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Ord 10-2008 Annex Agreement Rights Devel. AgreementTE:~KEJCSIMDNTDND ~~~~~~~~~ REC: $341 .00 DDC:O$:16:54PM j ^~ f ~'~~'~F.1fXC3 ___ _ TOWN OF MINTURN, COLORADO ORDINANCE 10- SERIES 2008 AN ORDINANCE AUTHORIZING THE MAYOR OF THE TOWN OF MINTURN, COLORADO, TO SIGN AN ANNEXATION AGREEMENT AND VESTED PROPERTY ~~( RIGHTS DEVELOPMENT AGREEMENT WHEREAS, by Ordinances No. 1 - 9, Series 2008, the Town of Minturn has annexed to the Town approximately 4,340 acres of land south of the Town in Eagle County commonly known as the Battle Mountain property (the "Property") in accordance with the applicable provisions of the Municipal Annexation Act of 1965 and the Minturn Municipal Charter and Code; and WHEREAS, the Town of Minturn, Colorado, a home rule municipal corporation, ("Town") has entered into negotiations with the Ginn Entities described below for an Annexation Agreement and Vested Rights Development Agreement pertaining to the nine annexation petitions filed by Gimi Battle North, LLC, ("Ginn Battle North") a Georgia limited liability company, Giiui Battle South, LLC ("Ginn Battle South") a Georgia limited liability company, and Gimi-LA Battle One, Ltd., LLLP, {"Giim-LA Battle One") a limited liability limited partnership, referred to hereinafter collectively as the "Ginn Entities" in November 2005, which petitions in the aggregate cover approximately 4,340 acres of land south of the Town in Eagle County commonly lalown as the Battle~Mountain property (the "Property"); and WHEREAS, in comiection with the amlexation of the Property, the Ginn Entities and the Town of Minturn have reached agreement on the terms and conditions of a proposed Annexation Agreement and Vested Property Rights Development Agreement for the Property, a copy of which is attached hereto as Exhibit A (the "Battle Mountain Annexation Agreement and Vested Property Rights Development Agreement"); and WHEREAS, the Hoine Rule Charter of the Town of Minturn, Colorado, the Minturn Municipal Code, and C.K.S. Sec. 31-15-101, as amended, authorize the Town to enter into such agreements. NOW, THEREFORE, THE TOWN OF MINTURN, COLORADO, ORDAINS: Section 1. The Town Council approves the Battle Mountain Annexation Agreement and Vested Property Rights Development Agreement. Section 2. The Town Mayor is authorized to sign the Battle Mountain Annexation Agreement and Vested Property Rights Development Agreement. Section 3. This Ordinance shall not take effect until the Battle Mountain Annexation Agreement and Vested Property Rights Development Agreement is signed by the representatives of all of the necessary parties thereto. RECD APR 0 ~ 2008 Section 4. Severability. If any part, section, sub-section, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance; and the Town Council for the Town of Minturn, Colorado hereby declares it would have passed this Ordinance and each part, section, sub-section, sentence, clause or phrase thereof, irrespective of the fact that any one or more parts, sections, sub-sections, sentences, clauses or phrases be declared invalid. Section 5. The Town Council hereby finds, determines and declares that this Ordinance is necessary and proper for the health, safety and welfare of the Town of Minturn and the inhabitants thereof. Section 6. The repeal or the repeal and re-enactment of any provision of the Minturn Municipal code as provided in this ordinance shall not affect any right which has accrued, and duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision repealed and re-enacted. The repeal of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. INTRODUCED, READ BY TITLE, APPROVED ON THE FIRST READING, APPROVED AND ORDERED PUBLISHED IN FULL THE 20th DAY OF February, 2008. A public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Minturn, Colorado, on the 27th day of February, 2008, at 7 P.M. in the Minturn Town Center in the Town of Minturn, Colorado. Mayor Attest: Town Clerlc INTRODUCED, READ BY TITLE, PASSED ON SECOND READING, APPROVED AND ORDERED PUBLISHED IN FULL THIS~%~ DAY OF~~ h, 2008. Mayor Attest: a y ~~°~ U.~-~1 !~ f/ two /~ :.l ~' -+-,-i- is Towri Clerk ~~,5;.,~!~04_,.~_y~' BATTLE 1VI®~TIVTAgl~ AI~1®1EXATI®I~1 AGREEN~El®TT Ale1D VESTED PR®PE1~T'Y ~~GI~TS DEVEIL®P10~1[E1~T A~~EEl@~EI®iT FEBRUARY 27, 200 APPROVAL OF THIS AGREEMENT CREATES A VESTED PROPERTY RIGHT PURSUANT TO SECTION 24-68-103, C.R.S., AS AMENDED TABLE OF CONTENTS ANNEXATION AGREEMENT Recitals ............................................................................................................................................1 ARTICLE 1. ANNEXATION AND ZONING OF THE PROPERTY ........................................... 4 Section 1.1 Effective Date of Agreement ............................................................................ 4 Section 1.2 Ordinances ........................................................................................................ 5 Section 1.3 Annexation ....................................................................................................... 5 Section 1.4 Zoning ................................:............................................................................. 5 Section 1.5 Acknowledgements .......................................................................................... 6 Section 1.6 Vesting of Property Rights ...............................................................................7 Section 1.7 Term of Vested Property Rights ....................................................................... 8 Section 1.8 Early Termination of Agreement and Vested Rights Period ............................9 ARTICLE 2. WATER ...................................................................................................................10 Section 2.1 Water Service .................................................................................................10 ARTICLE 3. RECREATION DEVELOPMENTS ........................................................................11 Section 3.1 Recreation Opportunities ................................................................................1 l Section 3.2 Recreation Developments ...............................................................................1 l ARTICLE 4.WASTE WATER TREATMENT SERVICE, ROADS, LAND ................................. DEDICATION, SCHOOL IMPACT FEES, RELATED MATTERS & SUBDIVISION .........................................................................................................12 Section 4.1 Wastewater Treatment Service and Water Service ........................................12 Section 4.2 Traffic and Roads ...........................................................................................13 Section 4.3 Town of Red Cliff ..........................................................................................14 Section 4.4 Annexation of Additional Property ................................................................16 Section 4.5 Superfund Sites and Related Environmental Matters .....................................16 Section 4.6 Employee Housing .........................................................................................22 Section 4.8 Wildlife ...........................................................................................................22 Section 4.9 Open Space and Land Dedication ..................................................................22 Section 4.10 School Impact Fees ........................................................................................22 Section 4.11 Final Development Plan .................................................................................22 Section 4.12 Subdivision .....................................................................................................22 Section 4.13 Fire District and Other Emergency Services Facilities .................................22 ARTICLE 5. GENERAL DEVELOPMENT OF THE PROPERTY ............................................23 Section 5.1 Development and Control of Development ....................................................23 Section 5.2 Densities .........................................................................................................23 Section 5.3 General Improvements District ......................................................................24 Section 5.4 Economic Development Fee ..........................................................................27 Section 5.5 Rules, Regulations and Official Policies ........................................................28 ARTICLE 6. COOPERATION &IMPLEMENTATION .............................................................28 Section 6.1 Statement of Intent .........................................................................................28 Section 6.2 Processing .......................................................................................................29 Section 6.3 Other Governmental Permits ..........................................................................29 Section 6.4 Cooperation in the Event of Legal Challenge ................................................30 ARTICLE 7. MISCELLANEOUS ..................................................... ...........................................30 Section 7.1 Real Estate Transfer Taxes .................................. ...........................................31 Section 7.2 Covenants ............................................................ .......................................... 31 Section 7.3 Contractual Obligations ....................................... ...........................................31 Section 7.4 Term .................................................................... ...........................................31 Section 7.5 Amendment of Agreement .................................. ...........................................31 Section 7.6 Default and Remedies ......................................... ...........................................31 Section 7.7 No Joint Venture or Partnership .......................... ...........................................34 Section 7.8 Notices ................................................................. ...........................................34 Section 7.9 Assignment .......................................................... ...........................................36 Section 7.10 Governing Law .................................................... ...........................................36 Section 7.11 Enforcement ........................................................ ...........................................37 Section 7.12 Severability .......................................................... ...........................................37 Section 7.13 Waiver of Breach ................................................. ...........................................37 Section 7.14 Entire Agreement ................................................ ...........................................37 Section 7.15 Counterparts; Facsimile ....................................... ...........................................38 BATTLE MOUNTAIN ANNE~:ATION AGREEMENT ANI) VESTED PROPERTY RIGIiTS DEVELOPMENT AGREEMENT The parties to this Annexation Agreement and Vested Property Rights Development Agreement (this "Agreement") are the TOWN OF MINTURN, COLORADO, a home rule municipal corporation ("Town"), and GINN BATTLE NORTH, LLC, a Georgia limited liability company, GINN BATTLE SOUTH, LLC, a Georgia limited liability company, and GINN-LA BATTLE ONE, LTD., LLLP, a Georgia limited liability limited partnership (collectively "Ginn" or the "Applicant"). Each of the Ginn entities agrees to be jointly and severally obligated under this Agreement to fulfill the responsibilities, obligations and provisions agreed upon by Ginn, including without limitation those provisions relating to default and the remedies and cures associated with the same. RECITALS: A. WHEREAS, in November 2005, Ginn filed with the Town nine separate Petitions for Annexation (collectively, the "Annexation Petition") which in the aggregate cover approximately 4,340 acres of land south of the Town in Eagle County commonly known as the Battle Mountain property as legally described in the Annexation Resolutions and Annexation Ordinances as defined below (the "Property"); B. WHEREAS, Ginn owns one hundred percent (100%) of the Property; C. WHEREAS, on December 7, 2005, the Town Clerk referred the Annexation Petition to the Town Council; D. WHEREAS, on December 21, 2005, the Town Council conducted a public hearing at which it adopted Resolution Nos. 11 through 19, wherein it determined that the petitions for the proposed annexation complied with C.R.S. Section 31-12-107, as amended; E. WHEREAS, the majority of the Property is presently zoned Resource under the Eagle County zoning regulations, with portions of the Gilman Character Area zoned Residential Suburban Medium Density; F. WHEREAS, the Town and Ginn desire to enter into an agreement setting forth more fully the terms of the annexation and development of the Property; G. WHEREAS, in connection with the annexation of the Property to the Town, Ginn filed its Battle Mountain Concept Plan under Article XVI of the Town of Minturn Municipal Code ("Municipal Code"); in July 2006 the Town Planning Commission recommended the Concept Plan for approval to the Town Planning Director and the Town Planning Director notified Ginn of his approval of the Concept Plan by letters dated August 3 and 15, 2006; Ginn thereafter applied for Preliminary Development Plan and Environmental Impact Report approval, Amendment to Zone District Map approval, and Preliminary Subdivision Plat approval in connection with development of the Property (collectively "Land Use Applications"); an application for approval of the Battle Mountain PUD Final Development Plan for the Property was also submitted, but was later tabled at Ginn's request; 2 H. WHEREAS, it is the intent of Ginn to develop the Property as a planned unit development ("PUD") mixed use project ("Project") which will include up to thirty-six holes of private golf course facilities (of which no more than 18 holes may be located outside the Bolts Lake Character Area), a maximum of 1700 free market residential dwelling units of mixed types, employee housing units to be constructed on the Property as required by the Battle Mountain Housing Plan, private commercial and recreational facilities to be operated in conjunction with the operation of the private golf course and clubhouse and associated facilities, private ski area, other recreational and private resort-related amenities, and substantial open space, as more specifically described in the Land Use Applications; the Town will contemporaneously herewith approve with conditions the Land Use Applications by resolutions and ordinances, as applicable ("Land Use Approvals"); I. WHEREAS, for the reasons recited herein, Ginn and the Town have determined that the Project is a development for which this Agreement is appropriate; J. WHEREAS, the Project may contribute substantially to the economic growth of the Town and, consequently, may increase tax revenues to the Town; the Town desires to annex the Property in order to provide for orderly growth in and around the Town; K. WHEREAS, the legislature of the State of Colorado adopted Section 24-68-101, et seq. of the Colorado Revised Statutes (the "Vested Property Rights Statute") to provide for the establishment of vested property rights; the Vested Property Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of certain property development rights as set forth in a development agreement for a period exceeding three years; L. WHEREAS, consistent with the Vested Property Rights Statute, Section 16.21.19 of the Minturn Municipal Code (the "Vested Property Rights Regulations") authorizes the Town to enter into development agreements with landowners providing for the extension of the vesting period of property development rights for a period exceeding three years; M. WHEREAS, Ginn desires to receive the assurance that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement and in all Land Use Approvals, the Water Service Agreement of even date herewith and Wastewater Service Agreement dated March 15, 2006 entered into between the parties hereto, and associated agreements for bridge funding; N. WHEREAS, development of the Property in accordance with this Agreement will provide for orderly growth in accordance with the policies and goals set forth in the Town's Master Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, foster cooperation between the public and private sectors in the area of land use planning, and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and the Vested Property Rights Regulations were enacted. In exchange for these benefits and the other benefits to the Town contemplated by this Agreement, together with the public benefits served by the orderly development of the Property, Ginn desires to receive the assurance that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement; 3 O. WHEREAS, the Town and Ginn mutually agree that the matters hereinafter set forth are reasonable conditions and requirements in connection with the acceptance and favorable action on Ginn's Annexation Petition; the Town recognizing and reciting that such matters are necessary to protect, promote and enhance the public welfare; and P. WHEREAS, the parties agree that it is desirable for Ginn to annex the Property to the Town and after numerous public hearings, it is anticipated that the Town Council will approve the Annexation Petition and annex the Property to the Town under Resolutions No. 9 - Series 2008 through No. 17 -Series 2008 (collectively "Annexation Resolutions") and Ordinances 1 through 9 (collectively "Annexation Ordinances"). NOW THEREFORE, in consideration of Ten Dollars and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged and in consideration of the execution of the Water Service Agreement entered into among the parties of even date herewith, the parties hereby agree as follows: AI~TICI,E 1. A1~11~~XA'I'I®I~ Al~I) Z®1\TIIOi~ ®1F 'I'IiE PIa®P~It'I'Y Section 1.1 Effective Date of Agreement. This Agreement shall become effective as of the date upon which. the last of the parties to sign have executed this Agreement together with all necessary documents required under Section 5.3 herein as set forth next to their signatures below after the effective date of the ordinance approving the same as provided in the Municipal Code (the "Effective Date"). With the exception of Ginn's obligation to reimburse the Town's expenses in the event of a Legal Challenge as set forth in this Section 1.1 and Ginn's obligation to pay for organizational costs of forming the general improvement district as set forth in Section 5.3 and notwithstanding the fact that Ginn may be required to or elect to provide security to the Town prior to when otherwise obligated, neither party shall be responsible for undertaking their respective obligations herein until and unless there is a Final Approval as defined herein unless (a) the parties agree otherwise or (b) Ginn requests the Town to begin review and processing of the Final Development Plan of the Project or to review and approve the construction and installation of any infrastructure for the Project with the exception of limited preliminary grading, which agreement or activities shall constitute "Final Approval." The obligations of the Town and Ginn hereunder shall terminate in the event that the Ordinances and Resolutions are not effective and there is no Final Approval as defined herein. For purposes of this Section 1.1, "Final Approval" shall occur on the sixty-first day after the Effective Date of the Ordinances following approval of the second reading of the same by the Town Council and publication of the Ordinances. In the event that a Legal Challenge, as defined herein, is filed on or before such sixty-first day, Final Approval shall not be deemed to have occurred unless and until such Legal Challenge is resolved in a manner that is final and not subject to appeal that upholds the validity of all of the Resolutions and Ordinances or unless (a) the parties agree otherwise or (b) Ginn requests the Town to begin review and processing of the Final Development Plan of the Project or to review and approve the construction and installation of any infrastructure for the Project with the exception of limited preliminary grading. In the event of a Legal Challenge, Ginn agrees to reimburse the Town for all costs, expenses, and attorneys fees incurred in defense thereof. A "Legal Challenge" shall mean the following: (a) the commencement of a legal proceeding or request for reconsideration by any third party, whether 4 pursuant to C.R.S. Section 31-12-116, C.R.C.P. Rule 106, or otherwise, that directly or indirectly challenges the validity of any of the Ordinances or the Resolutions; or (b) the submission of a valid petition under the Municipal Code for a referendum seeking to reverse or nullify any of the Ordinances or Resolutions. Section 1.2 Ordinances. For purposes of this Agreement, "Ordinances" shall mean the following: (a) nine separate ordinances approved by the Town annexing the Property to the Town in accordance with this Agreement; (b) an ordinance approved by the Town adopting and approving this Agreement; (c) an ordinance approved by Town adopting and approving a Water Service Agreement for the Property between Ginn and the Town; (d) an ordinance adopted and approved by the Town amending the Town's Zone District Map. "Resolutions" shall mean the following: (a) a resolution approved by the Town adopting the amended Three Mile Plan pursuant to C.R.S. Section 31-12-105(1) (e) (I); (b) a resolution approved by the Town approving, with conditions, the Preliminary Development Plan and the Environmental Impact Report for the Property; and (c) a resolution approved by the Town approving, with conditions, the Preliminary Subdivision Plat for the Property. Section 1.3 Annexation. Annexation of the Property shall be in accordance with this Agreement and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. §§ 31-12- 101, et seq.). Except as otherwise specifically set forth herein, the Property and the annexation shall be subject to all Town ordinances, provisions in the Municipal Code, rules, regulations and policies. Section 1.4 Zoning. The Town has contemporaneously herewith zoned the Property by amending the official Zone District Map of the Town, also known as the Character Area Zoning Map, to create the following character areas: Bolts Lake Character Area, Gilman Character Area, Holy Cross Character Area, Rock Creek Character Area, and Willow Creek Character Area. a. Until (i) a Final Development Plan for the Project is approved by the Town, (ii) the Battle Mountain Planned Unit Development Guidelines dated February 27, 2008, a copy of which is attached to the approved Preliminary Development Plan ("PUD Guide") are finalized and approved by the Town and (iii) a Planned Unit Development Agreement ("PUD Agreement") is approved and executed by the Town and Ginn, which approvals shall not be inconsistent with this Agreement or result in a substantial change or departure from the Land Use Approvals, the only uses permitted on the Property are the following together with such other uses that may be approved in writing by the Town Planning Director, or the Town Council if so requested by Ginn or the Planning Director: - environmental response activities for the Superfund Site consistent with the EPA and CDPHE process and approvals and this Agreement; - forestry management and maintenance including without limitation measures to address the infestation of pine beetles and abatement of noxious weeds; passive recreation activities consistent with historic practice; - management and maintenance of the Property as open space, greenbelt, and wildlife habitat; 5 - investigation and monitoring of soils, watersheds, and other components of the Property and other appropriate activities in connection with the management and maintenance of the Property and the preparation and processing of the application for the Final Development Plan for the Project; - operation, maintenance and use of water rights, water resources, water diversion structures, ditches and pipeline structures, ponds, water impoundments and associated facilities consistent with the decreed uses; hunting. Upon the approval of a Final Development Plan together with the approval of the PUD Guide for the Project by the Town and the execution of a PUD Agreement, the uses set forth in the PUD Guide will become uses authorized under the Planned Unit Development Overlay District as provided in the PUD Guide. The initial restrictions in this Section 1.4 are to acknowledge (i) that until the PUD Guide is approved by the Town that the only permitted uses for the Property are those that are set forth above, (ii) that Ginn's Vested Property Rights for 1700 free market units and the Project will only become effective upon approval with conditions of the Preliminary Development Plan, subject to the provisions hereof, and subject to the review and approval of a Final Development Plan for the Project in accordance with the Municipal Code, the conditions of the approved Preliminary Development Plan and Environmental Impact Report, and the provisions hereof, and (iii) that pursuant to the Municipal Code the PUD Guide needs to be approved and the PUD Agreement negotiated, agreed upon, and executed as a part of the review and approval of the Final Development Plan for the Project. Consistent with the requirements of Section 16.15.27 of the Municipal Code, upon approval by ordinance and recordation of the Final Development Plan for the PUD for the Project, the PUD Guide, and the PUD Agreement, the uses set forth in the PUD Guide will be applicable to the Property thereafter. The draft PUD Guide dated February 27, 2008 ("Draft PUD Guide") is attached to the approved Preliminary Development Plan and the parties agree that the final approved version of the PUD Guide shall not be less restrictive than the Draft PUD Guide and shall not impair, diminish, or otherwise adversely affect the Vested Property Rights. Section 1.5 Acknowled eg_ments. The parties acknowledge the following: a. Development of the Property pursuant to the Preliminary Development Plan is estimated to have a minimum twenty (20) year build-out period. b. ,Ginn will be required to make substantial financial commitments and complete major public infrastructure improvements in the early phases of the development of the Property. c. A material consideration for Ginn's annexation of the Property and development of the Property consistent with the Preliminary Development Plan is the Town's agreement to permit development of the Property in accordance with (i) the terms and conditions of this Agreement, (ii) the conditions of approval of the Preliminary Development Plan, (iii) the conditions of approval of the Environmental Impact Report, (iv) the conditions of approval of the Preliminary Subdivision Plat, and (v) the Vested Property Rights granted herein. 6 Section 1.6 Vesting_of Property Rights. Approval of this Annexation Agreement and Vested Property Rights Development Agreement creates a vested property right pursuant to C.R.S. Section 24-68-103, as amended. In recognition of the size of the Property, the substantial financial investment and time required to complete the development of the Property in accordance with the Preliminary Development Plan as conditioned and approved by Resolution No. 18 -Series 2008 (the "Preliminary Development Plan"), the anticipated phased development of the Property and the possible impact of economic cycles and varying market conditions during the course of development, the Town agrees that the Vested Property Rights established under this Agreement shall be effective during the Vesting Period, subject to the right of the Town to earlier terminate the Vesting Period pursuant to Section 1.8 below or for a breach of this Agreement in accordance with Section 7.7 as applicable. The Vested Property Rights are not separable and may not be assigned separate and apart from the Property. a. Ginn and Town agree that this Agreement, in conjunction with the Preliminary Development Plan as conditioned, constitute an approved "site specific development plan" as defined in the Vested Property Rights Statute and the Vested Property Rights Regulations, and that this Agreement shall constitute a "Development Agreement" within the meaning of C.R.S. Section 24-68-104(2) which will vest property rights for a period in excess of three years. b. The Preliminary Development Plan as conditioned, as a site specific development plan, and this Agreement creating vested property rights, shall be approved consistent with the requirements of the Vested Property Rights Statute and Vested Property Rights Regulations. c. In consideration of the acknowledgements set forth above, the public benefit to be derived from the Project and the obligations and commitments of Ginn pursuant to this Agreement and the Land Use Approvals, the vested property rights granted herein shall confer upon Ginn the following rights (collectively the "Vested Property Rights"): i. The right to undertake and complete the development of up to 1,700 free market residential dwelling units on the Property and the land uses identified for the Property under the terms and conditions of this Agreement and as set forth in Section VII of the Draft PUD Guide, the terms and conditions of the approved Preliminary Development Plan, the terms and conditions of the approved Environmental Impact Report, the terms and conditions of the approved Preliminary Subdivision Plat, and the implementation of the same or an approved amendment of the same consistent with the provisions of the Municipal Code; ii. The right to transfer and allocate the densities of the Character Areas within the Property as set forth in the Section IX of the Draft PUD Guide; iii. The exercise of the right in (i) in accordance with the physical development standards and other physical parameter standards set forth in Section VIII of the Draft PUD Guide; iv. The right to develop the Project in the order, at the rate and at the time as market conditions dictate, subject to the terms and conditions of this Agreement and the 7 approved Preliminary Development Plan, and subject to the Town's approval of Ginn's application for Final Development Plan in accordance with the Municipal Code; v. The right to satisfy any and all requirements applicable to the Project for employee or attainable housing in the manner set forth in the Battle Mountain Housing Plan; vi. The right to develop and complete the development of the Property consistent with this Agreement and the Preliminary Development Plan subject to the conditions, standards, and dedications as set forth in the Resolutions and Ordinances and receive approval of a Final Development Plan subject only to the conditions and requirements set forth herein, those set forth in the Preliminary Development Plan and Environmental Impact Report and as may be required by the Municipal Code and such subsequent conditions, standards and requirements as are authorized by this Agreement, the Municipal Code, or under the Vested Property Rights Statute and the Vested Property Rights Regulations. d. The foregoing notwithstanding, the following actions by the Town shall not be precluded during the Vesting Period: i. the enforcement and application of any and all Town ordinances, regulations and policies in effect as of the Effective Date. ii. the imposition by governmental entities other than the Town of regional, state or federal regulations which have the effect of limiting Ginn's Vested Property Rights; iii. the enforcement and application of Town ordinances, regulations and policies, adopted or modified subsequent to the Effective Date, that are general in nature and are applicable to all properties subject to land use regulation by the Town, including but not limited to any and all fees and charges imposed by the Town from time to time on development, such as plan review fees, system development fees, capital improvement fees, fees for building permits, real estate transfer taxes, and similar fees and charges; iv. such other limitations on development of the Property as are authorized under the Vested Property Rights Statute, as maybe amended from time to time; v. the approval of such other terms and conditions as maybe appropriate in connection with the approval of the PUD Final Development Plan and Final Subdivision Plats for the Project that are consistent with this Agreement; provided however, that such approvals shall not result in a substantial change in or departure from the Land Use Approvals. Section 1.7 Term of Vested Property Rights. The Vesting Period is granted pursuant to Section 24-68-104 of the Vested Property Rights Statute which authorizes local governments to enter into development agreements granting vested property rights for a period exceeding three (3) years where warranted in light of all relevant circumstances. The parties agree that the extended vesting herein granted is warranted in view of the following factors: (1) the size of the Property; (2) the significant investment in public infrastructure improvements which will be 8 required to be made by Ginn; (3) the mixed-use nature of the Project; (4) the anticipated long term build-out of the Project in multiple phases; and (5) expected changes in economic cycles and varying market conditions over the anticipated build-out period. In consideration of these factors, the Vesting Period shall be twenty (20) years from the date of Final Approval. . Section 1.8 Early Termination of Agreement and Vested Rights Period. a. Cause for Early Termination. In addition to the rights of the Town under Section 7.7 to declare a default hereunder, the Town shall have the right to terminate the Vested Property Rights granted herein in the event that Ginn, and its successors or assigns, if any, have abandoned the Project. The Project shall be deemed to have been abandoned if Ginn and its successors or assigns have failed collectively to spend substantial funds on the implementation of the Land Use Approvals or the design, construction or installation of improvements to service the Property consistent with the Land Use Approvals, whether such improvements are on-site or off-site, for the period of the five consecutive years immediately subsequent to the date of Final Approval, provided that the approval of a Final Development Plan shall automatically terminate this provision.- Any expenditures made by Ginn as required under Section 1.1 and Section 1.9 (for those matters for which security is to be posted within thirty days of the Effective Date) of this Agreement or Section 3.h. of the Water Service Agreement shall not be considered as the spending of "substantial funds" hereunder and shall not be included with any other expenditures made by Ginn to constitute the spending of "substantial funds" hereunder. b. Compliance with Approvals. Nothing in this Section or the granting of Vested Property Rights shall exempt the Preliminary Development Plan as conditioned, individual development projects within the area subject to the Preliminary Development Plan, including any amendments thereto made subsequent to the date of this Agreement, or any development within the Property, from subsequent reviews and approvals by the Town in accordance with the Land Use Approvals, this Agreement and the Municipal Code to ensure compliance with this Agreement, the terms and conditions of the Land Use Approvals and the provisions of the Municipal Code. Section 1.9 No Obligation to Develop. Ginn shall have no obligation under this Agreement to develop all or any portion of the Project and shall have no liability under this Agreement to the Town or any other person or entity for its failure to develop all or any part of the Project, unless otherwise expressly set forth in this Agreement. Nothing in this Section shall be construed as a waiver or release by the Town of its right under the Municipal Code to require Ginn, in conjunction with obtaining approval of a Final Development Plan and applicable Final Subdivision Plats within the Project, to enter into a development agreement or subdivision improvements agreement(s) setting forth public improvements and certain private improvements required to be constructed by Ginn and deadlines for the construction of such improvements and security therefor. Nothing in this Section shall be construed as a waiver or release by the Town to enforce against Ginn the terms and conditions of such agreement(s). Notwithstanding anything to the contrary in this Section or elsewhere in this Agreement, the following Ginn obligations arise as a condition of annexation and Ginn shall perform such obligations in accordance with the terms and conditions of this Agreement and subject to Final Approval notwithstanding Ginn's development or non-development of all or any portion of the Project: • The obligation to provide funds for the bike trail pursuant to Section 3.2.a. • The obligation to fund the recreation/community center pursuant to Section 3.2c. • The obligation to fund the completion of Little Beach Park pursuant to Section 3.2d. • Main Street reconstruction obligations pursuant to Section 4.2b and maintenance after completion pursuant to Section 4.2c. • Obligation to fund Town facilities pursuant to the conditions of approval of the Preliminary Development Plan. • Obligation to annex additional 1000 acres pursuant to Section 4.3f. • Environmental obligations pursuant to Section 4.5. • GID formation obligations pursuant to Section 5.3. • Payment of the Scholarship Fund pursuant to Section 5.6. • Obligations set forth in the Water Service Agreement that are contingent on Final Annexation Approvals as defined therein. • Obligations concerning Bolts Lake pursuant to Section 2.2. AR'I'ICI,~ 2. WA'T~R Section 2.1 Water Service. Upon approval of this Agreement, the parties simultaneously will enter into a Water Service Agreement for the Project whereby the Project will be provided with municipal water service by the Town under the terms and conditions set forth in such agreement. The approval by the Town and execution of the Water Service Agreement is a condition of this Agreement. Section 2.2 Bolts Lake. Ginn has agreed to rehabilitate Bolts Lake to allow storage of water therein, including the design, engineering, and construction thereof. This obligation is addressed in detail in the Water Service Agreement among the parties. The cost of this rehabilitation is estimated to be $12,000,000.00. Within thirty days after the Effective Date, Gimi will provide to the Town security in the form of an escrow, a performance bond or letter of credit in the amount of $3,000,000.00 in accordance with Section 7.23. Within thirty days after Final Approval, Ginn will deliver to the Town additional security in accordance with Section 7.23 such that the total security delivered by Ginn under this Section 2.2 equals 125% of the estimated cost. At such time that the final construction drawings are completed and the estimated costs of construction, acceptable to the Town, are created based on such drawings, the above-stated amount of the escrow, performance bond or letter of credit will be increased or decreased as appropriate to insure that it represents 125% of the estimated construction costs. In the event that required approvals cannot, despite Ginn's commercially reasonable best efforts, be obtained for the rehabilitation of Bolts Lake and Ginn provides replacement storage and capacity as required by the Water Service Agreement, the escrow, performance bond or letter of credit shall be increased or decreased as appropriate to represent 125% of the estimated construction or acquisition cost of the replacement storage. 10 ARTICLE 3. RECREATION DEVELOPMENTS Section 3.1 Recreation Opportunities. Ginn agrees to implement, in and for perpetuity, the Battle Mountain Community Partnership Pass Membership Plan program dated February 27, 2008 attached to the approved Preliminary Development Plan. Ginn agrees to implement the subject plan upon the opening of the facilities that access will be provided to in accordance with the terms of the plan. The plan does not set forth the only access opportunities to or through the Project for Minturn citizens; additional opportunities may be set forth in this Agreement, the Land Use Approvals, or in subsequent approvals or documents associated with the Project. Section 3.2 Recreation Developments. The Town and Ginn agree that the following recreational facilities and uses will be established and maintained by the Town, Ginn or the general improvement district provided for herein or other appropriate and acceptable quasi- governmental entity, as appropriate. In the event the Town fails to exercise reasonable diligence or spend substantial funds on any such specific project for any period of five consecutive years during the term hereof, after thirty days notice of such failure and the Town's continued failure for six subsequent months, all funds not spent or otherwise contractually committed to such project shall be released to Ginn. a. Pedestrian and Bike Trail. In the event the Town elects to extend the pedestrian and bicycle trail required to be constructed by Ginn pursuant to the conditions of approval of the Preliminary Development Plan, Ginn shall commit $2,000,000.00 to be used for the determination of the alignment, design, engineering and construction of a bike trail to be constructed from the north end of the Project Property to the Cemetery Bridge in the Town and from the Turntable property to the existing trail at Dowd Junction ("Town Trail"), which funds maybe drawn on by the Town for such purposes. The Town and Ginn shall work together to raise additional grant funds for such purposes. Within thirty days after the Effective Date, Ginn will provide to the Town security in the form of an escrow or a letter of credit in such amount in accordance with Section 7.23. It is the responsibility of the Town and ECO Trails to determine the alignment, design, engineering and construction of these sections of bike trail; Ginn will have no further responsibility with respect to such sections of bike trail except with regard to providing the security set forth herein, the obligations of the general improvement district as provided for in Section 5.3, and to providing assistance to ECO Trails in finalizing an alignment on the Property to connect these sections of trail to that which is being built on the Property. In the event the Town elects to extend the trail as provided in this Section; ongoing operation and maintenance costs of the Town Trail shall be funded, in part, and conducted by the general improvement district provided for herein and shall be included in the term "Public Improvements" as described in Section 5.3. b Easement alon tg he Eagle River and Cross Creek. In connection with the approval of the PUD Final Development Plan but no more than one year from the Effective Date, Applicant shall dedicate to the Town and public an easement parallel to and on each side of the Eagle River and Cross Creek through its property twenty feet from the Ordinary High Water Mark (as defined in the Draft PUD Guide) for the purpose of picnicking, walking, fishing and any and all forms of boating such as kayaking, rafting, canoeing, and tubing, provided however that a condition of such easement on Cross Creek will be that portions of such access between the golf course cart paths that cross Cross Creek may be closed during those times of the year that the golf course is open and operational. In the event the dedication is made prior to the Final Approval, such dedication shall be in the form of a revocable license to be confirmed by easement free and clear of liens and encumbrances at Final Approval. In the event there is no Final Approval, the license shall terminate upon the termination of this Agreement. Such easement shall be subject to any restrictions imposed by the EPA or CDPHE or both. c Provision of Funds for a Recreation/Community Center. Ginn agrees to provide funding to the Town in the amount of $6,000,000.00 to be used toward the payment of the costs associated with the design, engineering and construction of an approximately 20,000 square foot recreation community center in the Town that will include a fitness/exercise room, basketball court, weight/aerobic equipment and room, pool and associated facilities, locker room and showers and other appropriate and convenient facilities. A community childcare center shall be included as a part of the recreation community center. Within thirty days after the Effective Date, Ginn will provide to the Town security in the form of an escrow or a letter of credit in accordance with Section 7.23. The Town shall be responsible for the design, engineering, and construction of the recreation community center and the timing thereof. Ongoing operation and maintenance costs shall be funded, in part, by the general improvement district provided for herein and shall be included in the term "Public Improvements" as described in Section 5.3. d. Completion of Little Beach Park. Ginn agrees to provide funding to the Town in the amount of $250,000.00 to be used toward the completion of the VAG Plan for Little Beach Park. These funds may also be used for the design, engineering and construction of parking on such lands. Within thirty days after the Effective Date, Ginn will provide to the Town security in the form of an escrow or a letter of credit in accordance with Section 7.23. The Town shall be responsible for the design, engineering, and construction of the completion of Little Beach Park and operation and maintenance thereof and the timing thereof and shall consult with the Minturn Community Fund, Inc. ARTICLE 4. WASTEWATER TREAT1VIElVT SERVICE, R®ADS, SCIIO®L IMPACT &'EES, RELATED 1VIATTERS ~i SUDDIVISI®N Section 4.1 Wastewater Treatment Service. The parties have entered into that certain Wastewater Service Agreement for the Project dated March 15, 2006 whereby the Project will be provided with wastewater service by the Town under the terms and conditions set forth in such agreement. In the event an agreement is reached among Ginn, the Town, and Eagle River Water and Sanitation District for the construction of a new regional wastewater treatment plant ("Regional Plant"), Ginn and the Town will reach agreement on Ginn's funding for the Regional 12 Plant. Such agreement will obligate Ginn to provide funding in such a manner as to provide materially comparable benefits to the Town as those provided by the Wastewater Service Agreement including, without limitation, the provision of capacity in the Regional Plant for a projected full build out population of the Town, excluding the Project, of 4,621 people, with attendant commercial and office development, and the removal of the restrictions on the Town's Minturn Water System Ditch water right imposed by decree in Case No. 97CW161, Water Division 5. Section 4.2 Traffic and Roads. a. Ginn has provided a final Town Traffic Improvement Plan dated December 14, 2007, Resort Guest and Employee Traffic Plan dated February 6, 2008, and Construction Traffic Management Plan dated February 28, 2008 that have been approved by the Town's traffic consultants. Ginn agrees to implement these plans in accordance with their provisions at its sole cost. Copies of these plans are attached to the approved Preliminary Development Plan. Applicant agrees to incorporate into its employee transit system transit service that provides service and circulation within the existing Town. b. Ginn, at its cost, agrees to begin permitting, implementation and subsequent construction of the Town Traffic Improvement Plan pertaining to Main Street improvements upon the latest to occur of (i) thirty days after Final Approval, (ii) as required by the Water Service Agreement and Wastewater Service Agreement, or (iii) March 1, 2009, subject to issuance of all required CDOT approvals and permits. Financial security for such improvements will be provided in the amount of 125% of the estimated costs of the construction of such improvements in the form of a letter of credit, escrow, or performance bond in accordance with Section 7.23 no later than one month prior to initiating construction. It is anticipated that the implementation of the Town Traffic Improvement Plan for the Main Street section will take place in connection with the installation of the main water line and wastewater trunk line and utilities under Main Street at Ginn's expense and as may be provided in the Water Service Agreement and Wastewater Service Agreement. Accordingly, a new asphalt cap will be installed on Main Street at the time of the completion of the installation of such infrastructure. To the extent there is any damage to any properties adjacent to Main Street physically as a result of this implementation, Ginn will restore such properties to their pre-implementation condition. c. In connection with Applicant's request for review of its PUD Final Development Plan submission, Applicant shall submit a program for the repair and maintenance of Highway 24 directly associated with the monitored level of damage that may occur in connection with the Project-related construction traffic. At the time of approval of the PUD Final Development Plan, the Applicant and the Town shall agree upon the estimated financial requirements to satisfy this condition and Applicant shall provide security in the agreed upon amount in accordance with Section 7.23. d. Ginn shall be solely responsible for obtaining appropriate CDOT access permits for all entry points of the Project to U.S. Highway 24 and agrees to provide the Town with appropriate expertise paid for by Ginn as necessary in connection with obtaining any such permits required for the construction associated with Main Street as provided above in this Section. 13 e. Ginn shall not cause Tigiwon Road or Shrine Pass Road to be closed to the public through the Property. Any realignment or other changes to such roads by Ginn must be made in accordance with applicable rules and regulations of the U.S. Forest Service and applicable provisions of the Municipal Code. Ginn shall work with the U.S. Forest Service to identify an appropriate location proximate to the winter trailhead of Tigiwon Road for the parking of vehicles and for trucks and trailers to turn around in the winter to accommodate the winter use of Tigiwon Road consistent with historic practice. £ The roads within the Project shall remain private. The Town or the general improvement district provided for herein shall have no obligation to maintain any roads or public access on the Property unless otherwise agreed to by the parties and as may be provided for in connection with the general improvement district provided for in Section 5.3. Ginn agrees that it, whether directly, through the owner's association or a special district, shall provide road maintenance on the Property if, as and when Ginn, at Ginn's cost and expense, shall have located and constructed roads or other access in accordance with such regulations as the Town may from time to time adopt in conjunction with Ginn as provided in the conditions to the approved Preliminary Development Plan. These private internal roads will be constructed pursuant to the approved Final Development Plan and final subdivision plats, but will not be dedicated to, owned by or maintained by the Town. The roads may be owned or maintained either by the homeowners association, Ginn, or a special district. An easement shall be dedicated on each final subdivision plat to the Town for access to utility infrastructure and facilities, for access for emergency services providers over, across and under all internal roads on the Property, and for access for Town employees, agents, and representatives to fulfill normal and ordinary Town responsibilities in connection with the construction, inspection, operation, and maintenance of any and all improvements within the Project, and any access that is determined to be provided to the public in connection with the Open Space, Park and Recreation Plan and the Battle Mountain Community Partnership Pass Membership Plan as provided herein. Section 4.3 Town of Red Cliff. a. In connection with its submission of a Final Development Plan, Ginn will articulate its operation and maintenance plan regarding the use of Willow Creek Road, if any. This plan shall include the following components: i. emergency services access to the Willow Creek Character Area and other project areas; ii. potential construction traffic through Red Cliff and mitigation of the impacts of the same, assuming Red Cliff determines that such traffic can go through Red Cliff, which mitigation shall include the appropriate mitigation measures which shall be identified in the plans to be submitted to the Town and Red Cliff, as applicable; iii. potential materials and other deliveries through Red Cliff and mitigation of the impact of the same, assuming Red Cliff determines that such traffic can go through Red Cliff, which mitigation shall include the appropriate mitigation measures which shall be identified in the plans to be submitted to the Town and Red Cliff, as applicable; 14 iv. impacts of traffic and mitigation of the same if employee housing is developed in the Turkey Creek drainage and its traffic is routed through Red Cliff, including use of shuttles for the employees, and the use of Willow Creek Road if such traffic is routed up such road as a result of Red Cliff s determination that such traffic should not go through Red Cliff, which mitigation shall include the appropriate mitigation measures which shall be identified in the plans to be submitted to the Town and Red Cliff, as applicable; v. impacts of traffic and mitigation of the same if development other than employee housing, including use of shuttles for employees, is developed at the Shrine Pass Road site and its traffic is routed through Red Cliff and the use of Willow Creek Road if such traffic is routed up such road as a result of Red Cliff's determination that such traffic should not go through Red Cliff, which mitigation shall include the appropriate mitigation measures which shall be identified in the plans to be submitted to the Town and Red Cliff, as applicable; vi. incorporation of the traffic monitoring program for all Project traffic entering Red Cliff set forth under the traffic plans referred to above; b. In the event that the fire station, ambulance facility, and police facility are located in the Turkey Creek drainage, Ginn shall facilitate coordination with the Town police department and the Eagle County sheriff's office regarding the police department's role as a supportive law enforcement agency when emergency circumstances require assistance to the sheriff's office in responding to law enforcement needs in Red Cliff. c. Tn the event that Ginn constructs employee housing or any other development that requires wastewater treatment in the Turkey Creek drainage, Ginn shall work with the Town and Red Cliff to determine whether such wastewater treatment shall occur at Red Cliff. If such wastewater treatment does not occur at Red Cliff, Ginn shall, if requested by Red Cliff, design and construct its wastewater collection and transportation infrastructure so that it has the capability to collect and transport Red Cliff s wastewater to the Minturn wastewater treatment plant for treatment, in the event that Red Cliff obtains capacity for the treatment of its wastewater at the Minturn wastewater treatment plant. This Agreement does not address the allocation of costs associated with wastewater collection and transportation infrastructure and the provision of wastewater service. d. To the extent that the Project results in impacts not anticipated herein, Ginn agrees to cooperate with Red Cliff in the identification of the same and, as appropriate, address the same. Ginn agrees to work with Red Cliff as neighbors in good faith to identify and implement reasonable mitigation of such impact including without limitation, consideration of an impact fee. e. Ginn shall implement any terms or conditions required by a Water Court Decree obtained by Ginn or the Town that is final and not subject to appeal that are imposed by the Court or by stipulation for the purpose of avoiding injury to the existing water rights of Red Cliff. f. Ginn agrees that it will submit a petition or petitions for annexation of its remaining adjacent property consisting of approximately 1000 acres, more specifically described 15 in Exhibit 1 attached hereto ("Additional Property"), into the Town when it legally is permissible to do so as provided in and subject to these conditions and in connection with such effort it shall work with Red Cliff and assist Red Cliff in identifying the municipal boundaries of Red Cliff in so far as they are contiguous to portions of Ginn's property. At such time that Ginn submits to the Town its petition or petitions for the annexation of the Additional Property, Ginn will work with Red Cliff and the Town to assess the impacts on Red Cliff of the land use plans when they are submitted in order to determine the basis for a revenue sharing agreement, if appropriate, between the two towns to mitigate the impacts on Red Cliff of such land use plans. The parties agree that the maximum density of 1700 free market residential dwelling units for the Property extends to the Additional Property upon its annexation into the Town as provided in Section 5.2 and this Agreement shall be amended as appropriate to include the Additional Property. g. Ginn may propose a development that results in the Town of Minturn and Ginn considering the possibility of water service through Red Cliff and water treatment at or near Red Cliff on either (i) property within the present annexation submittal, or (ii) upon lands not subject to the existing annexation. If the Town of Minturn and Ginn make such a determination, Ginn agrees that any water treatment facility and infrastructure will be designed to address Red Cliff's water service needs for the impacted area. Additionally, the Towns of Red Cliff and Minturn will work toward a revenue sharing agreement for such water service. Section 4.4 Annexation of Additional Property. In connection with the obligation set forth in Section 4.3f above concerning annexation of the entire Additional Property into the Town, contiguity may be established by the annexation of one or more parcels within the Additional Property. In the event Ginn and/or its successors in interest fail to commence such annexation proceedings as herein required, Ginn, for itself and its successors in interest, hereby authorizes the Town to commence such annexation on its/their behalf, in which event the Town shall charge Ginn or its successors in interest and it shall pay all costs and fees associated with such annexation of the Additional Property. Section 4.5 Superfund Site and Related Environmental Matters. a. At the time of the execution of this Agreement, Ginn had not received a copy of a proposed final Agreement and Order on Consent pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601, et. seq., ("AOC") from the United States Environmental Protection Agency ("EPA") for the Bolts Lake Area and Areas within Operable Unit 1 ("OU-1") of the Eagle Mine Superfund Site ("Superfund Site" which includes without limitation OU-1 and OU-2), also known as the Bolts Lake Character Area, that is acceptable to the Town or Ginn. It is very important to the Town that the Bolts Lake Character Area within the Superfund Site be the subject of additional remediation or environmental response activities as proposed by Ginn to accommodate residential and recreational uses and provide for the future health and safety of the Town. It is also critical to the interests of the Town that it be able to store water in Bolts Lake and that the remedy or environmental response activities approved pursuant to an AOC and Record of Decision ("ROD") permit the reconstruction and future use of the historic footprint of Bolts Lake in a manner that is acceptable to the Town. Ginn agrees to use its commercially reasonable best 16 efforts to work with the EPA and the Town in order to secure as soon as practicable an AOC and ROD that include remediation of the Bolts Lake Character Area and the reconstruction and future use of Bolts Lake in a manner that is acceptable to the Town and to Ginn. If Ginn provides an AOC approved by EPA and acceptable to Ginn that is rejected by the Town, Ginn shall be required for no more than two years from such rejection to use its commercially reasonably best efforts to obtain an AOC acceptable to the Town. In the event a proposed final AOC for the remedial or environmental response activities within the Bolts Lake Character Area is provided to Ginn for execution that is not acceptable to the Town, including but not limited to, because it does not include the right to store water in Bolts Lake, Ginn agrees that it will not execute the proposed final AOC. In such circumstance or in the event that no AOC for the remedial or environmental response activities within the Bolts Lake Character Area has been agreed upon by EPA and Ginn within 3 years from the Effective Date, or sooner upon agreement of Ginn and the Town, the Town and Ginn agree to explore in good faith the options available to generate an acceptable revised proposed AOC from the EPA within a reasonable time and the options available for the preparation of a different development scenario for the Project within the Bolts Lake Character Area that would allow for the storage of water in Bolts Lake. Such different development scenarios may be inconsistent with the approved Preliminary Development Plan and approved Preliminary Subdivision Plat and may require an amendment to one or both that is acceptable to the Town under the Municipal Code. b. Notwithstanding the foregoing, Ginn agrees that it will not, at any time, execute any AOC relating to remedial or environmental response activities within the Bolts Lake Character Area or the Gilman Character Area in connection with development scenarios prepared subsequent to the Effective Date without the review and acceptance of the Town, in its sole discretion. c. Ginn agrees to negotiate in good faith in order to secure, no later than the time of the Town's approval of an AOC for the Bolts Lake Character Area environmental response activities, an agreement with CBS Operations, Inc. ("CBS") regarding Ginn's and CBS's respective responsibilities for the operation and maintenance and monitoring of remedies at the Superfund Site as approved by the EPA and State of Colorado and that is acceptable to the Town. Ginn agrees that prior to the execution of a final agreement with CBS, it will provide to the Town a copy of such agreement for the Town's review and acceptance, in its sole discretion. d. In the event no AOC for the remedial or environmental response activities within the Bolts Lake Character Area has been agreed upon by EPA and Ginn within three years of the Effective Date, or sooner if Ginn seeks approval from the Town after such date for a development scenario that does not include remedial or environmental response activities within the Bolts Lake Character Area, Ginn shall be obligated to rehabilitate the Bolts Lake or provide for alternative water storage as further provided in the Water Service Agreement between the Parties. Ginn shall use commercially reasonable best efforts to obtain all appropriate agreements with and approvals from the EPA, the Colorado Department of Public Health and Environment ("CDPHE"), the United States Army Corps of Engineers, the Colorado Division of Water Resources (Dam Safety Branch) and any other state or federal agency with jurisdiction over the rehabilitation and construction of Bolts Lake. Ginn will provide timely to the Town copies of all appropriate agreements and approvals as they are issued for the Town's review and acceptance, in its sole discretion. 17 e. Prior to approval of the Final Development Plan for the Project and prior to the approval of the Preliminary Subdivision Plat for the MU-1 parcel in the Bolts Lake Character Area, Applicant will provide timely to the Town copies of all documents prepared consistent with the National Contingency Plan in connection with regulated activities in the Bolts Lake Character Area as they are issued for the Town's review and acceptance, in its sole discretion. £ Prior to commencing construction activities, remediation or other environmental response activities and ground disturbance activities within the boundaries of the Superfund Site at Bolts Lake Character Area, Applicant will provide timely to the Town copies of all drafts of the AOC relating to the Bolts Lake Character Area and a copy of the proposed final AOC, as they are issued by EPA for the Town's review and acceptance, in its sole discretion. To the extent any construction activities and ground disturbance activities within the Bolts Lake Character Area are conducted outside of the Superfund Site boundaries and are exclusive of activities relating to the Superfund Site, Ginn will secure appropriate permits and approvals from the Town in accordance with the Municipal Code. g. At the time of the execution of this Agreement, Ginn had not received a proposed final AOC from the EPA for environmental response activities within the North Gilman areas within the Gilman Character Area, also known as OU-2, of the Superfund Site, that would permit the location of proposed infrastructure connecting the Bolts Lake Character Area and the other Character Areas of the Project through the North Gilman area. Ginn agrees to use its commercially reasonable best efforts to work with the EPA, CDPHE and the Town in order to secure as soon as possible an AOC for the environmental response activities within the North Gilman portion of the Gilman Character Area. Ginn agrees that it will execute an AOC relating to the environmental response activities in the North Gilman portion of the Gilman Character Area only following the Town's review and acceptance, in its sole discretion. h. Prior to the approval of an amended Preliminary Subdivision Plat or other authorization for the location and installation of infrastructure in the North Gilman areas of the Superfund Site, Applicant will provide timely to the Town copies of documents relating to the proposed environmental response activities for infrastructure installation, including but not limited to the Engineering Evaluation and Cost Analysis, draft AOCs and proposed final AOC, as they are issued for the Town's review and acceptance, in its sole discretion. i. Prior to the commencement of construction activities relating to the installation of infrastructure through the North Gilman areas within the Gilman Character Area of the Superfund Site, Applicant will provide to the Town written evidence of approval by EPA, CDPHE and other regulatory authorities of such activities for the Town's review and acceptance, in its sole discretion. j. Prior to approval of an amended Preliminary Subdivision Plat or Plats for the MU-2 parcel in the Gilman Character Area, Applicant will, as appropriate and applicable, provide timely to the Town copies of all documents prepared pursuant to the National Contingency Plan in connection with environmental response activities proposed to be conducted in the Gilman Character Area, as they are issued for the Town's review and acceptance, in its sole discretion. 18 k. Prior to commencing construction activities, environmental response activities and ground disturbance activities within the boundaries of the Gilman Character Area other than activities associated with approved infrastructure installation, Applicant will provide timely to the Town copies of the draft AOCs for the Gilman Character Area and copies of the proposed final AOC(s) for the Town's review and acceptance, in its sole discretion. To the extent any construction activities and ground disturbance activities within the Gilman Character Area are conducted outside of the Superfund Site boundaries and are exclusive of activities relating to the Superfund Site, Ginn will secure appropriate permits and approvals from the Town in accordance with the Municipal Code. 1. All activities, uses, construction, operation and maintenance plans for any areas that are designated areas in the Superfund Site, including areas within the Bolts Lake Character Area and Gilman Character Area, will comply fully with the environmental response, construction, operation and maintenance plans and requirements of the EPA, CDPHE, and the Town. Financial assurance, acceptable to the Town, will be provided to the EPA for the environmental response, operation and maintenance requirements as provided herein. Except as provided below in connection with the Bolts Lake Character Area, financial assurance for any designated areas in the Superfund Site to the EPA will be approved by the Town at such time that the final environmental response activity plans are completed for the designated areas and approved by the EPA and by the Town in its sole and absolute discretion and the estimated costs of construction of the same, acceptable to the Town, are created based on such plans. m. Use of the Superfund Site will be restricted by environmental covenants consistent with the requirements of C.R.S. Sections 25-15-317 through 327 and consistent with the remediation, use, construction, operation and maintenance plans and requirements of the EPA, CDPHE, and the Town. Financial assurance, acceptable to the Town, will be provided to the EPA for the long term operation and maintenance requirements for the Superfund Site, including areas within the Bolts Lake Character Area and the Gilman Character Area. n. At such time that an amended Preliminary Subdivision Plat or Plats are prepared by Ginn for the MU-1 parcel in the Bolts Lake Character Area and for the MU-2 parcel in the Gilman Character Area and submitted to the Town for approval, a supplemental Environmental Impact Report (consistent with Minturn Municipal Code Section 16-20-4-9 (2007)) that includes information developed consistent with the National Contingency Plan, in connection with its efforts with the EPA and CDPHE, will be submitted for each such character area. o. The estimated costs of remediation for the Bolts Lake Area and Areas within OU-1 of the Superfund Site have been identified in the Remediation Feasibility Study ("RUFS") dated February 16, 2007. Ginn asserts that the assumptions and formulas used to prepare such estimated costs are confidential business information and the Town agrees to treat such information consistent with the provisions of C.R.S. Section 24-72-204(3) (A) (IV). In accordance with the terms of the AOC, Ginn will provide to the EPA a performance bond or letter of credit in the amount equal to 125% of the sum of the estimated costs identified in the RI/FS for Alternatives 2 through 9 for remediation of the Bolts Lake Character Area and operation and maintenance of Alternatives 2 through 9, excluding the cost of rehabilitation of Bolts Lake, which is addressed in Section 2.2 hereof. The performance bond or letter of credit 19 will be in accordance with Section 7.23, in a form acceptable to the Town and approved by EPA. At such time that the final remediation or environmental response plans are completed for the Bolts Lake Character Area and approved by the EPA and by the Town in its sole and absolute discretion and the estimated costs of construction of the same, acceptable to the Town, are created based on such plans, the above-stated amount of the performance bond or letter of credit will be increased or decreased as appropriate to ensure that it represents 125% of the estimated remediation costs. p. There shall be no excavation, boring, dredging, trenching, or other intrusion of the contaminated soil associated with, but not limited to, new construction, operation, maintenance, and repair actions within the Superfund Sites without prior notice to the CDPHE with a copy provided to the Town. There shall be no boring, drilling, advancing, installation, or construction of new wells to groundwater including, but not limited to, drinking water wells, irrigation water wells, monitoring wells, and piezometers within the Superfund Sites without prior notice to the CDPHE with a copy provided to the Town. q. Town and Ginn acknowledge that the Town's ability to provide municipal services to the portions of the Bolts Lake Character Area and the Gilman Character Area within the Superfund Site, on the same general terms and conditions as the rest of the Town, is expressly dependent upon Ginn's ability to obtain a separate final AOC relating to each such Character Area or portions thereof, which AOC shall be satisfactory to the Town, in its sole and absolute discretion as provided herein. i. Disconnection Based on Failure to Obtain AOC. In the event that Ginn is unable or otherwise fails to obtain an AOC for the Bolts Lake Character Area or the Gilman Character Area or portions thereof that is acceptable to Ginn and complies with the provisions of this Section (the "AOC Condition") by that date which is five years subsequent to the Effective Date (the "AOC Deadline"), the Town in its sole and absolute discretion shall have the right, but not the obligation, to disconnect the subject Character Area, in whole or in part, from the Town in accordance with the terms and provisions of C.R.S. Section 31-12-119. In the event that the Town determines that the AOC Condition has not been met by the AOC Deadline, this Agreement, without the further approval or act of Ginn, shall constitute a binding and non- withdrawable petition for disconnection of any portion of such Character Area for which an alternative development scenario has not been agreed to by the Town pursuant to C.R.S. Section 31-12-119. Ginn and the Town further acknowledge and agree that in the event that Ginn fails to satisfy the AOC Condition on or before the AOC Deadline for any of the Character Areas or portions thereof, the Town will be unable to provide municipal services to any portion of such Character Area for which an alternative development scenario has not been agreed to by the Town on the same general terms and conditions as such municipal services are provided to the rest of the Town, and the Town hereby finds and determines that under such circumstances the conditions precedent to a disconnection of the Character Areas or portions thereof pursuant to C.R.S. Section 31-12-119 exist. Ginn, for itself, its successors and assigns, shall cooperate fully with any such disconnection action by the Town, including, if so requested by the Town, the submission of a formal petition for disconnection of the Character Areas or portions thereof from the Town that complies in all respects with the requirements of C.R.S. Section 31-12-119 and any other applicable provision of Colorado law, together with the ordinances and charter of the Town. )Exhibit 2 sets forth the legal descriptions of the Character Areas or portions thereof that 20 are the subject of this provision and disconnection as provided herein. It is understood that these legal descriptions are for the entire Character Areas, To the extent that portions of the Character Areas are to be disconnected as provided herein, separate legal descriptions shall be prepared for the same with any costs associated in defining and describing the same to be borne by Ginn. ii. Development Plans. In the event of a disconnection of one or both of the Character Areas or portions thereof pursuant to this Section, any and all Vested Property Rights that Ginn may have in any preliminary or final plats, permits, site plans, development plans, site specific development plans as defined in C.R.S. Section 24-68-102 (4)(a), or any similar subdivision or zoning approvals that have been granted by the Town specifically with respect to the Character Areas or portions thereof under the Land Use Applications, whether such vested rights are created pursuant to this Agreement or by operation of law, shall terminate and have no further force and effect. Ginn, for itself, its successors and assigns hereby waives any and all rights to damages or any other legal or equitable remedies for termination of a vested property right pursuant to C.R.S Section 24-65-105(1)(c), if any, which may arise as a result of the disconnection of one or both of the Character Areas pursuant to this Section 4.5 except insofar as the density allocated to such Character Area is transferred in accordance with Section IX of the Draft PUD Guide and as provided in Section 1.6c.ii above, or otherwise in accordance with an approval by the Town of an amendment to the Land Use Approvals or an approved Final Development Plan, as it may be amended from time to time, and applicable final subdivision plats, as they maybe amended from time to time, in accordance with the provisions of the Municipal Code. iii. Public Property. If the Town exercises its right to disconnect either or both of the Character Areas or portions thereof from the Town pursuant to this Section 4.5, any roads, streets, rights of way, easements or other interests in the properties being disconnected that were dedicated or conveyed to the Town by Ginn as a result of the annexation or approval of the Land Use Approvals or Final Development Plan and applicable Final Subdivision Plats for the Character Areas by the Town maybe vacated by the Town, in its sole discretion, as of the date of the disconnection of the Character Areas or portions thereof. The foregoing notwithstanding, those certain water facilities, infrastructure, and ditch and reservoir facilities that are more particularly described in the Water Service Agreement as being either dedicated to or owned by the Town shall remain the property of the Town, in its sole discretion, irrespective of any disconnection of the Character Areas or portions thereof. r. The conditions associated with the approval of the Environmental Impact Report, as amended or supplemented from time to time, shall be fulfilled. s. Applicant will install and operate a batch plant on the Property for the provision of concrete and other appropriate construction materials for the Project. The Town hereby approves the use of a batch plant within the Project so long as such plant is used for this Project only and is dismantled at the completion of construction or abandonment of the Project for more than 180 days. To the extent possible, all materials for such batch plant operation that are transported byroad will be delivered to the plant from the south and not through the Town. The final location and type of batch plant and dust management and mitigation plan must be approved by the Town administrator and planner. 21 Section 4.6 Employee Housing. Ginn agrees to implement the Battle Mountain Housing Plan that is attached to the approved Preliminary Development Plan. Section 4.7 Wildlife. Ginn agrees to implement the Battle Mountain Wildlife Mitigation and Enhancement Plan that is attached to the approved Preliminary Development Plan. Section 4.8 Open Space and Land Dedication. Ginn agrees to provide the Open Space, Parks and Recreation Plan with its submission of the Final Development Plan as provided in the approval conditions for the Land Use Approvals. Section 4.9 School Impact Fees. Prior to the recording of the first final subdivision plat, Ginn will pay to Eagle County School District the amount of the fees-in-lieu of school land dedication based upon the calculation of those fees as set forth in the School District's letter dated March 15, 2007 or as may otherwise be agreed between Ginn and the School District. Section 4.10 Final Development Plan. Prior to the Town considering and approving the Final Development Plan for the Property, Ginn shall satisfy all then current regulations and any applicable approved engineering standards of the Town, submit all required plans and information, and pay all standard fees and shall satisfy all applicable conditions of approval of the Preliminary Development Plan and the Environmental Impact Report as amended or supplemented from time to time, the requirements set forth herein, and all applicable requirements of the Municipal Code. Ginn shall request the Town in writing to begin review and processing of its application for Final Development Plan. Such request must be received within three years of the effective date of Resolution 18 - 2008 approving the Preliminary Development Plan consistent with Section 16.15.24 of the Municipal Code and Ginn shall have the rights of extension provided thereunder. Section 4.11 Subdivision. Prior to the Town considering and approving final subdivision plats and building plans for the Property, Ginn shall satisfy all then current regulations of the Town except as may be modified by the conditions set forth in the approval of the Preliminary Development Plan pertaining to the development of new engineering standards by the parties for the Project, submit all required plans and information, satisfy all applicable conditions of approval of the Preliminary Subdivision Plat and pay all standard fees, unless otherwise agreed to by the Town in the applicable subdivision improvements agreement or its approvals to be granted as a result of the land use process set forth in the Municipal Code. It is further understood and agreed that Ginn will provide security in a form and upon the terms set forth in Section 7.23 and consistent with the requirements of the Municipal Code for infrastructure and other improvements identified in each subdivision improvements agreement that is required by the Municipal Code in the amount of 125% of the estimated costs of the design, engineering, and construction of the subject infrastructure or other improvements. Section 4.12 Fire District and Other Emer~ency Services Facilities. At the time review and processing are sought for the final subdivision plat for the first phase Ginn if appropriate will identify and designate for dedication the locations for facilities for fire emergency response, 22 and police services to be located within the Project the timing of construction and equipping such facilities the funding for the same including bride funding for the additional employees that will be hired during early construction phases and provide the approval of the same by the fire district health services district and Town police department Irrespective of the phase in which such dedication will occur or in which the construction of the facilities will occur, the security for such facilities and equipment shall be provided in accordance with Section 7.23 at the time of the approval of the final subdivision plat for the first phase of the Project. The ro ert on which the facilities are located shall be dedicated without liens or encumbrances to the fire district health services district or the Town as appropriate at the time of the approval of the final plat that includes such locations• upon construction of the facilities they will be so dedicated to the ~propriate entity During the initial construction phases Ginn agrees as may be required to provide the funding_for the operation and maintenance of such facilities and equipment until the tax revenues to the Town are sufficient to pay for the same with respect to the police services• such funding may come directly through Ginn the homeowners association, or a special district In any such case Ginn shall~rovide a budget and financial security for the same and secure approvals for such budget from the fire district health district, and Town as appropriate Provision for such budget and financial security shall be included in the information provided in connection with the submission for PUD Final Development Plan. In addition, Gmn will provide information re a~rding the number of employees necessary to provide such services and as maybe required the provisions for the provision of housing for the same consistent with the percenta~re~uirements set forth in the Employee Housin~~Plan for the Project employees. AI~TICY.,E 5. GJEletERAi~ DEVEg.®P1VIE1~1'T ®)F 'I')E$)E PlZ®PER'TY Section 5.1 Development and Control of Development. Ginn has the right to develop the Project on the Property subject to the terms and conditions of this Agreement, the Land Use Approvals and the completion of the land use process consistent with the provisions of the Municipal Code. Except as otherwise provided herein and except in connection with the implementation of the provisions of a Proposed Plan, Record of Decision and Remedial Design/Remedial Action documents and Agreement and Order on Consent for the Eagle Mine Superfund Site in the Bolts Lake and Gilman Character Areas of the Property that are acceptable to the Town in its sole discretion, Ginn shall have no liability to the Town or any other party for its failure to develop all or any part of the Property. Section 5.2 Densities. This Agreement and the conditionally approved Preliminary Development Plan set forth the number of residential units (excluding designated employee housing units) at a maximum of 1700 which the Town agrees is appropriate for development on the Property subject to the completion of the land use approval process under the Municipal Code. The location of such units, the sizes of the various building envelopes, and other pertinent land use requirements shall be determined in the land use approval process as required by the Municipal Code, subject to the requirements and provisions of this Agreement, the conditionally approved Preliminary Development Plan, Environmental Impact Report, Preliminary Subdivision Plat, and Amendment to Zone District Map for the Property to the extent such requirements and provisions differ from those in the Municipal Code and consistent with the Vested Property Rights. There shall be no more than 1700 free market, residential units of mixed type, excluding designated employee housing units, within the Project as approved in the 23 Preliminary Development Plan for the Property and as the Property is expanded by the inclusion of lands to be annexed into the Town in the future as provided herein, including without limitation the Additional Property. Section 5.3 General Improvement District. The Town and Ginn acknowledge that a general improvement district ("GID") will need to be established for the purpose of financing, acquiring, designing, constructing, installing, operating and maintaining certain public improvements and providing services related thereto, throughout the Town necessitated by the Project as more particularly set forth in Exhibit 3 (the "Public Improvements"). The GID will initially encompass the entire Property and upon annexation of the Additional Property, the Additional Property will be included within the GID. The GID, in its discretion, shall have the right, but not the obligation, to exclude from the GID any land within the Project on which employee and/or affordable housing is constructed. Upon written request from the GID, Ginn agrees to petition the GID to exclude any property Ginn owns within the Project on which employee and/or affordable housing is constructed. Ginn will work with the Town to obtain the necessary Town approvals to establish the GID in accordance with the requirements of Article 25 of Title 31, C.R.S. and the requirements of the Town for the creation of a general improvement district within its boundaries. Simultaneous with the execution hereof, Ginn shall execute documents designating its three separate voting representatives who are registered to vote in Colorado and shall cause such representatives to execute a petition for the formation of the GID consistent with the provisions hereof; and shall also cause such representatives to execute any and all documents necessary for the formation of the GID as well as the inclusion of the Additional Property into the GID upon annexation of the Additional Property to the Town. As required by Section 31-25-605, C.R.S., Ginn shall pay all costs associated with the formation of the GID up to a maximum amount of $250,000.00 and shall deposit $20,000.00 with the Town at the time of the filing of the petition for organization for payment of the costs associated with the formation of the GID. The remaining costs shall be paid by Ginn within fifteen (15) days after Ginn's receipt of the invoices therefore. To the extent any sums deposited by Ginn are not spent for the costs described herein in connection with the formation of the GID, such sums shall be returned to Ginn by the Town upon completion of the formation of the GID. It is acknowledged that an election is planned to be held on November 4, 2008 for the organization of the GID, and the imposition of the Mill Levies (hereinafter defined). The Town Council will constitute the governing body of the GID, as provided in Section 31-25- 609, C.R.S. and the governing body shall also include two (2) non-voting ex-officio members appointed by Ginn or the master property owners association for the Project who are either owners of real property included within the GID or electors of the GID. In the event the GID is finally organized prior to Final Approval, the GID shall not undertake any action, including issuance of bonds or imposition of the Mill Levies (herein defined) unless and until Final Approval is obtained. In the event the GID is not established by April 30, 2009, due to Ginn not fulfilling its obligations hereunder, including non-approval of the organization of the GID and the Authorized Debt Limits and O&M Costs as set forth in Exhibit 3, at the November 4, 2008 election, Ginn shall assume all costs for the design, acquisition, construction, financing and operation and maintenance of the Public Improvements for such period as the GID would be responsible for such costs, as set forth herein. In such event, Ginn and the Town shall enter into an agreement 24 establishing Ginn's obligation to fund the design, acquisition, construction, financing, operation and maintenance of the Public Improvements, in the form approved by the Town. Such agreement shall set forth the estimated costs of construction and operation and maintenance of the Public Improvements based on the amounts set forth in Exhibit 3. In the event there is no such agreement that is consistent with these provisions and Ginn does not perform the obligations that were otherwise to be performed by the GID, Ginn shall be in default hereunder. The GID shall be authorized to impose the following mill levies (collectively the "Mill Levies"): (i) a mill levy for debt service not to exceed 50 mills, subject to adjustment as described below ("Debt Service Mill Levy"); and (ii) an operations and maintenance mill levy sufficient to produce property tax revenues in an amount not to exceed $1,000,000 per year (if streets and mass transit feeder system are not part of the Town or GID's obligation) or $2,650,000 per year (if streets and mass transit feeder system are part of the Town or GID's obligation), subject to further adjustments as set forth herein, compounded 3% annually ("O&M Levy") Notwithstanding the foregoing, if, on or after January 1, 2008, there are changes in the method of calculating assessed valuation or any constitutionally mandated tax credit, cut or abatement, the foregoing 50 mill limitation with respect to the Debt Service Mill Levy shall be increased or decreased to reflect such changes, such increases or decreases to be determined by the Board of Directors of the GID in good faith (such determination to be binding and final) so that to the extent possible, the actual tax revenues generated by the Debt Service Mill Levy, as adjusted for changes occurring after January 1, 2008, are neither diminished nor enhanced as a result of such changes. For purposes of the foregoing, a change in the ratio of actual valuation shall be deemed a change in the method of calculating assessed valuation. Ginn shall enter into an agreement with the GID within thirty (30) days after the GID is duly organized, that shall set forth the understanding of the parties with respect to the power, duties, and obligations of the GID and Ginn with regard to the Public Improvements. The GID shall be authorized to issue bonds for the Initial Authorized Debt set forth in Exhibit 3. It is the intent of the Town for the improvements authorized under the Initial Authorized Debt to be constructed within three to five years of approval of the Final Development Plan. The GID shall be authorized to issue bonds for the Backup Authorized Debt set forth in Exhibit 3, upon satisfaction of the applicable conditions set forth below: (i) In the event any of the 1) master developer of the Project, 2) the master property owners association for the Project, to the extent such association has ownership and/or maintenance responsibility for the roads, water lines and facilities or sanitary sewer lines and facilities within the Project (the "Project Infrastructure"), 3) more than fifty percent (50%) of owners of residential lots and units within the Project, or 4) the board of directors of any metropolitan district which has ownership and/or maintenance responsibility for the Project Infrastructure, shall in writing request that the GID and/or the Town undertake the ownership, maintenance and repair of one or more of the roads, water lines and facilities or sanitary 25 sewer lines and facilities within the Project, and the GID and/or the Town agree, the GID shall be authorized to issue bonds in the amount of the Backup Authorized Debt for the Project Infrastructure as set forth in Exhibit 3, the proceeds of which will be used for any upgrades to the Project Infrastructure. (ii) In the event the Town Council reasonably determines that there is a need for additional employee housing for the Town and the Town of Redcliff after Ginn has met its obligations in accordance with the Battle Mountain Housing Plan, or upon request from Ginn, the GID shall be authorized to issue bonds up to the amount of the Backup Authorized Debt for the employee housing as set forth in Exhibit 3 in order to fund the design, engineering and construction of such employee housing. Any bonds issued for employee housing shall be issued in accordance with the following requirements: (a) the GID shall apply all net revenues received from rents and sales related to the employee housing (after all operation and maintenance expenses have been paid) to pay any bonds issued for employee housing, and (b) the GID and/or the Town shall lease and sell the employee housing units at lease and sales prices commensurate with the lease and ownership rates set forth in the Battle Mountain Housing Plan. (iii) In the event Ginn is in default under the approved Preliminary Development Plan as conditioned after any applicable notice and cure period, due to Ginn's failure to comply with the terms of the Resort Guest and Employee Traffic Management Plan dated February 6, 2008 with respect to the implementation of resort employee transit shuttles, or upon Ginn's request, the GID shall be authorized to issue bonds up to the amount of the Backup Authorized Debt for the mass transit feeder system between Bolts Lake and Dowd Junction, which system shall be available for use by the general public, as set forth in Exhibit 3 in order to fund the establishment of a mass transit feeder system. The GID shall impose an O&M Levy in an amount that will produce ad valorem property tax revenue in an amount not to exceed $1,000,000 per year (or up to $2,650,000 per year if streets and/or the mass transit feeder system are part of the Town's or GID's obligations). For any property tax collection year after 2027 during which the total revenue received by the Town generated by the Project from ad valorem property taxes and real estate transfer taxes and excluding revenue from the O&M Levy, for the prior calendar year exceeds $7,500,000, then the GID shall impose only an O&M Levy sufficient to generate ad valorem property tax revenues in an amount not to exceed $500,000 per year (which shall be utilized for general administrative costs of the GID and to maintain a reserve fund at $2,000,000) compounded by the Denver- Boulder Consumer Price Index, unless the Town and/or GID is maintaining the streets and/or mass transit feeder system. Notwithstanding anything in this Agreement to the contrary, Ginn shall have the right, but not the obligation to contribute some or all of the Annual O&M Costs, the Initial Authorized Debt, and the Backup Authorized Debt to the GID. In the event Ginn makes such contribution(s), the GID shall adjust the O&M Levy and Debt Service Mill Levy, as appropriate, to take into consideration such contribution(s). Notwithstanding the foregoing, for 26 property tax collection years 2013 through 2027, the GID shall be entitled to impose an O&M Levy in an amount sufficient to generate property tax revenue in an amount not to exceed $1,000,000 per year or $2,650,000, as applicable. The above-described fifteen-year period shall be extended for the like period to the extent Final Approval is not obtained prior to the GID's organization date. Ginn and Town acknowledge that during the period of development of the Project, property taxes derived from the O&M Levy on the Property maybe insufficient to cover administrative and statutory compliance expenses of the GID. Within thirty (30) days after the GID is duly organized, Ginn shall enter into one or more agreements with the GID, in a form satisfactory to the GID, which shall obligate Ginn to advance funds to the GID for payment of the GID's administrative and statutory compliance expenses. For Public Improvements constructed by Ginn and/or the GID, the parties acknowledge that the property taxes derived from the Mill Levies may be insufficient to cover the operations and maintenance expenses of the Public Improvements. As such, Ginn shall also enter into an agreement with the GID in which Ginn shall advance funds to the GID for payment of the operations and maintenance expenses related to the Public Improvements until such time as the Mill Levies are sufficient to cover such expenses. In addition, at such time as may be required by the Town or the GID, Ginn will provide to the GID security in a form and upon the terms set forth in Section 7.23 below for such operation and maintenance expenses plus 25%. Such security shall remain in place until such time as the property taxes derived from the Mill Levies are sufficient to cover such expenses. Section 5.4 Metropolitan District Ginn may form one or more metropolitan districts to finance acquire design construct operate and maintain certain of the public improvements required for the Project and not otherwise being~provided by the GID under Section 5.3. The Town may in its sole discretion as part of the service plan approval process require anv such metropolitan districts) to enter into one or more intergovernmental agreements with the Town, the GID or anv other appropriate governmental entity The Town agrees that approval of a service plans) for the organization of a metropolitan district(s) shall not be unreasonably withheld. Section 5.5 Owner's Associations Ginn reserves the right to impose covenants upon andportion of the Property and to form one or more~roperty owner's associations for all or any portions of the Property which shall assume responsibilities for collecting common expenses and enforcing restrictive covenants All employee housing units shall be governed by separate and distinct property ~~xmer's associations All such covenants and declarations must be provided as required by the Municipal Code including but not limited to Section 16.15.16. Section 5.6 Scholarship Fund. Ginn agrees to provide funding to the Town in the amount of $350,000.00 to the Town to be held in a separate bank account that will be used as a fund for the creation of a scholarship program for qualified Minturn students who meet merit and financial need criteria. The Town administrator shall be responsible for establishing a committee to oversee the investment of the funds, administration of the program, and the selection and granting of scholarships. Ginn shall have the right to name a representative to such committee. Within thirty days after the Effective Date, Ginn agrees to provide to the Town security in the form of an escrow or letter of credit in such amount in accordance with Section 7.23. 27 Section 5.7 Rules Regulations and Official Policies. a. Fees Conditions and Dedications. Ginn shall make only those dedications and pay only those fees expressly described in this Agreement and the Land Use Approvals, including without limitation the reimbursement of the Town's expenses incurred in connection with the Town's review of the zoning and subdivision applications filed by Ginn as provided in those separate reimbursement agreements between the parties. b. Land Use Approvals. Ginn agrees to fulfill the provisions, terms and conditions of the Land Use Approvals as provided therein. c. Improvements Guarantee. Notwithstanding any provisions in the Municipal Code to the contrary, Ginn agrees that the financial security to guarantee any improvements for which the security is being provided will be 125% of the estimated costs of such improvements. AI2TICL~ 6. C®®PERATI®N & INIPL~IVII;NT'A'TI®N Section 6.1 Statement of Intent. It is the express intent of Ginn and the Town to cooperate and diligently work to implement any development, zoning, preliminary subdivision plats and final subdivision plats, Final Development Plan and/or other land use approvals, building permits or approvals which are necessary or desirable in connection with the development of the Property in substantial conformance with the Land Use Approvals as such maybe amended from time to time pursuant to the terms of this Agreement and the Municipal Code and consistent with the Vested Property Rights. This Agreement, the Water Service Agreement, the Wastewater Service Agreement and related agreements referred to herein concern a large, complex development which will occur over an extended period of time. All contingencies which may arise over the course of development due to change of circumstances, inability to obtain governmental approvals or other unanticipated occurrences cannot be predicted at this time. Moreover, after the Effective Date, the Town and Ginn are to enter into additional agreements, many of the terms of which have not been discussed. Accordingly, the Town and Ginn agree to proceed in good faith toward a successful completion of the Project; and in their dealings with one another in connection with all phases and aspects of the Project each shall conform to a high standard of good faith and fair dealing. Written requests of the Town by Ginn for (i) clarifications of this and other agreements, (ii) approvals or consents or (iii) agreements Ginn deems necessary for the Project shall not be unreasonably withheld or delayed by the Town. Section 6.2 Scope of this Agreement. a. This Agreement is intended to set forth the parties' understanding and agreements regarding the annexation of the Propertypursuant to the Municipal Annexation Act of 1965 as amended• as to the procedures limitations and standards applicable to the construction of future improvements that may be installed to serve the Property; as to the responsibilities of the parties for various costs fees and char~es• and to such other matters the parties believe can be adequatelyaddressed at this time. 28 b. Except as otherwise provided in this Agreement this Agreement is not intended to address those matters which are more appropriately considered at the time Ginn submits to the Town for its review and approval Final Development Plan and final subdivision plat applications for each development phase of the Property Contemporaneously herewith, the Town has conditionally approved the Preliminary Development Plan designating zoning for a planned unit development Except as otherwise set forth in this Agreement the Town reserves all rights to review approve or den~any future zoning application Final Development Plan, or future subdivision final plat applications on anv portion of the Property in accordance with state law and the ordinances rules and regulations of the Town then in effect. c. It is not the intention of the parties in anyway to diminish or limit the Town's legislativeijudicial quasi judicial or other non-delegable discretionary powers. Except as otherwise provided in this Agreement it is not the intention of the parties to impose on the Town any duty beyond its ordinances and regulations as theymay from time to time exist, nor to impose anv special obligation on the Town to approve or accept any items submitted by Ginn or its successors and assigns including but not limited to plans drawings reports security documents improvements and conveyances It is furthermore the expressed intention of the parties that nothing in this Agreement shall be construed to void the rights and obligations of the parties as set forth herein to the extent such rights and obligations are consistent with law. Section 6.3 Processing. If necessary or required, upon satisfactory completion by Ginn of all required preliminary actions and payments of appropriate processing fees, if any, the Town shall proceed to complete all steps required or necessary for the implementation of this Agreement and the development by Ginn of the Property in accordance with this Agreement, the Land Use Approvals and the applicable provisions of the Municipal Code, including, but not limited to, the following: a. Scheduling, convening and concluding all required public hearings in a manner consistent with applicable laws and regulations in force as of the date the applicable applications are submitted or requested to be reviewed, as applicable. b. Processing and approval as appropriate in an expeditious manner, of all plats, plans, grading permits, land use permits, building plans and specifications and other plans relating to the development of the Property. Section 6.4 Other Governmental Permits. The Town shall cooperate with Ginn in its efforts to obtain such other permits and approvals as may be required by other governmental or quasi-governmental agencies having jurisdiction over the Property in connection with the development of, or provision of services to, the Property, and shall from time to time at the request of Ginn, attempt with due diligence and in good faith to enter into binding agreements with any such entity necessary to assure the availability of such permits and approvals or services, provided such agreements are reasonable and not detrimental to the Town. Ginn shall reimburse the Town the Town's costs and expenses incurred in obtaining any such permits and approvals. Ginn must obtain appropriate U.S. Army Corps of Engineers or EPA authorization and/or Section 404 permits or other appropriate federal authorization for any activities involving jurisdictional wetlands or navigable waters prior to conducting dredge or fill activities in regulated waters and provide copies of same to the Town prior to the commencement of any such 29 activities. The Project is subject to any conditions, covenants, or restrictions that may be imposed on the Property or Project by the U.S. Fish and Wildlife Service and as may be contained in an approved Habitat Conservation Plan or other permitting or authorizing document. The Project is further subject to all approvals, consents, or other decisions set forth in or that result from the provisions in Section 4.5 hereof. Section 6.5 Cooperation in the Event of Leal Challenge. In the event of any Legal Challenge or other legal or equitable act, action or other proceeding instituted by a third party, other governmental entity or official challenging the validity of any provision of this Agreement, the parties hereby agree to cooperate in defending said action or proceeding. In the event the Town and Ginn are unable to select mutually agreeable legal counsel to defend such action or proceeding. or it is inappropriate to do so, each party may select its own legal counsel. As provided in Section 1.1, Ginn agrees to reimburse the Town for all costs, expenses, and attorneys fees incurred in defense thereof. Section 6.6 Severability. If any part of this Agreement is held to be invalid or of no effect by a court of competent jurisdiction, such judicial determination shall not affect any other part of this Agreement, which will continue in full force and effect. If any part of this Agreement is determined by a court of competent jurisdiction to be in excess of the Town's power and authority, such part shall be unenforceable by either party to this Agreement. In the event of a judicial determination of the nature described in the two immediately preceding sentences, which determination has the effect of materially and adversely impairing to a substantial degree any of Ginn's Vested Property Rights expressly established pursuant to this Agreement, Ginn (but not any assignee or transferee of Ginn unless expressly permitted in any written approval from the Town pursuant to Section 7.11 below) may elect either to honor this Agreement as judicially reformed, or to terminate this Agreement with or without also disconnecting from the Town, and without liability or penalty to Ginn, in which event this Agreement shall be of no further force or effect except with respect to funds spent or otherwise contractually committed for those matters listed in Section 1.9. In the event of a judicial determination of the nature described herein, which determination has the effect of materially and adversely impairing to a substantial degree any of the Town's rights expressly established pursuant to this Agreement, the Town may elect either to honor this Agreement as judicially reformed, or to terminate this Agreement with or without also disconnecting from the Town, and without liability or penalty to Town, in which event this Agreement shall be of no further force or effect except with respect to funds spent or otherwise contractually committed for those matters listed in Section 1.9. ARTICLE 7. 1VIISCELLAlVE®iTS Section 7.1 Time of the Essence. Time is of the essence with respect to the performance of each party s obligations hereunder However neither party shall be liable for delays or failures to perform due to acts of God, strikes, civil commotions, epidemics, quarantines freight embargoes or other cause of similar nature not reasonably within such party's control. 30 Section 7.2 Real Estate Transfer Taxes. The sale and transfer of the Property shall be subject to the Town's Real Estate Transfer Tax as provided for in the Municipal Code. The transfer of employee housing units shall be exempt from such Real Estate Transfer Taxes. Section 7.3 Dedications Free of Encumbrances. Whenever a grant, dedication or conveyance is required in this Agreement free and clear of encumbrances and liens, Ginn may make such conveyance subject to encumbrances or liens that Ginn is contesting in good faith provided that adequate assurances acceptable to the Town in its sole discretion, are given to provide that the lien or encumbrance will be satisfied and released in the event Ginn is not ultimately successful in its contest of the lien or encumbrance. The term "free and clear of liens and encumbrances" shall be deemed to mean no monetary or other liens or encumbrances that adversely and materially affect the merchantability of the title to the same. Section 7'.4 Contractual Obli atg_ions. The Town and Ginn agree and desire that the agreements contained herein regarding the payment of fees, dedication of lands, and conditions for subdivision and building approvals, including the incorporation of provisions of the Municipal Code, are imposed by contract as a condition of the Town annexing the Property, independent of the continued validity or invalidity of any of the provisions of the. Municipal Code, and subdivision, zoning and building regulations. The agreements regarding fees, commitments, and dedications will further the goal of the existing land use regulations of the Town, and are reasonable and binding commitments on the part of Ginn in recognition of reasonable estimates of the extent and timing of impacts which are expected to occur from the development of the Property. Section 7.5 Term. The term of this Agreement shall commence upon the Effective Date and shall extend until all of the commitments hereunder are satisfied. After the expiration of the term, this Agreement shall be deemed terminated and of no further force or effect; provided however, that such termination shall not affect (a) the annexation of the Property to the Town; (b) any vested rights obtained prior to such termination; or (c) any right arising from Town permits, approvals or other entitlements for the Property or the Project which were granted or approved prior to, concurrently with, or subsequent to the approval of this Agreement. Section 7.6 Amendment of Agreement. Except as otherwise provided herein, this Agreement may be amended from time to time by mutual consent of the original parties or their successors in interest in writing following the applicable public notice and public hearing procedures required in the Code for approval of this Agreement. Neither any amendment of the Land Use Approvals nor any subdivision or resubdivision of the Property (or any part thereof) shall require an amendment to this Agreement. Section 7.7 Default and Remedies. a. Default by the Town. A "breach" or "default" by the Town under this Agreement shall be defined as (a) pursuant to Section 24-68-105, C.R.S., in effect as of the Effective Date, any zoning or land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Ginn's consent, that alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise materially and adversely affects the Vested Property Rights of Ginn as expressly created under this Agreement, or (b) the Town's 31 failure to fulfill or perform any material obligation of the Town contained in this Agreement or (c) the Town's failure to fulfill or perform any material obligation of the Town contained in the Water Service Agreement. b. Default b~inn. A "breach" or "default" by Ginn shall be defined as Ginn's failure to fulfill or perform any material obligation of Ginn contained in this Agreement. A default in the Water Service Agreement under the terms thereof shall constitute a default hereunder. c. Notice of Default and Opportunity to Cure. In the event of default by one party in the performance of its obligations under this Agreement, written notice of such default shall be given to the defaulting party by the nondefaulting party. If the default is a failure to pay any amount of money due pursuant to the terms of this Agreement or to post security as provided herein, then such default shall be cured within thirty (30) days after notice of default is given to the defaulting party. If such default constitutes a breach or violation of any term or provision of this Agreement other than the payment of a monetary amount or the posting of a letter of credit, the defaulting party shall have thirty (30) days after written notice of default is given to the defaulting party within which to institute corrective action and shall proceed diligently thereafter to cure the default within no more than six months from the date of the notice of default unless the parties agree to a longer period as a result of the nature of the default. d. Remedies. i. Default by Town. In the event of a material breach or default by the Town that is not timely cured as provided in this Section 7.7 Ginn shall be entitled to one or more of the following remedies as applicable: (1) The right to seek and obtain injunctive relief; (2) The right to seek and obtain specific performance; (3) To the extent such funds have not otherwise been spent or irrevocably contractually committed by the Town, a return of all escrows, letters of credit, or other security and the right to cancel any performance bond delivered by Ginn pursuant Section 2.2, Section 3.2(a), (c) and (d), Section 4.2 and Section 5.3 of this Agreement; and (4) To the extent that the default is under either the Water Service Agreement or the Wastewater Service Agreement, the remedies are as set forth in the applicable agreement; (5) To the extent the same have not yet been performed, terminate Ginn's obligations or Town's rights under Section 3.1, Section 3.2(b), Section 4.3f, and Section 4.4 of this Agreement, provided if the Battle Mountain Community Partnership Pass Membership Plan has commenced for the year in which the breach or default occurs, then the right to terminate shall apply to the next calendar year. 32 The rights and remedies of Ginn hereunder are cumulative and may be exercised individually or jointly and in any order determined by Ginn. ii. Default by Ginn. In the event of a material breach or default by Ginn that is not timely cured as provided in this Section 7.7, the Town shall be entitled to the following remedies which shall be cumulative: (1) In the event Ginn shall fail to timely deliver the security required pursuant to Section 2.2 (only with respect to the security due within thirty [30] days after the Effective Date), Section 3.2(a), (c), (d) and Section 5.6 of this Agreement, and after the provision of notice and the passage of the cure period, Town, as its sole remedy, may terminate the Vested Property Rights and the Vesting Period. This remedy must be exercised the earlier than one year from the date of Final Approval. (2) In the event Ginn shall fail to undertake or complete any design, engineering or construction as required under this Agreement or undertake any maintenance or repair required under this Agreement ("Work"), then the Town may elect (i) to undertake the Work and upon the exercise of this remedy, Ginn shall be liable to Town for all costs and expenses incurred by Town to complete the Work in accordance with the terms of this Agreement and shall pay to Town such costs and expenses within thirty (30) days after receipt of written demand therefor (which demand shall include copies of the invoices for which payment is sought) or (ii) utilize any escrows or letters of credit or exercise its rights pursuant to any performance bond to pay the costs of the Work or (iii) seek specific performance of Ginn's obligations with respect to the Work or (iv) withhold any approvals or permits of any kind or nature that have been or may be requested by Ginn, or (v) any combination of the above. (3) In the event Ginn shall fail to perform any obligation of Ginn that is to be performed prior to Town's approval of the Final Development Plan or any preliminary or final subdivision plat or any other approval or permit to be obtained from the Town, then Town's remedy for such failure shall be to withhold Town's approval of the Final Development Plan or the subject preliminary or final subdivision plat or approval or permit to be obtained from the Town until Ginn shall satisfy such obligation. (4) With respect to any other breach or failure of Ginn pursuant to this Agreement that is not cured within the cure period, the Town shall have all rights and remedies allowed at law or inequity. iii. No breach or failure by a party under this Agreement shall allow any party to terminate this Agreement. To the extent any party shall be entitled to damages as a result of a defaulting party's breach or failure, Town and Ginn agree that such damages shall not include consequential damages or lost profits. iv. A continued pattern of defaults over a period of eighteen (18) consecutive months by Ginn in the substantial performance of the material obligations set forth herein (i) after all applicable notice and cure periods as provided in this Section and (ii) after Town has delivered written notice to Ginn as provided herein and all holders of deeds of trust 33 encumbering all or a portion of the Project for which Ginn has provided specific notice information to the Town and which notice specifies the continuous defaults and allows an additional twelve (12) month period for Ginn or any such holder to cure such defaults may, in the Town's reasonable discretion, result in forfeiture of Ginn's Vested Property Rights but not those of any bona fide purchasers of individual lots, units or parcels that are the subject of a final subdivision plat. v. No Monetary Damages for Violations of Vested Rights. Although the Vested Propert~Rights Statue allows for payment of monetary damages in the event of a violation of a landowner's vested property rights the parties intend that the sole remedy for a violation of the Vested Property Rights granted by_this Agreement will be the equitable remedies of specific performance or mandatory or prohibitory injunction except as expressly provided in subsection (i) above To the extent the Town may legally do so the Town hereby waives, for itself and its successors and assigns any right it may have to pay monetary damages under the Vested PropertYRights Statute upon a deprivation of Ginn's Vested Property Rights under this Agreement To the extent Ginn may legally do so Ginn hereby waives for itself and for any of its successors and assi ng_s an~ght Ginn may have to receive money damages under the Vested Property Rights Statute upon a deprivation of Ginn's Vested Property Rights under this Agreement except as expressly provided in subsection (i) above. Section 7.8 No Joint Venture or Partnership. The Town and Ginn hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the Town and Ginn joint venturers or partners. Section 7.9 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or to give to any legal person other than the parties any right remedy, or claim under or by reason of this Agreement or any covenants terms conditions or~rovisions hereof and all of the covenants terms conditions and provisions in this Agreement by and on behalf of the parties shall be for the sole and exclusive benefit of the parties Nothing in this Agreement is intended to interfere with the agreements of the parties with third parties. Section 7.10 Notices. Any notice or communication required hereunder between the Town and Ginn must be in writing, and maybe given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided herein, designate any other address in substitution of or in addition to the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: 34 If to the Town: Town of Minturn 302 Pine Street P.O. Box 309 Minturn, CO 81645 Attention: Town Manager with a copy to: Allen C. Christensen, Esq. 97 Main St. Suite W 206 P.O. Box 4128 Edwards, CO 81632 Arthur B. Ferguson, Jr., Esq. Holland & Hart LLP 600 Main Street # 104 Aspen, CO 81611 If to Ginn: Ginn Development Company LLC Attention: Mr. William H. Weber 164 Railroad Avenue, Suite 150 P.O. Box 56 Minturn, Colorado 81645 with a copy to: Ginn Development Company LLC Attention: Mr. Robert F. Masters 1 Hammock Beach Parkway 35 Palm Coast, Florida 32137 and a copy to: The Ginn Companies, LLC Attention: Legal Department 31 Lupi Court, Suite 130 Palm Coast, Florida 32137 and a copy to: Sarah J. Baker, Esq. Sarah J. Baker PC 1914 Beard Creek Trail P.O. Box 425 Edwards, Colorado 81632 Section 7.11 Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest or the legal representatives of the parties hereto. Subject to (i) written approval by the Town, which consent may be withheld in the event the Town determines in its reasonable discretion that the proposed assignee or transferee (x) does not have the financial capability of performing the obligation of Ginn hereunder or (y) is adverse to the Town in adversarial proceedings, and (ii) any other required approvals, Ginn shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including but not limited to purchasers or long-term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property. In connection with any such assignment, the express assumption of any of Ginn's obligations under this Agreement by its assignee or transferee may thereby relieve Ginn of any further obligations under this Agreement with respect to the matter so assumed, provided that such assignee or transferee shall have equal or greater financial capability and resources as Ginn or the owners of Ginn as determined by the Town in its reasonable discretion as provided herein. Section 7.12 Authorization The signatories to this Agreement affirm that they axe fully authorized to enter into and execute this Agreement and all necessary actions notices, meetings and/or heaxings pursuant to any law required to authorize their execution of this Agreement have been mac3e_ Section 7.13 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 36 Section 7.14 Enforcement. Unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted in any applicable zoning ordinance, subdivision ordinance or any other land use ordinances or building ordinances, resolutions or other rules, regulations or policies adopted by the Town which changes, alters or amends the rules, regulations and policies applicable to the development of the Property at the time of the approval of this Agreement and at the time of the Land Use Approvals. This Agreement shall not prevent the Town in subsequent actions applicable to the Property from applying new rules, regulations and policies which apply equally to all citizens and property owners in the Town as provided herein. Section 7.15 Construction The parties acknowledge and confirm that each of their respective attorneys have participated jointly in the review and drafting of this Agreement and that it has not been written solely by counsel for either party The parties therefore stipulate and free that the rule of construction to the effect that any ambiguities are to be or may be resolved against the drafting_part~shall not be employed in the interpretation of this Agreement to favor either party against the other. Section 7.16 Conflict with Provisions of the Town's Municipal Code. In the event any provision of this Agreement or the application thereof conflicts with any provision of the Municipal Code this Agreement shall control the determination of the rights and obligations of the parties with respect to such conflicting matter. Section 7.17 Waiver of Breach. The waiver by any party to this Agreement of a breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any other term or provision or of any subsequent breach by any party. Section 7.18 Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes any oral or collateral agreements or understandings, with the exception of the Wastewater Treatment Service Agreement and Water Service Agreement between the parties and those agreements pertaining to the funding of the review and processing of the Land Use Applications of Ginn by the Town and future land use applications or petitions and to the implementation of the water resource planning efforts of the parties. Section 7.19 No Additional Annexation Conditions Imposed The Town and Ginn acknowledge and affirm that this Agreement does not impose additional terms and conditions within the meaning of Section 31-12-1071) (g) CRS To the extent that Section 31-12-107(1) (g4) CRS might be construed as being ambiguous as to what might be considered additional terms and conditions Ginn as the owner of 100% of the Property hereby declares that it has voluntarily entered into this Agreement and states that if an election were held, Ginn would approve the terms and conditions of this Agreement at such election. Section 7.20 Execution of Other Documents. The parties agree to execute any additional documents and to take any additional actions necessaxy to carry out this Agreement. 37 Section 7.21 Counterparts; Facsimile. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement maybe executed by facsimile. Section 7.22 Estoppel. From time to time, either party, or such party's lenders or purchasers, may request an estoppel from the other party which sets forth, among other reasonable matters, (i) whether the Agreement is in full force and effect, (ii) any modifications or amendments to the Agreement, (iii) that there are no existing defaults by the parties or if a default exists, describe the nature thereof, and (iv) confirmation of outstanding monetary or construction obligations. A written confirmation of an estoppel, if appropriate, shall be provided within thirty (30) days of the receipt of a written request therefor. Section 7.23 Security. Town and Ginn agree that any security required to be delivered by Ginn pursuant to this Agreement shall comply with the following as applicable: a. The security may take the form of one or more of the following, subject to specific designations set forth in this Agreement: i. a letter of credit; ii. a performance bond; or iii. an escrow of the required funds which shall be held by an Escrow Agent. b. Any letter of credit shall be issued by any national bank that has an office or branch in Colorado with which Ginn or the Lubert-Adler funds that are affiliates of Ginn do business or such other institution as is reasonably acceptable to Town that has an office or branch in Colorado with respect to a letter of credit and shall name Town as beneficiary. The form of any of the above security must be approved by the Town. Each letter of credit shall remain outstanding until completion of the work secured thereby. In the event the term of a letter of credit shall be less than the period estimated for completion of the work secured by the letter of credit, then such letter of credit shall be renewed by Ginn at least thirty (30) days prior to its scheduled expiration and the renewed letter of credit shall be delivered to Tov~m. In the event Town has not received a renewed letter of credit at least thirty (30) days prior to the expiration of the then outstanding letter of credit, Town shall draw upon the outstanding letter of credit in the amount of its then current balance. Thereafter, Town shall deposit the funds so drawn into an escrow as described in Section 7.23 below. The issuer of a letter of credit may be substituted from time to time by Ginn; provided, however the documentation of and the rights and obligations under the substituted letter of credit shall be substantially similar to the then existing letter of credit. Ginn or Town, as appropriate, shall have the right to draw upon the letter of credit to pay the costs and expenses secured by such letter of credit as such costs and expenses are incurred. Ginn and Town shall agree upon draw procedures relating to such fundings under a letter of credit on or prior to delivery of the letter of credit. The parties agree that such draw procedures shall be similar to those set forth in a typical construction loan. Town acknowledges and agrees that Ginn may cause its affiliates, including without limitation, any partnerships of a Lubert-Adler Fund, to post any letter of credit required hereunder. 38 c. Any performance bond shall be issued by an underwriter reasonably acceptable to Town and shall secure one or more specified obligations of Ginn. d. Any escrow of funds payable by Ginn hereunder shall be held by Land Title Guarantee Company or Stewart Title Guaranty Company ("Escrow Agent"). Town, Escrow Agent and Ginn shall agree upon and enter into an escrow agreement relating to such funds on or before the deposit of such funds with Escrow Agent in a bank with a Colorado office or branch. Such escrow agreement shall provide, among other matters, for draws upon the escrow by Town or Ginn, as appropriate, for costs and expenses associated with the work or matter for which the escrow is established (the terms of the draw procedures to be similar to those set forth in a typical construction loan if the escrow relates to design, development and construction work), and for implementation of the remedies allowed under Section 7.7. Ginn shall pay all costs associated with any escrow. Town acknowledges and agrees that at Ginn's election, Ginn may convert any escrow into another form of security, subject to specific designations set. forth in this Agreement. e. Upon completion of any work or matter for which security is required, to the extent there are any remaining funds held in escrow or under a letter of credit, such remaining funds immediately shall be paid or released to Ginn. Town shall execute such consents, requests or agreements as are necessary to allow delivery of any remaining funds to Ginn. £ To the extent interest accrues on any security posted by Ginn pursuant to this Agreement, such interest shall belong to Ginn and Ginn shall have the right, from time to time, to request the holder of such security to pay any accrued interest to Ginn. IN WITNESS WHEREOF, the Town and Ginn have executed this Agreement effective TOWN OF MINTURN ;` i~ Mayor ATTESTED BY: w ;.-'~ C~ r~. ~~t~'o e.:.o... Town Clerk ~ 90~ 39 APPROVED, as to legal form by: ~. Allen C. Christensen, Town Attorney Ginn-LA Battle One Ltd, LLLP, a Georgia limited liability limited partnership By: Ginn Battle One GP, LLC, a Georgia limited liability company e~: ~ ~~~ ,William H. Weber Senior Vice President 40 Ginn Battle North, LLC, a Georgia limited liability company By: Battle Development Manager, Inc., a Georgia Corporation, its Manager . W I ,W gy. William H. Weber Senior Vice President Ginn Battle South, LLC, a Georgia limited liability company By: Battle Development Manager, Inc., a Georgia Corporation, its Manager Y• William H. Weber Senior Vice President 41 STATE OF COLORADO SS. COUNTY OF EAGLE The f regoing instrument was acknow e ged before me this '~ day of f~ ~~~~ 2008, by ~ra/~ ~~~'~ ,Mayor, Town of Minturn, Colorado, and ~r~(/'ft~f as Clerk of the own of Mint rn, Colorado. Witness my hand and official seal. My commission expires: STATE OF ~''~4f~o~~te'~fJ ) SS. COUNTY OF ~ r°~~'' 7~'.. ) The foregoing instrument was acknowledged before me this 0/ day of /tdj ~fi ~l.f= 2008, by William H. Weber as Senior Vice President of Battle Development Manager, Inc., a Georgia corporation, as manager of Ginn Battle North, LLC, a Georgia limited liability company. Witness my hand and official seal. '~~ozA,q~~a° o' ° My commission expires: ~~~~) ~0~ ~ ° ° o .wry _ ~+I ° o Notary Public STATE OF~/~D ) SS. COUNTY OF , ~ ) The foregoing instrument was acknowledged before me this // day of /t~1~/LGl2 2008, by William H. Weber as Senior Vice President of Battle Development Manager, Inc., a 42 N~-..~~mEs~lo~ iP6~ ~cr~r~~~ Georgia corporation, as manager of Ginn Battle South, LLC, a Georgia limited liability company. {"t3FiU!~ Witness my hand and official seal. ~P ©~_~ ~~y~ e ~- ~~-° o My commission expires: ~~2~~/~ o 0 e 0 N^ e e 9~~~~8~0~,~00 Notary Public of ~®La~~ STATE OF (~'/mod` 6 ) SS. COUNTY OF ~~1~- ) The foregoing instrument was acknowledged before me this // day of B°i1~/~G~ 2008, by William H. Weber as Senior Vice President Ginn-LA Battle One, Ltd., LLLP, a Georgia limited liability limited partnership. Witness my hand and official seal. My commission expires: ~/~ ~// D 9~ ~©, ~ ~ y.a o~ Notary Public ~%~~a°~~Qt~®~a~~o°O, qrF o~ ca~'~ ~xwi~ir o~ve PARCEL A1C LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN SECTION 19, TOWNSHIP 6 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN, WITH THE BEARINGS DESCRIBED HEREIN, BASED ON A BEARING OF N89°58'30"E AND A DISTANCE OF 2694.32 FEET FOR THE SOUTH LINE OF SECTION 36 BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: 43 COMMENCING AT THE WEST QUARTER CORNER OF SECTION 18, TOWNSHIP 6 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN WHENCE THE SAID SOUTH QUARTER CORNER OF SAID SECTION 36 BEARS N20°23'1 1"W A DISTANCE OF 15813.29 FEET; THENCE Sl 1 °34'08"E A DISTANCE OF 4784.77 FEET TO CORNER NO.2 OF THE SAID FORESIGHT NO.4 LODE (MS NO. 20747) A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE S89°43'17"E A DISTANCE OF 1522.70 FEET; THENCE N00°15'04"W A DISTANCE OF 783.97 FEET; THENCE S89°43'20"E A DISTANCE OF 1990.32 FEET TO A POINT ON THE 1-2 LINE OF THE CARIBOE LODE (MS NO.6509J; THENCE S05°00'00"E A DISTANCE OF 709.51 FEET TO THE 1-2 LINE OF THE CARIBOE LODE (MS NO. 6509); THENCE THE 1-5 LINE OF THE JOE HILL LODE (MS NO.1 1840) S74°56'56"W A DISTANCE OF 157.08 FEET TO CORNER NO. 5 OF SAID JOE HILL LODE, A 1 1 /2 INCH ALUMINUM CAP, LS NO. 4551 FOUND IN PLACE; THENCE ALONG THE BOUNDARY OF A PARCEL DESCRIBED IN BOOK 276 AT PAGE 42 THE FOLLOWING TWO (2) COURSES: 1) N26°39' 17"E A DISTANCE OF 104.74 FEET; 2) S88°52'17"W A DISTANCE OF A DISTANCE OF 181.37 FEETTO A 1 1/2 INCH ALUMINUM CAP, LS N0.4551 FOUND IN PLACE, ALSO BEING A POINT ON A PARCEL OF LAND DESCRIBED IN A BOUNDARY LINE AGREEMENT BETWEEN TURKEY CREEK, LLC., AND PENELOPE V. SALCIDO; THENCE ALONG SAID PARCEL THE FOLLOWING FOUR (4) COURSES: 1) N02°39'07"W A DISTANCE OF 30.00 FEET; 2) S87°04'11"W A DISTANCE OF 95.90 FEET; 3) S84°34'51"W A DISTANCE OF 90.00 FEET; 4) S05°25'09"E A DISTANCE OF 125.41 FEET TO A POINT ON THE 1-4 LINE OF THE ARGO LODE (MS NO. 641 A); THENCE ALONG SAID 1-4 LINE S85°29'55"W A DISTANCE OF 59.12 FEET TO ANGLE POINT NO. 9 OF TRACT 41, A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND N PLACE; THENCE ALONG SAID TRACT 41 N04°50'19"W A DISTANCE OF 428.23 FEET TO ANGLE POINT NO. 1 OF SAID TRACT; THENCE S89°57'41"W A DISTANCE OF 191.08 FEET TO ANGLE POINT NO. 2 OF SAID TRACT; THENCE S00°09'41 "W A DISTANCE OF 582.69 FEET TO ANGLE POINT N0.3 OF SAID TRACT 41, A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE; ALSO BEING A POINT ON THE 1-2 LINE OF THE POLAR MILL SITE (MS NO. 14326); THENCE ALONG SAID 1-2 LINE N50°51'59"W A DISTANCE OF 95.46 FEET TO CORNER NO. 2 OF SAID POLAR MILL SITE; THENCE ALONG THE 2-3 LINE OF SAID POLAR MILL SITE S30°51'01 "W A DISTANCE OF 177.00 FEET TO ANGLE POINT NO. 1 OF TRACT 40, A 2 1 /2 INCH BRASS G.L.O. CAP FOUND IN PLACE; THENCE N89°54'28"W A DISTANCE OF 81.34 FEET TO ANGLE POINT NO. 2 OF SAID TRACT 40 AND A POINT ALONG THE MAUD S. LODE (MS NO. 7779); THENCE ALONG SAID MAUD S. LODE (MS NO. 7779) BOUNDARY THE FOLLOWING FOUR (4) COURSES: 1) N08°53'19"E A DISTANCE OF 280.02 FEET; 2) S35°29'00"W A DISTANCE OF 716.34 FEET; 3) S29°40'00"W A DISTANCE OF 693.92 FEET; 4) S09°24'28"W A DISTANCE OF 267.11 FEET TO A POINT ON THE SOUTH LINE OF THE EE LODE; THENCE ALONG SAID SOUTH LINE OF SAID EE LODE Nbl °29'59"W A DISTANCE OF 65.26 FEET TO A POINT ON THE EAST LINE OF THE HARDSCRABBLE LODE (MS N0.8571); THENCE ALONG SAID EAST LINE OF SAID HARDSCRABBLE LODE (MS NO. 8571) S00°00'00"E A DISTANCE OF 377.27 FEET; THENCE DEPARTING SAID EAST LINE OF SAID HARDSCRABBLE LODE (MS N0.8571) S08°48'56"W A DISTANCE OF 128.89 FEET TO A POINT ON THE 2-3 LINE OF THE HARDSCRABBLE LODE (MS N0.8571); THENCE ALONG SAID 2-3 LINE S89°57'05"W A 44 DISTANCE OF 154.96 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY FOR HIGHWAY NO. 24; THENCE ALONG SAID EASTERLY RIGHT-OF-WAY THE FOLLOWING TEN (10) COURSES: 1) N11°36'00"E A DISTANCE OF 167.38 FEET; 2) N13°12'00"W A DISTANCE OF 204.40 FEET; 3J N37°13'00"W A DISTANCE OF 248.00 FEET; 4) N78°49'00"W A DISTANCE OF 365.10 FEET; 5) S60°05'00"W A DISTANCE OF 318.60 FEET; 6) N69°10'00"W A DISTANCE OF 461.30 FEET; 7) N87°23'00"W A DISTANCE OF 369.60 FEET; 8) N32°48'00"W A DISTANCE OF 365.40 FEET; 9) N13°00'00"E A DISTANCE OF 345.60 FEET; 10) N00°32'00"W A DISTANCE OF 513.33 FEET TO A POINT ON THE 3-4 LINE OF THE NAPOLEAN LODE (MS NO. 17399); THENCE ALONG SAID 3-4 LINE N79°09'00"E A DISTANCE OF 41.71 FEET TO CORNER NO. 3 OF SAID NAPOLEAN LODE, ALSO BEING A POINT ON THE 1-2 LINE OF THE CONTEST LODE (MS NO. 17399); THENCE ALONG SAID 1-2 LINE N10°51'00"W A DISTANCE OF 60.00 FEET TO CORNER NO. 2 OF SAID CONTEST LODE; THENCE ALONG THE 2-3 LINE OF SAID CONTEST LODE N79°09'00"E A DISTANCE OF 110.19 FEET TO THE TRUE POINT OF BEGINNING. SAID PARCEL CONTAINS 105.552 ACRES OF LAND MORE OR LESS. THE ABOVE LEGAL DESCRIPTION IS DERIVED FROM REFERRING TO LAND SURVEY PLAT BATTLE MOUNTAIN PER JOHNSON, KUNKEL AND ASSOCIATES, INC. PARCEL Al B LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN SECTIONS 8, 9, 16, 17, 19, 20, 21 AND 29, TOWNSHIP 6 SOUTH, RANGE 80 WEST, ALL IN THE SIXTH PRINCIPAL MERIDIAN, WITH THE BEARINGS DESCRIBED HEREIN, BASED ON A BEARING OF N89°58'30"E AND A DISTANCE OF 2694.32 FEET FOR THE SOUTH LINE OF SAID SECTION 36 BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT SAID CORNER 1 OF SAID TRACT 38; THENCE S00°05'00"E A DISTANCE OF 1446.69 FEET ALONG THE EAST LINE OF SAID TRACT 38 TO A POINT ON THE 2-3 LINE OF THE FORESIGHT NO. 4 LODE (MS No. 20747), FROM WHICH ANGLE POINT N0.4 OF SAID TRACT 38 BEARS S00°05'00"E, 1 193.84 FEET; THENCE ALONG SAID 2-3 LINE S89°52'48"E A DISTANCE OF 485.90 FEET TO CORNER NO. 2 OF SAID FORESIGHT NO. 4 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE; THENCE ALONG THE 1-2 LINE OF SAID FORESIGHT NO. 4 LODE S00°12'31"W A DISTANCE OF 330.30 FEET TO CORNER NO. 1 OF THE FORESIGHT NO. 16 LODE (MS NO. 20747), A 4 1/2 INCH ALUMINUM CAP FOUND IN PLACE, SAID POINT BEING THE TRUE POINT OF BEGINNING. THENCE ALONG THE NORTH LINE OF SAID FORESIGHT NO. 16 LODE S89°53'28"E A DISTANCE OF 1501.33 FEET TO CORNER N0.4 OF SAID FORESIGHT NO. 16 LODE A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE; THENCE 45 S00°11'01 "W A DISTANCE OF 600.81 FEET ALONG THE EAST LINE OF SAID FORESIGHT NO. 16 LODE TO CORNER N0.3, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER N0.3 OF THE FORESIGHT NO. 15 LODE (MS NO. 20747); THENCE S00°09'30"W A DISTANCE OF 600.22 FEET TO CORNER NO. 4 OF SAID FORESIGHT NO. 15 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER NO. 4 OF THE FORESIGHT NO. 14 LODE (MS NO. 20747); THENCE S00°09'37"W A DISTANCE OF 599.62 FEET TO CORNER N0.3 OF SAID FORESIGHT NO. 14 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER N0.3 OF THE ASPEN NO. 10 LODE (MS N0.20747); THENCE S00°06'37"W A DISTANCE OF 2101.29 FEET ALONG THE EAST LINE OF SAID ASPEN NO. 10 LODE AND THE ARGENTINE NO.7 LODE (MS N0.20747) TO CORNER NO. 4 OF SAID AGENTINE NO. 7 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER NO. 4 OF THE ARGENTINE NO. 6 LODE (MS NO. 20747); THENCE S00°10'30"W A DISTANCE OF 1200.74 FEET ALONG THE EAST LINE OF SAID ARGENTINE NO. 6 LODE AND THE AGRENTINE N0.5 LODE (MS N0.20747) TO CORNER N0.4 OF SAID ARGENTINE NO. 5 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER NO. 4 OF THE ARGENTINE NO. 4 LODE (MS N0.20747); THENCE S00°07'01"W A DISTANCE OF 599.58 FEET ALONG THE EAST LINE OF SAID ARGENTINE NO. 4 LODE TO CORNER N0.3 OF SAID ARGENTINE N0.4 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER NO. 5 OF THE SPRUCE NO. S LODE (MS NO. 20747); THENCE S00°12'37"W A DISTANCE OF 3293.79 FEET ALONG THE EAST LINE OF SAID SPRUCE NO. 5 LODE, THE SPRUCE NO. 7 LODE (MS N0.20747), THE SPRUCE N0.8 LODE (MS NO. 20747) AND THE SPRUCE NO. 9 LODE (MS NO. 20747) TO CORNER N0.3 OF SAID SPRUCE NO.9 LODE, A 4 1 /2 INCH ALUMINUM CAP, FOUND IN PLACE; THENCE ALONG THE 3-4 LINE OF SAID SPRUCE NO. 9 LODE N89°45'37"W A DISTANCE OF 1071.83 FEET TO A POINT ON THE 1-2 LINE OF THE RICH NO 4 LODE (MS NO. 20747); THENCE AONG SAID 1-2 LINE S31 °16' 16"W A DISTANCE OF 314.41 FEET TO CORNER NO. 1 OF SAID RICH NO. 4 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER NO. 1 OF THE RICH NO. 3 LODE (MS NO. 20747); THENCE S31°15'45"W A DISTANCE OF 1218.69 FEET ALONG THE 1-2 LINE OF SAID RICH N0.3 LODE AND THE 3-4 LINE OF THE RICH N0.2 LODE (MS NO. 20747) TO CORNER NO. 4 OF SAID RICH NO. 2 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING CORNER NO. 4 OF THE RICH NO. 1 LODE (MS NO. 20747); THENCE ALONG THE 3-4 LINE OF SAID RICH NO. 1 LODE S41°53'23"W A DISTANCE OF 90.56 FEET TO A POIINT ON THE 2-3 LINE OF THE RICH NO. 5 LODE (MS NO. 20747); THENCE S50°00'09"E A DISTANCE OF 538.80 FEET ALONG SAID 2-3 LINE TO CORNER NO. 3 OF SAID RICH N0.5 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE; THENCE S34°48'38"W A DISTANCE OF 1500.47 FEET ALONG THE 3-4 LINE OF SAID RICH NO.5 LODE TO CORNER NO. 4 OF SAID RICH NO. 5 LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE, ALSO BEING A POINT ON THE 1-4 LINE OF THE RICH NO. 6 LODE (MS NO. 20747); THENCE ALONG SAID 1-4 LINE S49°35'25"E A DISTANCE OF 39.77 FEET TO CORNER NO. 4 OF SAID RICH NO. b LODE, A 4 1 /2 INCH ALUMINUM CAP FOUND IN PLACE; THENCE ALONG THE 3-4 LINE OF SAID RICH NO. b LODE S19°32'10"W A DISTANCE OF 1500.28 FEET TO CORNER N0.3 OF SAID RICH NO. 6 LODE, A 4 1/2 INCH ALUMINUM CAP FOUND IN PLACE; THENCE ALONG THE 2-3 LINE OF SAID RICH NO.6 LODE N49°27'07"W A DISTANCE OF 215.75 FEET TO A POINT ON THE 3-4 LINE OF THE HORN SILVER N0.4 LODE (MS N0.20291); THENCE ALONG SAID 3-4 LINE S60°35'34"W A DISTANCE OF 465.84 FEET TO A POINT ON THE 3-4 LINE OF THE ST. LOUIS LODE (MS NO. 2353); THENCE ALONG SAID 3-4 LINE S13°50'51"E A DISTANCE OF 102.58 FEET TO CORNER N0.4 OF SAID ST. LOUIS LODE ALSO BEING A POINT ON THE 1-4 LINE OF THE SILENT FRIEND LODE (MS NO. 4652); THENCE ALONG SAID 1-4 LINE N76°09'09"E A DISTANCE OF 502.90 FEET TO CORNER N0.4 OF SAID SILENT FRIEND LODE; THENCE ALONG THE 3-4 LINE OF SAID SILENT FRIEND LODE AND THE 7-8 LINE OF THE H.Y. LODE (MS NO. 4652) S13°50'51 "E A DISTANCE OF 600.00 FEET TO CORNER NO. 7 OF SAID H.Y. LODE; THENCE S76°09'09"W A DISTANCE OF 1500.00 FEET ALONG THE 6-7 LINE OF THE SAID H.Y. LODE TO CORNER NO. 6, A STONE MONUMENT FOUND IN PLACE; THENCE N13°50'51"W A DISTANCE OF 600.09 FEET ALONG THE 5-6 LINE OF SAID H.Y. LODE AND THE 1-2 LINE OF SAID SILENT FRIEND LODE TO CORNER NO. 1 OF SAID SILENT FRIEND LODE, A STONE MONUMENT FOUND IN PLACE, ALSO BEING A POINT ON THE 2-3 LINE OF SAID ST LOUIS LODE; THENCE ALONG SAID 2-3 LINE S76°08'33"W A DISTANCE OF 502.90 FEET TO CORNER NO. 2 OF SAID ST. LOUIS LODE; THENCE ALONG THE 1-2 LINE OF SAID ST. LOUIS LODE N13°50'51"W A DISTANCE OF 150.00 FEET TO CORNER NO. 1 OF SAID ST. LOUIS LODE; THENCE ALONG THE 1-4 LINE OF SAID ST. LOUIS LODE N76°09'09"E A DISTANCE OF 519.61 FEET TO A POINT ON THE 1-4 LINE OF SAID 46 HORN SILVER NO.4 LODE; THENCE ALONG SAID 1-4 LINE N29°31'36"W A DISTANCE OF 288.43 FEET TO CORNER NO. 1 OF SAID HORN SILVER NO. 4 LODE, A STONE MONUMENT, FOUND IN PLACE, ALSO BEING A POINT ON THE 2-3 LINE OF THE HORN SILVER NO. 1 LODE (MS NO. 20291); THENCE ALONG SAID 2-3 LINE S60°28'02"W A DISTANCE OF 206.57 FEET TO CORNER NO. 3 OF SAID HORN SILVER NO. 1 LODE; THENCE ALONG THE 3-4 LINE OF SAID HORN SILVER NO. 1 LODE N31 °35'11 "W A DISTANCE OF 1499.81 FEET TO CORNER N0.4 OF SAID HORN SILVER NO. 1 LODE; THENCE ALONG THE 1-4 LINE OF SAID HORN SILVER NO. 1 LODE AND THE 1-4 LINE OF THE HORN SILVER NO. 2 LODE (MS NO. 20291) N60°23'58"E A DISTANCE OF 1201.35 FEET TO CORNER NO. 4 OF SAID HORN SILVER NO. 2 LODE, A STONE MONUMENT FOUND IN PLACE, ALSO BEING A POINT ON THE 1-2 LINE OF THE HORN SILVER NO. 5 LODE (MS NO. 20291); THENCE ALONG SAID 1-2 LINE N02°02'35"E A DISTANCE OF 388.42 FEET TO A POINT ON THE 3-4 LINE OF THE U.S.T. LODE (MS NO. 6444); THENCE ALONG SAID 3-4 LINE S75°08'00"W A DISTANCE OF 1326.23 FEET TO CORNER NO. 4 OF SAID U.S.T. LODE; THENCE ALONG THE 1-4 LINE OF SAID U.S.T. LODE N04°38'59"E A DISTANCE OF 229.44 FEET TO CORNER NO. 1 OF SAID U.S.T. LODE, A MOUND OF STONES FOUND IN PLACE; THENCE ALONG THE 1-2 LINE OF SAID U.S.T. LODE N74°31'22"E A DISTANCE OF 1319.68 FEET TO A POINT ON THE 1-2 LINE OF SAID HORN SILVER NO. 5 LODE; THENCE ALONG SAID 1-2 LINE N02°02'35"E A DISTANCE OF 744.09 FEET TO A POINT ON THE 2-3 LINE OF THE WYOMING VALLEY PLACER (MS NO. 2838); THENCE ALONG SAID 2-3 LINE N58°35'33"W A DISTANCE OF 653.08 FEET TO A POINT ON THE 1-2 LINE OF THE WEDGE LODE (MS N0.20077); THENCE ALONG SAID 1-2 LINE S31°56'12"W A DISTANCE OF 6.54 FEET TO CORNER NO. 1 OF SAID WEGE LODE, A STONE MONUMENT FOUND IN PLACE; THENCE ALONG THE 1-4 LINE OF SAID WEDGE LODE N65°32'28"W A DISTANCE OF 78.98 FEET TO A POINT ON THE 8-9 LINE OF THE WYOMING VALLEY NO. 2 LODE (MS NO. 6079); THENCE ALONG SAID 8-9 LINE S74°52'00"W A DISTANCE OF 818.41 FEET TO CORNER N0.8 OF SAID WYOMING VALLEY NO. 2 LODE; THENCE ALONG THE 7-8 LINE OF SAID WYOMING VALLEY N0.2 LODE N58°32'00"W A DISTANCE OF 413.00 FEET TO CORNER NO. 7 OF SAID WYOMING VALLEY NO. 2 LODE; THENCE ALONG THE 7-10 LINE OF THE WYOMING VALLEY N0.2 LODE N74°52'00"E A DISTANCE OF 431.70 FEET TO A POINT ON THE 1-6 LINE OF THE WYOMING VALLEY LODE (MS NO. 6079); THENCE ALONG SAID 1-6 LINE OF N09°39'09"E A DISTANCE OF 274.55 FEET TO CORNER NO. 6 OF SAID WYOMING VALLEY LODE; THENCE ALONG THE 5-b LINE OF SAID WYOMING VALLEY LODE N47°51'00"E A DISTANCE OF 246.33 FEET TO A POINT ON THE 1-2 LINE OF THE ALLEGHENY LODE (MS N0.3810); THENCE ALONG THE 1-2 LINE OF SAID ALLEGHENY LODE (MS NO. 3810) N81°09'26"E A DISTANCE OF 501.92 FEET TO THE SOUTHWEST CORNER OF SAID ALLEGHENY LODE (MS N0.3810); THENCE N08°53'46"W A DISTANCE OF 149.99 FEET TO THE NORTHEAST CORNER OF SAID ALLEGHENY LODE (MS NO. 3810); THENCE ALONG THE NORTH LINE OF SAID ALLEGHENY LODE (MS N0.3810) S81°06'13"W A DISTANCE OF 99.68 FEET TO AN ANGLE POINT ALONG THE SOUTH LINE OF THE EIGHTY FOUR LODE (MS N0.3920J; THENCE ALONG THE SOUTH LINE OF SAID EIGHTY FOUR LODE (MS NO. 3920) N49°10'13"E A DISTANCE OF 162.51 FEET TO A POINT ALONG THE EAST LINE OF THE FIRST NATIONAL LODE (MS NO. 13320); THENCE ALONG SAID EAST LINE OF SAID FIRST NATIONAL LODE (MS NO. 13320) S08°55'44"E A DISTANCE OF 73.00 FEET TO THE SOUTHWEST CORNER OF SAID FIRST NATIONAL LODE (MS NO. 13320); THENCE ALONG THE SOUTH LINE OF SAID FIRST NATIONAL LODE (MS NO. 13320) N64°01'13"E A DISTANCE OF 116.51 FEET TO THE SOUTHWEST CORNER OF THE VERNOLT LODE (MS N0.2322); THENCE ALONG THE SOUTH LINE OF SAID VERNOLT LODE (MS NO. 2322) N79°11' 13"E A DISTANCE OF 126.01 FEET TO A POINT ALONG THE NORTHWESTERLY LINE OF SAID MYSTERY PLACER (MS NO. 15751); THENCE ALONG SAID NORTHWESTERLY LINE OF SAID MYSTERY PLACER (MS NO. 15751) S56°07'08"W A DISTANCE OF 180.92 FEET TO THE NORTHERLY CORNER SAID WYOMING VALLEY PLACER (MS NO. 2838) ALSO BEING THE SOUTHWESTERLY CORNER OF THE MYSTERY PLACER (MS NO. 15751); THENCE ALONG SAID NORTHERLY LINE OF SAID WYOMING VALLEY PLACER (MS NO. 2838) bb°00'00"E A DISTANCE OF 438.85 FEET TO A POINT ALONG THE WEST LINE OF THE LITTLE CHICAGO LODE (MS NO. 3748); THENCE ALONG THE BOUNDARY OF SAID LITTLE CHICAGO LODE (MS NO. 3748) THE FOLLOWING THREE (3) COURSES: 1) S25°59'57"W A DISTANCE OF 11.83 FEET; 47 2) S64°00'00"E A DISTANCE OF 200.00 FEET; 3) N25°59'59"E A DISTANCE OF 18.81 FEET TO A POINT ALONG THE SOUTHWESTERLY LINE OF SAID MYSTERY PLACER (MS NO. 15751); THENCE ALONG SAID MYSTERY PLACER (MS NO. 15751) THE FOLLOWING SIX (b) COURSES: 1) S66°00'00"E A DISTANCE OF 849.63 FEET; 2) N39°02'00"E A DISTANCE OF 93.12 FEET; 3) S49°03'13"E A DISTANCE OF 149.92 FEET; 4) N41 °30'00"E A DISTANCE OF 662.89 FEET; 5) N30°35'00"E A DISTANCE OF 1550.57 FEET; 6) S74°00'00"W A DISTANCE OF 649.63 FEET; THENCE N09°00'39"W A DISTANCE OF 33.63 FEET; THENCE S69°00'00"W A DISTANCE OF 383.04 FEET TO A POINT ALONG THE NORTHERLY LINE OF SAID MYSTERY PLACER (MS NO. 15751); THENCE S74°00'00"W A DISTANCE OF 739.51 FEET TO A POINT ALONG THE EAST LINE OF SAID LITTLE CHICAGO LODE (MS N0.3748); THENCE ALONG THE BOUNDARY OF SAID LITTLE CHICAGO LODE (MS N0.3748) THE FOLLOWING THREE (3) COURSES: 1) N25°32'43"E A DISTANCE OF 397.19 FEET TO THE NORTHEAST CORNER OF SAID LITTLE CHICAGO LODE (MS N0.3748); 2) N64°00'00"W A DISTANCE OF 200.00 FEET TO THE NORTHWEST CORNER OF SAID LITTLE CHICAGO LODE (MS N0.3748); 3) S26°00'00"W A DISTANCE OF 747.40 FEET; THENCE S56°07'01 "W A DISTANCE OF 218.70 FEET; THENCE N00°14'38"W A DISTANCE OF 2315.26 FEET; THENCE S89°43'20"E A DISTANCE OF 2900.08 FEET; THENCE N00°12'31"E A DISTANCE OF 6472.29,FEET TO THE TRUE POINT OF. BEGINNING; SAID PARCEL CONTAINS 758.881 GROSS ACRES OF LAND MORE OR LESS. LESS AND EXCEPT ALL OF THE FOLLOWING DESCRIBED PARCELS: THOSE PORTIONS OF THE U.S. FOREST SERVICE LAND DESCRIBED AS FOLLOWS: U.S. FOREST SERVICE PARCEL 8 DESCRIPTION: 48 COMMENCING AT THE WEST QUARTER CORNER OF SECTION 20, TOWNSHIP 6 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN WHENCE THE SAID SOUTH QUARTER CORNER OF SAID SECTION 36 BEARS N29°59'31"W A DISTANCE OF 26250.25 FEET; THENCE N10°11'23"E A DISTANCE OF 1780.61 FEET TO CORNER NO. 2 OF THE HORN SILVER NO.3 LODE (MS NO. 20291) ALSO BEING CORNER N0.3 OF THE HORN SILVER NO. 6 LODE (MS NO. 20291) AND A POINT ON THE 2-3 LINE OF THE LIVERPOOL PLACER (MS 2087), SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID HORN SILVER N0.3 LODE AND HORN SILVER NO. 6 LODE ALONG SAID 2-3 LINE OF SAID LIVERPOOL PLACER S49°03'00"E, A DISTANCE OF 362.88 FEET TO THE 1-2 INE OF THE RICH NO. 6 LODE (MS NO. 20747); THENCE LEAVING SAID LIVERPOOL PLACER ALONG SAID 1-2 LINE OF SAID RICH NO. 6 LODE S19°33'00"W, A DISTANCE OF 139.08 FEET TO THE 2-3 LINE OF SAID HORN SILVER N0.3 LODE; THENCE LEAVING SAID RICH NO. 6 LODE ALONG SAID 2-3 LINE OF SAID HORN SILVER NO. 3 LODE N31°40'00"W, A DISTANCE OF 433.43 FEET TO THE POINT OF BEGINNING. SAID PARCEL CONTAINING 0.525 ACRES, MORE OR LESS. U.S. FOREST SERVICE PARCEL 9 DESCRIPTION: COMMENCING AT THE WEST QUARTER CORNER OF SECTION 20, TOWNSHIP 6 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN WHENCE THE SAID SOUTH QUARTER CORNER OF SAID SECTION 36 BEARS N29°59'31"W A DISTANCE OF 26250.25 FEET; THENCE N09°24'40"E A DISTANCE OF 2405.09 FEET TO CORNER N0.3 OF THE HORN SILVER NO. 5 LODE (MS NO. 20291) ALSO BEING A POINT ON THE 2-3 LINE OF THE LIVERPOOL PLACER (MS NO. 2087), SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID HORN SILVER NO. 5 LODE ALONG SAID 2-3 LINE OF SAID LIVERPOOL PLACER S49°03'00"E, A DISTANCE OF 316.41 FEET TO CORNER NO. 2 OF THE HORN SILVER NO. 6 LODE (MS N0.20291); THENCE LEAVING SAID LIVERPOOL PLACER ALONG THE 1-2 LINE OF SAID HORN SILVER NO. b LODE S29°09'35"W, A DISTANCE OF 539.94 FEET TO A POIINT ON THE 3-4 LINE OF SAID HORN SILVER NO. 5 LODE; THENCE LEAVING SAID HORN SILVER NO. 6 LODE ALONG SAID 3-4 LINE OF SAID HORN SILVER NO. S LODE N02°02'00"E, A DISTANCE OF 679.31 FEET TO THE POONT OF BEGINNING. SAID PARCEL CONTAINING 1.920 ACRES, MORE OR LESS. 49 U.S. FOREST SERVICE PARCEL 10 DESCRIPTION: COMMENCING AT THE WEST QUARTER CORNER OF SECTION 20, TOWNSHIP 6 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN WHENCE THE SAID SOUTH QUARTER CORNER OF SAID SECTION 36 BEARS N29°59'31 "W A DISTANCE OF 26250.25 FEET; THENCE N35°57'14"W A DISTANCE OF 1622.07 FEET TO A POINT ON THE 1-4 LINE OF THE HORN SILVER NO. 5 LODE (MS NO. 20291) ALSO BEING A POINT ON THE 3-4 LINE OF THE HORN SILVER NO. 2 LODE (MS NO. 20291), SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID HORN SILVER NO. 2 LODE ALONG SAID 1-4 LINE OF SAID HORN SILVER NO. 5 LODE S49°03'00"E, A DISTANCE OF 286.77 FEET TO THE 1-2 LINE OF THE HORN SILVER NO. 6 LODE (MS NO. 20291); THENCE LEAVING SAID HORN SILVER NO. 5 LODE ALONG SAID 1-2 LINE OF SAID HORN SILVER NO. 6 LODE S29°10'00"W, A DISTANCE OF 98.12 FEET TO SAID 3-4 LINE OF SAID HORN SILVER NO. 2 LODE; THENCE LEAVING SAID HORN SILVER NO. 6 LODE ALONG SAID 3-4 LINE OF SAID HORN SILVER NO. 2 LODE N31 °40'00"W; A DISTANCE OF 321.49 FEET TO THE POINT OF BEGINNING. SAID PARCEL CONTAINING 0.316 ACRES, MORE OR LESS. TOTAL COMBINED NET ACREAGE FOR PARCEL No. AIB CONTAINS 756.120 ACRES OF LAND. THE ABOVE LEGAL DESCRIPTION IS DERIVED FROM REFERRING TO LAND SURVEY PLAT BATTLE MOUNTAIN PER JOHNSON, KUNKEL AND ASSOCIATES, INC. EXHIBIT TW® PROPERTY OWNED BY GINN BATTLE SOUTH, LLC COMMENCING AT THE SOUTHWEST SECTION CORNER OF SAID SECTION 36, S44°57'06"E, A DISTANCE OF 6468.47 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY FOR HIGHWAY 24; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY FOR HIGHWAY 24 THE FOLLOWING FOURTEEN (14) COURSES: 1) Sbl °40'00"E, A DISTANCE OF 114.10 FEET; 2) S16°06'00"W, A DISTANCE OF 568.70 FEET; 3) S48°20'00"W, A DISTANCE OF 175.20 FEET; 4) S09°32'00"W, A DISTANCE OF 533.20 FEET; 5) S47°34'00"W, A DISTANCE OF 672.00 FEET; 50 6) S16°32'23"W, A DISTANCE OF 631.02 FEET; 7) S42°45'37"E, A DISTANCE OF 206.60 FEET; 8) S10°14'37"E, A DISTANCE OF 389.38 FEET; 9) S47°16'47"E, A DISTANCE OF 351.19 FEET; 10) S13°19'47"E, A DISTANCE OF 237.58 FEET; 11) S47°16'13"W, A DISTANCE OF 354.68 FEET; 12) Sl 6°22'41 "W, A DISTANCE OF 394.99 FEET; 13) SO6°58'30"E, A DISTANCE OF 606.53 FEET; 14) S22°17'14"E, A DISTANCE OF 841.76 FEET TO THE TRUE POINT OF BEGINNING. THENCE CONTINUING ALONG SAID WESTERLY RIGHT-OF-WAY FOR HIGHWAY 24 THE FOLLOWING TWENTY THREE (23) COURSES: 1) S22°17'14"E, A DISTANCE OF 259.35 FEET; 2) S46°50'14"E, A DISTANCE OF 295.81 FEET; 3) S12°34'14"E, A DISTANCE OF 369.84 FEET; 4) S08°48'49"W, A DISTANCE OF 423.80 FEET; 5) S12°11'1 1"E, A DISTANCE OF 306.78 FEET; 6) S64°21'38"E, A DISTANCE OF 315.84 FEET; 7) N75°27'54"E, A DISTANCE OF 291.12 FEET; 8J N48°58'55"E, A DISTANCE OF 374.05 FEET; 9) Nbl °48'55"E, A DISTANCE OF 853.98 FEET; 10) S63°58'05"E, A DISTANCE OF 292.1 1 FEET; 11) S18°06'55"W, A DISTANCE OF 625.08 FEET; 12) S03°39'05"E, A DISTANCE OF 526.41 FEET; 13) S20°13'40"W, A DISTANCE OF 384.58 FEET; 14) S21 °49'40"W, A DISTANCE OF 405.57 FEET; 15) S18°14'35"W, A DISTANCE OF 106.71 FEET TO A POINT OF CURVATURE; 51 16) 106.76 FEET ALONG THE ARC OF ANON-TANGENT CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF O6°05'24", A RADIUS OF 1004.43 FEET, AND A CHORD WHICH BEARS S18°14'35"W, A DISTANCE OF 106.71 FEET TO A POINT OF A COMPOUND CURVE; 17) 321.63 FEET ALONG THE ARC OF SAID NON-TANGENT COMPOUND CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 18°20'49", A RADIUS OF 1004.43 FEET, AND A CHORD WHICH BEARS S02°28'12"W, A DISTANCE OF 320.26 FEET; 18) S05°29'20"E, A DISTANCE OF 354.30 FEET; 19) S44°24'20"E, A DISTANCE OF 487.82 FEET; 20) S77°48'10"E, A DISTANCE OF 504.78 FEET; 21) S50°36'52"E, A DISTANCE OF 207.86 FEET; 22) S15°28'19"W, A DISTANCE OF 522.91 FEET; 23) S03°11'21 "W, A DISTANCE OF 77.19 FEET TO THE INTERSECTION OF SAID RIGHT-OF-WAY AND THE SOUTH LINE OF THE MAMIE LODE (MS No. 781); THENCE DEPARTING SAID POINT N89°59'46"W, A DISTANCE OF 235.36 FEET; THENCE N29°19'42"E, A DISTANCE OF 292.78 FEET; THENCE N04°25'19"E, A DISTANCE OF 426.96 FEET; THENCE N79°00'28"W, A DISTANCE OF 794.51 FEET; THENCE N04°14'46"W, A DISTANCE OF 361.07 FEET; THENCE S67°19'25"W, A DISTANCE OF 625.51 FEET; THENCE S81°36'54"W, A DISTANCE OF 568.62 FEET; THENCE S69°36'59"W, A DISTANCE OF 701.04 FEET; THENCE N20°18'48"W, A DISTANCE OF 200.21 FEET; THENCE N00°13'11"E, A DISTANCE OF 306.77 FEET; THENCE N47°03'56"E, A DISTANCE OF 1042.50 FEET; THENCE N42°10'02"E, A DISTANCE OF 887.51 FEET; THENCE N35°25'23"W, A DISTANCE OF 673.89 FEET; THENCE S54°06'55"W, A DISTANCE OF 973.81 FEET; THENCE N08°45'24"W, A DISTANCE OF 393.18 FEET; THENCE N14°15'34"E, A DISTANCE OF 1012.63 FEET; THENCE N28°35'48"W, A DISTANCE OF 240.85 FEET; THENCE N02°57'34"W, A DISTANCE OF 239.46 FEET TO CORNER No. 2 OF THE COOLIDGE LODE (MS No. 20293); THENCE ALONG THE 2-3 LINE OF THE SAID COOLIDGE LODE N45°28'28"W, A DISTANCE OF 713.90 FEET TO CORNER No. 3 OF SAID COOLIDGE LODE ALSO BEING CORNER No. 2 OF THE CAVE LODE (MS No. 20293); THENCE ALONG THE 3-4 LINE OF SAID COOLIDGE LODE ALSO BEING THE 1-2 LINE OF SAID CAVE LODE N77°23'47"E, A DISTANCE OF 256.81 FEET TO A POINT ALONG THE 3-4 LINE OF THE COOLIDGE LODE (MS No. 20293) AND THE 1-2 LINE OF THE CAVE LODE (MS No. 20293) TO CORNER No. 3 OF SAID COOLIDGE LODE ALSO BEING CORNER No. 2 OF SAID CAVE LODE; THENCE DEPARTING SAID POINT S77°23'49"W A DISTANCE OF 98.09 FEET TO THE TRUE POINT OF BEGINNING. SAID TRACT CONTAINING 99.166 ACRES OF LAND MORE OR LESS. PROPERTY OWNED BY GINN BATTLE NORTH, LLC PARCEL Cl A PARCEL OF LAND LOCATED IN SECTIONS 1, 1 1 AND 12, TOWNSHIP 6 SOUTH, RANGE 81 WEST OF THE SIXTH PRNICIPAL MERIDIAN, WITH THE BEARINGS DESCRIBED HEREON BASED ON A BEARING OF 52 N89°58'30"E FOR THE SOUTH LINE OF SECTION 36, TOWNSHIP 5 SOUTH, RANGE 81 WEST OF THE SIXTH PRINCIPAL MERIDIAN, BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1/21NCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF SETION 18, TOWNSHIP 6 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN; THENCE N39°18'02"W, 6381.01 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY FOR HIGHWAY 24 BEING THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID RIGHT-OF-WAY S77°23'47"W, 354.90 FET ALONG THE 3-4 INE OF THE COOLIDGE LODE (MS #20293) AND THE 1-2 LINE OF THE CAVE LODE (MS #20293) TO CORNER NO. 3 OF SAID COOLIDGE LODE ALSO BEING CORNER NO. 2 OF SAID CAVE LODE; THENCE N45°28'28"W, 357.90 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY FOR THE DENVER AND RIO GRANDE WESTERN RAILROAD;THENCE ALONG SAID RIGHT-OFWAY THE FOLLOWING THIRTY (30) COURSES: 1) N77°25'00"E, 89.29 FEET; 2) N35°15'53"W, 67.25 FEET; 3) N25°44'53"W, 237.58 FEET; 4) N16°13'53"W, 6.62 FEET; 5) S77°25'00"W, 75.15 FEET; 6) N16°13'53"W, 477.59 FEET; 7) N 16°50'51 "W, 123.71 FEET; 8) N77°25'00"E, 75.27 FEET; 9) N 18°53'02"W, 301.82 FEET; 10) S77°25'00"W, 50.47 FEET; 1 1) N21 °09'37"W, 563.64 FEET: 12) N32°50'52"W, 150.75 FEET; 13) N08°55'55"W, 432.48 FEET; 14) N09°29'46"E, 214.86 FEET; 15) N 18°46'01 "E, 189.39 FEET; 16) N32°08'16"E, 42.96 FEET; 17) N90°00'00"E, 58.63 FEET; 18) N31 °50'40"E, 69.78 FEET; 19) S90°00'00"W, 28.69 FEET; 53 20) N32°07'49"E, 39.90 FEET; 21) N30°58'34"E, 282.81 FEET; 22) S04°42'30"W, 158.17 FEET; 23) N30°58'34"E, 337.16 FEET; 24) N27°42'40"E, 229.87 FEET; 25) N85°17'30"W, 86.91 FEET; 26) N27°42'40"E, 36.37 FEET; 27) N30°16'07"E, 143.36 FEET; 28) N21°48'40"E, 251.73 FEET; 29) N 15°10'48"E, 313.68 FEET; 30) N 14°06'56"E, 341.08 FEET; THENCE DEPARTING SAID RAILROAD RIGHT-OF-WAY S54°58'20"E, 29.79 FEET TO A POINT ON THE RIGHT-OF-WAY FOR SAID HIGHWAY 24; THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING TWENTY-TWO (22) COURSES: 1) ALONG ANON-TANGENT CURVE TO THE RIGHT HAVING A LENGTH OF 264.70 FEET, A RADIUS OF 636.20 FEET, A TANGENT OF 134.29 FEET, A DELTA OF 23°50'18" AND A CHORD OF 262.79 FEET THAT BEARS SOl°53'09"E; 2) S83°05'55"E, 153.03 FEET; 3) ALONG ANON-TANGENT CURVE TO THE LEFT HAVING A LENGTH OF 161.76 FEET A RADIUS OF 756.20 FEET, A TANGENT OF 81.19 FEET, A DELTA OF 12°15'23" AND A CHORD OF 161.45 FEET THAT BEARS N03°54'18"E; 4) S55°44'00"E, 103.56 FEET; 5) N57°43'00"E, 210.50 FEET; 6) N27°35'00"E, 278.60 FEET; 7) N00°52'00"E, 276.80 FEET; 8) N37°45'00"E, 426.80 FEET; 9) S61 °40'00"E, 114.11 FEET; 10) S16°06'00"W, 568.70 FEET; 1 1) S48°20'00"W, 175.20 FEET; 54 12) S09°32'00"W, 533.20 FEET; 13) S47°34'00"W, 672.00 FEET; 14) S 16°32'23"W, 631.02 FEET; 15) S42°45'37"E, 206.60 FEET; 16) S10°14'37"E, 389.38 FEET; 17) S47°16'47"E, 351.19 FEET; 18) S13°19'47"E, 237.58 FEET; 19) S47°16'13"W, 354.68 FEET; 20) S 16°22'41 "W, 394.99 FEET; 21) SO6°58'30"E, 606.53 FEET; 22) S22°17'14"E, 841.76 FEET; TO THE TRUE POINT OF BEGINNING. SAID PARCEL CONTAINING 70.892 ACRES, MORE OR LESS. TOGETHER WITH: PARCEL C2: A PARCEL OF LAND LOCATED IN SECTION 11 AND 12, TOWNSHIP b SOUTH, RANGE 81 WEST OF THE SIXTH PRINCIPAL MERIDIAN WITH THE BEARINGS DESCRIBED HEREON BASED ONA BERING OF N89°58'30"E FOR THE SOUTH LINE OF SECTION 36, TOWNSHIP 5 SOUTH, RANGE 81 WEST OF THE SIXTH PRINCIPAL MERIDIAN, BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1/2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING A 2 1/2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 36; THENCE S20°44'31"E, 7851.43 FEET TO A POINT ON THE INTERSECTION OF THE RIGHT-OF-WAY FOR THE DENVER AND RIO GRANDE WESTERN RAILROAD BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING EIGHT (8) COURSES: 55 1) ALONG ANON-TANGENT CURVE TO THE LEFT HAVING A LENGTH F 167.36 FEET, A RADIUS OF 3869.72 FEET, A TANGENT OF 83.69 FEET, A DELTA OF 02°28'40" AND CHORD OF 167.34 FEET THAT BEARS S08°36'27"W; 2) ALONG ANON-TANGENT CURVE TO THE LEFT HAVING A LENGTH OF 325.84 FEET A RADIUS OF 653.16 FEET, A TANGENT OF 166.39 FEET, A DELTA OF 28°35'00" AND CHORD OF 322.48 FEET THAT BEARS SO6°55'23"E; 3) S21 °12'53"E, 749.30 FEET; 4) ALONG A CURVE TO THE RIGHT HAVING A LENGTH OF 365.44 FEET, A RADIUS OF 5679.19 FEET, A TANGENT OF 182.79 FEET, A DELTA OF 03°41'13" AND CHORD OF 365.38 FEET THAT BEARS S19°22'17"E; 5) N77°25'00"E, 25.09 FEET; b) S16°52'08"E, 126.91 FEET; 7) Sl b°13'53"E, 474.41 FEET; 8) S74°08'57"W, 74.95 FEET; TO CORNER NO. 2 OF THE PERU LODE (MD #5712); THENCE ALONG THE 1-2 LINE OF SAID PERU LODE Nl 1°30'03"W, 304.32 FEET TO CORNER NO. 1, ALSO BEING CORNER NO. 5 OF THE ROSA M. LODE (MS #5712); THENCE ALONG THE 5-6 LINE OF THE SAID ROSA M. LODE N12°25'00"W, 301.25 FEET TO CORNER NO. b, ALSO BEING CORNER NO. 4 OF THE BROOKLYN PLACER (MS #19500); THENCE ALONG THE 4-5 LINE OF SAID BROOKLYN PLACER S77°37'53"W, 329.31 FEET; THENCE N36°28'58"W, 47.70 FEET TO A POINT ON SAID RAILROAD RIGHT-OF-WAY, THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING SEVEN (7) COURSES: 1) N 14°56' 18"W, 547.42 FEET; 2) N 13°03'41 "W, 357.80 FEET; 3) N04°05'15"W, 138.92 FEET; 4) N04°24'03"E, 128.75 FEET; 5) N 13°30'08"E, 126.00 FEET; 6) N26°02'26"E, 241.06 FEET; 7) N23°58'23"E, 84.28 FEET; TO SAID TRUE POINT OF BEGINNING. SAID PARCEL CONTAINING 9.209 ACRES, MORE OR LESS. 56 TOGETHER WITH: PARCEL C3: A PARCEL OF LAND LOCATED IN SECTION 36, TOWNSHIP 5 SOUTH, RANGE 81 WEST AND SECTIONS 1, 2, 1 1 AND 12, TOWNSHIP 6 SOUTH, RANGE 81 WEST, ALL IN THE SIXTH PRINCIPAL MERIDIAN, WITH THE BEARINGS DESCRIBED HEREIN, BASED ON A BEARING OF N89°58'30"E FOR THE SOUTH LINE OF SAID SECTION 36 BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1/2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING 2 1/2 INCL BRASS G.L.O. MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST SECTION CORNER OF SAID SECTION 36 BEING THE TRUE POINT OF BEGINNING; THENCE N00°19'28"W, A DISTANCE OF 99.97 FEET ALONG THE WEST SECTION LINE OF SAID SECTION 36; THENCE DEPARTING SAID LINE N28°14'06"E, A DISTANCE OF A DISTANCE OF 715.12 FEET TO A 3 1 /4 INCH ALUMINUM USDA MONUMENT FOUND IN PLACE; THENCE N57°25'05"E, A DISTANCE OF 557.63 FEET TO A 3 1 /4 INCH ALUMINUM USDA MONUMENT FOUND IN PLACE; THENCE N70°47'03"E, A DISTANCE OF 761.45 FEET TO A 3 1/4 INCH ALUMINUM USDA MONUMENT FUND IN PLACE, THENCE N89°57'20"E, A DISTANCE OF 307.51 FEET TO THE WEST LINE OF A PARCEL OF LAND DESCRIBED IN BOOK 126 AT PAGE 192; THENCE ALONG SAID PARCEL THE FOLLOWING THREE (3) COURSES: 1) Sl 0°00'00"W, A DISTANCE OF 89.49 FEET; 2) S80°00'00"E, A DISTANCE OF 125.00 FEET; 3) N10°00'00"E, A DISTANCE OF 111.63 FEET; THENCE DEPARTING SAID PARCEL N89°57'20"E, A DISTANCE OF 57.17 FEET TO A 3 1 /4 INCH ALUMINUM USDA MONUMENT FOUND IN PLACE, ALSO BEING A POINT ON THE WESTERLY RIGHT-OF- WAY OF HIGHWAY 24; THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING FIVE (5) COURSES: 1) ALONG ANON-TANGENT CURVE TO THE LEFT HAVING A LENGTH OF 5.39 FEET, A RADIUS OF 756.30 FEET, A TANGENT OF 2.69 FEET, A DELTA OF 00°24'29" AND A CHORD OF 5.39 FEET THAT BEARS S24°43'45"E; 2) S32°56'00"E, A DISTANCE OF 199.00 FEET; 3) ALONG ANON-TANGENT CURVE TO THE RIGHT HAVING A LENGTH OF 228.37 FEET, A RADIUS OF 2825.00 FEET, A TANGENT OF 1 14.24 FEET, A DELTA OF 04°37'54" AND A CHORD OF 228.30 FEET THAT BEARS S30°36'57"E; 4) S28°18'00"E, A DISTANCE OF 1133.08 FEET; 57 5) S00°01'30"W, A DISTANCE OF 78.73 FEET; TO SAID SOUTH QUARTER CORNER OF SECTION 36; THENCE CONTINUING ALONG SAID RIGHT-OF- WAY THE FOLLOWING SEVEN (7) COURSES: 1) N89°55'30"E, A DISTANCE OF 42.40 FEET; 2) S28°18'00"E, A DISTANCE OF 97.26 FEET; 3) S27°40'00"E, A DISTANCE OF 834.17 FEET; 4) S21°45'36"E, A DISTANCE OF 1187.40 FEET; 5) N59°22'34"E, A DISTANCE OF 103.21 FEET; 6) S24°31'00"E, A DISTANCE OF 322.73 FEET; 7) ALONG ANON-TANGENT CURVE TO THE RIGHT HAVING A LENGTH OF 430.88 FEET, A RADIUS OF 915.00 FEET, A TANGENT OF 219.51 FEET, A DELTA OF 26°58'52" AND A CHORD OF 426.91 FEET THAT BEARS Sl 1°01'26"E; THENCE DEPARTING SAID RIGHT-OF-WAY N53°54'26"W, A DISTANCE OF 71.36 FEET; THENCE S21°45'36"E, A DISTANCE OF 135.40 FEET TO A POINT ON SAID RIGHT-OF-WAY; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY THE FOLLOWING EIGHT (8) COURSES: 1) ALONG ANON-TANGENT CURVE TO THE RIGHT HAVING A LENGTH OF 271.00 FEET, A RADIUS OF 915.01 FEET, A TANGENT OF 136.50 FEET, A DELTA OF 16°58'10" AND A CHORD OF 270.01 FEET THAT BEARS S16°12'58"W; 2) S24°42'01 "W, A DISTANCE OF 21 1.28 FEET; 3) S35°46'25"W, A DISTANCE OF 205.45 FEET; 4) S14°35'55"W, A DISTANCE OF 532.15 FEET; 5) SOl °16'40"E, A DISTANCE OF 429.57 FEET; 6) SO1°26'17"W, A DISTANCE OF 268.56 FEET; 7) S33°57'06"W, A DISTANCE OF 246.94 FEET, TO A STONE MONUMENT FOUND IN PLACE; 8) S08°01'44"E, A DISTANCE OF 378.04 FEET; TO A POINT ON THE NORTHERLY BOUNDARY OF A PRACEL DESCRIBED IN BOOK 102 AT PAGE 119; THENCE ALONG SAID PARCEL S75°31'09"W, A DISTANCE OF 201.81 FEET; THENCE CONTINUING ALONG SAID PARCEL S08°05'00"E, A DISTANCE OF 685.00 FEET TO A POINT ON THE BOUNDARY OF A 58 PARCEL OF LAND DESCRIBED IN BOOK 702 AT PAGE 120; THENCE ALONG SAID PARCEL S51 °29'28"W, A DISTANCE OF 289.30 FEET; THENCE CONTINUING ALONG SAID PARCEL S58°30'32"E, A DISTANCE OF 279.14 FEET TO CORNER NO. b OF THE RIVER BEND MILL SITE (MS #19856); THENCE ALONG THE 6-7 LINE OF SAID RIVER BEND MILL SITE N19°51'23"E, A DISTANCE OF 500.06 FEET TO CORNER NO. 7, A STONE MONUMENT FOUND IN PLACE; THENCE ALONG THE 7-8 LINE OF SAID RIVER BEND MILL SITE N07°44'32"W, A DISTANCE OF 283.91 FEET TO CORNER NO. 8; THENCE ALONG THE 8-9 LINE OF SAID RIVER BEND MILL SITE N72°57'00"E, A DISTANCE OF 114.55 FEET TO CORNER NO. 9; THENCE ALONG THE 1-9 LINE OF SAID RIVER BEND MILL SITE N00°00'03"W, A DISTANCE OF 101.14 FEET; THENCE DEPARTING SAID 1-9 LINE S54°58'20"E, A DISTANCE OF 95.23 FEET TO A POINT ON THE 3-4 LINE OF SAID RIVER BEND MILL SITE; THENCE ALONG SAID 3-4 LINE S10°57'09"W, A DISTANCE OF 390.94 FEET TO CORNER NO. 4; THENCE ALONG THE 4-5 LINE OF SAID RIVER BEND MILL SITE S22°32'25"W, A DISTANCE OF 2.99 FEET; THENCE DEPARTING SAID 4-5 LINE S78°26'14"E, A DISTANCE OF 1.49 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY FOR THE DENVER AND RIO GRANDE WESTERN RAILROAD; TEHNCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING SIX (b) COURSES: 1) Sl 5°10'48"W, A DISTANCE OF 289.39 FEET; 2) S21 °48'39"W, A DISTANCE OF 243.16 FEET; 3) S30°16'07"W, A DISTANCE OF 140.01 FEET; 4) S27°42'40"W, A DISTANCE OF 65.41 FEET; 5) N85°17'30"W, A DISTANCE OF 81.52 FEET; 6) S04°42'30"W, A DISTANCE OF 69.09 FEET; TO A POINT ON THE 1-2 LINE OF THE BROOKLYN PLACER (MS #19500); THENCE ALONG SAID 1-2 LINE S19°50'01 "W, A DISTANCE OF 268.43 FEET TOA POINT ON SAID RAILROAD RIGHT-OF-WAY; THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING NINE (9) COURSES: 1) S31°32'13"W, A DISTANCE OF 533.60 FEET; 2) S33°39'54"W, A DISTANCE OF 140.23 FEET; 3) S23°58'23"W, A DISTANCE OF 151.92 FEET; 4) S26°02'26"W, A DISTANCE OF 245.65 FEET; 5) S13°30'08"W, A DISTANCE OF 135.47 FEET; 6) S04°24'03"W, A DISTANCE OF 136.44 FEET; 7) S04°05'15"E, A DISTANCE OF 146.56 FEET; 8) S13°03'41 "E, A DISTANCE OF 60.00 FEET; 9) N21 °23'46"W, A DISTANCE OF 307.48 FEET; 59 TO A POINT ON THE 5-b INE OF SAID BROOKLYN PLACER; THENCE ALONG SAID 5-b LINE N16°10'31 "W, A DISTANCE OF 271.77 FEET TO CORNER NO. 6; THENCE ALONG THE 6-7 LINE OF SAID BROOKLYN PLACER N12°26'20"W, A DISTANCE OF 500.60 FEET TO CORNER NO. 3 OF THE MARS MILL SITE (MS #20745), A 4 1 /2 INCH ALUMINUM MONUMENT FOUND IN PLACE; THENCE ALONG THE 2-3 LINE OF SAID MARS MILL SITE N45°48'07"W, A DISTANCE OF 1087.10 FEET TO CORNER NO. 2, A 4 1 /2 INCH ALUMINUM MONUMENT FOUND IN PLACE, ALSO BEING A POINT ON THE 5-6 LINE OF THE HOMESTEAD ENTRY SURVEY (H.E.S.) 41; THENCE ALONG SAID 5-6 LINE N79°07'29"W, A DISTANCE OF 2659.38 FEET TO CORNER NO. 5, A 2 1 /2 INCH IRON PIPE IN CONCRETE FOUND IN PLACE; THENCE ALONG THE 4-5 LINE OF SAID H.E.S. 41 N38°47'02"W, A DISTANCE OF 387.01 FEET TO CORNER NO. 4, A STONE MONUMENT FOUND IN PLACE; THENCE ALONG THE 3-4 LINE OF SAID H.E.S. 41 N44°15'33"E, A DISTANCE OF 992.55 FEET TO CORNER NO. 3, A STONE MONUMENT FOUND IN PLACE; THENCE ALONG TFtE 2-3 LINE OF SAID H.E.S. 41 S82°16'20"E, A DISTANCE OF 1508.13 FEET TO CORNER NO. 2, A 2 1/2 INCH IRON PIPE IN CONCRETE FOUND IN PLACE; THENCE ALONG THE 1-2 LINE OF SAID H.E.S. 41 N39°26'18"E, A DISTANCE OF 1104.36 FEET TO CORNER NO. 1, A STONE MONUMENT FOUND IN PLACE ALSO BEING CORNER NO. 5 OF THE HOMESTEAD ENTRY SURVEY (H.E.S.) 40; THENCE ALONG THE 5-6 LINE OF SAID H.E.S. 40 N23°20'28"E, A DISTANCE OF 1564.32 FEET TO CORNER NO. 6, A STONE MONUMENT FOUND IN PLACE; THENCE ALONG THE 6-7 LINE OF SAID H.E.S. 40 N25°05'49"W, A DISTANCE OF 706.80 FEET TO CORNER NO. 2 OF THE GOLD STAR MILL SITE (MS #20712), A 4 1 /2 INCH ALUMINUM MONUMENT FOUND IN PLACE; THENCE ALONG THE 2-3 LINE OF SAID GOLD STAR MILL SITE N67°56'53"W, A DISTANCE OF 968.68 FEET TO CORNER NO. 3, A 4 1/2 INCH ALUMINUM MONUMENT FOUND IN PLACE, ALSO BEING CORNER NO. 3 OF THE TREASURY VAULT LODE (MS #20712); THENCE ALONG THE 3-4 LINE OF SAID TREASURY VAULT LODE N67°54'55"W, A DISTANCE OF 401.48 FEET TO CORNER N0.4, A 4 1 /2 INCH ALUMINUM MONUMENT FOUND IN PLACE, ALSO BEING A POINT ON THE 3-4 LINE OF HOMESTEAD ENTRY SURVEY (H.E.S.) 46; THENCE ALONG SAID 3-4 LINE N69°12'30"E, A DISTANCE OF 553.35 FEET TO A POINT ON THE BOUNDARY OF A PARCEL DESCRIBED AT RECEPTION NO. 733099; THENCE ALONG SAID BOUNDARY N34°20'33"E, A DISTANCE OF 268.78 FEET TO A 1 1/2 INCH ALUMINUM MONUMENT, LS #11204, FOUND IN PLACE; THENCE N33°44'17"W, A DISTANCE OF 346.86 FEET TO A 1 1/2 INCH ALUMINUM MONUMENT, LS #11204, FOUND IN PLACE; THENCE N59°38'05"W, A DISTANCE OF 743.66 FEET TO A 1 1/2 INCN ALUMINUM MONUMENT, LS #20695, FOUND IN PLACE; THENCE N00°04'55"E, ,S DISTANCE OF 459.57 FEET TO A POINT ON SAID SOUTHERLY LINE OF SAID SECTION 36, A 3 1/4 INCH BRASS MONUMENT FOUND IN PLACE, MARKING CORNER NO. 1 OF THE RE50J LEASE; THENCE ALONG SAID SOUTHERLY LINE S89°58'30"W, A DISTANCE OF 420.19 FEET TO THE TRUE POINT OF BEGINNING. SAID PARCEL CONTAINING 448.782 ACRES, MORE OR LESS. TOGETHER WITH: PARCEL A2: A PARCEL OF LAND LOCATED IN SECTION 1, TOWNSHIP 6 SOUTH, RANGE 81 WEST OF THE SIXTH PRINCIPAL MERIDIAN WITH THE BEARINGS DESCRIBED HEREON, BASED ON A BEARING OF N89°58'30"E FOR THE SOUTH LINE OF SAID SECTION 36 BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1/2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING A 2 1/2 60 INCH BRASS G.L.O. FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 36; THENCE S39°31'03"E, 5796.96 FEET TO A POINT ON THE 1-2 LINE OF THE RIVER BEND MILL SITE (MS #19856) BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID 1-2 LINE S89°54'11"E, 150.98 FEET TO CORNER NO. 2, A 3 1/4 INCH ALUMINUM FOREST SERVICE MONUMENT FOUND IN PLACE; THENCE ALONG THE 2-3 LINE OF SAID RIVER BEND MILL SITE S15°47'02"W, 452.93 FEET; THENCE DEPARTING SAID 2-3 LINE ALONG ANON- TANGENT CURVE TO THE RIGHT HAVING A LENGTH OF 147.26 FEET, A RADIUS OF 676.20 FEET, A TANGENT OF 73.92 FEET, A DELTA OF 12°28'41" AND A CHORD OF 146.97 FEET THAT BEARS N07°47'20"W; THENCE NOl °33'00"W, 290.59 FEET TO THE TRUE POINT OF BEGINNING. SAID PARCEL CONTAINING 0.818 ACRES, MORE OR LESS. TOGETHER WITH: PARCEL A3 A PARCEL OF LAND LOCATED IN SECTION 1, TOWNSHIP 6 SOUTH, RANGE 81 WEST OF THE SIXTH PRINCIPAL MERIDIAN WITH THE BEARINGS DESCRIBED HEREON, BASED ON A BEARING N89°58'30"E FOR THE SOUTH LINE OF SAID SECTION 36 BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1/2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH QUARTER CORNER OF SAID SECTION 36; THENCE S24°17'50"W, 3079.28 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY FOR HIGHWAY 24 ALSO BEING A POINT ON THE 1-2 LINE OF THE HOMESTEAD ENTRY SURVEY (H.E.S.) 40 AND BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID 1-2 LINE S21°45'37"E, 324.31 FEET TO CORNER NO. 2, A 3 1/4 INCH ALUMINUM USDA MONUMENT FOUND IN PLACE; THENCE ALONG THE 2-3 LINE OF SAID H.E.S. 40 S20°13'06"W, 1158.66 FEET TO A POINT ON SAID RIGHT-OF-WAY; THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING FOUR (4) COURSES: 1) NOl °33'00"W, 546.88 FEET; 2) ALONG ANON-TANGENT CURVE TO THE RIGHT HAVING A LENGTH OF 309.78 FEET, A RADIUS OF 676.20 FEET, A TANGENT 157.65 FEET, A DELTA OF 26°14'52" AND A CHORD OF 307.07 FEET THAT BEARS N 1 1 °34'34"E; 3) N24°42'00"E, 422.50 FEET; 61 4) ALONG A CURVE TO THE LEFT HAVING A LENGTH OF 167.28 FEET, A RADIUS OF 995.00 FEET, A TANGENT OF 83.84 FEET, A DELTA OF 09°37'58" AND A CHORD OF 167.08 FEET THAT BEARS N19°53'01"E; TO THE TRUE POINT OF BEGINNING. SAID PARCEL CONTAINING 5.308 ACRES, MORE OR LESS. TOGETHER WITH THE FOLLOWING TWO PARCELS: PARCEL 1: A PARCEL OF LAND LOCATED IN SECTION 1, TOWNSHIP 6 SOUTH, RANGE 81 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO ALSO BEING LOCATED WITHIN THE HOMESTEAD ENTRY SURVEY NO. 41 (H.E.S. 41), WITH ALL THE BEARINGS DESCRIBED HEREIN BASED ON A BEARING OF N89°58 '30"E FOR THE SOUTH LINE OF SECTION 36, TOWNSHIP 5 SOUTH, RANGE 81 WEST OF THE bTH PRINCIPAL MERIDIAN BETWEEN THE SOUTHWEST CORNER OF SAID SECTION 36, BEING A 2 1/2" G.L.O. BRASS CAP MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER OF SAID SECTION, BEING A 2 1 /2" BRASS CAP MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NO. 7 OF SAID H.E.S. 41, BEING A STONE MONUMENT FOUND IN PLACE; THENCE ALONG THE 6-7 LINE OF SAID H.E.S. 41 S51 °29'36"W, 231.90 FEET; THENCE DEPARTING SAID 6- 7 LINE N08°05'00"W, 685.00 FEET; THENCE N75°31'09"E. 201.78 FEET; THENCE ALONG THE 7- 8 LINE S08°01'45"E, 590.05 FEET TO THE POINT OF BEGINNING. SAID PARCEL CONTAINING 2.930 ACRES, MORE OR LESS. AND PARCEL 2: A PARCEL OF LAND LOCATED IN SECTION 1, TOWNSHIP 6 SOUTH, RANGE 81 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO ALSO BEING LOCATED WITHIN THE HOMESTEAD ENTRY SURVEY NO. 41 (H.E.S. 41), WITH ALL THE BEARINGS DESCRIBED HEREIN BASED ON A BEARING OF N89°58'30"E FOR THE SOUTH LINE OF SECTION 36, TOWNSHIP 5 SOUTH, RANGE 81 WEST OF THE 6TH PRINCIPAL MERIDIAN BETWEEN THE SOUTHWEST CORNER OF SAID SECTION 36, BEING A 2 1/2" (G.L..O: BRASS CAP MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER OF SAID SECTION, BEING A 2 1/2" BRASS CAP MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NO. 7 OF SAID H.E.S. 41, BEING A STONE MONUMENT FOUND IN PLACE ALSO BEING A POINT ON THE EASTERLY BOUNDARY OF THE BROOKLYN PLACER (MINERAL SURVEY 19500); 62 THENCE S19°51'23"W, 500.00 FEET ALONG THE EASTERLY BOUNDARY OF SAID BROOKLYN PLACER (MINERAL SURVEY 19500) ALSO BEING THE WESTERLY BOUNDARY OF THE RIVER BEND (MINERAL SURVEY 19856); THENCE N58°30'32"W, 279.10 FEET TO A POINT ON THE 6-7 LINE OF SAID H.E.S. 41; THENCE ALONG SAID 6-7 LINE N51 °29'36"E, 521.16 FEET TO THE POINT OF BEGINNING.. SAID PARCEL CONTAINING 1.569 ACRES, MORE OR LESS. Exhibit 3 Authorized Debt Limit Improvement Initial Authorized Backup Authorized Total Authorized Debt Annual O&M Costs' Debt Debt Town Trail $5,000,000 $5,000,000 $100,000 Recreation Center $2,500,000 $2,500,000 $300,000 Town Parking Lots $2,000,000 $2,000,000 $100,000 Mass Transit Feeder System $400,000 $400,000 $650,0002 U.S. Forest Service Parcel Acquisition Cost $10,000,00 0 $10,000,000 Library/Media Center $1,500,000 $1,500,000 $50,000 Project Infrastructure for Battle Mountain Total amount to be voted from property tax collections for annual operations and maintenance expenses will be $15,000,000. This allows for annual increases in expenses of approximately 3% (compounded) per year. This will allow for the GID to provide operation and maintenance expenditures for approximately 40 years without the need for an additional election. 2 This O&M Cost is only applicable in the event Town or GID shall assume ownership of the streets within the Project or the Mass Transit Feeder System, as appropriate. 63 a) Water $18,000,00 $18,000,000 --3 0 b) Sewer $18,000,00 $18,000,000 --3 0 c) Streets $18,000,00 $18,000,000 $1,000,0002 0 Employee Housing $10,000,00 $10,000,000 To be 0 covered by rents and HOA dues Parks/Open Space $200,000 Wireless Technology $250,000 TOTALS $21,000,00 $64,400,00 $85,400,000 $2,650,000 0 0 3 Operation and maintenance to be received from water and sewer system charges. 64 .. ~ J~ ,ry ``~f L~~~ P C r" ~~` t t °3'`F,T~ . Vii'. ~ ~-.-'~ ~~a . 9 ~ Section 4. Severability. If any part, section, sub-section, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance; and the Town Council for the Town of Minturn, Colorado hereby declares it would have passed this Ordinance and each part, section, sub-section, sentence, clause or phrase thereof, irrespective of the fact that any one or more parts, sections, sub-sections, sentences, clauses or phrases be declared invalid. Section 5. The Town Council hereby finds, determines and declares that this Ordinance is necessary and proper for the health, safety and welfare of the Town of Minturn and the inhabitants thereof. Section 6. The repeal or the repeal and re-enactment of any provision of the Minturn Municipal code as provided in this ordinance shall not affect any right which has accrued, and duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision repealed and re-enacted. The repeal of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. INTRODUCED, READ BY TITLE, APPROVED ON THE FIRST READING, APPROVED AND ORDERED PUBLISHED IN FULL THE 20th DAY OF February, 2008. A public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Minturn, Colorado, on the 27th day of February, 2008, at 7 P.M. in the Minturn Town Center in the Town of Minturn, Colorado. ayor INTRODUCED, READ BY TITLE, PASSED ON SECOND READING, APPROVED AND ORDERED PUBLISHED IN FULL THIS~7 DAY OF ~ , 2008. Mayor c. Any performance bond shall be issued by an underwriter reasonably acceptable to Town and shall secure one or more specified obligations of Ginn. d. Any escrow of funds payable by Ginn hereunder shall be held by Land Title Guarantee Company or Stewart Title Guaranty Company ("Escrow Agent"). Town, Escrow Agent and Ginn shall agree upon and enter into an escrow agreement relating to such funds on or before the deposit of such funds with Escrow Agent in a bank with a Colorado office or branch. Such escrow agreement shall provide, among other matters, for draws upon the escrow by Town or Ginn, as appropriate, for costs and expenses associated with the work or matter for which the escrow is established (the terms of the draw procedures to be similar to those set forth in a typical construction loan if the escrow relates to design, development and construction work), and for implementation of the remedies allowed under Section 7.7. Ginn shall pay all costs associated with any escrow. Town acknowledges and agrees that at Ginn's election, Ginn may convert any escrow into another form of security, subject to specific designations set forth in this Agreement. e. Upon completion of any work or matter for which security is required, to the extent there are any remaining funds held in escrow or under a letter of credit, such remaining funds immediately shall be paid or released to Ginn. Town shall execute such consents, requests or agreements as are necessary to allow delivery of any remaining funds to Ginn. £ To the extent interest accrues on any security posted by Ginn pursuant to this Agreement, such interest shall belong to Ginn and Ginn shall have the right, from time to time, to request the holder of such security to pay any accrued interest to Ginn. IN WITNESS WHEREOF, the Town and Ginn have executed this Agreement effective as of ~e~fj Z 7r l"-~~ ~" TOWN OF MINTURN By: - Mayor ATTESTED BY: Town Clerk ~~~ ~G P ~~ ;' `~~ ~~ + ,. ~J X90 1~,, 39 APPROVED, as to legal form by: ~. Allen C. Christensen, Town Attorney Ginn-LA Battle One Ltd, LLLP, a Georgia limited liability limited partnership By: Ginn Battle One GP, LLC, a Georgia limited liability company a.: U~-~ ~ .\. e\ -~ William H. Weber Senior Vice President 40 Ginn Battle North, LLC, a Georgia limited liability company By: Battle Development Manager, Inc., a Georgia Corporation, its Manager B w I ~I 'W y. William H. Weber Senior Vice President Ginn Battle South, LLC, a Georgia limited liability company By: Battle Development Manager, Inc., a Georgia Corporation, its Manager By: ~~ William H. Weber Senior Vice President 41 STATE OF COLORADO SS. COUNTY OF EAGLE The foregoing instrument was acknow e ged before me this ~ day of /U( Q/1-4,(, 2008, by ~W ~~~r2 ,Mayor, Town of Minturn, Colorado, and 2G~~tl(/'Gru as Clerk of the own of Mint rn, Colorado. Witness my hand and official seal. My commission expires: STATE OF L~~~~/~iz~t~'~O ) ss. COUNTY OF _-~ ~ ~ ) The foregoing instrument was acknowledged before me this %/ day of A/r ~t il.C 2008, by William H. Weber as Senior Vice President of Battle Development Manager, Inc., a Georgia corporation, as manager of Ginn Battle North, LLC, a Georgia limited liability company. Witness my hand and official seal. My commission expires: ~ ~ f Z ~ `~G' Notary Public STATE OF ~~~/%~D ) P~ gRUNVgNO ~•~,,oT'4R~•. ~•.A ~j;OO 9``h.~--~..h-~G ~®~P SS. COUNTY OF /~ ~ ) The foregoing instrument was acknowledged before me this // day of /1/tA/LG~ft. 2008, by William H. Weber as Senior Vice President of Battle Development Manager, Inc., a 42 M~!Canmisabn azr~on Georgia corporation, as manager of Ginn Battle South, LLC, a Georgia limited liability company. Witness my hand and official seal. ,Pd 4RUN~'9 My commission expires: ~~Z~~/d ~ • ~ ~~••~ N Notary Public o,~ coLU~,P STATE OF ~/i'~O~' O ) SS. COUNTY OF ~i~~e- ) / The foregoing instrument was acknowledged before me this /~ day of /4f'!1/LG~ /~ 2008, by William H. Weber as Senior Vice President Ginn-LA Battle One, Ltd., LLLP, a Georgia limited liability limited partnership. Witness my hand and official seal. ~l g~U N VAN O My commission expires: _/ Z 9'// D ~?: ~' p~ ~ R ~ ~,. . ~~, Notary Public ~;~•.~0~~~0Uo~PO° q~F of cp~0~ EXHIBIT ONE PARCEL Al C LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN SECTION 19, TOWNSHIP 6 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN, WITH THE BEARINGS DESCRIBED HEREIN, BASED ON A BEARING OF N89°58'30"E AND A DISTANCE OF 2694.32 FEET FOR THE SOUTH LINE OF SECTION 36 BETWEEN THE SOUTHWEST SECTION CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE AND THE SOUTH QUARTER CORNER, BEING A 2 1 /2 INCH BRASS G.L.O. MONUMENT FOUND IN PLACE, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: 43