the real property that is owned by Owners and that is the subject of this Agreement containing approximately 6.67 acres more or less, and described on Exhibit A attached hereto and incorporated herein. S. "PUD" shall mean a planned unit development overlay zone approved prusuant to Chapter 18.32 of the Code and as depicted in the Plamied Unit Development Guide. T. "PUD Guide" shall mean the Planned Unit Development Guide to be approved for the Property, attached hereto as Exhibit C and inconporated herein. U. "Required Improvements" shall mean all public or private improvements required pursuant to this Agreement or as a condition of Subdivision, Building Permit, or change/increase of use. V. "Special District" means a special district organized pursuant to Article 1, Title 32, C.R.S. to assist with the construction, development, acquisition, financing or maintenance of public Required Improvements. W. "Subdivision" shall rnean subdivision of the Property through a final subdivision plat pursuant to Title 17 of the Code, consistent with the Developrnent Plan and this Agreement. X. "Submittal Requirements" shall mean that the Application, submittal, or design that complies with the requirements of this Agreement, the Code and regulations prromulgated thereunder, and the requirements of the applicable utility or senvice provider if other than the Town, and provided fiuther, that all standard fees charged generally by Gypsum are paid unless otherwise agreed to in writing. {00186427.DOC / 4) q. Y. "Zoning" shall mean zoning of the Property pursuant to Title 18 of the Code, consistent with the Development Plan, PUD Guide and this Agreement. ARTICLE II. ANNEXATION, ZONING, SUBDIVISION AND BUILDING 2.1 Annexation. Owner shall take all actions reasonably necessa>y to facilitate annexation of the Property into Gypsum, consistent with the terms and provisimis set forth herein. Annexation of the Property shall be in accordance with the Petition, this Agreement, the Municipal Amnexation Act, and the Code. Except as otherwise specifically set forth herein, upon annexation the Property shall be subject to the Code and all of Gypsum's ordinances, rules, regulations and policies. 2.2 Gypsmn Master Plau. The Property is included in the Gypsum Foundation Plan as of the date of this Agree>ent. The Project, including the uses and densities outlined in the Development Plan are in general conformity with the Gypsum Foundation Plan and the characteristics of the surrounding neighborhood. 2.3 Zonin . Contemporaneous with amiexation, Gypsum shall zone the Property as Plaimed Unit Development ("PUD") pursuant to the PUD Guide. The Town's PUD zoning shall provide that the existing uses at the time of annexation shall be permitted as uses by right without any requirement £oz• special, conditional, adminishative or other permits. The PUD Guide shall provide for a mixture of Light Indushial and Seigle-Family High Density uses. 2.4 Conditions Subsequent. A. Zoning Approval. If Owners have submitted a complete and timely Application for zoning as contemplated by Section 2.3 of this Agreement and Gypsum does not approve Zoning for the Property in accordance with the terms of this Agreement, then Gypsum shall, upon written request o£ Owners made within one (1) year of annexation, discormect the Property fiom Gypsum, and such remedy shall be Owners' sole remedy, as more particularly provided in Article 10.2 below. 2.5 Subdivision and Building. The Parties acknowledge that the Properly is already subdivided and there are no further plans for subdivision of the Property. Notwithstanding the forgoing, Lot 5 may subdivide one-time to create two separate lots and Lot 1 may be subdivided into two or three separate lots. If in the future, if the Owners or their successors wish to subdivide the Property, they shall proceed to do so in accordance with the Gypsum Municipal Code. 2.6 Owners' Obligations. Owners shall develop the Property and provide the Required hnprovements as provided herein and pursuant to the Design Plans and the Submittal Requirements in effect at the time of development, all under the {001 SG427.D0C / 4} regulatory supervision of Gypsum. All matters not covered by specifte agreement shall be controlled by the Code and the Gypsum Public Works Manual. 2.7 Contractual Obli atg ions. Owners agree that the provisions and requirements Of this Agreement are entered into with full knowledge, free will and without duress. Owners agree and desire that the agreements contanued herein regarding the payment of fees, installation and dedication of Required Improvements and conditions for subdivision and building approvals, including the incorporation of provisions of the Submitted Requirements, are imposed by contract, independent of the continued validity or invalidity of any of the provisions of the Submitted Requirements. The agreements to pay fees, reimburse Gypsum for the cost of constructing the Required Improvements, and to dedicate Required Improvements are reasonable and binding commitments on the part of Owners and closely relate to Owners' estimates of the extent and tinning of impacts to the safety and welfare of Gypsum and its citizens which are expected to occur froth the Project and are in rough proportion both in nature and extent to such impacts. 2.8 Condition of Annexation Approval. The terms of this Agreement are hereby unposed upon all of the Property and any present or subsequent owners of all or a portion of the Property and shall be referenced on the Annexation Plat. 2.9 Reirnbursernent ofTransaction Costs and Exvenses. The Town shall pay all transaction costs and expenses incurred by Gypsum nn reviewing Applications, preparation of this Agreement and other services or reviews requested or provided by Gypsum in connection with the approval of the annexation of the Project. Owners shall be responsible for all costs, including but not limited to, application and permit fees for any land use approvals initiated after atnexation of the Property. Owners shall be responsible for preparing all maps and plats required in cotmection with the anmexation of the Property, however the Parties anticipate that White Surveying will prepare such maps and plats at no cost to the Owners. 2.10 Cozn Hance with Soils Assessment. As a condition of building permit approval, Owners shall obtain a soils report and comply with requirements or recomm~endations of the soils report, including but not limited to, site-specific exploration and testing regarding moisture sensitive soils; evaluation of suck hole potential; special construction requirements or standards; and final grading plans based on site specific soils engineering studies. 2.11 Required Improvements. l;xcept as specif caIly provided in this Agreement, the Required Itnproveznents shall be limited to those on-site and off-site improvements necessary to serve the Property and mitigate impacts created by the Project, including impacts on public improvements or services. All Required Improvements shall be constructed in accordance with the Design Plans and the construction drawings approved by the Town. The Required Improvements shall include {OO186427.DOC / 4} ~j the items identified or to be identified in this Agreement, the Development Plan, the Design Plans, the Cost Estimates, the Zoning and Subdivision approvals, and any subsequent improvement agreement, and may niclude: A. Sheets, roads, driveways, pedestriar>/bicycle paths, sidewalks, curb, gutter, sheet lights with accompanying structures, drainage systems and signs; B. Domestic water systems; C. sire hydrants; D. Survey monuments; E. Sanitary sewer system; P. Perimeter fencing or walls; G. Electricity, natural gas, telephone; cable telephone and other necessary utility extensions; II. Storm sewer, storm drainage facilities, subsurface draurage lines and erosion control; I. Parks and open space including hails; J. Landscaping requirements that may include, but are not limited to, hardscape, softscape, vegetation, berms, fences or buffers, along major arterial and collector sheets, public areas and private development. K. Non-potable inrigation system, ponds and pertinent structures for non-potable irrigation. 2.1.2 Engineer's Cost Estimate. The Required Improvements provided for herein are deemed by the Parties to be necessary to serve or mitigate the impacts of developing the Project. A spreadsheet of the Cost Estimates is attached hereto as Exhibit E and incorporated herein, which provides the amount each Owner shall reimburse Gypsum for the installation and construction of Required Improvements. 2.13 Design Plans. Prior to any construction of Required Improvements, including filling or excavation, Owners shall submit to Gypsum for its approval detailed Design Plans in compliance with the Submittal Requirements. Owners shall also submit any and all plans not mentioned which may be reasonably required by Gypsum or any othea- conholling jurisdiction. 2.14 Anoroval of Design Plans. As to the Design Plans fox the Required Improvements, Gypsum shall approve Owners' set of stamped plans or provide {0018G427.DOC / 4] the Owners a written explanation of required changes in a timely fashion. In the event any errors or omissions are discovered in the approved Design Plans, or ni the event any modifications need to be made for any other reason to the approved Design Plans, Owners shall submit to Gypsum for approval a modified Desigu Plan stamped by a registered professional engineer. Constriction of Required Improvements shall not continence until Gypsum has approved Owners' Design Plans, or continue ni deviation from approved Design Plans unless Gypsum has approved modified Design Plans. 2.15 Design Standazds. Any conshvction related to development of the Project, htcluding all Required Improvements, shall be constructed in accordance with the Submittal Requirements in effect at the time Gypsum gives approval for construction, except as such Submittal Requirements are expressly modified by this Agreement. Should such Submittal Requirements change subsequent to the date of this Agreement, Owners agree as a matter of contract to abide by such changes for all construction for which Gypsum approved the Design Plans after the date of such changes. 2.16 Completion of Improvements. The Town will manage construction of the Required Improvements. Each Owner shall reimburse the Town for the cost of the Required lmprovements as further set forth in Section 9.7 herein. The Town will be under no obligation to begin construction of any of the Required Improvements until Gypsum determines in its sole discretion that any of the Required Improvements are necessary to provide services to any Lot or the Property as a whole, or a110wners responsible for the costs of a specific Required Improvement have paid the Town the full amount due and owing pursuant to the Cost Estimates. 2.17 Ownership of Required Improvements. Except as otherwise provided in this Agreement, all Required Improvements shall, at Gypsum's reasonable discretion, be dedicated to and maintained by Gypsmn, the utility or service provider, a Special District, a property owners association organized by Owners, or a similar public or private entity. 2.18 Underground Utilities. All water mains and subservice stub-outs, storm sewer, sanitary sewer, drainage, electricity, natural gas, telephone, and cable television shall be installed underground and prior to conshvction of any overlaying street, crab, sidewalk, pedestrian/bicyclepcth or gutter to prevent unnecessary pavement cuts. In addition, Owners shall provide a reproducible mylar as-built stuvey of such utilities prepared by a professional land surveyor showing horizontal and vertical locations. Such survey must be completed prior to any back fill. 2.19 Construction Site Maintenance. Gypsum may secure construction areas within the Property froth the general public and the Owners during construction of Required Improvements. {00186427.DOC / 4) 2.20 Public Improvement Installation Procedure. The following procedure shall be followed regarding the installation and inspection of all improvements: A. Plan Submission. Owners shall submit stamped, detailed Design Plans to Gypsmn for approval as provided in this Agreement. Construction shall not begin without Gypsum's written approval of detailed Design Plans. B. Pre-Construction Meeting. There shall be an on-site pre- constructionmeeting between Gypsum's engineer and construction manager, Gypsum's engineer and construction inspector, foreman from each general contractor and sub- contractor, and the geotechnical engineer for the purpose of establishing appropriate lines of comm~urucation and other necessary details of the Project. C. Notice of Cormnencernent. Gypsum may give one (1) week notice to Owners irn advance of beginning construction of any Required Improvements, describing the type of Required Improvement to be made and the time schedule for conshuction or installation. D. Covering Excavation. No excavation, facility or improvement, including water and sewer service connections, shall be covered until inspected and approved by Gypsum, or until such inspection is waived in writing. E. Conveyance to Gypsum. All Required llnprovements to be conveyed Co Gypsum shall be, at the discretion of Gypsmn, conveyed by plat dedication, or general warralnty deed, or both, and bill of sale, along with underlying land and rights- of-way in fee title or by easements, free and clear of any and all liens and encumbrances. Owners shall, at its sole cost and expense, cause a policy of title insurance to be issued for such conveyances and dedications. ARTICLR III. VVATI;R 3.1 Water Utility Service. The Town currently provides water service to one single family home on Lots 2A, 2B and Lot 5.t The Town currently does not provide water service to Lot 1 or Lot 3. Lot 3 currently utilizes an exempt well for both potable and non-potable needs. It is anticipated that Lot 1 will not require water selvice uniless it is acquired by the Owner of Lot 2B, at which time Lot 1 shall receive water service from the EQR available to Lot 2B. If Lot 1 does require water utility service fiom the Town, the Towrn shall calculate the cost of such separate water utility service and such cost shall be paid by the Owner of Lot 1 separate from and in addition to the costs included on the Cost Estimates attached as Exhibit E. ~ Lot 4 in this subdivision was previously annexed and is not included in this agreement. {OO18G427.D0C/4} (~ ..v Owners agree that following annexation of the Property, Gypsum shall have no obligation to provide any additional water utility service to any portion of the Property beyond what is provided as of the date of this Agreement. Gypsum agrees that it shall provide additional water utility service to the Properly only if, as, and when the Owners, at Owners' sole cost and expense, shall meet all of Gypsum's requirements regarding water service, as agreed to herein and as provided by the Code and such rules and regulations as Gypsum may adopt or amend from time to time by resolution that have uniform application in Gypswn. Owners agree that prior to connection by any of the lots azurexed herein to Gypsum's water service, any former well water shall be discomlected and capped off according to the State's regulations, and to Gypsum's engineer's satisfaction. Gypswn's requirements for water service, including but not limited to Owner's temporary use of the Existing Water System, include by way of explanation and not ]imitation the following: A. Amnexation Water. As part of the consideration for amnexation, and in addition to water right dedication fees, tap fees and surcharges, for annexation, Gypsum requires dedication of water or water rights or other benefits to benefit Gypswn's water supply and system. Because Owners' existing domestic water rights are not acceptable for the Town, and there are no other water rights and/or storage existing on the Property, the Parties have determined that Owners are required to provide the then existing per EQR annexation in-lieu fee rather than providing amnexation water. The in- lieu fee is acceptable because the Project will require Gypswn to increase its water supply infrastructure. Such funds represent Gypsum's expected costs on a per EQR basis to make additional water infrastructure changes so that the Property can be adequately served. However, there is no annexation requhement for the existing connections currently served by Gypsum. B. Water Riehts Dedication. The Owner of any Lot requiring water utility service from the Town shall comply with the water rights dedication requirements set forth in the Code, and shall either dedicate appropriate water rights or pay Gypswn a water rights dedication fee for each new EQR approved herein, at Gypsum's discretion and election. Gypsum's current water right dedication fee is $7,000.00 per EQR, however the amount due shall be the water right dedication fee applicable at the time such Lot is connected to services or issued a building permit. Owners have requested fve additional EQR's for the properly (2 single family units at 1 EQR per unit and 3 EQR for commercial uses). Each Owner may satisfy the water right dedication requhrements under the Code for the EQR's required for O~nier's respective Lot by paying ht-Iieu fees. Gypswn may use the water rights dedication fee to secure appropriate water sources for Gypsum's use, including, but not limited to, payment for any portion of Gypsum's Colorado River Water Conservation District contract water. The water rights dedication obligation is in addition to the Annexation Water in subsection 3.1.A above. However, there is no water right dedication requirement for the existing connections currently served by Gypswn. Annexation of this Property is not a {00186427.DOC / 4} 1 Q ~,... precedent for future properties that do not have water rights available for dedication to the Town. C. Raw Water Ini atg xon S. sue. The Farties understand that a Raw Water In-igation System is not currenfly planned to be constructed as part of the Project. Owners agree to comply with the 2,500 square foot limitation of outdoor irrigated area required by the Code. All design review approval applications shall include a landscape plan to document the limited irrigation, and such shall be submitted to the Town concwrent with building permit applications for the Properly. D. Water Service Tap Fees. Owner of any Lot requiring water utility service shall pay to Gypswn all fees and costs associated with connection to the Town's water utility service, in addition to the charges listed hi the Cost Estimate, including Gypsum's water tap fee for any new EQR's connecting to the Town's water. The cunent Gypsum-water tap fee is $6,000.00 per EQR, however the amount due shall be the water tap fee applicable at the time such Lot is connected to services or issued a building permit. (i) Convey. Except for service lines and the non-potable water system, all water lines and related Required Improvements constructed pursuant to this Agreement shall be conveyed to Gypswn upon completion o£ construction, and prior to Gypsum providing service to any of the lines or Required Improvements. Prior to conveyance, which shall be made free and clear of all lines and encumbrances, Owner shall provide reproducible inylar as-built drawings and AutoCAD drawing data on disc to Gypsum, easements for all water Ihies and facilities in scope and form reasonably acceptable to Gypsum. The requirements of the Code for acceptance by Gypsum of any water main lines or other Required Improvements shall be met prior to Gypsum providing service to any of the lines or Required Improvements. E. Inadequate Svstern Capacity. Gypsum acknowledges there is currently sufficient water system capacity to serve the number of units proposed for the Property. However, use of such system capacity is on a "first come, first serve" basis and may not be available when building permits are requested. For the purpose of this Agreement, insufficient capacity to serve the Property means hnsuffcient water treatment capacity to serve all properties within Gypsum, all areas currently served by Gypswn located within and without Gypswn, and also serve the Properly. Gypsum may impose a temporary or permanent moratorium on issuing water taps to serve the Property, should Gypsum determine hi its sole subjective discretion that it has insufficient water treatment capacity to serve the Property. Upon any such moratorium, Gypsum shall take reasonable efforts to increase system capacity to serve the Property. Should Gypsum fail to provide water service to the Property when desired, the sole remedy of the Owners shall be to require Gypsum to disconnect the Property from Gypswn and/or to seek a {00186427.DOC / 4} 11 refund of any amounts paid for water right dedication fees and/or water service tap fees paid for any lots affected by the moratorium. P. Total EQR Limitation. In no event shall there be more than five EQRs developed under this Armexation in addition to those existing as of the date of this Agreement, without the express written consent of Gypsum. G. lndeiruvfication. To the extent allowed by law, Owners agree to indemnify, protect and hold the Town harmless fiom and against any liability, damage, cost or expense incurred by the Town hi comiection with any work performed by Owners or performed at Owners request on the Prroperty including, without limitation, any operation, maintenance, repair or replacement for any well structure and existing service lines, and any comiectiom and treatment at the currently existing homes and for any continuing irrigation fiom any existing wells. The provisions of this subsection shall survive the tennhration of this Agreement for so long as the Property remains annexed into the Town. 1-I. Well Water Requirements. (i) Lot 3. The Owner of Lot 3 owns the Lucky Well No. 2 (Permit No. 109324) and shall be responsible for all costs for all required regulatory compliance for potable and hi-igation water service to Lot 3 by the existing well and shall provide to the Town timely proof of such compliance on a monthly basis, or as requested by the Town to indicate that the Lucky Well No. 2 is in compliance with all local, state and federal laws. After such time as the Owner of Lot 3 comiects to the Town's potable water service, the well shall be lhnited to use for inrigation only, according to the terms of the permit. The provisions of this subsection shall survive the termination of this Agreement for so long as the Property remains annexed to the Town. (ii) Lots 2A and 2B. The Owners of Lots 2A and 2B own the White Well (Permit No. 54459) and shall limit its use to irrigation as allowed by the permit. The Owners of Lots 2A and 2B shall be responsible for all costs for all required regulatory compliance for irrigation water service to Lot 2A and 2B from the White Well and shall provide to the Town tnnely proof of such compliance on a monthly basis, or as requested by the Town to indicate that the White Well is in compliance with all local, state and federal laws. (iii) Backflow Prevention. The Owners of Lots 2A, 2B and 3 shall comply with all Town, county and state blackffow prevention regulations and shall be responsible for all costs associated with such compliance and all costs for operation, maintenance, repair and replacement for their respective wells. {OOISG927.DOC / 4} 12 ~,. ~.~ (iv) Ulin Ditch. All Owners hereby disclaim any ownership interest in and agree to convey to the Town any claims to water rights or beneficial water use by the Ulin Ditch. 3.2 Required Improvements. A. Owner of Lot 3 shall, at its sole cost and expense, construct in compliance with Gypsum conshuction standards an eight-inch (8") water rnahi line and fre hydrant, approximately six hundred thirty five feet (635') in length from the existing line located at the confer of 7ules Way to the western edge of Lot 3 as depicted on Exhibit C. Gypsum shall have no obligation to provide water service to Lot 3 until the water main line comiecting with the existing main line has been completed and dedicated to Gypsum. At tune of coimection, the well currently seiviug Lot 3 shall be disconnected from any potable service, and all baclcflow prevention shall be in place to the satisfaction of the Town and pursuant to all Town, local and state guidelines. B. Should Lot 5 elect to subdivide into a total of two lots, Owner of Lot 5 shall, at its sole cost and expense, construct a separate two inch (2") service line from fire hydrant location in front of Gypstun Elementary School and provide applicable utility easements for the newly created lot. ARTICLE IV. SEWER 4.1 Sewer Utility Service. Gypsum does not currently provide sewage service to the Property. Owners agree Yhat i~runediately following annexation, Gypsum shall have no obligation to provide any sewage utility service to the Property. It is anticipated that Lot 5 will secure sanitary sewer service from a source other than the Town. Gypsum agrees that it shall provide sewage utility service to the Property only if, as, and when the Owners, at Owners' sole cost and expense, shall have met all of Gypsum's requirements regarding wastewater and sewer service, agreed to herein and as provided by the Code and such rules and regulations as Gypsum may adopt or amend from time to time by resolution, including, without limitation the following requirements: A. Locathig and extending sewer lines and facilities in a manner acceptable to Gypsum, from existing Gypsum sewer lines to and through the Property; and B. Paying such sewer tap fees and service charges as Gypsum may from trine to time establish as standard fees charged to similar Property throughout Gypsum. C. The Property may continue to be serviced from existing septic systems, as approved by the Eagle County Health Department, except no revisions or {aaiseazzoocia} 13 w° \ expansions to the septic systems shall be permitted to accommmodate additional uses. Cozmection to Gypsum sazutary sewer for each Lot will be required at the time uiy use on such Lot is expanded, or at the time any Owner wishes to revise or expand the septic system on the Owner's Lot. 4.2 Sewer Service Tap Fees. Each Owner connecting a Lot to the Town's sanitary sewer system shall pay Gypsum's sewer tap fees £or all EQR's connecting based on the sewer tap fee structure specified by the Code at the time of building permit application or connection. The current Gypsum sewer tap fee is $7,000.00 per EQR. A. Convevance. All sewer lines and related Required Improvements constructed pursuant to this Agreement, except service lines and Required Improvements z-elated to individual sewer service, shall be conveyed to Gypsum upon completion of construction. Prior to conveyance, which shall be made free and clear of all liens and encumbrances, Owners shall provide reproducible mylar as-built drawings and AutoCAD drawing data on disc to Gypsum and easements for all sewer Ines and facilities in scope and form reasonably acceptable to Gypsum. The requirements of the Code, for acceptance by Gypsum of any sewer maul lines or Required Irnprovernents shall be met prior to Gypsun providing service to any of the lines or Required Improvements. 4.3 Offsite Required Improvements. As further provided for hi this Agreement, the Town will construct an eight-inch (8") gravity fed sewer line from the Property to Gypsum's existing sewer collection line as depicted on Exhibit C. The Ownez• of each Lot requiring sanitary sewer service shall reimburse the Town for the sewer line improvements pursuant to the provisions of this Agreement and the amounts set forth in Exhibit E. Gypsum shall have no obligation to provide sewer service to the Property until such Required Improvements have been completed and dedicated to Gypsum an Gypsum has been reimbursed by Owners. 4.4 Amrexation Sewer Fee. Gypsum shall be required to plan and implement new wastewater heatrnent facilities to accommnodate annexing all units over that which have been previously approved and azmexed hi the Town. To accommodate this development, an annexation sewer fee is required for this anticipated infrastzucture. Eecause of this, Owners of all Lots requning com~ecting to the Town's sanitary sewer system shall pay Gypsum $700 per EQR as an amiexation sewer fee, due at either connection to the service if a building peniut is not required or at building permit application. ARTICLE V. ROADS AND ACCESS 5.1 Roads. {ooiseazzoocia} 14 A. Owners agree that iimnediately following annexation, Gypsum shall have no obligation to provide any public access to or upon the Property, nor any obligation to maintain any existing roads or public access to the Properly, except for that portion of paved Jules Way as depicted on Exhibit C, until such tune as they are constructed accepted and dedicated as contemplated by this Agreement. The design and conshuction of all roads and related Required hprovements shall be in accordance with the Submittal Requirements. B. No existing dirt roads will be owned or maintained by Gypsum. The Owners shall organize a property owners associafion to plow and maintain any portion of the dirt road(s) that are classified as access easements or rights-of--way. C. Concurrent with annexation of the Property, the Owner of Lot 5 shall grant to the Town a 20-foot-wide road easement over and across Lot 5 (the "Lot 5 Easement"). The Lot 5 Easement shall be adjacent to the 15-foot-wide easement already granted to the Town by the Owner of Lot 5 for road improvements. Lot 5 will not be requhed to construct road improvements across the Lot 5 Easement, however the easement shall provide that the Town may, in its sole discretion, construct a road tluough Lot 5. The Town will seek a 10-foot-wide road easernent over and across Lot 4 of the Longview Subdivision if and when the owner of Lot 4 seeks additional land use approvals from the Town. If the Town is successful in obtaining a 10-foot-wide road easement from the owner of Lot 4, the Town shall vacate a 10-foot-wide strip of the Lot 5 Easement; however, no portion of the Lot 5 Easement shall be vacated if any road improvements have ah•eady been constructed across the Lot 5 Easement. 5.2 Access. Owners shall be responsible for maintaining reasonable existing access tluough the Property to any adjoining properties, as such access is established by law or deed. 5.3 Required Improvements. Owners of Lots 2A and 3 shall, at their sole cost and expense, construct to Gypsum standards a thirty foot (30') wide asphalt road consisting of two (2) twelve foot (l2') drive lanes and two (2) tluee foot (3') shoulders as depicted on Exhibit D and pursuant to the Cost Estimates set forth in Exhibit E. ARTICLE VI. OTI3ER UTILITIES 6.1 Other Utilities. All new service and utility lines shall be histalled underground and in compliance with the Submittal Requirements. Utilities existing above-ground as of the date of this Agreement may remain above-ground. {OOI86427.DOC / 4} 15 ~~~' aµsl ARTICLE VII. EASEMENTS 7.1 Easements. Owners shall be responsible for causing all onsite and offsite easements that Gypsum determines are necessary for all public purposes in coruiection with developrnent of the Property to be conveyed or dedicated, as appropriate, to Gypsum. Both the form of the easement and the condition of the title shall be acceptable to Gypsum. Gypsum agrees to cooperate and assist Owners in obtaining off- site easements, where necessary, but such cooperation and assistance shall not extend to utilization of Gypsum's condemnation authority, unless Gypsurn in its sole and absolute discretion, determines such action is appropriate and needed. In lieu of new easements, Owner may use existing Gypsurn rights-of--way and utility easements where flee same are approved in advance by Gypsum. 7.2 Avigation Easements. A. The Owners of Lots 2A, 2B, 3 and 5 agree to grant to Gypsum and Eagle County an Avigation Easement in the forn attached hereto as Exhibit P and incorporated herein. B. The Owner of Lot 1 shall, at the time of conveyance or subdivision of Lot 1 grant to Gypsum an Avigation Easernent in the forn attached hereto as Exhibit G and incorporated herein. 7.3 Grant of Reciprocal Easement. Owners hereby grant and convey to Gypsurn a blanket easement in, to, through, over and across the Property for the purpose of allowing all access and the performance of all activities as are necessary to perform or enforce the teens and provisions of this Agreement. Said blanket easement shall be superseded by those specific easements shown upon recordation of eaclr final plat for any phase of the Project which are specifically designated to benefit Gypsum or the public.- Owners further agree to execute and deliver to Gypsum such additional documents and instruments as Gypsum may require to fully perform and enforce this Agreement as well as any subsequent agreement executed with Gypsum in connection with the Project. 7.4 Landscape Easement. Concurrent with armexation, the Owner of Lot 2B shall provide a ten foot (10') landscape easernent. The landscape easernent shall be over the northern boundary of Lot 2B on the parcel grarrted to the Owner of Lot 2B pursuant to the Purchase and Sale Agreement between Gypsum and Charlotte A. White. The landscape easement shall allow for the Owner to been and landscape this portion of Lot 2B for visual mitigation at the tirne Lot 2B adds Light Industrial uses. {ooisvaszoocia} 16 7.5 Access Easement. Concurrent with amiexation, the Owner of Lot 2B shall provide a twenty foot (20') access easement to Jules Way over and across Lot 2B for the benefit of Lot 1. ARTICLE VIII. NIITIGATION 8.1 Mitic ation. In addition to any other requirement of this Agreement, Owners agree as a condition of annexation to provide the other Required Improvements, payments and mitigation specifically called £or in this Article. A. Snow Removal. Gypstun shall provide snow removal to roads adjacent to the Property that are improved and dedicated to Gypslun. B. Trash Removal. Gypsum agrees to continue to provide hash removal service to the Property. C. Fire Protection Services. The Gypsrun Fire Protection District currently provides fire protection services to the Properly. In accordance with and as provided by the Code, Owners shall at the time of building permit application for either new residential units ornon-residential development, pay to Gypsum on behalf of the Gypsum Fire Protection District ("Fhe District") the Fire District'sthen-current cash-in- lieu impact fee for such services. Tlus fee is subject to amiual increases reflecting the consumer price index and shall be in addition to those fees listed in Exhibit E. D. Emergency Medical Services. The Western Eagle Cowity Ambuluice DisU•ict currently provides emergency medical services to the Property, hr accordance with and pursuant to the Code, the Owner of any affected Lot shall at the time of building permit application for either new residential units or nou-residential development, pay to Gypsum on behalf of the Western Eagle County Ambulance District ("Ambulance District") the current cash-in-lieu impact fee for such services. Tlris fee is subject to annual increases reflecting the consumer price hndex and shall be in addition to those fees listed in Exhibit E. E. School Impact Fee. Pursuant to Chapter 17.38 of the Code and upon the recommendation of the School Board, the Owner of any affected Lot shall pay an applicable cash impact fee in lieu of dedicating land to the School District prior to recording any Subdivision plat creating any additional residential units. Such impact fee is based on the District's land dedication requiremen and in lieu fee of fah• market value per acre, and based on the following formulae: (No. of single family and duplex prhnary secondary mutes _ x .0144956 + No. ofmulti-family units _ x .002676) x fair rnarlcet value x cpi x .01. (00186427.DOC / 4} 1'~ ~.w The School Impact Fees shall be in addition to those fees listed in Exhibit E. F. Recreation Annexation Impact Fee. Prior to recording any Subdivision plat for Lot 5, the Owner of Lot 5 shall pay an annexation recreation impact fee to Gypsum in the amount of $1,000 per plamied addhthonal single family unts. Such fee shall be in addition to those fees and charges listed in Exhibit E. G. Open Space and Land Dedication Requnements. The Owner of Lot 5 is obligated to satisfy Gypswn's open space land dedication requirement as set forth in the Code, prior to recorduig any subdhvhshon plat for Lot 5. Such requirement shall be satisfied by the dedication of the road easement pursuant to Section S.1(C) herein, which easement shall be in lieu of any open space and land dedication requirements. There shall be no open space land dedication required from the Owner of Lot 1 upon subdivision of Lot 1. ARTICLE IX. GENERAL DEVELOPIVIENT 9.1 General Development. Except for obligations due upon annexation of the Property, or as otherwise provided herein, Owners shall have no liability to Gypsmn pursuant to this Agreement for failure to undertake the development of the Project, although if Owners proceed with development of the Project, Owners shall be responsible for caryiug out the obligations provided for in this Agreement. 9.2 Densities. This Agreement and the Development Plan set forth the residential and non-residential development pattern, includuig the approximate number of dwelling units and amount of non-connnercial development which Gypsum agrees are appropriate for development on the Property subject to the completion of the development approval process under the Code. The locathon of such units, the sizes of the various building envelopes, and other pertinent land use requirements shall be reasonably consistent with the Development Plan as determined in the development approval process as required by the Code. No development involving occupancy shall be allowed within open space parcels or easements as depicted on the Development Plan, except in the sole subjective discretion of Gypsum. 9.3 Fees. Conditions and Dedications. A. Owners shall make only those dedications and pay oriy those fees expressly provided in this Agreement, the Development Plan, the Submittal Requirements and the Code, including, without limitation, the rennbursemeut of Gypsum's expense paid to contractors, consultants and other third parties incurred in connection with any Application filed by Owners. All costs attributable to an Owner or {0018G427.DOC / A} 18 i __,1 Owners shall be paid by the individual Owner of the Lot obtaining the particular benefit(s) identified herein. B. Owners acknowledge and agree that any payment, mitigation or requirement to construct and convey Required Improvements pursuant to this Agreement is a contractual condition to be performed in consideration of Gypsum's willingness to annex the Property, and Gypsum's execution of this Agreement. In consideration of Gypsum's annexation of the Property, Owners further agrees that annexation of the Property and payments, mitigation or requirements associated with the Required Improvements provided for in this Agreement do not constitute a "land-use approval" under §29-20-202(1), C.R.S., or a "development permit" under §29-20-103, C.R.S. Owners hereby waive any claim they might bring contesting the enforcement of the payments, mitigation or Required Improvements pursuant to or arising from this Agreement on the grounds that such items are impermissible exactions or impact fees under State or federal law. Owners further acknowledge tlrat payments, mitigation and Required Improvements that are deternhied or due at the tune of a future development approval associated with the Project is in lieu of payment at the time of execution of this Agreement and is for the converrience of Owners. C. Nothing in this Agreement shall prohibit Gypsum fiom exercising its taxing power, provided there is no new fee or tax unposed as a condition o£ developing the Project, nor any increase of fees or taxes affecting the development of the Project, except as provided in this Agreement or applicable to all similarly situated properties or actions within Gypsum. 9.4 Statement of Intent. Tt is the express intent of Owners and Gypsum to cooperate and diligently work to hnplernent any approved Application including the development, zoning, final development plan and/or other land use, building permits or approvals which are necessary or desirable in connection with the Project. 9.5 Scheduling. If necessary or required, upon satisfactory completion by Owners of all required prelhninary actions and payments of appropriate processing fees, if any, Gypsum shall proceed to complete all steps required or necessary for the implementation of this Agreement and the Project in accordance with this Agreement and the Submittal Requirements: A. Scheduling, convening and concluding all required public hearings in a manner consistent with applicable laws and regulations in force as of the date hereof. B. Processing and approval hi an expeditious mariner, of all plats, plans, grading permits, land use permits, building plans and specifrcations and other plans relathig to the Project, filed by Owners, including, but not limited to, all zoning, final development permits, tentative maps, parcel maps, final maps, re-subdivision, {0018G427.DOC / 4} 1 C~ amendments to maps, subdivision improvement agreements, lot line adjustments, encroachments and related matters. 9.6 Vested Property Rights. Upon amiexation and zoning of the Property, Owners shall have the right to undertake and complete development in accordance with the terms and conditions of this Agreement. 9.7 Reimbursement by Owner. Gypsum will manage the installation and construction of all Required Improvements. Each Owner shall pay Gypsum proportionate to the Required Improvements needed for each Lot pursuant to the break- down of costs for each Lot listed in Exhibit E upon the happening of any of the following events: 1. All Lots -when such Lot is sold to a Hurd party other than an irmnediate family member; when a change of use requires additional water and/or sewer service to such Lot; Lots 2A and 2B -upon initiation of any non-residential uses including any light industrial or cormnercial use or construction of any structures appm•tenant to any light industrial or conunercial use (except storage of semi-tractor and hailers on Lot 2A}. Lot 3 -upon expansion or replacement of the existing residence, except replacement of the existing residence with a residence of equal or less square footage; initiation of any nou-residential uses other than those related to the Havener Trucking business; 4. Lot 5 -subdivision. The Parties rurderstand and acknowledge that Gypsum may conshuct the Required Improvements prior to receiving payment from any or all Owners, but that the Owners shall remain liable for any unpaid portion of the cost of the Required Improvements in the amounts depicted on Exhibit E. The Parties also agree that Gypsum shall be under no obligation to construct any Required Improvements until full payment is received from all Owners responsible for the cost of such improvement(s). If actual construction costs exceed the amount listed in the Cost Estimates, the Town shall pay the difference. 9.8 Recording of Lien. If any Owner does not reimbursement Gypsum withhi thirty (30) days of receipt of a bill from Gypsum, Gypsum may record a lien on the Lot in the amount of reimbursement owed. Such lien shall remain on the Lot until the amount is paid to Gypsum. Gypsmn may not record a lien on any Lot for the Required hprovement until such Lot is sold, has a change in use, or receives development approval. {0018G427.DOCl4} 2(] i „ri 9.9 Agricultural Use of Nei hborin Lg ands. Fa~•m and ranch activities may be conducted on one or more properties that are adjacent or proximate to the Project. Neither Owners nor Owners' successors and assigns shall have a right to object to or seek a cessation of such activities or claim any damages arising out of such activities so long as such fare and ranch activities are being conducted in accordance with applicable zoning and without trespassing on the Property. For the propose of resolving any and all grievances and complaints of whatsoever ldnd or nature arising out of such adjacent or proximate farm or ranch activities including but not limited to any activities conducted on the BLM land, the Parties agree that the protections, procedures, rules and mediation panel as set forth in Sections 8.05.090 tluough 8.05.092 inclusive of the Code shall govern and be followed to resolve all such grievances or complaints. ARTICLE X. TERMINATION 10.1 Agreement Conditioned Upon Am~exation. Owners' development of the Property as provided herein is expressly contingent upon annexation and Zoning. 10.2 Failure of Gypsum to Apurove; Disconnection. If Gypsum determines not to approve the annexation and Zoning for the Property in accordance with the teens and conditions of this Agreement, Owners shall have the right to execute one or more petitions to disconnect all or portions of the Property.fiom Gypsum, as so designated in the petitions. Upon such written request of any Owner, made in the Owner's sole discretion and within one (1) year of annexation, Gypsum shall disconnect from Gypsumm, the Lot or Lots as are designated. In such event, and only as related to the discomiected Lot(s), any unfulfilled obligations of the Owner shall terminate and the Owner shall have no firrther liability to Gypsum, except that Owner shall remain liable for payment of any fees or charges for services provided by Gypsum prior to such disconnection. If requested in writing by Owner, Gypsum shall release in writing the disconnected Lot(s) from the obligations, such release to be recorded in the real property records of the Eagle County Cleric and Recorder. Such remedy shall be the sole remedy of Owners hereunder. 10.3 Effect of -Voidir~ of Annexation of Ordinance by Court Order. In the event the Gypsum ordinance approving annexation of the Property is voided by a court order Pursuant to §31-12-117, C.R.S., Gypsum may elect, in its sole discretion, to terninate this Agreement; otherwise this Agreement shall remain in full force to the extent it is not in conflict with such com•t order. 10.4 Town's Obligations Subject to Amiual Appropriation. In accordance with the Colorado Constitution and Statutes, the Town's obligations hereunder are subject to the annual appropriation of funds necessary for the performance of such obligations by the Town Council, which appropriations shall be made in their {OO18G427.DOC (4} 21 sole discretion. If Town is unable to perform its obligations under this Agreement in the mamier set forth herein due to a failure to appropriate necessary funds, then Town shall have the right to terminate this Agreement, and bode Parties shall have no further obligations of any kind or nature, except those that specifically survive termination. ARTICLE XI. MISCELLANEOUS 11.1 Assignment. This Agreement may not be assigned or delegated without the written consent of flee Parties. Such consent shall not be unreasonably withheld provided the Assignee agrees to and meets all the obligations of Owner tinder this and related agreements and approvals. 11.2 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified or registered mail, postage and fees prepaid, addressed to the Parry to whom such notice is intended to be given at the address set forth below, or at such other address as may be subsequently furnished to the other Parry as provided herein. Such notice shall be deemed to have been given when deposited in the U.S. Mail. To Gypsum Town Manager Town of Gypsum 50 Lundgren Boulevard P.O. Sox 130 Gypsum, Colorado 81637 With copies to Robert G. Cole Town Attorney Collins Coclffel & Cole 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 To Owners: Eagle County Board of County Cormnissioners Box 850 Eagle, CO 81631 Charlotte A. White Box 115 {00186427.DOC / 4) 22 ~.~~ Gypsum, CO 81637 G. Dewain Burton and Lisa Jean Burton 454 Jules Way Gypsum, CO 81637 Robert E. Havener and Pah•icia A. Havener Trust 2054 N. Thornton Rd. Spc 171 Casa Grande, AZ 85122-7836 Steven S. Bobson Box 103 Gypsum, CO 81637 With copies to: Bryan Treu Eagle County Attorney Box 850 Eagle, CO 81631 ~.,~ 11.3 Paragraph Captions. The captions of the paragraphs are set forth Duly for convenience and reference and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. 11.4 Additional Documents or Action. The Parties agree to execute any additional documents and to take any additional action necessary to cant' out this Agreement. 11.5 Integration and Amendment. This Agreement represents the entire Agreement between the Parties and there are no oral or collateral Agreements or understandings except as otherwise referred to herein. This Agreement maybe amended only by an instrument in writing sib ied by the Parties. 11.6 Waiver of Breach. The waiver by any Party to this Agreement of a breach of any teen or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Parry. 11.7 Bindin Ems. This Agreement shall inure to the benefit of, acid be binding upon, each of the Parties and their respective legal representatives, successors and assigns. This Agreement shall continue upon Subdivision and shall bind Owners and all of Owners' purchasers, lessees, successors and assigns, including subsequent owners of any portion of lot or parcel within the Property until all provisions are satisfied. {ooia~az~.oocia} 23 w~ l;ither Party may record this Agreement in the real property records of Eagle County, Colorado. 11.8 Remedies. The Parties acknowledge that this Agreement may be enforced in law or in equity by a decree of specific performance, damages, foreclosure of liens for unpaid amounts, discomrection of public services by Gypsum or other such legal and equitable relief as maybe available under the laws and statutes of the State of Colorado. 11.9 Covenants Runnin¢ with the Land. All provisions contained in this Agreement touch and concern the Property, constitute covenans cunning with the laud, shall be binding upon the Owners and each of Owners' successors hi interest. 11.10 No Third-Party Beneficiaries. Nothing in this Agreement shall be deemed to create any third-party benefits or benef tierces, or create a right or cause of action for the enforcement of its terms, in any entity or person not a Party to this Agreement. 11.11 Cost of Annexation. Notwithstanding any other provision contained in this Agreement to the contrary, all costs of the annexation and all costs incurred under this Agreement and owed to Gypsum shall be paid by Owners. 11.12 Joint and Several Liability. Notwithstanding any other provision contained in tlris Agreement to the contrary, all of the terms, conditions and provisions of this Agreement to be performed by each individual and entity that collectively constitute Owner and either of them shall be joint and several obligations of each of the entities and individuals, and Gypsum may seek enforcement of any such teams, conditions and provisions against any such individual or entity without the necessity of joining the other entity or individual. 11.13 Severabilitv. In the event that any of the terms, covenants or conditions of this Agreement or their application shall beheld invalid as to any person, entity or chcumstance by any court having competent jurisdiction, the remainder of this Agreement and the application in effect of its terns, covenants or conditions to such persons, entities or circumstances shall not be effected thereby. 11.14 Duly Authorized Signatories. By execution of this Agreement, the undersigned each hidividually represent that he or she is duly authorized to execute and deliver this Agreement and that the subject Pariy shall be bound by the signatory's execution of this Agreement. 11.15 Duplicate Ori ig nal. Tlus Agreement maybe executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. {60186427.DOC / 4} 2A, 11.16 Venue and Governing Law. Any action arising out of this Agreement shall be brought in the District Court, Eagle County, Colorado. This Agreement shall be governed by laws of the State of Colorado. I I.17 Contractors. Owners shall give notice of the terms of this Agreement in all contracts for conshvction of the improvements and provide a copy of this Agreement to the contactors. 1 I.18 Additional Documents or Action. Pazties agree to execute any additional docmnent azid to take any additional action necessary to carry out this Agreement. 11.19 Paragranh Ca tp 1O11S. The captions of the paragraphs are set forth orrly for convenience and reference and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. 11.20 Indemnification. To the extent allowed by law, Owners shall hrdermrify, defend and hold Gypsum, and its employees, agents, enguieers and attorneys, harmless from and against all costs, claims, damages, judgments, losses and expenses of every nature, including reasonable attorneys' fees, arising at any time from any act or omission of Owners, its employees, subcontractors and their employees, and all other persons directly or indirectly involved in or performing work for the Owners on the Project. Owners obligation to indermrify and hold harmless shall include any liability Gypstun may have on account of any change in direction, nature, quality, or quantity of historical drainage flow, resulting from the development of the Property, or from construction of steets and storm sewers within or serving the Property, or damages to any Property within the Project resulting from natural conditions including but not limited to expansive soils, geologic hazard, wildfire hazard or flood hazard, if Owner(s) are established to be negligent. 11.21 Tirne is of the Essence. All the time limits stated in this Agreement are of the essence of this Agreement. 11.22 Owners' Breach. Upon breach by any Owner, until the breach is otherwise remedied by the breaching Owner or by Gypsum, Gypsum shall have the right to refuse to approve any Application for any phase of development applicable to the breaching Lot and/or disconnect the breaching Lot from public services by Gypsum. Upon such breach and written order from Gypsum, the breaching Owner shall also cease any development activity, irrchrdiug construction pursuant to a previously issued building permit. Any amounts due and owing to Gypsmn under this Agreement which are not paid in a timely manner maybe certified to the Eagle County Treasurer pursuant to Section 31-20-105, C.R.S., for collection with taxes. Gypsum may also record a lien against the Property and/or seek a judgment agahist the Owner(s) and/or its successors in interest to recover any deficiencies. {0018G427.DOC/M1} 25 ~..~ 11.23 Waiver of Consequential Damages. Owners waive any and all claims against Gypsum, its employees, engineers and attorneys, for consequential damages arishng out of or relating to this Agreement, including but not limited to, damages incurred for losses of financing, business and reputation, and for loss of profits including but not limited to loss of profits due to impaired bonding capacity or diminution of credit status, except those reasonably anticipated cost recovery reimbursements arising directly from this Agreement. 11.24 Specific Performance. Tn addition to any of the remedies the Parties may have upon the breach of this Agreement by the other Party, the aggrieved Party shall have the right to request a court of proper jurisdiction to enter a mandatory injunction against the other Party requirhxg specific performance of the terns contained in this Agreemen. {00186427.DOC / 4} ~ 6 1 _., ~µ Dated this day of , 2010. TOWN OF GYPSUM, COLORADO Attest: Danette Schlegel, Town Clerk TOWN OF GYPSUM, COLORADO By Steve Carver, Mayor 50 Lundgren Boulevard P. 0. Box 130 Gypsum, CO 81637 STATE OF COLORADO ) ss. COUNTY OF ) The foregoing Amiexation Agreernent was acknowledged before me this _ day of , 2010, by Steven Carver, as Mayor of the Town of Gypsum and Danette Schlegel, as Town Clerk of Gypsmn. Witness my hand and official seal. My cormnission expires: Notary Public {00156427.DOC / 4} 27 OWNER Eagle County Board of County Conunissioners BY ~'~~~ ~Sf)~i.~~~.-. F STATE OF COLORADO ) ~`~ ) ss. COUNTY OP ~~C'~t,G ) The foregoing Amiexation Agreement was aclaiowledged before me this n-U~ w~ day of ~' , 2010, by [~~ as C{/IUt,(,4'~M(,t,Vt of .1 ' i ,(_. ~t11'iL4'R,INI.( MSS Witness my hand and official seal. DEBORAH L CHURCHILL Notary Public My commission expires: ~ '.3~ ~ ~ State of Colorado MY Commissbn EXplrpe Fabnrply 78, 'n)17 ~? ,Cc~~,~rt,~u~,( , Notary Public {ooisrnv.uoci+; 28 OWNER Charlotte A. White STATE OF COLORADO COUNTY OF By ss. The foregoing Amiexation Agreement was acknowledged before me this day of 2010, by Charlotte A. White. Witness my hand and official seal. My coimnission expires: Notary Public ;ooisa~zz.oowa~ 29 ~~w, STATE OF COLORADO COUNTY OF OWN>/R G. Dewain Biu-ton By ss. The foregoing Amiexation Agreement was acknowledged before me this day of 2010, by G. Dewain Burton. Witness my hand and official seal. My coimnission expires: Notary Public {OOIRG427.DOC / A} 30 OWNER Lisa lean Burton By STATE OF COLORADO ) ss. COUNTY OP ) The foregoing Annexation Agreement was acknowledged before me this day of 2010, by Lisa lean Burton. Witness my hand and official seal. My commission expires: Notary Public {oms~az~.nocia~ 31 OWNER Robert E. Havener and Pahicia A. Havener Trust STATE Or COLORADO COUNTI' OP By ss. The foregoing Annexation Agreement was acknowledged before me this 2010, by as Robert E. Havener Trust. Witness my hand and official seal. My commission expires: day of of the Notary Public {oo~s~azznocra7 32 STATE OF COLORADO COUNTY OF 0 WNER Steven S. Bobson By ss. The foregoing Annexation Agreement was aclaiowledged before me this day of 2010, by Steven S. Bobson. Witness my hand and official seal. My coimnission expires: Notary Public (OO18G427.DOC / A} 33 '~,r E7~HIBIT A LEGAL DESCRIPTION OF PROPERTI' {ooiseaz~.ooaa} A-1 EXHIBIT B DL'VELOPMENT PLAN .....> {OO18G427.pOC/4} B_1 EXITTSIT C 1'UD GUIDS {00186427.DOC / 4} c-1 EXHIBIT D REQUIRED IMPROVEMENTS {omseaz~.uocia~ p_I EXHIBIT E COST ESTIMATES {0018G427.DOC / 4} ~. _.1 EXI3IBIT F AVIGATION EASEMENT ( ZA, 2B, 3 AND 5) (00166427.DOC / 4} G-1 ~..w. EXFIIBIT G AVIGATION EASEMENT (LOT 1) (OOI86427.DOC l4) ~_2