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Home My WebLink About06 Deadwood Vested Rights Agreement - 2nd reading MEMORANDUM TO: Board of County Commissioners Regular Meeting—July 12,2017 THRU: Cindy Houben,Community Development Director FROM: Suzanne Wolff,Assistant Director RE: Ordinance Accepting the Second Amendment to the Vested Property Rights Agreement, CD-PUD Plan Development Agreement,Historic Covenant and Agricultural Building Covenant for Deadwood Parcel—Second Reading&Public Hearing SUMMARY: The Applicant is requesting that the Board of County Commissioners accept the Second Amendment to the Vested Property Rights Agreement,CD-PUD Plan Development Agreement,Historic Covenant and Agricultural Building Covenant for Deadwood Parcel("Second Amended Agreement"). The BOCC approved the Ordinance on First Reading on June 28,2017. OWNER/APPLICANT: Deadwood Ranch I,LLC REPRESENTATIVES: Mitch Haas&Chris LaCroix LOCATION: Off of West Sopris Creek Road on Swearingen Way BACKGROUND: The BOCC approved amendments to the CD-PUD Plan for Deadwood Ranch, pursuant to Resolution No. 147-2016 and Ordinance No. 29-2016. The amendments included: A. Merge Deadwood II Parcel(35 acre parcel)with Deadwood I Parcel(344.143 acre parcel). B. Rezone Deadwood II Parcel to CD-PUD and include it in the CD-PUD Plan and the Conservation Easement for Deadwood I Parcel. C. Transfer the development right from Deadwood II Parcel to Deadwood I Parcel to provide additional floor area on Deadwood I Parcel within the previously approved Activity Envelopes. D. Relocate Activity Envelope#1 and revise Activity Envelope#2 on Deadwood Ranch I. Condition#4 of Resolution No. 147-2016 requires recordation of the Second Amended Agreement and the Amended Deed of Conservation Easement concurrent with recordation of the Amended Activity Envelope Plan and CD-PUD Plan. These documents must be accepted by the BOCC by Ordinance,prior to recordation. Acceptance of the Amended Deed of Conservation Easement will be considered on first reading at this meeting as well. Resolution No. 147-2016 required recordation of the documents within 180 days of approval,unless extended by the Community Development Director for good cause. The Director granted a 120 day extension to October 17,2017; the Applicant has been working with Community Development and Open Space and Trails to complete the required documents,but additional time is needed to complete the acceptance process and then finalize the documents for recordation. RECOMMENDATION: Staff recommends that the BOCC approve the attached Ordinance accepting the First Amended Agreement on second reading. ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING ACCEPTANCE OF THE SECOND AMENDMENT TO THE VESTED PROPERTY RIGHTS AGREEMENT, CD- PUD PLAN DEVELOPMENT AGREEMENT, HISTORIC COVENANT AND AGRICULTURAL BUILDING COVENANT FOR DEADWOOD PARCEL ORDINANCE NO. -2017 1. Pursuant to 30-35-301 C.R.S., the Board of County Commissioners ("BOCC") of Home Rule Counties is authorized to make and publish ordinances for carrying into effect or discharging the powers and duties conferred upon such counties by law and as seems necessary. 2. Pursuant to Section 2.8.1 of the Home Rule Charter("HRC"), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statues as amended. 3. Deadwood Ranch I, LLC ("Applicant")is the owner of real property located in Pitkin County, Colorado,which is located off of West Sopris Creek Road. The property is referred to as Deadwood I Parcel and Deadwood II Parcel,which are more specifically described in Exhibits A and B. 4. The BOCC approved amendments to the CD-PUD Plan for Deadwood Ranch,pursuant to Resolution No. 147-2016 and Ordinance No. 29-2016. The amendments included: A. Merge Deadwood II Parcel (35 acre parcel)with Deadwood I Parcel (344.143 acre parcel). B. Rezone Deadwood II Parcel to CD-PUD and include it in the CD-PUD Plan and the Conservation Easement for Deadwood I Parcel. C. Transfer the development right from Deadwood II Parcel to Deadwood I Parcel to provide additional floor area on Deadwood I Parcel within the previously approved Activity Envelopes. D. Relocate Activity Envelope#1 and revise Activity Envelope#2 on Deadwood Ranch I. 5. Condition#4 of Resolution No. 147-2016 requires recordation of the Second Amendment to the Vested Property Rights Agreement, CD-PUD Plan Development Agreement, Historic Covenant and Agricultural Building Covenant for Deadwood Parcel ("Second Amended Agreement") and the Amended Deed of Conservation Easement concurrent with recordation of the Amended Activity Envelope Plan and CD-PUD Plan. These documents must be accepted by the BOCC by Ordinance,prior to recordation. 6. The BOCC reviewed the proposed Second Amended Agreement on first reading at a regular meeting on June 28, 2017. The BOCC adopted the Ordinance accepting the Covenant Agreement on second reading at a public hearing on July 12,2017. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that that it hereby adopts an Ordinance Accepting the Second Amendment to the Vested Property Rights Agreement, CD-PUD Plan Development Agreement, Historic Covenant and Agricultural Building Covenant for Deadwood Parcel (Exhibit C), and authorizes the Chair or the Chair's designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. INTRODUCED AND FIRST READ ON THE 28th DAY OF JUNE, 2017. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON , 2017. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE DAY OF 2017. ADOPTED AFTER A PUBLIC HEARING AND SECOND READING ON THE 12th DAY OF JULY, 2017. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE DAY OF 2017. POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE DAY OF 2017. ATTEST: BOARD OF COUNTY COMMISSIONERS By By: Jeanette Jones George Newman, Chair Deputy County Clerk Date: APPROVED AS TO FORM: APPROVED AS TO CONTENT: John Ely, County Attorney Cindy Houben, Community Development Director Case#P090-15;PID 246527402007&246527200006 SECOND AMENDMENT TO THE VESTED PROPERTY RIGHTS AGREEMENT, CD-PUD PLAN DEVELOPMENT AGREEMENT,HISTORIC COVENANT AND AGRICULTURAL BUILDING COVENANT FOR THE DEADWOOD PARCEL (FORMERLY KNOWN AS MIDDLE RANCH PUD) THIS SECOND AMENDMENT TO THE VESTED PROPERTY RIGHTS AGREEMENT, CD-PUD PLAN DEVELOPMENT AGREEMENT, HISTORIC COVENANT AND AGRICULTURAL BUILDING COVENANT FOR THE DEADWOOD PARCEL (FORMERLY KNOWN AS MIDDLE RANCH PUD) ("Agreement") is made and entered into to be effective as of the day of , 2017, by and between Deadwood Ranch I, LLC, a Florida limited liability company ("Owner"); and THE BOARD OF COUNTY COMMISSIONERS of the County of Pitkin, Colorado ("BOCC"), as the governing body of Pitkin County, Colorado ("County"). RECITALS A. Owner owns approximately 344.143 acres of certain real property located off of West Sopris Creek Road on Swearingen Way that is more specifically described on Exhibit "A" attached hereto (the "Deadwood I Parcel"), which is also known as the "Fender Middle Parcel" or"Middle Ranch." B. Owner also owns approximately 35.338 acres of certain real property located on and spanning West Sopris Creek Road that is more specifically described on Exhibit `B" attached hereto (the "Deadwood II Parcel"), which is also known as the "CBI Sopris View"parcel. C. Pursuant to BOCC Resolution No. 147-2016 ("Resolution 147-2016"), recorded in the Pitkin County Clerk and Recorder's Office ("Pitkin County Records") as Reception No. 635224, and the Deadwood Subdivision Exemption and Lot Line Adjustment Plat recorded in Plat Book at Page , the Deadwood I Parcel and Deadwood II Parcel were merged into a single parcel more specifically described on Exhibit "C" attached hereto that contains approximately 379.481 acres, and which is known as the "Deadwood Parcel" (the "Property"). D. The Pitkin County Hearing Officer granted certain approvals for the Deadwood I Parcel pursuant to Determination No. 08-2008 recorded in the Pitkin County Records on August 29, 2008 as Reception No. 552461 (the "Determination"), including the following: Site Plan Review for a driveway; Activity Envelope Review; GMQS Exemptions (as applicable) and Special Reviews to establish the Deadwood I Parcel as a receiver site for up to four TDRs for additional floor area up to 15,000 square feet, to construct a caretaker dwelling unit and a barn(s), to list the historic resources on the historic inventory, and to allow three water crossings (two bridge, one culvert) for the driveway. A standard three-year vested right was granted with the approval. The Driveway Site Plan and Activity Envelope Plan ("Original Plan") for the Deadwood I Parcel was recorded September 9, 2008 in Plat Book 88 at Pages 37-46 of the Pitkin County Records. E. The BOCC designated the Swearingen Ranch Homestead on the Deadwood I Parcel to the Pitkin County Historic Register and granted incentives for the designation, including two non-transferable Transferable Development Rights ("TDRs") for use on the Deadwood I Parcel and a 10-year vested rights period, pursuant to Resolution No. 017- 2009 recorded April 13, 2009 at Reception No. 557963 of the Pitkin County Records. As part of such approval, the then owner of the Deadwood I Parcel agreed to stabilize and restore the Swearingen Ranch Homestead and, among other things, paid $110,000 to the County for renovation of the Emma Store property. The Covenant Agreement for the Preservation of Historic Resources was recorded as Reception No. 563102 of the Pitkin County Records. The historic resources located on the Deadwood I Parcel are the two (2) Cabins known as the Swearingen Ranch Homestead Cabins (collectively, the "Cabins") and the remnants of a potato cellar. Exhibit D is two photographs — one of each of the two Cabins as they existed prior to the since completed restoration. F. The Deadwood I Parcel was zoned RS-30. The then owner of the Deadwood I Parcel applied to the BOCC for approval of: rezoning of the Deadwood I Parcel to the Conservation Development PUD ("CD-PUD") zone district; a CD-PUD Plan for "Development Option 2 — Commercial Agricultural Development" to accommodate two (2) single family residences, two (2) caretaker dwelling units, and agricultural buildings; special review for horse boarding and wind power generation; an Activity Envelope for agricultural buildings; nine TDRs as provided in the CD-PUD zone district regulations; and to convert the two previously granted non-transferable TDRs to transferable TDRs (for a total of 11 TDRs). The BOCC granted such approvals as provided in Ordinance No. 006-2010, recorded at Reception No. 570415 of the Pitkin County Records (the "Ordinance") and Resolution No. 059-2010, recorded at Reception No. 570412 of the Pitkin County Records ("Resolution 059-2010"). The CD-PUD Plan, Driveway Site Plan and Activity Envelope Plan are recorded in Plat Book 96 at Pages 61-72 ("Original Map"), which has since been replaced by the Amended Map described in Recital H, below. Also pursuant to the BOCC approvals, that certain Deed of Conservation Easement In Gross for Fender Middle Ranch, Pitkin County (the "Conservation Easement") was recorded at Reception No. 578749. Finally, these previous approvals were memorialized in the Vested Property Rights Agreement, CD-PUD Plan Development Agreement, Historic Covenant and Agricultural Building Covenant for Middle Ranch PUD recorded at Reception No. 578747 of the Pitkin County Records (the "Original Vested Rights Development Agreement"). G. BOCC Resolution No. 067-2012 ("Resolution 067-2012") amended Resolution 059-2010 in order to clarify the allowed usage of the historic cabins and to exempt their floor area from the total allowed FAR. The floor area of both cabins does not count against the floor areas specified in Condition #3 of Resolution 059-2010, but the net livable square footage of the larger cabin shall be deducted from the 3,000 square feet of floor area available for Special Review uses in the CD-PUD Zone District under Development Option 2. The larger cabin may be restored as a dwelling unit and used as a guest cabin, subject to conditions. The smaller cabin may be restored as a picnic house/hunting cabin, which may include a toilet room and shall not include a kitchen. Finally, as allowed -2- under Resolution 067-2012, the restoration work on the cabins proceeded without triggering the requirement to construct the new driveway. H. BOCC Resolution No. 034-2013 ("Resolution 034-2013") further amended Resolution 059-2010 and approved the Special Review request for a Ranch Manager's residence on the Deadwood I Parcel. Resolution 034-2013 provides that the approved driveway may be realigned to cross Dry Creek below the historic buildings and climb uphill to access the residential Activity Envelope; the main cabin may be relocated approximately 60' to the south in order to improve drainage around the cabin; the previously approved Agricultural Facilities Activity Envelope within an irrigated pasture was eliminated and two new envelopes were established; and, Activity Envelopes were established for development of up to nine (9) ponds. The Amended CD-PUD Plan, Driveway Site Plan and Activity Envelope Plan is recorded in Plat Book 103 at Pages 57-73 ("Amended Map"). Owner has since fully restored the two historic cabins to the satisfaction of Pitkin County and Certificates of Occupancy have been issued, and the driveway has been constructed as approved. I. Administrative Decision No. 3-2014 amended Condition #17.B of Resolution 059-2010, which limited outdoor construction to the period between April 1 and November 30. Administrative Decision No. 3-2014 found that the lower portion of the Deadwood I Parcel is less valuable as winter range due to snow depths and the lack of forage above the snow, and approved construction on the lower Activity Envelopes (Activity Envelopes 2 and 3) throughout the year. Resolution 147-2016 further amended and clarified Administrative Decision No. 3-2014 to explain that the restriction on outdoor construction between April 1 through November 1 remains for the upper portion of the Deadwood I Parcel (Activity Envelope 1) where the main residence will be constructed; indoor construction (work within a fully enclosed structure) may occur during that time; and construction may occur in Activity Envelopes 2 and 3 throughout the year. J. Administrative Decision No. 039-2014 approved the Deadwood Ranch Site Plan Review for the ranch manager's residence and two barns on the Deadwood I Parcel ("Equipment Barn" and "Shop Barn"), all within the previously approved Activity Envelopes. Administrative Decision No. 039-2014 also granted Scenic Review approval for the ranch manager's residence, the Equipment Barn, the Shop Barn, and associated development on the Deadwood I Parcel such as earthwork and landscaping. The Zoning Officer confirmed that the larger historic cabin contains 771 square feet of net livable area, leaving 2,229 square feet of floor area available for the ranch manager's residence. To date, the ranch manager's residence and the Equipment Barn have been built. The Shop Barn has yet to be built but remains vested under this Agreement. The approvals described in Recitals G through J hereinabove were memorialized in the First Amendment to the Vested Property Rights Agreement, CD-PUD Plan Development Agreement, Historic Covenant and Agricultural Building Covenant for Deadwood Ranch (Formerly Known As Middle Ranch PUD) recorded at Reception No. 613556 of the Pitkin County Records (the "First Amended Vested Rights Development Agreement"). -3- K. Resolution 147-2016, and Ordinance No. 29-2016, recorded as Reception No. 635223, further amended Resolution 059-2010, Resolution 067-2012 and Resolution 034-2013 as well as Administrative Decision Nos. 3-2014 and 39-2014 and approved the following: 1. Rezoning of the Deadwood II Parcel from RS-20 to Conservation Development (CD-PUD); 2. Merger/Lot Line Adjustment to combine the Deadwood I Parcel and Deadwood II Parcel into a single parcel under the CD-PUD Plan, to eliminate the previously approved Activity Envelope on the Deadwood II Parcel, and to transfer a portion of the development rights from the Deadwood II Parcel onto the Deadwood I Parcel in order to reduce density and promote clustering of development; 3. Amendment of the CD-PUD Plan to the CD-PUD "Residential/Agricultural Development Option 3," which Option was concurrently adopted by the BOCC pursuant to Ordinance No. 030-2016, so as to ensure continued commercial agricultural practice and operations and in return for eliminating the potential for certain non-agricultural commercial uses that are permitted under Option 2, residential development of the Property is more limited than allowed under Option 1 but less limited than allowed under Option 2; 4. A growth management exemption pursuant to Section 6-30-100(a)(9) of the Pitkin County Land Use Code, as amended, transferring a portion of the development rights from the Deadwood II Parcel to the Deadwood I Parcel to promote the clustering of buildings and uses, the preservation of open space, and the avoidance of hazardous areas; further, in doing so, the previous growth management exemption on the Deadwood II Parcel is extinguished and replaced with the growth management exemptions described below; 5. A growth management exemption for development in amended Activity Envelope #1 of one (1) or two (2) principal single-family dwelling unit(s) with a total floor area of 13,250 square feet; if Owner chooses to construct two (2) principal single- family dwelling units, no individual unit can contain more than eleven thousand five hundred (11,500) square feet of floor area; 3,250 square feet of the total floor area can only be used for below grade space (which below grade space may be partially exposed or include walk-out space), covered walkways, porticos, garages, and extended eave overhangs; 6. A growth management exemption for two (2) caretaker dwelling units, each with a maximum floor area of 1,000 net livable square feet (in addition to the final maximum floor area for the principal structures) which was already granted to the Deadwood I Parcel remains unless Owner chooses to eliminate the right for one such caretaker dwelling unit in exchange for an addition to the ranch manager's residence, as explained below; 7. A growth management exemption for 25,682 square feet of exempt floor area for agricultural buildings confined to the designated Activity Envelopes, and such exempt agricultural floor area is inclusive of the 4,579 square feet of exempt floor area located in those such structures already built and described in paragraph "J," above; provided however that horse/livestock run-in or loafing sheds shall count as barn floor area to the extent required by the Pitkin County Land Use Code, as -4- may be amended from time to time,but may be located in the pastures and outside of the Activity Envelopes; 8. A growth management exemption of 3,000 square feet of floor area for special review uses, of which 771 square feet is utilized by the historic Swearingen Homestead guest cabin and 2,229 square feet is utilized by the ranch manager's residence; 9. A growth management exemption for 210 square feet of floor area for the historic picnic house/hunting cabin; 10. Amendment of Activity Envelope #1 to shift its unchanged 3.680-acre area uphill so as to reduce the length of the driveway, impact a smaller area of mature sagebrush and reduce the amount of excavation for the foundation because the amended location is flatter; 11. Amendment of Activity Envelope #2 allowing minor changes that do not affect any constrained areas while maintaining its 3.066-acre area; and 12. A growth management exemption and amendment of the prior CD-PUD approvals to allow Owner, at Owner's discretion, to expand the ranch manager's residence to not more than 3,000 square feet of floor area; should Owner choose to do so, Owner has the discretion to account for the historic guest cabin square footage by choosing to either: (1) deduct the floor area of the addition to the ranch manager's residence (up to 771 square feet) from the allowable floor area available for the principal single-family dwelling unit(s), or (2) deed restrict the historic guest cabin as one of the allowed caretaker dwelling units. If the cabin is deed restricted as a caretaker dwelling unit, then the previous guest cabin restrictions (Condition #4 of Resolution 067-2012) shall be eliminated and the cabin may thereafter only be used in a manner consistent with the terms of the caretaker dwelling unit deed restriction. 13. The Amended Map recorded in Plat Book 103 at Pages 57-73 is further amended pursuant to Resolution 147-2016 with the Second Amended CD-PUD Plan and Activity Envelope Plan recorded in Plat Book at Pages ("Second Amended Map"). The Driveway Site Plan portion of the Amended Map remains in effect as such driveway has now been constructed. 14. The Deadwood Subdivision Exemption and Lot Line Adjustment Plat ("Plat") merging the Deadwood I Parcel and Deadwood II Parcel into a single parcel is recorded in Plat Book at Page . L. The purpose of this Agreement is to satisfy the requirements found in Resolution Nos. 067-2012, 034-2013 and 147-2016, as well as in the Administrative Decision Nos. 3- 2014 and 039-2014, to provide a Second Amended Vested Property Rights Agreement, CD-PUD Plan Development Agreement, Historic Covenant and Agricultural Building Covenant for the Deadwood Parcel in order to memorialize all of the changes that have been made to the original approvals. A separate draft of a First Amended and Restated Deed of Conservation Easement (the "Amended Conservation Easement") is in the process of being completed by Owner, the Aspen Valley Land Trust ("AVLT") and Pitkin County Open Space and Trails ("OST"). Further, the Second Amended Map has been recorded for the Property, which Second Amended Map satisfies the requirements of Section 4 of Resolution 059-2010, as well as condition#3 of Resolution 147-2016, and -5- supersedes and replaces both the Original Map and the Amended Map, except that the Driveway Site Plan portion only of the Amended Map has been developed and remains in effect. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual agreements herein contained, the parties hereto stipulate and agree as follows. A. Vested Property Rights Agreement. 1. Prior Documents Superseded. Determination No. 08-2008 recorded August 29, 2008 as Reception No. 552461; the Driveway Site Plan and Activity Envelope Plan recorded September 9, 2008 in Plat Book 88 at Pages 37-46; the Amended CD-PUD Plan, Driveway Site Plan and Activity Envelope Plan recorded in Plat Book 103 at Pages 57- 73, provided that the Driveway Site Plan portion thereof has been developed and remains in effect; Resolution No. 017-2009 recorded April 13, 2009 as Reception No. 557963; the Vested Property Rights and Development Agreement recorded April 13, 2009 as Reception No. 557964 and re-recorded at Reception No. 557969; the First Amendment to the Vested Property Rights Agreement, CD-PUD Plan Development Agreement, Historic Covenant and Agricultural Building Covenant for Deadwood Ranch (Formerly Known as Middle Ranch PUD) recorded September 16, 2014 as Reception No. 613556; the Deed of Conservation Easement in Gross recorded on March 29, 2011 as Reception No. 578749; and the Covenant Agreement for the Preservation of Historic Resources recorded as Reception No. 563102, all of the Pitkin County Records, are hereby declared void and are superseded and replaced by the following approvals (hereinafter collectively referred to as the "Approvals"): • BOCC Resolution No. 017-2009; • BOCC Resolution No. 059-2010; • Ordinance No. 006-2010; • BOCC Resolution No. 067-2012; • BOCC Resolution No. 034-2013; • Administrative Decision No. 3-2014; • Administrative Decision No. 039-2014; • BOCC Resolution No. 147-2016; • Ordinance No. 029-2016; • The Amended Deed of Conservation Easement in Gross; • The Second Amended CD-PUD Plan and Activity Envelopes Plan recorded in Plat Book at Pages , • The Site Plan for the Ranch Manager's residence and two barns as recorded in Plat Book 107 at Pages 67-69; • The Deadwood Subdivision Exemption and Lot Line Adjustment Plat recorded in Plat Book at Page ; and, • This Agreement. -6- 2. Vested Rights. Pursuant to the Approvals, the BOCC granted and hereby confirms to the Owner vested property rights, which vested property rights shall run with the Property, for a period of 20 years from the date of approval of BOCC Resolution No. 059-2010, that is until May 12, 2030, for and with respect to all of those development rights approved under the Approvals, all as the same may be amended or supplemented in writing from time to time. The Approvals (including this Agreement), all as may be amended or supplemented from time to time, between the parties, collectively granting and defining the final approvals for the Property constitute an approved "site-specific development plan"pursuant to § 24-68-101, et seq., C.R.S. ("the Vested Rights Statute"), and establish and extend vested property rights to develop the Property in the manner contemplated by the Approvals pursuant to the Vested Rights Statute until May 12, 2030 (the "Vesting Period Expiration Date"). In light of all relevant circumstances, including but not limited to the size of the development, economic cycles and market conditions and in light of the unique benefits granted to the community by the Owner, the Property is hereby vested through the Vesting Period Expiration Date against any changes in the County Land Use Code which may be contrary to or in conflict with the rights described in the Approvals. This Agreement shall be considered a "development agreement" as that term is used in §24-68-104, C.R.S, and shall include the right to develop and use the Property in the manner permitted under the Approvals. Except as permitted under the Vested Rights Statute (including, without limitation, Section 24-68-105), until the Vesting Period Expiration Date, no zoning or land use action by the County or action pursuant to an initiated measure that would alter, impair, prevent, diminish, impose a moratorium on development, or otherwise delay the development or use of the Property as permitted pursuant to the Approvals shall apply to or be effective against the Property or the development thereof. B. CD-PUD Development Plan. 1. CD-PUD Development Plan. Pursuant to the Ordinances, the Property was rezoned to the CD-PUD zone district. The Pitkin County Land Use Code provides three options in the CD-PUD zone district for development; and the Property was approved for development under"Option 3 —Residential/Agricultural Development." The "Approvals" (including the Second Amended Map and this Agreement) contain the restrictions, limitations and parameters for the development of the Property and, collectively, constitute the approved CD-PUD Plan for the Property. 2. Uses. The Property is approved for all uses allowed in the CD-PUD, Option 3 zone district — specifically including, but not limited to, one (1) or two (2) single-family residential dwelling units, two (2) attached or detached Caretaker Dwelling Units, and agricultural buildings and structures. Additionally, the Property received special review approval for use for horse boarding and wind power generation, and an additional special review approval has since been granted for development of a Ranch Manager's residence. All wind power facilities shall remain subject to Site Plan Review. Only one horse breeder shall board up to a maximum of thirty-five (35) horses at the Property at any given time. Horse boarding facilities will not be open to the public and the horse boarder shall not run or otherwise operate any commercial horse riding operations from the Property such as commercial -7- pack trips or horse riding lessons to the public. Horse grazing shall be limited to the pasture areas and horses shall not graze within one hundred feet (100') of the high water line of any creek. Vehicle trips related to the horse boarding operation shall not exceed ten (10) visitor trips per day (one visitor trip is defined as one automobile arrival or departure). 3. Development Envelopes/Second Amended Map. The Second Amended Map includes three primary Activity Envelopes, such that: "Activity Envelope (1)" is the primary envelope for residential structures and associated improvements, and can also accommodate agricultural buildings; "Activity Envelope (2)" can accommodate agricultural buildings and associated improvements, and includes the historic cabins; and "Activity Envelope (3)" can accommodate agricultural buildings, the Ranch Manager's residence, and associated improvements. All of Activity Envelope (3) plus some of the area surrounding it on the north, west and south, as shown on the Second Amended Map, is also a temporary spoils envelope that shall be reclaimed/restored after completion of all construction on the Property. The Second Amended Map also includes three (3) Pond/Landscape Activity Envelopes, as well as several Utility Corridor Envelopes. 4. GMQS Exemptions. The Approvals include growth management quota system exemptions for: (1) One (1) or two (2) principal single-family dwelling unit(s) with a total floor area of 13,250 square feet; if Owner chooses to construct two (2) principal single- family dwelling units, no individual unit can contain more than eleven thousand five hundred (11,500) square feet of floor area; 3,250 square feet of the total floor area can only be used for below grade space (which below grade space may be partially exposed or include walk-out space), covered walkways, porticos, garages, and extended eave overhangs, to the extent that such areas would not otherwise be considered "exempt" floor area under the terms of the applicable Code provisions; notwithstanding anything herein to the contrary, whether Owner elects to develop one (1) or two (2) single-family residences with the 13,250 square feet of floor area, the larger residence is permitted 8,250 square feet of above-grade floor area. (2) Two (2) caretaker dwelling units, each with a maximum of 1,000 net livable square feet (in addition to the final maximum floor area for the principal structures) unless Owner chooses to eliminate the right for one such caretaker dwelling unit in exchange for an addition to the ranch manager's residence, as explained in (6)below; (3) 25,682 square feet of exempt floor area for agricultural buildings where such exempt agricultural floor area is inclusive of but not limited to the equipment barn that has been built and the yet-to-be-developed Shop Barn, both as described in Recital "J," above; provided however that horse/livestock run-in or loafing sheds shall count as barn floor area to the extent required by the Pitkin County Land Use Code, as may be amended from time to time, but may be located in the pastures and outside of the Activity Envelopes; -8- (4) 3,000 square feet of floor area for special review uses, of which 771 square feet is utilized by the historic Swearingen Homestead guest cabin and 2,229 square feet is utilized by the ranch manager's residence; (5) 210 square feet of floor area for the historic picnic house/hunting cabin; (6) At Owner's discretion, approval to expand the ranch manager's residence to a total area of not more than 3,000 square feet of floor area; should Owner choose to do so, Owner has the discretion to account for the historic guest cabin's 771 square feet by choosing to either: (1) deduct the floor area of the addition to the ranch manager's residence (up to 771 square feet) from the allowable floor area available for the principal single-family dwelling unit(s), or (2) deed restrict the historic guest cabin as one of the allowed caretaker dwelling units. If the cabin is deed restricted as a caretaker dwelling unit, then the previous guest cabin restrictions (Condition #4 of Resolution 069-2012) shall be eliminated and the cabin may thereafter only be used in a manner consistent with the terms of the caretaker dwelling unit deed restriction. For the purposes hereof, "floor area" shall be measured as set forth on Exhibit "E", attached hereto and incorporated herein by this reference. 5. Site Plan Review. Prior to submission of an application for a building permit for a principal residence(s) or other development permit applications for development other than the driveway, the ranch manager's residence, the existing Equipment Barn, or the approved Shop Barn, Owner is required to submit for approval an application for Site Plan Review, pursuant to Sections 2-30-20 and 7-10-50 of the County Land Use Code. With the Site Plan Review application for the principal residence(s), Owner shall demonstrate how 3,250 square feet of the floor area is being used for below grade space (which below grade space may be partially exposed or include walk-out space), covered walkways, porticos, garages, and/or extended eave overhangs, to the extent that such areas would not otherwise be considered "exempt" floor area under the terms of the applicable Code provisions, and how such spaces will lessen visual impact and will minimize the service demands generated by the residence(s). C. No Subdivision Covenant. The Owner hereby restricts the Property in perpetuity against any future subdivision, partition, condominiumization, division or any other event that would create another lot, parcel, unit, or other division of land or interest out of the Property. This restriction includes the creation of parcels that are 35 acres or larger pursuant C.R.S. § 30-28-101, or its successor or its amendment. The Approvals allow the construction of multiple dwelling units, and this restriction precludes any portion of the Property, including such dwelling units, from being held in separate ownership. Title to all portions of the Property shall be held in one ownership. D. Historic Preservation Covenant. 1. Stabilization and Restoration. Owner agreed to assume the total costs of stabilization and -9- restoration of the Cabins, in a manner that complied with the Pitkin County Preservation Handbook for Historic Properties dated August 27, 2008 ("Handbook") as the same may be amended from time to time and as interpreted by the Pitkin County Historic Preservation Officer, so as to preserve the architectural, historical, archaeological, cultural, and/or engineering integrity of the Cabins and their features, materials, appearance, and workmanship in order to protect and enhance those significant characteristics which qualify it for historic preservation treatment. The County's Historic Preservation Officer ("HPO") approved a plan for stabilization and restoration of the Cabins. Stabilization and restoration of the cabins has been completed and certificates of occupancy for both cabins have been duly issued, thereby fully satisfying Owner's obligations hereunder. 2. Exclusion. Owner agrees that the County in no way assumes any obligation whatsoever for stabilizing, restoring, maintaining, repairing or administering the Cabins. 3. Alterations. Owner agrees that no significant alterations that were not contemplated in the approved plans shall be made to the exterior of the Cabins without the approval of the County HPO. 4. Allowed Use. Resolution 067-2012 clarified the allowed use of the Cabins. The larger cabin, along with a small addition thereto, was restored as a dwelling unit and may be used as a guest cabin, subject to the restrictions enumerated in Paragraph 4 of Resolution 067-2012. The smaller cabin was restored as a picnic house/hunting cabin, which includes a toilet room but no kitchen. 5. Standards for Review. Review and approval of any future construction, alteration, rehabilitation or relocation of the Cabins shall be by the County's HPO in accordance with the requirements and standards of the Handbook. 6. Public Purpose. Owner agrees that all changes made for the stabilization and restoration of the Cabins shall be in the spirit of contributing to the public purpose of protecting and preserving the Cabins. 7. Continuation. In the event that any component part or parts of the Cabins are destroyed or substantially damaged through no willful action or negligence of the Owner, and only if it is jointly determined by Owner and the County HPO that the affected structure(s) or feature(s) are to be preserved and not removed, all obligations contained in this Historic Preservation Covenant shall continue unabated. In the event that any Cabin is damaged or destroyed through the willful action or negligence of Owner, the County may initiate such administrative or judicial actions as it deems to be legally available and appropriate. 8. Reserved Rights of Owner. Owner shall have all rights to utilize the Cabins not specifically limited or restricted by this Historic Preservation Covenant. Notwithstanding the preceding sentence, Owner shall take no action that is materially detrimental to the purposes of this Historic Preservation Covenant or in contravention of applicable Pitkin County Land Use Regulations. -10- E. Agricultural Buildings Covenant. 1. Covenant. The Property will contain agricultural buildings limited to a cumulative maximum of 25,682 square feet of exempt floor area. This exempt floor area may be contained within one or a combination of more structures and, except as otherwise specifically provided, the agricultural building(s) will be located within Activity Envelopes (1), (2) and/or (3), as such are shown on the Second Amended Map. For the purposes of this Agreement, the approved agricultural buildings and all appurtenances and fixtures associated therewith shall hereinafter be referred to as the "Agricultural Building(s)." The Owner has received special review approval for the construction of the Ranch Manager's residence within Activity Envelope #3, and such Ranch Manager's residence is not subject to this Covenant or considered a part of such exempt floor area. 2. Uses. The use and occupancy of the Agricultural Building(s) shall henceforth be limited to the sheltering or enclosing of livestock, horses, poultry, feed or equipment, or to grow trees, shrubs, flowers or vegetable plants, or for additional purposes allowed under applicable current codes. 3. Inspections. Not more than once per year after issuance of a certificate of occupancy for a given barn structure, representatives of the County shall be entitled to enter upon the Property, at reasonable times and upon at least 48 hours' advance notice to the Owner of the Property pursuant to Section F.3 below, in order to inspect the Agricultural Building(s) for the sole purpose of determining compliance with the terms and conditions of this Covenant. 4. Removal. If the Agricultural Building(s) or any portion of the Agricultural Building(s) are not utilized in a manner consistent with the foregoing, the area must be either removed or restored to an appropriate agricultural use. F. Miscellaneous. 1. Binding on Successors to Owner; Enforcement; Attorneys' Fees. This Agreement shall be a binding servitude, shall run with the land and shall be binding upon Owner, its successors, transferees, and assigns, in perpetuity, unless terminated by the terms of this Agreement or by voluntary relinquishment by the County. It is explicitly agreed by the parties hereto that this Agreement shall be enforceable in the courts of the State of Colorado; and that in the event an action to enforce this Agreement is brought, that the party or parties which substantially prevail in any such enforcement action shall be entitled to recover from the non-prevailing party the full cost of such action (including reasonable attorneys' fees and costs). The parties may enforce the terms of this Agreement through actions for damages or injunctive relief or both. 2. Exercise of Rights; and Right to Cure. Failure of either party to exercise any right or remedy granted under this Agreement shall not be a waiver of any breach of this Agreement or rights or remedies to enforce the Agreement; provided, however, after -11- notice of a violation, if the County fails to enforce a provision of this Agreement for three years it waives its right to do so. In the event of any default under the provisions of this Agreement, the non-defaulting party shall, prior to the exercise of any right or remedy, give the party alleged to be in default written notice of such default together with right for a period of thirty days after receipt of such notice to cure said default. If an alleged default by its nature or because of weather is not capable of being cured within the time provided, the party alleged to be in default shall, provided such party is proceeding with all due diligence, have up to an additional sixty days to cure said default (or sixty days after weather permits cure). If a default is not cured within the time provided or any extension thereof, the non-defaulting party shall then and thereafter be free to pursue any right or remedy allowed by this Agreement or otherwise by law. 3. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be hand-delivered or sent by registered or certified regular mail, postage pre- paid and via e-mail (electronic delivery) to the mailing and e-mail addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. To Grantor: Deadwood Ranch I, LLC c/o Chris LaCroix, Garfield& Hecht 625 E. Hyman Ave.,Unit 201 Aspen, CO 81611 clacroix@garfieldhecht.com To County: Pitkin County Manager 123 Emma Road, Suite 106 Basalt, CO 81621 Jon.Peacock@pitkincounty.com With Copies To: Pitkin County Attorney 123 Emma Road, Suite 204 Basalt, CO 81621 attorney@pitkincounty.com 4. Severability. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law; but if any provision of any of the foregoing shall be invalid or prohibited under said applicable law, such provisions shall be ineffective to the extent of such invalidity or prohibition without invaliding the remaining provisions of such document. 5. Choice of Law. This Agreement and each and every related document are to be governed and construed in accordance with the laws of the State of Colorado. 6. Successors. Except as otherwise provided herein, the provisions and covenants contained -12- herein shall inure to and be binding upon the heirs, successors, and assigns of the parties. 7. Section Headings. Paragraph or section headings within this Agreement are inserted solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. 8. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement and except as specifically provided herein. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition. 9. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 10. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agreement or document relating hereto or entered into in connection herewith. 11. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Pitkin County Records. EXHIBITS: Exhibit"A" - Legal Description of Deadwood I Parcel Exhibit"B" - Legal Description of Deadwood II Parcel Exhibit"C" - Legal Description of Merged Deadwood I Parcel and Deadwood II Parcel Exhibit"D"—Cabin Photos Exhibit"E"—Floor Area Calculation Methodology -13- IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and year first written above. THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By George Newman, Chairperson STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 2017, by George Newman as Chairperson of the Pitkin County Board of County Commissioners. Witness my hand and official seal. My commission expires: Notary Public [Owner Signature Page Follows] -14- IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and year first written above. OWNER: DEADWOOD RANCH I,LLC, a Florida limited liability company By: Jerrold S. Parker, its Manager STATE OF ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2017, by Jerrold S. Parker, as Manager of Deadwood Ranch I, LLC, a Florida limited liability company. Witness my hand and official seal. My commission expires: Notary Public -15-