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HomeMy WebLinkAbout1.0 ApplicationITLDF B 0 1 202 APPLICATION BEFORE THE GARFIELD COUNTY BOARD OF COUNTY COMMISSIONERS TO AMEND THE SUBDIVISION EXEMPTION PLAT OF PREHM RANCH Applicant: Marlin (Colorado), Ltd. c/o Neiley & Alder 201 North Mill Street, Suite 102 Aspen, Colorado 81611 Real Property: The Preserve at Prehm Ranch, County of Garfield, State of Colorado, Representative: Richard Y. Neiley, Jr., No. 9878 Neiley & Alder 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 • • APPLICATION BEFORE THE GARFIELD COUNTY BOARD OF COUNTY COMMISSIONERS TO AMEND THE SUBDIVISION EXEMPTION PLAT OF PREHM RANCH This Application is submitted on behalf of Marlin (Colorado), Ltd. ("Marlin"). In this Application, the Applicant seeks to amend the Prehm Ranch Exemption Plat recorded in the real estate records of Garfield County on June 13, 2001, as Reception No. 582501 and the First Amended Prehm Ranch Exemption Plat recorded in the real estate records of Garfield County on August 30, 2001, as Reception No. 587388. The Prehm Ranch Exemption Plat was approved by the Garfield County Board of County Commissioners pursuant to Resolution No. 2001-37. That Plat depicts the Subdivision Exemption for the Prehm Ranch which established three (3) lots of approximately four (4) acres each and a Remaining Prehm Ranch Parcel of approximately one hundred seventy-nine (179) acres. The First Amended Prehm Ranch Exemption Plat was approved for the purpose of adjusting the boundaries and reconfiguring Exemption Lots 2 and 3 so as to establish the location of a river cabin and an individual sewage disposal system in conjunction therewith. The Exemption Plat depicted a twenty-five (25) foot private access easement connect- ing each of the Lots and the Remaining Prehm Ranch Parcel to County Road 163 to the north of the Ranch as required by Garfield County Subdivision Regulations, § 8:51C. Neither the Prehm Ranch Exemption Plat nor the First Amended Prehm Ranch Exemption Plat expressly identify a south access from Prehm Ranch connecting to Oak Lane within the Westbank Ranch Subdivision. Garfield County has advised the Applicant that the Exemption Plat must be amended to reflect the establishment of an access through Lot 22, Westbank Ranch Subdivision, Filing No. 1. This Application is submitted in conjunction with the following: 1. Joint Application before the Garfield County Board of County Commissioners to Amend the Plat of Westbank Ranch Planned Development Subdivision, Filing No. 1; 2. Joint Petition before the Garfield County Board of County Commissioners to Vacate Public Roadway; 3. Marlin's Application for Driveway Permit between Prehm Ranch and Oak Lane. This Application is submitted as part of a resolution of disputed issues involving the Applicant, Westbank Ranch Homeowners Association and Garfield County related to the existing private access driveway which was constructed by Marlin without the consent of the Westbank Ranch HOA or Garfield County and without permits. Granting this Application will resolve those disputed issues. Appended to the Joint Application to Amend the Plat of Westbank Ranch Planned Development Subdivision is an Access Easement Agreement which will, when executed, constitute an agreement of all property owners and the Westbank Ranch Homeowners Association to the establishment of the Oak Lane access. 1 • • This Application is submitted for the purpose of conforming the Prehm Ranch Subdivision Exemption Plat with the other applications submitted to Garfield County as identified above. Appended to this Application is a draft Second Amended Prehm Ranch Exemption Plat, which the Applicant respectfully requests that the Board of County Commissioners approve, execute and authorize for recordation in the real estate records of Garfield County. RESPECTFULLY SUBMITTED this 1st day of February, 2002. NEILALDER By Richard Y. Neiley, Jr., No. 9878 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Attorneys for Marlin (Colorado), Ltd. 2 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Fax (970) 925-9396 HAND DELIVERY • NEILEY & ALDER ATTORNEYS Richard Y. Neiley, Jr. Eugene M. Alder July 16, 2001 Mr. Mark Bean Garfield County Community Development 109 Eighth Street, Suite 303 Glenwood Springs, CO 81601 Dear Mark: 6800 Highway 82, Suite 1, Upper Level Glenwood Springs, Colorado 81601 (970) 928-9393 Fax (970) 928-9399 Re: Prehm Ranch Subdivision Exemption -- First Amended Plat Enclosed herewith you will find the following: 1. Ten copies of the Joint Application Before the Garfield County Board of County Commissioners to Amend the Plat of Westbank Ranch Planned Development Subdivision, Filing No. 1, along with our check in the amount of $140.00 for the filing fee; 2. Ten copies of the Application before the Garfield County Board of County Commissioners to Amend the Subdivision Exemption Plat of Prehm Ranch, along with our check in the amount of $140.00 for the filing fee. I believe these applications satisfy the requirements of the Subdivision Regulations. However, please let me know if you find anything missing, and we will promptly supplement the applications. As you are aware, these applications will be heard together before the Board of County Commissioners at a public hearing. Because of scheduling conflicts of which I am presently aware, we would request that the public hearing be set after March 21, 2002. Please feel free to call with any comments or questions. Thank you for your attention to this matter. truly yours, N I„EY & ALDER ichard Y. Neiley, Jr. RYN/agk Enclosures cc: Don DeFord, Esquire Steve Beattie, Esquire Hal Dishler, Esquire JAN -25-02 FRI 05:02 PM Neiley & Alder FAX NO. 9704925+9396 P. 02/07 1)[STIUUCT COURT, UARPIC[.I) COUNTY, COLORADO Court Address: 109 Eighth Street, Cilcnwood Springs, Colorado 81601, (970) 945-5075; (970) 935-8756 (fax) BOARD 01' COUNTY COMMISSIONERS OF OAR MELD COUNTY, STAT:, OF COLORADO, !lain tiff, MARLIN (COLORADO), LTD., a Colorado corporation; A LPIN1± BANK, a Colorado banking corporation; and LYNNE S_ CANT RLL[, u/k/a LYNN S. CANTRLLI., Dorendants. and WLSTBANK12ANCr1 HOMEOWNERS ASSOCIATION, n Colorado nonprofit corporation, Plaintiff, MARLIN (COLORADO), LTD., a Colorado corporation, fold LYNNE S. CANTRELL,1)cfendants. Attorney: Richard Y. Ncilcy, Jr. Nciley & Alder 201 North Milt Stroct, Stlite 102 Aspen, Colorado 81611 Telephone No.: (970) 9259393 Fax No.: (970) 92S-9396 E-mail; oae,n),11V @map Cf Atty. Rcg. /I: 9878 A COURT USE ONLY A Case Number: 01 CV 207 Case Number: 01 CV 208 Div: A Courtroom STIPULATION OF SETTLEMIrNT The parties, by and trough their respective counsel of record, hereby stipulate to the complete settlement of all issues, claims and counterclaims set forth in this litigation, or which could have been at forth herein, upon the following terms and conditions: I. TERMS OP s1 rruimENT 1, Wesibnnk, on one hand, And Marlin and Cantrell, on the other hand, have reachod al;rcemcnt tipon an Access Easement Agroornent providing limited accost between Prelim Ranch and the public right-of-way known as Oak Lane (County Road 70). A copy of the Access Easement Agreement is appended hereto. The Access E.;ascment Agreement caunot and will not be effective T0'd 62:LT ZOOZ SZ Uer 1 SOOS-b82-02_6:XPJ 26'7-v) Mid 00 013Id&d9 JAN -25-02 FRI 05:02 PM Neiley & Alder i)i57'R1Cr COURT, OAR NEW COUNTY, COLORADO Cow NuR,0) CV 207-Aand 01 CV 208 - A S I'IP11t,ATl4N 01:SETTLEMENT FAX NO, 970+925+9396 P. 03/07 unless nrid until Garfield County has reviewed and granted the land use approvals described herein. Upon the isstlaue° of such approvals, fire execution and recordation of any and all resolutions, plats .incl agreements necessary in connection therewith, the Access Easement Agreement shall be executed by the parties and recorded in the real estate records of Garfield County. Marlin, Ca ntrr)11 and Wcstbank agree that Exhibit "W' to tho Access Easement Agreement must be modified to properly label tho elements of (haL Exhibit to conform to the Agroement including specific designations of the Prelim Ranch Road, Lot g Driveway, Lot 22 Driveway, the Driveway Arca, the Access Easement Area, ltnd the Wostbank/Oak Lane Easement Area. The revised Exhibit "B" shall Iv prepared at Marlexpense on or before February 1, 2002. 1 Marlin and Cantrell shall prepare area submit to Garfield Comity at Marlin's expense It joint application with Westbank to vacate the platted 60 -foot road easement currently depleted across Lots 22 and 23 of Filing No.1, Wcstbank Ranch Planned Development Subdivision, AA recorded on January 20, 1971, as Rocoption No, 248729, and in conjunction therewith, to amend the Wcstbank Plat to the extent necessary to replace thc current platted road easement with the limited use access driveway desoribcd in the Access basement Agreement and to depict tho Greenbelt/Open Space Parcel to be convoyed to Westbank by Marlin. This application shall be submitted on or before February 1, 2002, with the participation and cooperation of Wostbank. 3. Marlin shalt prepare and submit to Garfield County at its expense an application to amend the Prchnt Ranch Exemption Plat as original lyrocorded on July 13, 2001, as Reception No. 582501, and tate First Amended Prelim Ranch Exemption Plat recorded on August 30, 2001, as Reception No. 587388, to depict the access between the exemption lots shown thereon, the rctitainircg l'rchnt Ranoh property and the aecoss connection to Oak Lane, This application shall bo submitted on or before February 1, 2002. 4. Marlin shall prepare and submit to Garfield County at its expense *int petition with Wcstbank to vacate any and all public rights -or -way or claims of public rights-ofway within Prclun Ranch and WosIbtlnk Ranch, except platted roads within the subdivision, Tho exception to vacating shall he limited to platted roads within Westbank subdivision, namely, Wcstbank Road, Oak Lane, Fairway Lane and Meadow Lame. This application shall be submitted on or before 1'cbora y 1, 2002. 5. The petition to vacate tho public rights-of-way or claims of public rights -o1 wary shall include all County rights under (1) the tlnrdwick/McMillan/Chapman deeds, (2) the '1902 Rosenberg Plat., (3) tho M idland Railroad right -o f -way, and (a) the lato 1880's Road Viewer's Report rc`arding a road from the roar Mile Creek area. 6. Marlin and Cantrell shall prepare and submit to Garfield County at Marlin's expanse an access application For thc Umited1 uses described in the Access Easement Agreement, On December 28, 2001, Marlin submitted thc information necessary for the preparation of an Application for Driveway Permit to the Garfield County Road and l3ridgoDnpartmout, On January 21, 2002, represent olives o f Marlin met with representatives of thc Road and Bri dgo Department on site to rtvicw the Driveway Permit Application. The Road and Bridge Department shall prtparc the actuai application form for execution by Marlin as promptly as reasonably possible, whereupon Marlin shall review the application form, promptly make any necessary corrections, provide any additional information required by talc Road and Bridge Department, execute the Application, file ZO OOZ SZ UPI 2 SODS-1782-06:xed )lad 00 Q13ldeld9 JAN -25-02 FRI 05:03 PM Neiley & Alder DISTRIr:1' COURT, QAkt'1L+LD COUNTY, COLORADO (:aare Nog. 01 CV 207 - A nod 01 CV 208 - A &Et1'ULAT!ON OF SETT LEMENT FAX NO. 970+925+9396 P, 04/07 the Application with Garfield County, and pay all fees associated with thc Application. The Application shall not be granted prior to the granting of approval of tho other land use applications addressed herein, 7. Tho expenses to !mincers:41 by Marlin in preparing and submitting the application to mind the Prelim Ranch Exemption Plat, the application to amend the Wcstbank Ranch Platt and the petition to vacate shall include any necessary surveying, engineering, application foes or out-of- pocket expenses other than other parties` separate costs and attorneys' fees. 8. Promptly following execution of this Stipulation and the submission of the Applications for Amendment and Petition to Vacate described above, Cantrell, as thc owner of Westbank Ranch Lot 22, shall apply to Wcstbank for a variance in order to implement the Access I?ltscntent Agrcotatent sudor Wcstbank's Protective Covenants. 9. Upon mho granting of approval of the land use applications, driveway permit application, tho Wcstbank Ranch variance application and tho preparation, execution and recordation °full resolutions associated therewith, at the time of execution of mho Access Casement Agreement, Marlin shnli pay Westbank Rauch llorncowners Association $50,000.00 as a settlement payment. 10. Upon the granting of approval of the laud use applications, driveway permiit application and the Wcstbank Randa variance application and the proparation, execution and recordaationofall resolutions associated there.with,tho executionoftheAccessEasementAgreement, rind tho adoption of a Resolution grunting the position to vacate public right-of-way, Merlin shall waive and relinquish all of its claims to unlimited access from Oak Lane to Prelim Ranch, across Wcstbank Ranch, Lot 23 or otherwise, and shall waive alt claims to rights ofprescriptive and historic access between Prchm Ranch and Oak Lane. To the extent noeessaryto ful fill this obligation, Marlin shaa11 deliver to the owners of Weslbcuik Ranch Lot 23 a Qui (claim Deed with respoct to such histone or prescriptive rights. 11. '1'o the extent nocessary to reflect tho terms and conditions of the Access Earsentent Agreement and mho amondrnont to the Prchm Ttanch Exemption Plat, the Declaration of Covenants, Conditions and Restrictions for the Prohm Ranch Exemption and for The Preserve at Pi 'Jon Raah 6hal1 be amended at Marlin's expense. 12. Upon thea finalization andgranting ofall approvals and petitions described above and tho execution or MI necessary documents, agreements, resolutions and tho performance of this Stipulation of Settlement by the panics, Marlin shall convey to Westbank, subject to rostrietions, encumbrances and reservations of record, the GrcenbcltlOpen Space Parcel and the Driveway Arca ascribed in the Access Easement Agreement. 11. Sl'fl"1'LE114EN i' PROCE1)URUS 1. Finalization of this settlement is expressly conditioned upon Garfield County approving the necessary permits and amendments to plats described above and vacating any interest it may claim in roads through Prehni Ranch and Wcstbank Ranch oxcept platted roads depicted on the Plats of tho Wcstbank Ranch Subdivision. 20'd 62: 2.1 ZOOZ SZ Uef 3 SODS -V82 -O2.6: Xed MAU 00 U13Id2139 JAN -25-02 PRI 05!03 PM Neiley & Alder 1)1STRIC:r CC)URT, QARFILI.i) COUNTY, COLORADO Corr Non. 01 CV 207 - A mid 01 CV 208 - A S'111'Ut,AT(t)I1 O1' 8E'r'rI,EM P.NT FAX NO. 970+925+9396 P. 05/07 2. The parties acknowledge that it will be necessary to submit the Applications for Amendment to talo Prehr Ranch Exemption Plat, the Westbank Ranch Subdivision Plat, the access application, and the Petition to Vacate to Garfield County, which applications and petition shall bo subject to Garfield County's public hearing process. Garfield County cannot warrant or represent any specific outcome from the public Roaring process other than the Commitment that the process will provide a fair forum to all parties and members of the public. 3. In tho event ofa failure to complete the settlement doscribed h rcin, the parties acknowledge and agree that they shall be entitled to proceed with the Motions for Preliminary Injunction and to set a hearing in connection therewith, which hearing shall be deemed a consolidated heariti . 4. In the event Garfield County does not approve the land use applications submitted ns described above, denies the petition to vacate public roads, denies Marlin's and Cantrell's access application, or imposes conditions upon .approval of such applications which are not acceptable to Marlin, Cantrell or Wcstbniik, any of those parties may provide notice to the others of failure of settlement. Such notice shall be provided within sixty (60) days of the denial, disapproval or imposition of unacceptable conditions, Upon issuance of such notico, including the filing ofa copy thereofwiih the Court, the parties shall cooperate in the setting ofa status conference, at which conference the Court shall be advisod of the failuro of the settlement and the need to schedule a hearing aring on the Plaintiffs' Motions for Preliminary Injunction and to establish a new Case Management Order and other procedures as required by the Colorful() Rules of Civil Procedure and the Court. 5. in the event Wostbank docs not approve the Cantrell Variance Application, or imposes conditions in connection therewith which aro not acceptable to Cantrell, she may provide notice to the other parties of failure of settlement. Such notice shall be provided within sixty (60) days of such denial, disapproval or imposition of -unacceptable conditions. Upon issuance of such 110lice, including the filing ofa copy thereof with the Court, tho parties shall cooperate in the setting ofa status conference, at which conference the Court shall be advised of the failure of the settlement tantl the need to schedule a hearing on tlrc) Plaintiffs' Motions for Preliminary Injunction and to estal,lialt a new Case Management Order and other procedures as required by the Colorado Rules of Civil Procedure and the Court. 6. In the event Wcstbank, Marlin and Cantrell fail to roach final agreement regarding tho installation of the equipment to bo used to control access and record the use of tho access under the Access 'Easement Agreement on or before tho latest date upon which Garfield County's review and approval oftho land use applications and petition to vacuo has become final, if such approvals aro granted at all, any of those parties may provide notice of failure of settlement, in which event the pr& cedure,s set forth above shall apply, 7. In the event ofa failuro of the settlement, the Defendants shall have twenty (20) clays from the ;satin lice of notice of such failuro to filo theft responsive pleadings, including their Answers, AIli rum tivo Defenses, Counterclaims and such ot her responses or claims, including third party claims as they may deem appropriate. Nothing contained herein shall be doomed a resolution. waiver, extinguishment, or release of any claim or cause of action against any party except as 4 170'd OV:2J ZOOZ SZ uPC SOOS-t782-06: XPJ Alli 00 Q73IJelU9 AN -25-02 FRI 06 03 PM Neiley & Alder FAX NO. 970+925+9396 JAN -25-2.002 FRI 05:47 PM14BEATTIE AND CHADWICK 970 ,, 8671 JAN -25-02 FRI 06:04 PM N.1?., R A l dor FAX N0. 970+925+9398 UtfiTltt('f COURT, O,1RCOUNT Y, COLcTto Caw Nos. 01 Cel 207 • h And 01 CV 706 - A iNit Av1ON npR}r1`I'I,13MFN7' P. 07 P. 01 P. 08/07 tawri s'ty set forth heroin and that only upon the final and complete porfomlancc and satisfaction titan cifthe lbrrtt,c and conditions of this Stipulation ofSeltlen,ent. Lir. WAIVER AND IRfLGASB 1 • Upon obtaining lho nccoAsaty approvals and finalizing all stops requited by this Slipullnfion of Settlement, each party shall waive and relinquish all claims apaine! tho others and Ihoir mdmhurx and Npresentatives,inehl ling all claims for injunctive rc1tof, all claims for damugcrt, ,,il claims for iitlorfort nee with conflict 1111 claims related to alleged violations of olvl I rights, n11 claims for aitornoya' faoa and costa, and All olbcv claims of whatever nature whatsoever. 2. T`ht wraivcra and reloatsea nong the poetics shall be daoniecl to conartilute e r:ott�pl cic and ernnptchoneivo rosolutloti e fall claims and counterdaiuti among thcparlica which are sot forth in this litiTlalion, or which could have been act forth herein, and which shall be deemed to cltcumpnss tiro purl Ica; tho rombers of rho Garfield County Board of County Commis.t{onort; the nMeal, (Ilrllcltrrs turd tgit'atientativtsort}tc Wcstbrmk Ranch!lolnoownersAssociation; theollloors, dineciot>y and rcprcaentuLions of Marlin (Colorado), Ltd. and the Prehm Ranch Owners AssocigION Inc.; Cantrell; and all of awls agents, succose res and saelvs. 3, Upon completion oral) nfthc partite reapocdvo obligation under this Stipulation of Sotticinent, thn nni'Llication and ucooprattoo of the approvals and the yr�c�ntU:tini 1140 upprovale dottoribcd horoin, the payl•nont of tho scltiemisrnt fbo j'oni cithnnk, the cxaoulion cool rucc�rdatton or tl'o Acccse Ease n fl n_ cnt, and the full pc t fulrnancc of all a/the panic: in conduction with the. Stipulation ofSettletnont, the parries ehnll prvporc and execute a Motion to Dismiss with Prejudice, which shall rooito that the parties have enhiovigl hell settlement of this litigation, that they havo walvod and rclet.ard ono artothor from all clnitw and causes of action eel forth herein or which could havo boon set forth heroin, and that they stipltlato to the, dismissal of this action, with prejudice. 4.&coin as oxpreealy set forth Lore in or in any Separate written agreement balwcon ii,o individual partied, nil of the parties shall bent all of their own conte and attorneys' feta lncuntod in cotmtx,,tiutt with this IitiKation turd the pQrfohmunee of tho obligations hereunder. d:1ATM) dnyof fL,VTT l3 .,j HAUW1C_.' t3y, St . Cleaitjo, No. 62119 710 aper Monne, Sotto 200 Glonwood Springs, CO 81601 (970) 945-8659 Ati4h'ar,yr for Plaintiff Westbtank Rana, 1loni<ownors Association, Inc. SO 'd 0G; .t: Z00Z S Lief Jcis. Gt,)v 1_, 2002 OARFIBLD COUNTY By C3arfield County Attorney 109 Eighth Strout, Sttitc 300 Glenwood Springs, CO o 1;, (970) 945-9150 Attorney for Plaintiff Dowd of County Comrniuioncra for Garfield County S SOS -178£-,0L6; x2 J Allti 00 t 13I.i& O JAN. 28. 20021(4:_1.1 PM AM KAUFMAN & PETERSON [)15TR(CI' COURT, OAR FIELD COUNTY, COI.OI ADO Nm. 01 CV 207 - A and 01 CV 208 • A NT11'IJLA'1'ION OI �S1 TT1.f:MINT NEIL ALDER RiL lard Y. Nciley, Jr., No. 9878 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Attorneys for Defendant Marlin (Colorado), Ltd, 6 FAX NO. 970+926+939 O' 2 716 P. 2�2 09/19 KAUFMAN & PETERSON. P.C. By Hal S. Dishier, No, 12241 315 East Hyman Avenue, Suite 305 Aspen, Colorado 81611 (970) 925-8166 Attorneys for Mondani Lynne S. Cantrell ACCESS EASEMENT AGREEMENT THIS AGREEMENT is made this day of , 2002, by and among MARLIN (COLORADO), LTD. ("Marlin"), whose address is c/o Carl B. Linnecke, CPA, 215 South Monarch Street, Aspen, Colorado 81611, LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL ("Cantrell"), whose address is P. O. Box 2104, Basalt, Colorado 81621, the PREHM RANCH OWNERS ASSOCIATION, INC. ("Prehm Ranch HOA"), whose address is c/o Neiley & Alder, 201 North Mill Street, Suite 102, Aspen, Colorado 81611, and the WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. ("Westbank Ranch HOA"), whose address is P. O. Box 2703, Glenwood Springs, Colorado 81602. WHEREAS, Marlin is a Colorado corporation which is the owner of that certain real property located in Garfield County, Colorado, known as Lots 1, 2, 4, 5, 6, 7 and 8, The Preserve At Prehm Ranch, as more fully described in the legal description appended hereto as Exhibit "A" (the "Prehm Ranch"); and WHEREAS, Cantrell is the owner of Lot 22, Filing No. 1, Westbank Ranch Subdivision, County of Garfield, State of Colorado, located adjacent to the Prehm Ranch at the east boundary thereof ("Lot 22"); and WHEREAS, the Prehm Ranch HOA is a Colorado not for profit corporation established for the purpose of, among other things, administering the common interests of all owners of lots within Prehm Ranch, including the care and maintenance of common roads; and WHEREAS, the Westbank Ranch HOA is a Colorado not for profit corporation established for the purpose of, among other things, administering the common interests of all owners of lots within the Westbank Ranch Subdivision, Filings 1, 2 and 3 ("Westbank Ranch"); and WHEREAS, the Plat of Westbank Ranch Planned Development Subdivision, Filing No. 1, as originally recorded on November 27, 1970, as Reception No. 248729, depicted a "road easement" traversing Lot 22 and Lot 23 of Westbank Ranch, Filing No. 1, between the end of the county road identified as "Oak Lane" and the east boundary of Prehm Ranch; and WHEREAS, the Plat of Westbank Ranch Planned Development Subdivision, Filing No. 1 was amended to delete and remove the "road easement" traversing Lot 22 and Lot 23 of Westbank Ranch, Filing 1, to reflect thereon the creation of the Access Easement and Driveway Easement described herein, to create a "Greenbelt/Open Space Parcel" for the benefit of Westbank Ranch HOA, and to include in the Greenbelt/Open Space Parcel all real property including and encompassed by the road and driveway to serve Prehm Ranch and Lot 22 and previously a part of Prehm Ranch, which Amended Plat was recorded on , 2002, as Reception No. ; and WHEREAS, the parties desire to set forth their various rights, interests and obligations with respect to limited access between the public road known as Oak Lane within the Westbank Ranch Subdivision and the Prehm Ranch and Lot 22 and with respect to the creation of the "Greenbelt/Open Space Parcel," all as more fully set forth herein. ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Greenbelt/Open Space Parcel. (a) Contemporaneously with the execution of this Agreement and execution and recordation of the Amended Plat of Lots 22 and 23 of Westbank Ranch Planned Development Subdivision, Filing No. 1, Marlin has conveyed and quitclaimed to the Westbank Ranch HOA a strip of land ten (10) feet in width and feet in length along the common boundary between Prehm Ranch and Westbank Ranch Planned Development Subdivision, Filing No. 1, extending the entire length of the uphill (south) common boundary between Prehm Ranch and Westbank Ranch, to the north (downhill) across the flat portion of Lot 8 in Prehm Ranch abutting Lot 22 in Westbank Ranch, terminating at the steep embankment uphill from the river's bank; and, all real property including and encompassed by the road and driveway to serve Prehm Ranch and Lot 22 and previously a part of Prehm Ranch (the "Driveway Area"), all as depicted on said Amended Plat and Exhibit "B" appended hereto and identified as the "Greenbelt/Open Space Parcel" (hereinafter the "Greenbelt"). (b) The purpose of the conveyance of the Greenbelt by Marlin to the Westbank Ranch HOA is to create an ownership interest in real property for the benefit of the Westbank Ranch HOA over which the access road into Prehm Ranch and Lot 22 traverses. (c) The Greenbelt shall at all times be maintained as a passive, undeveloped strip of land which may be used only in accordance with the terms and conditions set forth herein. Those uses are limited as follows: (1) The Greenbelt may be developed by Marlin and Cantrell with an access road between Oak Lane and Prehm Ranch with a driveway serving Lot 22, not to exceed a paved surface of fourteen (14) feet in width, with shoulders, drainage culverts and such other improvements as are reasonably necessary and incidental to the use and maintenance of said access road and landscaping with the entire width of the Access Easement across the Greenbelt not exceeding twenty (20) feet in the locations depicted on Exhibit "B." (2) Except as to the Driveway Area portion of the Greenbelt encompassing the "Access Easement" addressed hereinbelow, the Greenbelt may be utilized by the owner of Lot 8 for open space, drainage and pedestrian access between Lot 8 and the Roaring Fork River. Landscaping and fencing shall be permitted within the portion of the Greenbelt area including the Driveway Area and extending from the Driveway Area to the north. All expenses of installation of landscaping and fencing shall be the sole responsibility of Marlin, without contribution by Westbank. All expenses of continuing maintenance and repairs of the landscaping and fencing shall be the responsibility of Marlin, the Prehm Ranch HOA or Cantrell, without contribution by Westbank. Any other uses of the Greenbelt shall be prohibited, except as may be subsequently reviewed and specifically approved by Westbank. In particular, no road or access other than the road and driveway to be constructed within the Driveway Area shall ever be constructed between Westbank Ranch and Prehm Ranch, and the construction of any additional road or access shall constitute a material breach of this Agreement. No improvements shall be constructed within the Greenbelt except as permitted herein. 2 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prelim Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. (3) An unimproved access exists across the Greenbelt on the alignment depicted on Exhibit "B" for use by utility providers who have express easements, including Rocky Mountain Natural Gas Company, the Mountain States Telephone and Telegraph Company, and Holy Cross Electric Association (and their successors). No road shall ever be constructed along the utility corridor from the southeast end of the Prehm Ranch Road as shown on Exhibit "B" to the Greenbelt Area (other than uses by the utility providers pursuant to the terms of their express easements), and no party shall use the corridor for any purposes other than those utility purposes. (4) No right of access to the Greenbelt shall be deemed granted or available to Westbank Ranch property owners, other than access by the authorized and designated representatives of the Westbank Ranch HOA for purposes expressly related to monitoring the care and maintenance of the Access Easement and the control gate, inspecting, repairing and replacing the historic boundary fence along the Greenbelt, and inspecting the Greenbelt to monitor compliance with the terms of this Agreement. (5) Neither the Westbank Ranch HOA nor any property owner in Westbank Ranch shall have any right to construct any improvements upon any portion of the Greenbelt. (6) The Westbank Ranch HOA may not grant any interest in the Greenbelt to any third party. 2. Grant of Easements Across Greenbelt. (a) Prehm Ranch Access Easement. (1) The Westbank Ranch HOA hereby grants and conveys to Marlin, the owners of the eight (8) lots in Prehm Ranch, the Prehm Ranch HOA, and Cantrell, and their successors and assigns, a perpetual, exclusive Access Easement over and across the Driveway Area portion of the Greenbelt in the location depicted on Exhibit "B" and identified thereon as the "Access Easement." The Access Easement shall be twenty (20) feet in width. This grant of easement is subject to Westbank's enforcement rights as provided herein in the event of noncompliance. (2) The Access Easement shall be limited to the right of Marlin, the Prehm Ranch HOA and Cantrell to construct, maintain, repair and replace a private access road and driveway. Landscaping shall be permitted as provided in paragraph 1(c)(2) above. Underground telephone and electric service shall be permitted within the Access Easement to the extent necessary to provide service to the gate and traffic counting device addressed below. Installation of other utilities within the Access Easement shall be prohibited unless reviewed and approved in advance by Westbank, in its discretion. The Access Easement shall constitute the only access between Westbank Ranch and the Prehm Ranch for any purposes other than as provided in paragraph 1(c)(3) above. The Access Easement shall constitute the only access between Oak Lane and Lot 22 unless otherwise agreed by Westbank. (b) The Access Easement may be used as alternate primary access to Lot 8, and as secondary access to the other seven (7) lots within Prehm Ranch. The entrance at the 3 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. north end of Prehm Ranch shall be primary access for all of Prehm Ranch. Such uses shall be restricted as follows: (1) The owner of Lot 22 shall have unlimited and unrestricted access across the Access Easement for all purposes to Lot 22. No right of access to Prehm Ranch through the Access Easement is conferred upon the owner of Lot 22 by this Agreement. The owner of Lot 22 shall stand in the same position as any other member of the general public relative to such access. (2) Only owners of lots in Prehm Ranch, their accompanied guests and designated representatives of the Prehm Ranch HOA engaged in Prehm Ranch HOA business defined in paragraph 2(b)(7)(xiii) below, and emergency service providers shall be entitled to utilize the Access Easement. (3) No construction vehicles shall be permitted to use the Access Easement except related to development, maintenance, repair and replacement of improvements, landscaping and other uses on Lot 22 and the construction, maintenance and replacement of improvements within the Access Easement. (4) No service, delivery or commercial vehicles shall be permitted to use the Access Easement, except those providing services to Lot 8 and Lot 22. (5) No public access shall be permitted within the Access Easement or any portion of the Greenbelt. Marlin shall cause a sign to be posted at the entrance to the Access Easement from Oak Lane clearly establishing the private nature of the road. The appearance and content of the sign shall be subject to Westbank's review and approval, which shall not be unreasonably withheld. (6) No commercial uses shall be permitted within the Access Easement, on any of the lots within Prehm Ranch or on Lot 22. Home offices permitted under Garfield County zoning and subdivision regulations shall not be deemed prohibited commercial uses so long as there is no customer traffic across the Access Easement, no outside storage of goods or equipment related to the home office, and no other activities generally and commonly associated with commercial uses. (7) The access road connecting the Prehm Ranch to Oak Lane, traversing the Driveway Area portion of the Greenbelt within the Access Easement as depicted on Exhibit "B," shall be electronically gated at Marlin's expense along the common boundary between the Prehm Ranch and the Driveway Area portion of the Greenbelt at the location shown as "Gate & Counter" on Exhibit "B" (the "Prehm Ranch Access Gate"). Additionally, the same access road shall be separately monumented or gated at Marlin's election and expense within the first ten (10) feet of the Driveway Area portion of the Greenbelt within the Access Easement as depicted on Exhibit "B" (the "Driveway Area Access"). The Prehm Ranch Access Gate shall be kept closed when not in use. Both the Prehm Ranch Access Gate and the Driveway Area Access shall be clearly and conspicuously posted as private and shall be installed not later than May 31, 2002 (subject to availability of equipment and weather conditions). The following restrictions and conditions shall apply: 4 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. (i) The Prehm Ranch Access Gate shall be an electronic gate and vehicle counting system. The Driveway Area Access shall include, at a minimum, stone or other architectural pillars establishing the appearance of an entry, connected to fences on the north and south of the pillars, and shall not be electronically gated. (ii) A second electronic gate will be installed and maintained at Marlin's expense at the north end of Prehm Ranch at a location to be determined by Marlin in the area of the boundary of Prehm Ranch and County Road 163, which will prohibit unrestricted public access through Prehm Ranch from the north. All public traffic which may enter Prehm Ranch from the north entrance shall also exit Prehm Ranch through the north entrance, unless otherwise permitted to utilize the Access Easement by the terms of this Agreement. (iii) All traffic entering and leaving Prehm Ranch via Oak Lane will be counted mechanically or electronically at the Prehm Ranch Access Gate. Average vehicle trips per day may not exceed twenty-seven (27), averaged on a bi-monthly basis. (iv) Vehicle trips per day will be averaged bi-monthly, commencing as soon as the Prehm Ranch Access Gate and counter are installed, with traffic reports generated by computer or other reasonably acceptable means for both the Prehm Ranch HOA and the Westbank Ranch HOA and maintained as part of the Prehm Ranch HOA corporate records for at least twelve (12) months following each bi-monthly reporting/averaging period. All available vehicle trip data shall be supplied to Westbank within ten (10) days following each bi-monthly averaging period, in form and substance acceptable to Westbank, including a list of owners and the number of entry devices issued to each lot. The plans for installation of said gate shall include, and Marlin shall install at its sole expense, fencing around the entire exterior boundaries of the road and driveway within the Driveway Area portion of the Greenbelt. The fence shall be continuous from the fence along the historic Westbank Ranch/Prehm Ranch boundary at the Driveway Area Access Gate to the Prehm Ranch Access Gate, and from the fence along the historic Westbank Ranch/Prehm Ranch boundary at the east end of the Lot 22 Driveway Easement to the Prehm Ranch Access Gate, all as shown on Exhibit "B." Said fencing shall prohibit all vehicular access between Prehm Ranch and Westbank Ranch except through the Prehm Ranch Access Gate, to insure that vehicles cannot pass through without operating the counting mechanism. The type and style of fencing shall be subject to Westbank's review and approval, which shall not be unreasonably withheld. Split rail or ranch style fencing which otherwise complies with the terms of this Agreement shall be permitted. (v) The plans for installation and any future re -placement of the Prehm Ranch Access Gate and the Driveway Area Access , and related structures and the traffic counting device, will be subject to Westbank Ranch HOA's advance review and approval, which approval shall not be unreasonably withheld. To the extent of available technology, the system will be designed in such a manner that, if the traffic counting device does not operate, the gate will not open. The device shall count each vehicle trip. The Prehm Ranch Access Gate and the fence shall be designed in a manner which will prohibit access by all forms of motorized vehicles of all kinds, except through the gate. The counting mechanism gate will be designed as a substantial gate, and not merely a "traffic arm" type of gate. (vi) If requested by the Westbank Ranch HOA, prior to the installation of the permanent gate and traffic counter, and in addition, in the event of any 5 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prelim Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. malfunction of the permanent gate and/or counting system which cannot be repaired within three (3) business days, Marlin shall install a temporary traffic counting device reasonably acceptable to Westbank Ranch HOA and shall provide Westbank Ranch HOA with access to the traffic count information from such temporary system in accordance with the requirements of this Agreement. (vii) Except as to remedies which may be available in the event of breach of the terms of this Agreement by the owner of Lot 22, and except as to limitations applicable to all Westbank residents, access to Lot 22 will not be limited. (viii) As of the time of this Agreement, the parties anticipate that access shall be controlled by an electronic card system that will identify and record the date, time and lot owner each time the Prehm Ranch Access Gate is activated. The entry control system and fence shall be designed and maintained in a manner to prohibit use by unauthorized persons. "Unauthorized persons" shall include, without limitation, all persons not expressly authorized to use the Access Easement by the terms of this Agreement, and in particular, members of the general public who may attempt to utilize the Access Easement for pedestrian, bicycle or other vehicular access. (ix) Marlin and the Prehm Ranch HOA shall be responsible for all maintenance and repair of the gate and counting system and the costs thereof. In the event of malfunction, damage or required maintenance and repair to the gate and counting system, such maintenance and repair shall be conducted as promptly as reasonably possible. In the event maintenance and repairs cannot be promptly accomplished as a consequence of a lack of available service, parts or materials, or because of other conditions beyond the control of the parties, the Access Easement may continue to be utilized in accordance with the terms of this Agreement so long as the temporary counting system described above has been installed within the Access Easement, is operational and provides the parties with the required vehicle trip counts. (x) Marlin and the Prehm Ranch HOA agree that the recently constructed road known as the "Prehm Ranch Road" extending from Four Mile Creek south to the Access Easement shall be maintained as a single -lane road, with such pull-outs as may be reasonably necessary to allow vehicles to pass and to satisfy safety requirements, and that such road shall not be widened into a two-lane road so long as lots within Prehm Ranch continue to utilize the Access Easement. (xi) For purposes of this Agreement, the term "owner" shall include the record owner of any lot within Prehm Ranch, family members, a property caretaker if residing on-site and such residency is authorized by applicable Garfield County rules and regulations, or a designated property manager if the record owner is not present in the area. In the case of corporate ownership, the "owner" shall include the corporation's officers and directors. In the case of trust ownership, the "owner" shall include the trust's trustees and beneficiaries. In the case of limited liability company ownership, the "owner" shall include the members and managers of the limited liability company. In the case of a partnership, the term "owner" shall include the partners of the partnership. In all cases of entity ownership, the use of lots in Prehm Ranch shall not exceed standard and customary uses for single family residences. Corporate retreats or other uses inconsistent with single family residential use shall not be permitted on any of Prelim Ranch Lots 1-8. Additionally, access shall be limited to the average 6 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. number of vehicle trips permitted hereunder, including all owners, family members, accompanied guests and, as to Lot 8 only, other authorized uses. (xii) For purposes of this Agreement, the term "accompanied guest" shall mean guests physically accompanied by an owner as defined above, whether such owner is in the guest's vehicle, in another vehicle accompanying the guest's vehicle, meets the guest at the gate or otherwise physically opens the gate for the guest. If an owner invites guests to a function on the Prehm Ranch such as a wedding, the owner may designate a family member or other representative to meet guests at the gate and facilitate access by such guests. Notwithstanding the foregoing, access shall be limited to the average number of vehicle trips permitted hereunder, and each vehicle entering or leaving Prehm Ranch shall constitute one (1) vehicle trip. (xiii) Access by representatives of Prehm Ranch HOA shall be for the sole purposes of maintenance and repair to the access road, utilities, the gate and counting system, and permitted landscaping, and to perform the functions normally incidental to the care and maintenance of the Prehm Ranch road (such as plowing) and the facilities required or permitted to be maintained hereunder within the Access Easement. All vehicle trips by any representative of the Prelim Ranch HOA shall be included in the total vehicle trip counts. Access for emergency purposes as defined in Paragraph 7(h) below shall not be included in the vehicle trip counts. (xiv) So long as the Prehm Ranch Access Gate and the fence around the Driveway Area can be designed and maintained to prevent public and unauthorized pedestrian and bicycle traffic, pedestrian and bicycle use of the Access Easement by owners of Prehm Ranch Lots 1-8 and their guests shall not be subject to the obligation to count, record and limit the number of vehicle trips. Uses of the Access Easement for snowmobiles, unlicensed vehicles including but not limited to unlicensed all -terrain vehicles, and horses, shall be entirely prohibited. Such prohibition shall extend to owners of Prehm Ranch Lots 1-8 and all other persons. (8) Each of Lots 1-8 in Prehm Ranch shall be utilized solely for single-family residences, with one (1) accessory dwelling unit or guest house if authorized under applicable Garfield County zoning and subdivision regulations. Multi -family units (that is, duplexes, apartment, condominium units and the like) shall not be permitted on any of Lots 1-8 so long as the Access Easement remains in use. So long as the owners of lots with the Prehm Ranch continue to utilize the Access Easement, those lots shall not be further subdivided. The creation of accessory dwelling units, guest houses or similar units which may be permitted under the Garfield County Regulations and which do not result in the creation of more than eight (8) residential lots within the Prehm Ranch shall not be deemed a further subdivision of the Prehm Ranch. In the event of any violation of any of the terms of this paragraph, this Agreement and the Access Easement may be terminated by any party hereto following written notice and opportunity to cure in the manner set forth in Section 6 below; provided, however, that for purposes of this paragraph, the party committing the breach shall have thirty (30) days within receipt of written notice to fully cure, remedy or otherwise correct and rectify the alleged breach; and provided further that any such termination shall not affect continuing access to Lot 22 through the Driveway Area. 7 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. (c) Lot 22 Driveway Easement. (1) The Westbank Ranch HOA hereby grants and conveys to Cantrell and her successors and assigns a perpetual non-exclusive driveway easement over and across the Access Easement within the Driveway Area portion of the Greenbelt in the location depicted on Exhibit "B," hereinafter called the "Lot 22 Driveway Easement," for the use and benefit of Cantrell, her successors and assigns to use, construct, maintain, repair and replace a driveway, to facilitate normal and reasonable residential uses on Lot 22, including construction, development, maintenance, repair, replacement, use and enjoyment of a single-family residence and related improvements on that Lot. This easement is subject to Westbank's enforcement rights as provided herein in the event of noncompliance. The Lot 22 Driveway Easement shall be twenty (20) feet in width, matching the Access Easement and extending to Lot 22 as depicted on Exhibit "B." (2) The Lot 22 Driveway Easement shall be used as the sole vehicular access to Lot 22 for single-family, residential purposes in accordance with the Amended and Restated Westbank Ranch Subdivision Protective Covenants recorded on October 24, 2000, as Reception No. 571299. Except as to the limitation that the Lot 22 Driveway Easement shall be the only vehicular access serving Lot 22, and except as to the obligations of the owner of Lot 22 to perform certain obligations in accordance with the terms of this Agreement, neither the use of Lot 22 nor the use of the Lot 22 Driveway Easement shall be limited in any way that is different or more restrictive than any other lot within the Westbank Ranch Subdivision. (d) Liens/Adverse Claims. Neither Marlin, the Prelim Ranch HOA nor Cantrell shall allow any liens or claims to be asserted against or encumber the Access Easement, the Driveway Easement or the Greenbelt in connection with or as a result of any work performed within the easement by Marlin, the Prehm Ranch HOA, Cantrell or their contractors, representatives, successors and assigns. (e) Westbank Oak Lane Easement. Cantrell hereby grants and conveys to Westbank and its successors and assigns a perpetual non-exclusive easement over and across the portion of the driveway extending across the southwest portion of Lot 22, from the Oak Lane cul-de-sac to the point where the driveway enters the Greenbelt in the location depicted on Exhibit "B." Said easement shall be utilized by Westbank solely for the purposes authorized by this Agreement. This grant of easement is subject to Cantrell's enforcement rights as provided herein in the event of non-compliance. The easement shall be twenty (20) feet in width. 3. Maintenance of Easements. The Prehm Ranch Owners Association shall be responsible for all costs of maintaining, repairing and replacing all improvements and landscaping within the Access Easement. Cantrell shall be responsible for all costs related to the maintenance and repair of the improvements and landscaping within the Driveway Easement. The parties agree that all improvements within the easement areas shall at all times be maintained in good condition and repair, free of defects or hazardous conditions. 4. The Reciprocal Access Easement Agreement. On September 4, 2001, Marlin and Cantrell entered into that certain Reciprocal Access Easement Agreement which was recorded in the real estate records of Garfield County on that date as Reception No. 587702. Certain provisions of said Reciprocal Access Easement Agreement conflict with this Agreement. 8 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. To the extent of such conflict, this Agreement shall be deemed to supplement and amend the Reciprocal Access Easement Agreement. Except as to such conflicts, with respect to which this Agreement shall be deemed to govern and control, all of the terms, conditions, rights and interests set forth in the Reciprocal Access Easement Agreement shall remain in full force and effect, binding upon the parties thereto and their successors and assigns. 5. Non-Interference/Third Parties. Nothing contained herein shall be deemed to grant to any third party any rights or interests in the real property of the parties affected by this Agreement or the easements granted hereunder except as expressly set forth herein. None of the parties, their agents, members, representatives, successors or assigns shall interfere with, impair or engage in any self-help or other action with respect to the real property interests, equipment, personal property or the rights or interests of the parties hereto arising out of or related to this Agreement and the respective rights and obligations of the parties hereunder. Specifically, but without limitation, the parties acknowledge that only the parties hereto and their successors in interest with respect to the title to real property affected by this Agreement and the Prehm Ranch HOA and Westbank Ranch HOA shall be deemed to have acquired any rights or interests under this Agreement, and the right to enforce the terms hereof shall be deemed limited to those parties. Nothing contained herein shall be deemed a grant of any right or interest to any property owner within the Westbank Ranch Subdivision or to any member of the public of any of access to, within or through the Prehm Ranch or any of the roads therein. 6. Enforcement. (a) In the event of any claimed breach of this Agreement, the party(ies) asserting such breach shall provide written notice thereof to the other party(ies), which written notice shall identify the specific breach, including the date and time thereof. The party committing such breach shall, within five (5) days of receipt of such written notice, fully cure, remedy or otherwise correct and rectify all such breaches, and a failure to do so shall entitle the non -breaching party(ies) to commence an action for the enforcement of this Agreement and to recover damages and attorneys' fees, all as more fully set forth below. In the event of the same breach or breaches of this Agreement within any six (6) month period following the curing, remedying, correction of or other action rectifying such prior breach or breaches, the breaching party(ies) shall not be entitled to the five (5) day cure period set forth above, and the non - breaching party(ies) shall be entitled to immediately seek an enforcement of the terms and conditions of this Agreement and the recovery of damages and attorneys' fees as set forth below. (b) This Agreement and all of its terms and conditions, and all of the rights and interests of the parties hereunder, may be enforced by any party hereto and their representatives and successors, by the commencement of an action in the Garfield County District Court, in which event the parties shall have the right to assert all claims in law and in equity, and to enforce the terms and conditions of this Agreement by all means available at law and in equity, including the rights to injunctive relief and to damages. In any action for injunctive relief, the party claiming the right to such relief shall not be obligated to demonstrate irreparable harm or the lack of an adequate and immediate remedy at law, those matters being acknowledged to exist by virtue of the parties' execution of this Agreement. In any such action, the party ultimately prevailing shall be entitled to recover all costs and attorneys' fees incurred in connection therewith. 9 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. 7. Miscellaneous. (a) Further Assurances. The parties hereto agree that each of them will take whatever actions are reasonably necessary or desirable from time to time to effectuate the provisions or intent of this Agreement, and to that end, the parties agree to execute, acknowledge, seal and deliver any further instruments or documents which may be necessary to give full force and effect to this Agreement or any of the provisions hereof or to carry out the intent of this Agreement or any of the provisions hereof. (b) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be effective upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, of the same effect as if all parties hereto had signed the same signature page. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. (c) Notices. For purposes of providing notices hereunder, notice shall be deemed received when delivered by hand delivery or facsimile transmission upon the date thereof. If notice is given by mail, notice shall be deemed given upon the date of actual receipt or three (3) days after deposit into the U.S. postal system, whichever is earlier. Notice by mail shall be by certified mail, return receipt requested. Each of the parties designates the addresses set forth above as the addresses for service of notices, which addresses may be changed from time to time by written notice to the other parties hereto. (d) Governing Law. The law applicable to this Agreement and its interpretation shall be that of the State of Colorado (regardless of Colorado's choice of law provisions); any dispute arising out of or concerning this Agreement shall be commenced and maintained in Garfield County, Colorado; and the parties hereby submit to the jurisdiction of Colorado in connection therewith. (e) Modifications. This Agreement may not be modified or amended except by instrument in writing duly executed by each of the parties hereto as identified in the first paragraph of this Agreement, or their successors or assigns, without the necessity of obtaining the signatures of the consenting parties identified below. (f) Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, successors and representatives. (g) Prevailing Party Costs. In the event of any litigation arising under this Agreement, the prevailing party shall he entitled to recover reasonable attorneys' fees and court costs in addition to any other relief to which such party may be entitled. (h) Emergency Access. Where emergency access is permitted under the terms of this Agreement, the right to emergency access shall be deemed granted to Garfield County, Police and Sheriff's Departments, and ambulance services during such times as emergency services are actually being provided and only when the use of the access through Prehm Ranch is necessary for the most expeditious provision of emergency services. 10 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first written above. MARLIN (COLORADO), LTD. By Timothy D. Heng, Manager LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL PREHM RANCH OWNERS WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. ASSOCIATION, INC. By By President President CONSENT OF ALPINE BANK Alpine Bank, as the holder of the Deed of Trust and other security interests encumbering Lots 1, 2, 4, 5, 6, 7 and 8 of The Preserve at Prehm Ranch, described in Exhibit "A" appended hereto, hereby consents to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement. ALPINE BANK OF ASPEN By George Hart, Vice President CONSENT OF OWNERS OF LOT 3, THE PRESERVE AT PREHM RANCH RAYMOND NIRO and JUDITH NIRO, as the Owners of Lot 3, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement. RAYMOND NIRO JUDITH NIRO 11 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. STATE OF COLORADO ) COUNTY OF ) ) ss. The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by Timothy D. Heng, as Manager of MARLIN (COLORADO), LTD. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO COUNTY OF ) ) ) ss. Notary Public The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by as of the PREHM RANCH OWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO COUNTY OF ) ) ) ss. Notary Public The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL. WITNESS my hand and official seal. My commission expires: Notary Public 12 ACCESS EASEMENT AGREEMENT By and among Marlin (Colorado), Ltd.; Lynne S. Cantrell a/k/a Lynn S. Cantrell; the Prehm Ranch Owners Association, Inc.; and the Westbank Ranch Homeowners Association, Inc. STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by as of the WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO COUNTY OF ) ) ) ss. Notary Public The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by George Hart as Vice President of ALPINE BANK OF ASPEN. WITNESS my hand and official seal. My commission expires: STATE OF ) COUNTY OF ) ) ss. Notary Public The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by RAYMOND NIRO and JUDITH NIRO. WITNESS my hand and official seal. My commission expires: Notary Public 13 ,.. vv' 1 1 1 11 iic 1 i ey a Mae' r tin HL), d l Ut JZbt3yb EXHIBIT "A" LEGAL DESCRIPTION P, 01 LOIS, .l , 2 , 3 , �i 5 ( 7 & 8 THEE PfiC:SERVE q7' PRELIM RANCH, As depicted on the Prelim Ranch Exemption Plat recorded June 13, 2001, in Book 1260 at Page�' `i02501, tho first Amended Prelim Ranch Exemption Plat recorded August 30, 2001, In Book 1281 Iieccption No. 587308, the Master Plat for the Preserve at Prelim Ranch recorded Se r3o8 as Reception No. 508908 and tho Amended Master Plat for The Preserve at Prehrn Ranch recorded October 17, 2001 as Reception No. at Page 744 as 590185,il recorded in the real estate records of Garfield County. September 2� 2001 as Reception No. APR -08-02 MON 09:50 AM Neiley & Alder reh-01-02 02:42P FAX NO. 970+925+9396 970 945-2977 P. 02 P.OZ 1 �z U PREHM RANCH a a. (L0T 8) c),sh LOT 22 WESTSANK RANCH GRADED BERM;�` \' LANDSCAPED t REVE.GE fA1 ED GATE & COUNTER — ----(Prehrn Ranch Access Gate) RAIL FENCE <02, 15_ DRIVEWAY AREA (Triangular Hatched Area) 1 ENTRANCE GATE OR MONUMENT (Driveway Area Access) WESTBANK/OAK LANE EASEMENT RAIL FENCE'�". ACCESS EASEMENT AND LOT 22 DRIVEWAY EASEMENT .rte•/ GREENBELT/OPEN SPACE PARCEL �.: _-,••faklAYna_ PREHM RANCH r. NAIL SOUTH ACCESS VICM nr-ir,ahmU-N Cavi 717r— +.1'w -0, ** EXHIBIT B �t* Z1J1L\\. ENARTECH INC. cONSan pm: l_N(. NEERS AND HYDKUf (IS IS J07 Rfh c.T . CLCNW000 Cr) A11;01 f'.U. UOX 160, GIINWOfOD ;FNINGs, Co 016O7 (970) 94:1 -??.1b AX (0/0) 045 2V 7 WESTBANK RANCH HOMEOWNERS ASSOCIATION Special Meeting of Homeowners December 17, 2001 A special meeting of the homeowners of Westbank Ranch Homeowners Association was held at the Mountain View Baptist Church at 7:00 p.m. on Monday, December 17, 2001, in accordance with a notice of special meeting sent to all homeowners in Westbank Ranch Filing Nos. 1, 2 and 3 on December 4, 2001. 71 Homeowners were represented at the meeting, either in person or by proxy. Members of Westbank's Board of Directors and Westbank's attorney, Steven M. Beattie, presented verbal information to the members. The information included a description of the background of Garfield County proceedings regarding access between Prelim Ranch and Westbank Ranch; the lawsuits filed by Garfield County and Westbank against Marlin, Ltd. and Lynne S. Cantrell, the owner of Lot 22 in Westbank Ranch; matters discussed at a settlement conference held by Judge Craven on December 13, 2001; and, options and risks associated with continuing with the pending lawsuits, or proceeding with a negotiated settlement. The Board requested input from the members in attendance. All members who wished to speak were given the opportunity to make comments, express opinions and ask questions. After extensive discussion, the following motion was made by Karen Stowe, and seconded by Ralph Jones: THE WESTBANK RANCH HOMEOWNERS ASSOCIATION BOARD OF DIRECTORS IS AUTHORIZED AND DIRECTED TO EXPLORE AND NEGOTIATE FOR A SETTLEMENT OF THE PENDING LAWSUIT BETWEEN WESTBANK AS PLAINTIFF AND MARLIN, LTD. AND LYNNE S. CANTRELL AS DEFENDANTS, IF FEASIBLE, UNDER TERMS AND CONDITIONS REGARDED BY THE BOARD AS FAIR, REASONABLE AND APPROPRIATE FOR THE ASSOCIATION, IF SUCH A SETTLEMENT IS ACHIEVABLE IN THE BOARD'S JUDGMENT AND DISCRETION. THE BOARD IS FURTHER AUTHORIZED TO IMPOSE ON THE MEMBERS OF WESTBANK RANCH HOMEOWNERS ASSOCIATION A SPECIAL ASSESSMENT OR SERIES OF SPECIAL ASSESSMENTS NOT TO EXCEED $500.00 IN THE AGGREGATE, IN ORDER TO REIMBURSE THE ASSOCIATION FOR PAST ATTORNEY FEES AND EXPENSES INCURRED REGARDING THIS MATTER, AND PAY FOR FUTURE ATTORNEY FEES AND EXPENSES WHICH MAY BE INCURRED. A roll call vote was taken. The motion passed by a vote of 54 in favor, 16 against, with 1 abstention. FEB -22-02 FRI 12:09 PM Neiley & Alder FAX NO. 970+925+9396 P. 02/03 NEILEY & ALDER 201 North Mill Street, Suite 102 Aspen, Colorado 81611 Richard Y. Neiley, Jr. (970) 925-9393 Eugene M. Alder Fax (970) 925-9396 February 22, 2002 ViA FACSIMILE TRANSMISSION (970) 384-5005 Dori Del7ord, Esquire Gar field County Attorney 109 1?ighth Street Glcnwoocl Springs, CO 81601 Re: Board of County Cominissioners of Garfield County, State of Colorado v. Marlin (Colorado), Ltd., Alpine Bank and Lynne S. Cantrell, Garfield County District Court Case No. 01 CV 207-A l,)car 1)on: This letter is a follow-up to our telephone con ference of this morning. With respect to the parcel of land to he convoyed by Marlin to Wcstbank, it seems to me that if we identify that parcel ,is "Common Opcn Space" as defined in the subdivision regulations we avoid the concerns regarding; the creation of a new "lot," Based on our discussions, a lot cannot be created through the subdivision plat amendment process. The alternative of ad'•.:ng the sirip of land to Let 22. would wt►rk, but I do not think that would con.port with Westbluk's objective of having ownership of that strip. The term "Common Open Space" as defined at § 2:20.07 of the subdivision regulations is "a parcel of land ... within a subdivision designated and intended primarily for the use or enjoyment ofthe residents, occupants and owners ofthe subdivision and which is not individually owned or dedicated) for public use." This seems to accurately apply to the Greenbelt/Open Space Parcel we have identified in connection with our Subdivision Plat Amendment Application. T can have our proposed flat revised to reflect the term "Common Open Space." Please consider this alternative to identifying the parcel as a "lot." r think we avoid a let of potential problems by approaching it this way. Certainly, the parcel of land we have proposed to convey to Wcstbank is for the use or enjoyment of the residents in that it creates a passive open splice buffer, enhancing view plains and limiting and controlling development. It is primarily for tItc use or enjoyment ofthe residents of Wcstbank in that it is expressly for their bene fit FEB -22-02 FRI 12:09 PM Neiley & Alder Letter to Mr. DeFord Fr:bruary 22, 2002 Page 2 FAX N0. 970+925+9396 P. 03/03 that the parcel is being created even though a narrow strip will encompass the Prehm Ranch access road. Additionally, the term "lot" is defined as a portion of a subdivision intended as a unit "for development." This strip of land is not intended for development. In this regard, the use of the SI rip of land For access or for utility casements should not be construed as development. Even if it is, there is nothing that prohibits the use ofcommon open space for access purposes. Indeed, many subdivisions have common open space traversed by roads, trails, utility easements and other improvements. The Rose Ranch P[JD is a good example of this. Based upon your interpretation of the subdivision exempt i012 rctll=;at_on "WO worth! 1101 uC able to convey a parcel of land to Westbank prior to the approval of the exemption amendment application. And, we will not be able to close the sale o f any of the 35 acre parcels until w► receive final approval of our application. As we discussed, this means we will have to extend 1 h.. closing of Lot 7 which is scheduled for February 28, 2002, If T understand your interpretation properly, (leis also means that we should not reflect the Greenbelt/Open Space Parcel on the Amended Exemption Plat. Please give me call once you have had an opportunity to review these issues. Very truly yours, LEY & ALDER ichard Y. Net[ey, Jr. RYN/agk cc: Steven Beattie, Esquire FEB -22-02 FRI 12:08 PM Neiley & Alder FAX NO. 970+925+9396 NEILEY & ALDER 201 North Mill Street, Suite 102 Aspen, Colorado 61611 P. 01/03 Richard Y. Neiley, Jr. (970) 925-9393 Eugene M, Alder FAX (970) 925-9396 FACS IMILE TRANSMISSION '1'O; Don DeFord FAX #; 970-384-5005 Steven Waffle 970-945-867[ F1U)M: Rick Neiley i)A'tE: February 22, 2002 'TIME: 12:02 pm NUMBER OF PAGES (including cover sheet): 3 COMMENTS OR INSTRUCTIONS: ORIGINALS 'TRANSMITTED BY: n/a -)k" frimmtkard 6-Xekiitpti°4\-) NOTICE OF CONFIDENTIALITY TI -1F LN1'ONMATION CONTAINED WITHIN TI JS FAC"!",4ILE-rANBMiSSION IS Al TORNEY PRIVILEGED AND CONFIDENTIAL INF 1?RMATION INI ENDED ONLY FOR 11 IE USE Or THE INDIVIDUAL OR ENTITY TO WI i«CH IT IS ADDRESSED. IF YOU ARE NOT THE DES lc,;NATLD RECIPILNT OF THIS TRANSMISSION, OR TI IE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERY OF THIS INPOI:MATION 10 TI IE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION. DISTRIBUTION OR COPYING OF 11115 COMMUNICATION IS STRICTLY PROHIBI rED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE RETURN Tr1E TRANSMISSION TO THE SENDER BY UNITED STATES MAIL AT THE ADDRESS SET FORTH ABOVE. IF THERE ARE ANY PROBLEMS WITH THIS TRANSMISSION OR IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT ANN AT (970) 925-9393 MAR -06-02 WED 01:05 PM Neiley & Alder FAX 110. 970+925+9396 P. 01 NEILEY & ALDER 201 North Mill Street, Suite 102 Aspen, Colorado 81611 Richard Y. Neiley, Jr. (970) 925-9393 Eugene M, Alder FAX (970) 925-9396 IF CSIMILF; TR_ANSMISSXON TO: Mark Bean FROM: Rick Neiley DATE: March 6, 2002 TIME: 12;57 pin NI.iM1Iki'AK OF PACES (including cover sheet): 4 (X)MME N''f'S OR INSTRUCTIONS: ORIGINALS TRANSMITTED IW: n/a FAX #: 970-384-3470 NOTICE OF CONr1DF NTIALITY Ti li. INI'OiZMATION CONTAINED will -11N THIS FACSiMiLC 1 RANSMISSION IS ATTORNEY PRIVILEGED AND CONFIDENTIAL INFOt ;MA4"ION IN FC NDFD ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WI IIC1 I IT IS ADDRESSED. IF YOU ARE NOT TI IE 13L' SIGNATE) RECIPIENT Or T FLIS TRANSMISSION, OR THE EMPLOYEE OR AGENT RESPONSIULE FOR DELIVERY OF THS 110 ION TO THE INTENDED I'ti c; PIFNT, YOU ARE I.1LREF;iY NOTIFIED THAI ANY DISSEMINATION, DISTRIBUTION OR COPYING OF TI IiS COMMUNICATION IS S11 .io'rL,Y PROHIBITED. IF YOU FIAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE RETURN THE 1 RAWiNIZEION TO THE SENDER F3Y UNITED STATES MAIL AT THE ADDRESS SET FORTH ABOVE. W THERE ARE ANY PROBLEMS WITH THIS TRANSMISSION OR IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT ANN AT (910) 925-9393 MAR -06-02 WED 01:05 PM Neiley & Alder FAX NO, 970+925+9396 P, 02 THIRD AMENDMENT J'O CONTRACT TO BUY AND SELL REAL ESTATE COVERING LOT 7, THE PRESERVE AT F1U 1IM RANCH THIS THIRD AMENDMENT TO CONTRACT, by and between MARLIN (COI ,ORADO), LTD., as "Seller," and RAYMOND NIRO and JUDITH NERO, collectively as "Biqa," is made and entered into on the date set forth below. WHEREAS, the parties entered into that certain The Preserve at Prelim Ranch/Contract to Buy and Sell Real Estate (Vacant Land), dated November 21, 2001 (the "Contrtiet"), covering the following described real property (hereinafter the "Real Property"): Lot 7, 1'1 IF !'RESERVE AT PRMI lM RANCH, As depicted on the Master Plat for The Preserve at Prchm Ranch raid the, Amended Master Plat for The Preserve at Prelim Ranch , County of Garfield, State of Colorado; and WHEREAS, on January 25, 2002, Buyer gave written notice to Seller of objection to certain conditions related to the Real Property pursuant to paragraph 9 of the Contract; and WHEREAS, to resolve the January 25, 2002 objections, the parties entered into that A .,,too nc nt to Amend/F,xtend Contract dated February 12, 2002, which extended the resolution date under 111G Contract through February 18, 2002; and W1-IEREAS, on 1'chniaty 18, 2002, the parties enteral into that certain Amendment to Contract to Boy and Sell Reil Estate Covering Lot 7, The Preserve at Prchm Ranch, pursuant to which the closing date was rescheduled to February 28, 2002; and WIIEREAS, the parties desire to further amend the Contract as hereinafter set forth. NOW, 11Ii R FFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Westbank Ranch Access Issues/Plat Amendments. Seller has submitted certain Kind use applications to Garfield County in connection with the resolution of certain disputes 11;2,AI-ding access between Prehm Ranch and Oak Lane within the Westbank Ranch Subdivision. Those land use applications are as follows: (a) Application to Amend Plat of Lots 22 and 23, Westbank Ranch Subdivision, Filing No. 1; (b) Application to Amend the Prelim Ranch Exemption Plat; and (c) Petition to Vacate Public Roadways. The purpose o f the above -referenced applications is to establish on said Plats a private right-of-way connecting Prelim Ranch to Oak Lane in accordance with 111c terms of that certain 1 MAR -06-02 WED 01:05 PM Neiley & Alder FAX NO. 970+925+9396 P. 03 Acres Easement Agreement by and among Seller, the Westbank Ranch Homeowners Association and Lynne Cantrell, the owner of Wcstbanlc Ranch Subdivision, Filing No. 1, Lot 22. The consent of Buyer to the anncndrnent to the Prchtn Ranch Exemption Plat and to the Access Easement Agreement wi ll be required before said Plat or Agreement maybe recorded in the real estate records Of (i;] rlicicl County. TItu Garfield County Board of County Commissioners must approve the above- described applications before the amended Plats and the Access Easement Agreement can be executed and recorded, A public hearing for consideration of the applications and the petition is to be held before the Garfield County Board of County Commissioners in April 2002. In the event the applications and petition arc; approved by Garfield County, the amended Pints and the Access Easement Agreement shall be executed and recorded as expeditiously as possible, and the parties hereto shall cooperate to effectuate such execution and recordation. Tn the event the applications and petition are not approved by Garfield County on or before May 31, 2002, Buyer may by issuing written notice to Seller to cancel and rescind the Contract, in which event Buyer's earnest money shall be returned and both parties shall be relieved of Cu t-th.r rights and obligations under the Contract. 2. Closiil R. Upon approval ofthe Applications iden till ed above, Seller shall provide wri I len notice to Bayer of such approval. The parties shall proceed to closing not less than live (5) business days following the delivery of notice of approval from Seller to Buyer. The parties' obligations with respect to closing shall be as set Forth in the Contract with all prorations adjusted to the date of closing. 3. Survival. The terms and conditions of this Amendment to Contract shall survive the closing of the purchase of the Real Properly described herein. 4. Misccllnilcou . Except as to those amendments expressly set forth herein, all of the terms and conditions of flee Contract and the Amendments thereto remain in frill force and effect, and the parties' rights and obligations thereunder shall not be deemed modified or amended. In the event of any conflict between this Amendment and the Contract or prior Amendments, this Antiditdtncft shall govern and control. EXECUTED this r1 % day ofFcbruary, 2002. Seller: Buyer: MARLIN (COLORADO), LTD. ://7.2/ 2;7 RAYMOND NIRO JUDITH NIRO MAR -06-02 WED 01:06 PM Neiley & Alder Fc'b 27 02 05 . 4tip N I RO RSPEN FEE 413 Ua9w:=L W 3 it 3Vi WH ILei;l t rr ce2F u rPG FAX N4. 970+925+9396 970 923 7e:.. FAX NO 970+925+M P, 04 P.2 9.3p, 03 Atr:as Easement Agri:uencal by and Ainotlg Scllen. the Woilbank Ranch Horneownos-Association iu^otl Lynne Ceat7lteli, the ewer of W. stltnnk Ranch Subdivision, Filing No. 1, Taos 22. The consent or 13uyfr to the nntondruent to tho Prelim Ranch Exemption Plat and to tho Accuset:t� ucnt war.-mentveil Ibarequired holroresaid Mat orAgrc cntmaybeYccordeclintllorealbstaturecords rOarileld County, The fistrtgkTcl County Board of County Commissione=rs mutat approve the abovc- rlc5ie}ribs:d applications beCuree lite amended Mau and the Access Easement Agrc4 tantcon be oxccut ,! and recorded., A public hearing for consideration of the applications and the }wtitiou is to h held Before tho Garticld County Bond of -County Contmisstoncra in April 2002, in the want the applications ;ti d petition etre proved by Garfield County, the untcicclPlats adtlieAcc&4$Easement Agcxnentshallbecentedtndrecordedatoxpcditioualy 7y+aosilrlet and theItatRit lttreto stout coOparatc to ofrocnttata ruiih execution ;Kid rccordxlion, Tu tho event the applications and petition arc not approved by Garfield County on or bc•t`ott M iy 3L 2002, ltuyor may by issuing written notice to Soper to caerr•1 eirui "'rind this Cctltlrrict, iii oihicli event Buyer's earnest motley shall be returned and both parties mon. u ..;t,.rud or further tights and +abiigotions uneltr the Contract, 2, es g. Upon ;tpirovalofthe Applicationsidentified above, 5eller shall provide v4•riltrn notice to Boyar of"such approval. 'Tho parties shalt proceed to ekrsinE not loss than five (5) business days following the dolivory of notice of approval from Sellar to 3tuyer. The parties' cl►1i uiottis with r'c:.`l c:t iu charters shall be a+e sat forth tltc Contract with oil prorstiou3 a4ljnatotl to the 41;i1t oFcloa;ing. 3, . it.yivab The terms and conditions of tttis Amendment to Contract shall survive Ilse dosing or tho lrerrchttxo or tho Real Proper,•ty dctotibed herein. 4, MiscsillopnOs. Except as to those amendments expressly sol forth herein, all of site; l•crttt3 s al conditions of the Contract and the tern uinuxttr thereto remain in full force and cfibet, „Ind the putties' ics' rigins and obligations 1horcund4:r alma not be deemed modified Cr omcndod, In tho avant of -auy cotnSiict bctwcen this Amendment cod the Contract or prior At>1+atdmenti, this Amai tcimcnl shall rove"ra and control. 11Xlietifri;D Ibi ! tyof February, 2002 e:ll r; Buyer, MAR IAN (COLOW)G), LTD. 13y 2 ❑ Please Reply To 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Fax (970) 925-9396 NEILEY & ALDER ATTORNEYS Richard Y. Neiley, Jr. Eugene M. Alder Steven Beattie, Esquire Beattie & Chadwick 710 Cooper Avenue, Suite 200 Glenwood Springs, CO 81601 Don DeFord, Esquire Garfield County Attorney 109 Eighth Street Glenwood Springs, CO 81601 Gentlemen: June 13, 2002 ❑ Please Reply To 6800 Highway 82, Suite 1, Upper Level Glenwood Springs, Colorado 81601 (970) 928-9393 Fax (970) 928-9399 HAND DELIVERY Re: Board of County Commissioners of Garfield County, State of Colorado v. Marlin (Colorado), Ltd., Alpine Bank and Lynne S. Cantrell, Garfield County District Court, Case No. 01 CV 207-A WESTBANK RANCH HOMEOWNERS ASSOCIATION v. MARLIN (COLORADO), LTD. and LYNNE S. CANTRELL, Garfield County District Court, Case No. 01 CV 208-A Enclosed herewith you will find the revised Plats for the Amended Prehm Ranch Exemption and the Westbank Ranch Amendment. I have not had an opportunity to completely review these plats but plan to complete my review tomorrow, June 14, 2002. I would appreciate it if you could do the same at your earliest convenience so that we can get any necessary final comments to the surveyors. Obviously, these plats will not be ready for submission to the Board of County Commissioners on Monday, June 17, 2002. Hopefully we can have all outstanding issues resolved prior to the first meeting in July. Very truly yours, NEJUOY & ALDER i 1'l Richard Y. Neiley, Jr. RYN/agk Enclosure SEP -25-02 WED 10:32 AM Neiley & Alder FAX NO. 970+925+9396 P. 01 NEILEY & ALDER 201 North Mill Street, Suite 102 Aspen, Colorado 81611 Richard Y. Neiley, Jr, (970) 925-9393 Eugone M. Alder FAX (970) 925-9396 FACSIMILE TRANSMISSION TO: Don DeFawd FIZOIVI: Rick Neiley 1}ATI4:: September 25, 2002 TIME: 10:20 am NUMBER O1 PACES (including cover sheet): 22 COMMENTS OR INSTRUCTIONS: ORIGINALS TRANSMITTED BY: hand delivery FAX T: 970-384-5005 NOTICE OF CONFIDENTIALITY TI IF, INFORMATION CONTAINED WITI UN THS FACSIMII E TRANSMISSION IS ATTORNEY PRIVILEGED AND CONFIDENTIAL INCokMATION IN1 ENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH ff IS ADDRESSED. IF YOU ARE NOT THE orSIONA'I'EU RECIPIENT OF TFIIU TRANSMISSION, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERY OF THIS INFORMATION 10 THE INTENDED RCCl['IENT, YOU ARE, HERLI➢Y NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING (-F 1111$ COMMUNICATION IS STRICTLY PROHIBITED, IF YOU I AVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE RETURN TI 1E I FiANF1vIISSION TO THE SC NDER BY UNITED STATES MAIL AT THE ADDRESS SET FORTH ABOVE. IF THERE ARE ANY PROBLEMS WITH THIS TRANSMISSION OR If' YOU HAVE ANY QUESTIONS, PLEASE CONTACT ANN AT (970) 925-9393 SEP -25-02 WED 10:32 AM Neiley & Alder ) 'l.atN Reply I•n 2.01 Nord/ Mill Soil•c 102 �1;�,s•,,, c"„1.; , d., 81611 (970) 92,5.9303 Vax (970) 925-9396 FAX NO. 970+925+9396 P, 02 NEILEY & ALDER ATTORNEYS Richard Y. Ncilcy, Jr. flu enc M. Alder VIA FACSIMILE TRANSMISSION (970) 384-5005 ORIGINALS VIA BAND DI:TAVERY Doll 1)eI'ord, Esquire Garfi,A4 County Attorney 1 t)S Fast Eighth Strout, Suite 219 Glimwood Springs, CO 81601 Dear Don: September 25, 2002 D Pleaec RrplyTo 6800 Fligliway 82, Suil•r 1, Upper 1 xvel Glanwood SprInge, Colorado 81601 (970) 9:2,8-9393 Fax (970) 928-9.399 Re: Board of County Commissioners of Garfield County. State of Colorado v. Marlin (Colorado), Ltd., Alpine Bank and Lynne S. Cantrell, Garfield County District Court, Case No. 01 CV 207-A Westbunk trench Homeowners Association v. Marlin (Colorado), Ltd. and Lynne S. Cantrell, Garfield County District Court, Case No. 01 CV 208-A This leticr is in response to yours of September 17, 2002 regarding completion of settlement in the above -referenced litigation. T will address your inquiries in the order presented. 1. Emergeney,Access. Although we have not yet completed the installation of the gate and counting system, we have ordered the system from Summit Doors of Montrose, Colorado and anticipate complete installation bythe end ofnextmonth. Por reasons that Ibelieve are obvious, we could nut complete the commitment to and installation of the gate and. counting equipment, which were expressly incidental to our se(llernent, until we knew that in fact the necessary land use approvals, including the Petition to Vacate Public Rights-of-way, had been granted by Garfield County. As you recognized in your letter, the approval of the Petition to Vacate was not finalized until September 16, 2002. We have provided the (Glenwood Springs Rural Tire Protection District with the coinbina.tions for the existing locks on the gates for Prelim Ranch. The system we have ordered from Stin-unit Doors has two features that allow emergency access. There will be a keypad at each gate to lite Bunch into which any code requested by the lire Protection District can be programed. The system is also designed with u fire department "key switch" which will allow unrestricted emergency SEP -25-02 WED 10:32 AM Neiley & Alder l,elior to Mr. Dct ord September 25, 2002 Pap.., 2 r, FAX NO. 970+925+9396 P. 03 access, including the ability to keep the gates open during an event. This information has been provided to Ron Biggers of the Fire Protection District, and I have requested that he confirm in writing that they have received the in formation necessary to effectuate emergency access. 1 hope to have this letter in no more than ten days, and I will deliver it as soon as it arrives. 2. Accompanied Guests''. Enclosed herewith is a copy of the Access Easement Agreement which constitutes the basis for the installation oldie gate and counting system and the limited acceas via Oak Lane. This Agreement defines "accompanied guests." Westbank, Cantrell and Marlin aro in agreement that under the language of paragraph 2(b)(7)(xii) of the Agreement, an "accompanied guest" is one that is physically accompanied on Prchm Ranch by an owner under cimu-instances where the owner opens the gate for the guest_ The gate plans which were presented to and approved by Westbank include a telephone entry system whereby an owner can receive a telephone call at the property from a guest at the south gate, enter a code and physically open the gate for the guest. There are outer expressly described forms of access contained in the Access Easement Agrcenierrt, A copy of the plans for the system prepared by Summit Door Company, including a nrinative description of the way in which the gate system works, is also enclosed herewith. 3. 'lame Cate Lock Down. Pursuant to the express requirements of the County approvals, the gate system will shut down when a total of 1,620 vehicle trips has been reached in a sixty (60) day period_ Although the gate system will not automatically shut down if the counter tna}f��imctiorati, wo have agreed iu the Access Easement Agreement that a temporary counter will be instal led littler() is a malfunction that cannot he corrected in 3 days. [Paragraph 2(b)(7)(vi)] One of tlea reasons we elected to utiliie Summit Door Company is that they are located in Montrose close to Glenwood Springs, and according to Aspen Glen (Fred Williams), which uses Summit Doors, their equipment is extremely rc+liable and their service is prompt, usually within 24 hours, John Tcnoer of summit Doors addressed the issue of a shutdown in the event of a counter malfunction at perazraph 6 of is lone 24, 2002 letter which is enclosed, The Access Easement Agreement which was ,approved by the County only requires this feature to the "extent of available technology." As noted in Mr. Teneer's letter of June 24, 2002, he is unaware of any system where a counter can coni municetc to the gate that it has m al functioned, thereby shutting the gate. The system will, in any event, be moni torecl continuously so as to insure compliance with the Access Easement Agreement. 4, pate of Installation. While our initial projected date for installation of the gate and counting system was, in fact, May 31, 2.002, as a condition of the overall settlement this cou}d not be accomplished until all necessary approvals were granted. As noted above, this did not occur with respect to the Petition to Vacate until September 16, 2002. You will also recall that a condition of the April 8, 2002 approvals was that we process a rezoning application for the parcel to be conveyed to Westbank. This was not heard by the 13OCC until May 20, 2002. The projected time frame for installation was and is four to six weeks from the time the order is placed. We placed the order promptly following the September 9, 2002 public meeting even though the final approvals were not at that point in time complete. We expect dirt work to start next week and the installalion of tit ilifies and the pouring of concrete to follow shortly thereafter. The equipment will then be installed as will fencing and other entrance features. We arc presently looking to the end of October SEP -25-02 WED 10:33 AM Neiley & Alder FAX NO. 970+925+9396 P. 04 Letter to Mr, DelToni September 25, 2002 face 3 for completion. We employing as expeditiously as possible to complete this installation. Tt should be apparent that Marlin cannot be held to a time frame for completion of installation which docs not take into consideration all of the other elements of the settlement. Although we, too, are troubled by the amount of time necessary to complete the settlement, we do not view the time frame for installation of the gate system as a failure of any condition of approval. All of the approvals and conditions ofseal emont must be taken as a whole. The obligation to complete the installation o Fthc gat,, system is incidental to the other elements of the settlement. 5. "Plat Corrections". We will certainly comply with arty requests for plat corrections made by the County Surveyor so long as they are consistent with Land Use Code regriirements, l would remind you that on June 13, 2002, T submitted the draft Plats to the County for review and comment. On August 6, 2002, I submitted mylars of the Plats, and by August 9, 2002, the County had signatures of all pasties and all interested property owners (with the exception of thr; County Surveyor and Garfield County). We have yet to receive any conunent regarding the Plats despite the fact that they have been with Garfield County for over three months. 6. 'Timeliness o PSubmission of Fxernption Plat. A mylar for the Second Amended Probin Ranch Exemption Plat was submitted to Garfield County on August 6, 2002 with thc required Colorado Registered Surveyor's signature and stamp. It is my belief that that rnylar satisfies each aind every requirement set forth in the Land Use Code. While it is certainly possible that some technical deficiency may be identified by the County Surveyor, wo cannot be held responsible for any timing delay related thereto. By the tiMC' we submitted the mylar, the County had had the draft Plat for seven weeks and had made no comments or requests for corrections. Although signatures oral] parties are not an express requirement of the Land Use Code al the time of submission of the Plat, we have provided a copywi di all necessary signatures. In the circumstances of this settlement, the final execution of all documents will require a form a. "closing." We will need to deed the open spice parcel to Westbank, and laie Plats will reference that recording information. We must execute and record the Decd, the Access Easement Agreement, the Resolution Vacating Public Rights -of - Way and the Plats in the appropriate order to reflect the series of approvals and agreements called for in the Stipulation of Settlement, We will, at that time, pay the settlement amount to Westbank. This case is different than the usual subdivision exemption. The approval and recordation of our I.;xemption Plat is part of the larger settlement and must be coordinated with the other conditions. I certainly recognize that this matter is subject to intensive public scrutiny and comment. hfowever, despite, the comments you reference, there is no "unfettered" access to Prelim Remit via the south gate We have had numerous incidents (at least 7 to date) where third parties have cut the locks from the chain securing, the south access. We do not use that access for construction purposes, and only a limited number of people, far less than 27 trips per day, enter the Ranch via Oul< Lane. There is permitted constnrction underway on Westbank Ranch, Filing No. 1, Lot 22, which might create an impression of unfettered access. We continue to use our best efforts to control ueauthotized access to Prehin Ranch from thc south. Once the gate and fence are installed, we are confident that the situation with vandalism and trespass will abate, SEP -25-02 WED 10:33 AM Neiley & Alder Leber to Mr. DeFord September 25, 2002 Ti'gu 4 FAX NO, 970+925+9396 P, 05 We understand that the allegations of the County's Complaint include the lack of approvals under the zoning and subdivision regulations. As you know, we have always denied that those; approvals were required of us. Nonetheless, to facilitate the settlement, we have diligently processed those applications and fully intend to abide by all of our commitments. We sincerely hope that all other parties will cons inunale the settlement in the same fashion. Tf I can provide you with additional information, please let me know. We look toilworn to receiving any comments from the County Surveyor regarding our Plats and from your office; regarding tltc completion oClhc settlement. Vcn,�r\truly yours, NE l'I EV & ALDER ichard Y. Neiley, Jr. l:Y Nlagk l:twlosures cc: Marlin (Colorado), Ltd. Stevens Beattie, Esquire I Ial Dishier, Esquire SEP -25-02 WED 10:33 AM Neiley & Alder FAX NO. 970+925+9396 P. 06 ACCESS EASEMENT AGREEMENT THIS AGREEMENT is made this _ day of August, 2002, by and among MARLIN (COLORADO), LTD. ("Marlin"), whose address is c/o Carl13. Linaecke, CPA, 215 South Monarch Street, Aspen, Colorado 81611, LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL ("(.'t:ntrell"), whose address is P. 0, Box 2104, .Basalt, Colorado 81621, the PRFHM RANCH OW N ERS ASSOCIATION, INC. ("Prelim Ranch 110A"), whose address is c/o Neilcy & Alder, 201 North Mill Street, Suite 102, Aspen, Colorado 81611, and the WESTI3ANK RANCH HOMEOWNERS ASSOCIATION, INC. ("Westbank Ranch HOA"), whose address is P. 0. Box 2703, Glenwood Springs, Colorado 81602. WHEREAS, Marlin is a Colorado corporation which is the owner of that certain real property located in Garfield County, Colorado, known as Lots 1, 2, 4, 5, 6 and 8, The Preserve At Prelim Ranch, as more fully described in tiro legal description appended hereto as Exhibit "A" (the "Prelim Manch"); and WHEREAS, Cantrell is the owner of Lot 22, filing No. 1, Westbank Ranch Subdivision, County of Garfield, State of Colorado, located adjacent to the Prchm Ranch al the east boundary thereof ("Lot 22"); and WHEREAS, the Prelim Ranch 1-IOA is a Colorado not for profit corporation established for llic purpono of, among other things, adnuinistea-ing the common interests of all owners of lots within Prelim Ranch, including the care and maintenance of common roads; and W[I[:REAS, the Westbank Ranch 1IOA is a Colorado not for profit corporation established for the purpose of, among other things, administering the common interests o fall owners allots within the Westbank Ranch Subdivision, Filings 1, 2 and 3 ("Westbank Ranch"); and W [1ERRAS, the Plat of Westbank Ranch Planned Development Subdivision, Filing No, 1, as originally recorded on November 27, 1970, as Reception No. 248729, depicted a "road cap;cntcnt" traversing Lot 22 and Lot 23 of Wcstbank Ranch, Filing No. 1, between the cad of the minty road identified as "Oak Lane" and the east boundary of Prchm Ranch; and WHEREAS, the Plat of Westbank Ranch Planned Development Subdivision, Filing No. 1 was amended to del ute and remove the "road easement" traversing Lot 22 of Westbank Ranch, Filing 1, to reflect thereon the creation of the Access Easement and Driveway Easement described herein, to create a "Greenbelt/Open Space Parcel" for the benefit of Westbank Ranch HOA as depicicd on Exhibit 13" and described on Exhibit "C" appended hereto, and to include in the (Greenbelt/Open Space Parcel al l real properly including and encompassed by the road and driveway to serve Prelim Ranch and Lot 22 and previously a part of Prelim Ranch, which Amended Plat was recorded on , 2002, as Reception No, ; and WHEREAS, the parties desire to set forth their various rights, interests and obligations with respect to limited access between the public road known as Oak Lane within the Westbank Ranch Subdivision and the Prehm Ranch and Lot 22 and with respect to the creation of the "Greenbelt/Open Space Parcel," all as more fully set forth herein. 1 SEP -25-02 WED 10:34 AM Neiley & Alder FAX NO. 970+925+9396 P. 07 NOW, THEREFORE, in consideration ofthe foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. C1reenbclt/Open Space Parcel. (a) Contemporaneously with the execution ofthis Agreement and execution and recordation of the Amended Plat of Lot 22 of Wostbank Ranch Planned Development Subdivision, Filing No. 1, Marlin has conveyed and quitclaimed to the Westbank Ranch HOA the parcel 01'1 and described in Exhibit "C" located along the common bound arybctween Prchm Ranch and Westbank Ranch Planned Development Subdivision, Filing No. 1, extending the entire length of the uphill (south) common boundary between Prchm Ranch and. Westbank Ranch, to the north (downhill) across the flat portion of Lot 8 in Prelim Ranch abutting Lot 22 in Westbank Ranch, terminating at the steep embankment uphill from the river's back; and, all real property including and encompassed by the road and driveway to serve Prelim Ranch and Lot 22 and previously a part of I11'ehni Ranch (the "Driveway Area"), all as depicted on said Amended Plat and Exhibit "B" appended hereto and identi fled as the "Greenbelt/Open Space Parcel" (hereinafter the "Greenbelt"). (h) The purpose of tlic conveyance of the Greenbelt by Marlin to the Westbank Ranch DOA is to create an ownership interest in real property for the benefit of the Westbank Manch HOA over which the access road into Prelim Ranch and Lot 22 traverses. (c) The Greenbelt shall at all times be maintained as apassive, undeveloped strip of land which may he used only in accordance with the terms and conditions sct forth herein. Those uses arc limited as follows: (1) The Greenbelt may be developed by Marlin and Cantrell with an access road between Oak Lane and Prehm Ranch with a driveway serving Lot 22, not to exceed a paved surface of fourteen (14) feet in width, with shoulders, drainage culverts and such other ii,tprovamenis as are reasonably nccessaty and incidental to the use and maintenance of said access roved and landscaping with the entire width of the Access Easement across the Greenbelt not exceeding twenty (20) feet in the locations depicted on Exhibit "B." (2) 'Except as to the Driveway Area portion of the Greenbelt encompassing the "Access Easement" addressed hereinbelow, the Greenbelt may be utilized by the owner o!'Lot 8 for open space, drainage and pedestrian access between Lot 8 and the Roaring Fork R iver. Landscaping and fencing shall be permitted within the portion ofthe Greenbelt arca including die; Driveway Area and extending from the Driveway Area to the north. All expenses 0 f installation of landscaping and fencing shall be the solc responsibility of Marlin, without contribution by Westbank. Alt expenses of -continuing maintenance and repairs of the landscaping and fencing shall he the responsibility of Marlin, the Prelim Ranch HOA or Cantrell, without contribution by Westbank. Any other uses of the Greenbelt shall he prohibited, except as may be subsequently revie=wed and specitical ly approved by Westbank. In parlicul ar, no road or access other than the road and driveway to be constructed within`✓, the Driveway Arca shall ever be constructed between We tbank Ranch and Prchm Ranch, and the constriction of any additional road or access shall 2 SEP -25-02 WED 10:34 AM Neiley & Alder FAX NO. 970+925+9396 P. 08 constitute a material breach of this Agreement. No improvements shall be constructed within the Greenbelt except as permitted herein. (3) An unimproved access exists across the Greenbelt on the alignment depicted on Exhibit "I3" for use by utility providers who have express easements, including Rocky Mountain Natural Geis Company, the Mountain States Telephone and Telegraph Company, and Holy Cross Electric Association (and their successors). No road shall ever be constructed along the utility corridor from the southeast end of the Prchm Ranch Road as shown on Exhibit "3" to the Greenbelt Area (other than uses by the utility providers pursuant to the terms of t cir express easements), and no party shall use the corridor for any purposes other than those utility purposes, (4) No right of access to the Greenbelt shall be deemed granted or available to Westbank Rance, property owners, other than access by the authorized and designated rept cscnlativcs of the Westbank Ranch IIOA for purposes expressly related to monitoring the care and nmaisnterance of the Access Easement and the control gate, inspecting, repairing and replacing the1►istoric boundary fence along the Greenbelt, and inspecting the Greenbelt to monitor compliance with the terms of this AD -cement. (5) Neither the Westbank Ranch IIOA nor any property owner in Wostbank Ranch shall have any right to construct any improvements upon any portion of the Greenbelt. (6) The Westbank Ranch HOA may not grant any interest in the Greenbelt to any third party. 2. Grans. of Easements Across Greenbelt. (a) Prchm Ranch Access Easement. (1) The Westbasi. Ranch 11OA hereby grants and conveys to Marlin, the owtiors of the eight (8) lots in Prchm Ranch, the Prclum Ranch HOA, and Cantrell, and their successors and assigns, a perpetual, exclusive Access Easement over and across the Driveway Area portion of the Greenbelt in the location depicted on 'Exhibit "B" and identified thereon as the "Access Easement." The Access Easement shall be twenty (20) feet in width, This grant of en selzeut is subject to Westbank's enforcement rights as provided herein in the event of noncompliance. (2) Tho Access Easement shall be limited to the right of Marlin, the Pram Ranch 110A and Cantrell to construct, maintain, repair and replace a private access road and driveway, Landscaping shall be permitted as provided in paragraph 1(c)(2) above. Underground telephone and electric service shall be permitted within the Access Easement to the extent necessary to provide service to the gate and traffic counting device addressed below. Installation of other ulililie;s within the Access Easement shall be prohibited unless reviewed and approved in advance by Westbank, in its discretion. The Access Easement shall constitute the only access between Westbrink Ranch and the Prohru Rauch for any purposes other than as provided in paragraph 1(c)(3) 3 SEP -25-02 WED 10:35 AM Neiley & Alder FAX NO, 970+925+9396 P. 09 above. Tile Access Easement shall constitute the only access between Oak Lane and Lot 22 unless otherwise agreed by Westbank. (b) The Access Easement may be used as alternate primary access to Lot 8, :and as secondary access to the other seven (7) lots within Prehm Ranch. The entrance at the north end of Prelim Ranch shall be primary access for all oFPrchm Ranch. Such uses shall be restricted as 1h11ows: (1) The owner of Lot 22 shall have unlimited and unrestricted access across the Access Easement for all purposes to Lot 22. No right of access to Prclun Ranch through the Access Easement is conferred upon the owner of Lot 22 by this Agreement. The owner of Lot 22 shill I stand in the same position as any other member of the general public relative to such access. (2) Only owners of lots in Prehm Ranch, their accompanied guests and designated representatives of the Prelim Ranch ITOA engaged in Prelim Ranch HOA business defined in paragraph 2(b)(7)(xiii) below, and emergency service providers shall be, entitled to utilize the Access Easement. (3) No construction vehicles shall be permitted to use the Access 14,;N inent except related to development, maintenance, repair and replacement of improvements, landscaping and other uses on Lot 22 and the construction, maintenance and replacement of improvements Willun the Access Easement. (4) No service, delivery or commercial vehicles shall be permitted to use the Access Lasemeiit, except those providing services to Lot 8 and Lot 22. (5) No public access shall be permitted within the Access Easement or any portion. of the Greenbelt. Marlin shall cause a sign to be posted at the entrance to the Access 1:+'.; solraent from Oak Lane clearly establishing the private nature of the road. The appearance and content of the sign shall be subject to Westbank's review and approval, which shall not be unrciisonably withheld. (6) No commercial uses shall be permitted within the Access 'Easement, on any of the lots within Prelim Ranch or on Lot 22. Home offices permitted under Garfield County zoning and subdivision regulations shall not be deemed prohibited commercial uses so lean, as there is no customer traffic across the Access Easement, no outside storage of goods or equipment related to the home office, and no other activities generally and commonly associated with commercial uses. (7) The access road connecting the Prelim Ranch to Oak Lane, Traver::int, the Driveway Area portion of the Greenbelt within the Access Easement as depicted on rxhilut "II," shall be electronically gated at Marlin's expense along the common boundary between the i'rchna Ranch and the Driveway Area portion of the Greenbelt at the location shown as "Grate & Counter" on Exhibit "8" (the "Prelim Ranch Access Gate"). Additionally, the same access road shall be separately moan m(pilled or gated at Marlin's election and expense within the first ten (10) feet of the Driveway Area portion of the Greenbelt within the Access Easement as depicted on 4 SEP -25-02 WED 10:35 All Neiley & Alder FAX NO, 970+925+9396 P. 10 Exhibit "Ir (the "Driveway Arca Access"). The Prehm Ranch Access Gate shall be kept closed when not in use, Both the Prehm Ranch Access Gate and the Driveway Area Acccss shall be clearly and conspicuously posted as private and shall be installed not later than May 31, 2002 (subject to ;iv€�ilability ofcquipment and weather conditions). The following restrictions and conditions shall apply: (i) The Prelim Ranch Access Gate shall be an electronic gate and vehicle counting system. The Driveway Area Access sl tall incl udo, at aminitnum, stone or other architectural pillars establishing the appearance of an entry, connected to fences on the north and south of the pillars, and shall not be electronically gated. (ii) A second electronic gate will be installed and maintained at Marlin's expense at the north end of Prelim Ranch at a location to be determined by Marlin in the arc of the boundary o f Prehin Rancll and County Road 163, which will prohi bit unrestricted public access through Prehin Ranch from the north. All public traffic which may enter Prelim Ranch from the north entrance shall also exit Prchm Ranch through the north entrance, unless otherwise peruiitteil to utilize the Access Easement by the terms of this Agreement. (iii) All traffic entering and leaving Prchm Ranch via Oak Lime will he counted mechanically or electronically at the Prehin Ranch Access Gate, Average vehicle trips per day may not exceed twenty-seven (27), averaged on a bi-monthly basis. (iv) Vehicle trips per day will be averaged hi -monthly, con on ng as soon as the Prelim Ranch Acccss Gate and counter arc installed, with traffic reports generated by computer or other reasonably acceptable means for both the Prelim Ranch HOA and the Westbank Ranch 1-IOA and maintained as part of the Prelim Ranch IIOA corporate records for at least twelve (12) months following each hi -monthly repot-Ling/averaging period. All available vehicle trip data shall be supplied to Wcstbank within ten (10) days following each bi-monthly averaging period, in forth and substance acceptable to Westbank, including a list of owners and the ntniiher of entry devices issued to each lot. The plans for installation of said gate shall include, and Marlin shall install at its sole expense, fencing around the entire exterior boundaries of the road and driveway within the Driveway Area portion of the Greenbelt The fence shall be continuous from Ilia fence along the historic Westbank Ranch/Prehtn Ranch boundary at the Driveway Area Acccss Gate to the Prelim Ranch Access Gate, and from the fence along the historic Westbank R.anch/Prehm Ranch boundary at the east end o f the Lot 22 Driveway Easement to the Prelim Ranch Access Gate, all as shown on Exhibit "B," Said fencing shall prohibit all vehicular access between Prelim Ranch and Westbank Ranch except through the Prehm Ranch Access Gate, to insure that vehicles cannot pass through without operating the counting mechanism, The type and style of fencing shall be subject. to Westhank's review and approval, which shall not be unreasonably withheld, Split rail or mach style fencing which otherwise complies with the terms of this Agreement shall be permilled. (v) The plans for installation and any future re-placeulent of the Prelim Ranch Access Gate and the Driveway Area Access, and related structures and the traffic cou>>lfng device, will be subject to Westhank Ranch HOA's advance review and approval, which approval shall not be unreasonably withheld. To the extent of available technology, the system will 5 SEP -25-02 WED 10:35 AM Neiley & Alder FAX NO. 970+925+9396 P. 11 be c signied in such a manner that, if the traffic counting device does not operate, the gate will not Open. The device shall count each vehicle trip. The Prehm Ranch Access Gate and the fence shall be (lesigtced in a manner which will prohibit access by all forms of motorized vehicles of all kinds, except through the trate. The counting mechanism gate will be designed as a substantial gate, and not merely a "traffic arm" type oI' gate. (vi) if requested by the Westbank Ranch HOA, prior to the instillation o fthe permanent gate and traffic counter, and in addition, in the event of any malfunction of the perm inc.nt gate and/or counting system which cannot be repaired within three (3) business days, Marlin shall install a temporary traffic counting device reasonably acceptable to Westbank Rand' 11OA and shall provide Westbank Ranch IIOA with access to the traffic count information from suc:h lenlporaiy system in accordance with the requirements of this Agreement. (vii) Except as to remedies which may be available; in the event of broach of the terms of this Agreement by the owner of Lot 22, and except as to limitations applicable to all Westbank residents, access to Lot 22 will not be limited. (viii) As of the time ofthis Agreement, the parties anticipate that access shal l be controlled by an electronic card system that will identi fy and record the date, time ,end lot miter each time the Prelim Ranch Access Gate is activated. The entry control system and fence shall he designed and maintained in a manner to prohibit usc by unauthorized persons. "Unauthorized persons" shall inc1ndc, without limitation, all persons not expressly authorized to use the Access Easeinenl by the terms of ibis Agreement, and in particular, members of the general public who may attempt to utilize the Access Easement for pedestrian, bicycle or other vehicular access, (ix) Marlin and the Prehm Ranch IIOA shall be responsible for rill maintenance and ropair of the gate and counting system and the costs thereof, In the event of mal function, damage or required maintenance and repair to the gate and counting system, such maintenance and repair shall be conducted as promptly as reasonably possible. In the event maintenance and repairs cannot be promptly accomplished as a consequence of a lack of available service, parts or materials, or because of other conditions beyond the control of the parties, the Access Easement may continue to be utilized in accordance with the terns ofthis Agreement so long ihej temporary counting system described above has been installed within the Access Easement, is operational and provides the parties with the required vehicle trip counts. (x) Marlin and the Prehm Ranch HOA a gree that the recently C0118tructed road known as the "Prelim Ranch Road" extending from Four Mile Creek south to the Access Easement shall be maintained as a single -lane road, with such pull-outs as maybe reasonably rrcce satry to allow vehicles to pass and to satisfy safely requirements, and that such road shall not be widened into a two-lane road so long as lots within Prelim Ranch continue to utilize the Access J fIS :l oat. (xi) For purposes of this Agreement, the tem "owner" shall include the record owner of any lot within Prelim Ranch, family members, a property caretaker if residing on-site and such residency is authorized by applicable Garfield County rules and regul ations, 6 SEP -25-02 WED 10:36 AM Neiley & Alder FAX NO. 970+925+9396 P. 12 or 4 designated property manager if the record owner is not present in the area In the case of etnporatc ownership, the "owner" shall include the corporations officers and directors. In the case of trust ownership, the "owner" shall include the trust's trustces and beneficiaries. In the case of licnite.1 liability company ownership, the "owner" shall include the members and managers of the limited liability company. ft] the case of a partnership, the tem] "owner" shall include the partners of the partnership. In all eases of entity ownership, the use of lots in Prehrn Ranch shall not exceed standard and customary uses for single family residences. Corporate retreats or other uses inconsistent with single family residential use shall not be permitted on any of Prehm Ranch Lots 1-8. Add lionally, access shall be limited to the average number o f vehicle trips permitted hereunder, including all owners, family members, accompanied guests and, as to Lot 8 only, other authorized URM (xii) For purposes of this Agreement, the term "accompanied guest" shall mean guests physically accompanied by an owner as defined above, whether such owner is in I.he guest's vehicle, in another vehicle accompanying the guest's vehicle, meets the guest at the gale or otheiwise physically opens the gate for the guest. If an owner invites guests to a function on the: Prchn] Ranch such as a wedding, the owner inay designate a family member or other representative to meet guests at the gate and facilitate access by such guests. Notwithstanding the forogoitiG, access shall be limited to the average number of vehicle trips permitted hereunder, and each vehicle entering or leaving Prelim Ranch shall constitute one (1) vehicle trip. (xi ii) Access by representatives of Prelim Ranch HOA shall be for the sole purposes ofmaintenance and repair to the access road, utilities, the gate and counting system, and permitted landscaping, and to perforin the functions normally incidental to the cure and maintenance of the Prelim Ranch road (such as plowing) and the facilities required or permitted to be maintained hereunder within the Access Easement. All vehicle trips by any representative orate Prelim Ranch 11OA shall be included in the total vehicle trip counts. Access for emergency purposes as defined in Paragraph 7(1i) below shall not be included in the vehicle trip counts. (xiv) So long as the Prelun Ranch Access Gate and the fence around the Driveway Arca oan he designed and maintained to prevent public and unauthorized pedestrian and bicycle traffic, pedestrian and bicycle use of the Access Easement by owners of Prelim Ranch Lots 1-8 and their guests shall not be subject to the obligation to count, record and limit the number or vehicle trips. Uses of the Access Easement for snowmobiles, unlicensed vehicles including but not limited to unlicensed all -terrain vehicles, and horses, shall be entirely prohibited. Such prohibition shall extend to owners of Prelim Ranch Lots 1-8 and all other persons. (8) Each of Lots 1-8 in Prelim Ranch shall be utilized solely for single-family residences, with one (1) accessory dwelling unit or guest house if authorized ander applicable Garfield County zoning and subdivision regulations. Multi -family units (that is, duplexes, apartment, condominium units and the like) shall not be permitted on any of Lots 1-8 so long as the Access ]=casement. remains i i t use. So long as the owners of lots with the Prehm Ranch continue to utilise the Access Easement, those lots shall not be further subdivided. The creation of accessory dwelling units, guest houses or similar units which may be permitted under the Garfield County Regulations and which do not result in the creation of more than eight (8) residential lots within the Prelim Ranch► shall not be deemed a fuirther subdivision of the Prehrn Ranch. In the event of any 7 SEP -25-02 WED 10;36 AM Neiley & Alder FAX NO. 970+925+9396 P, 13 violntion of any of the temis of this paragraph, this Agreement and the Access Easement inay bo terminated by any party hereto following written notice and opportunity to cure in the manner set forth in Section 6 below; provided, however, that for purposes of this paragraph, the party committing the breach shall have thirty (30) days within receipt of written notice to fully cure, renicdy or otherwise correct and rectify the alleged breach; and provided further that any such termination shall not affect continuing access to Lot 22 through the Driveway Area. (c) Lot 22 Driveway Easement. (1) The Wesb3nkR anch [IOA hcrcby grants and conveys lo Cantrell and her successors and assigns a perpetual non-exclusive driveway easement over and across the Access Easement within the Driveway Area portion of the Greenbelt in the location depicted on Exhibit "f3," hcrcina fter called the "Lot 22 Driveway Easement," for the use and benefit of Cantrell, her Successors and assigns to use, construct, maintain, repair and replace a driveway, to facilitate normal and reasonable residential uses on Lot 22, including constriction, development, maintenance, repair, replacement, use and enjoyment of a single-family residence and related itoproveiucnts on that Lot. This easement is subject to Westbank's enforcement rights as provided herein in the event ofnoitcompliance. The Lot 22 Driveway Easement shall be twenty (20) feet in width, matching the Access Easement and extending to Lot 22 as depicted on Exhibit "IL" (2) The Lot 22 DrivewayI asenicntshallbeusedastheso]evehicular access to Lot 22 for single-family, residential purposes in accordance with the Amended and Restated Weistbank Ranch Subdivision Protective Covenants recorded on October 24, 2000, as Reception No. 571299. Except as to the limitation that the Lot 22 Driveway Easement shall be the only vehicular access serving Lot 22, and except as to the obligations of the owner or Lot 22 to peal to certain obligations in accordance with the terms of this Agreement, neither the use of Lot 22 nor the use o f the Lot 22 Driveway Easement shall be limited in any way that is different or more restrictive than any other lot within the Westbank Ranch Subdivision. (d) Liens/Adverse Claims. Neither Marlin, the Prelim Ranch IIOA nor Cantrell shall allow any liens or claims to be asserted against or encumber the Access Easement, the Driveway Easement or the Greenbelt in connection with or as a result of any work performed wi thin the casement by Marlin, the Prelim Ranch HOA, Cantrell or their contractors, representatives, sue'cessors arid assigns. (c) Westbank Oak Lane Easement. Cantrell hereby grants and conveys to Wostbanlc and its successors and assigns a perpetual non-exclusive easement over and across the pot tion of the driveway extending across the southwest portion ofLot 22, from the Oak Lane cul -de - ac to the point where the driveway enters the Greenbelt in the location depicted on Exhibit "B." Said easement shall he utilized by Westbank solely for the purposes authorized by this Agreement. "1'I,i,s grant of easement is subject to Cantrell's enforcement rights as provided herein in the event of non-compliance. The casement shall be twenty (20) feet in width. 3. Maintenance of Easements. The Prehm Ranch Owners Association shall be responsible for all costs of maintaining, repairing and replacing all improvements and landscaping within the Access Basement. Cantrell shall be responsible for all costs related to the maintenance 8 SEP -25-02 WED 10:37 AM Neiley & Alder FAX NO. 970+925+9396 P. 14 mid repair of tlic improvements and landscaping within the Driveway Easement. The parties agree that all improvements within the easement areas shall at all times be maintained in. good condition and repair, free of defects or hazardous conditions. 4. The Reciprocal Access Easeme t Agreement, On September 4, 2001, Marlin and Cantrell entered into that certain Reciprocal Access Easement Agreement which was recorded in the real esttile records of Garfield County on that date as Reception No, 587702. Certain provisions of said Reciprocal, Access Easement Agreement conflict with this Agreement. To the extent of such conflict, this Agreement shall be deemed to supplement and amend the Reciprocal Access Easement Agreement. Fxcept as to such conflicts, with respect to which this Agreement shall be deemed to govern and cont rol, all oldie terms, coed i tions, rights and interests sct forth in the Reciprocal Access 1'.fi iL liieni, Agreement shall remain in Bill force and effect, binding upon the parties thereto and thei r successors and assigns. 5. Non-llnterfcrence/Third Parties, Nothing contained herein shall be deemed to grant to any third party any rights or interests in the real property of the parties affected by this Agreement or the easements granted hereunder except as expressly set forth herein. None of the parties, tlicir agents, members, representatives, successors or assigns shall interfere with, impair or ciit;nge in any self-help or other action with respect to the real property interests, equipment, personal properly or the rights or interests of the parties hereto arising out o for related to this Agreement and the respective rights and obligations of the parties hereunder. Specifically, but without limitation, the parties acknowledge that only the parties hereto and their successors in interest with respect to 11L;: 61 le to real property affected by this Agreement and the Prelim Ranch HOA and Westbank Ranch ROA shall bo deemed to have acquired any rights or interests under this Agreement, and the right to enforce the tones hereof shall bo deemed limited to those parties, Nothing contained herein shall be deemed a grant or any right or interest to any property owner within the Westbank Ranch Subdivision or to any member of the public of any o f access to, within or through the Prelim Ranch orany ofthe roads therein. 6, Enforcement. (a) In lie event of any claimed breach of this Agreement, thc party(ies) ming suet t breach shall provide wdttcnnotico thereof to the otherparty(ies), which written notice shall identify the specific breach, including the date and time thereof. The party canton Lung such breach shall, within five (5) days of receipt of such written notice, fully cure, remedy or otherwise cmrcct and rectify all such breaches, and a failure to do so shall entitle the non -breaching party(ies) to eommncnce an action for the enforcement of this Agreement and to recover da gages and attorneys' rocs, all as In ore fully set forth below. In the event of the same breach or breaches of this Agreement within any six (6) month period following the curing, remedying, correction of or other action rectifying such prior breach or brcachcs, the breaching party(ies) shall not be entitled to thc five (5) day cure period set forth above, and the non -breaching party(ies) shall be entitled to immediately seek ,.fir enforcement o f tlic terms and conditions of this Agreement and the recovery o f damages and ,Z1lorrieys' ices lis sct forth below. (b) This Agreement and all of its terms and conditions, and all of the rights and interests of the parties hereunder, maybe enforced by any party hereto and their representatives 9 SEP -25-02 WED 10:37 AM Neiley & Alder FAX NO. 970+925+9396 P. 15 and sueccssors, by the commencement of an action in the Garfield County District Court, in which event the parties shall have the right to assert all claims in law and in equity, and to enforce the terms and conditions of this Agreement by all means available at law and in equity, including the rights to injunctive relief and to damages. En any action for injunctive relief, the party claiming the right to such relief shall not be obligated to demonstrate irreparable harm or the lack of an adequate and immediate remedy at law, those matters being acknowledged to exist by virtue of the parties' execution of this Agreement. In any such action, the party ultimately prevailing shall be entitled to recover all costs and attorneys' fees incurred in connection therewith. 7. Miscellaneous. (a) Further Assurances. The parties hereto agree that each of them will take whatever actions are reasonably necessary or desirable from time to time to effectuate the provisions or intent of this Agreement, and to that end, the parties agree t0 execute, acknowledge, seal and deliver any further instruments or documents which may be necessary to give full force and effect to this Agreement or any of the provisions hereof or to carry out the intent of this Agreement or any of the provisions hereof. (b) Counterparts. This Agreement may bc executed in any number of counterfeits, each of which shall be effective upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, of the same effect as if all parties hereto had signed the sank signature page, Any signature page ofthis Agreement may bo detached from any counterpart ofthis Agreement without impairing the legal effect of any signatures (hereon and may be attached to another counterpart ofthis Agreement identical in form hereto but h:Lving attached to it one or inore additional signature pages. (c) Notices. Ivor proposes of providing notices hereunder, notice shall be ttculled received when delivered by hand delivery or facsimile transrnission upon the date thereof. If notice is given by rnail, notice shall be deemed given upon the date of actual receipt or three (3) days alley deposit into (he U.S. postal system, whichever is earlier. Notice by nail shall bc by entified return receipt requested. Each of the parties designates the addresses set forth above v the addresses for service ofnoliccs, which addresses maybe changed from time to lime by written notice to the other parties hereto. (d) Governing Law. The law applicable to this Agreement and its interpretation shall be that of the State of Colorado (regardless of Colorado's choice of law provisions); any dispute arising out of or concerning this Agreement shall be commenced and maintained in Garfield County, Colorado; and the parties hereby submit to the jurisdiction of Colorado in connection therewith. (e) Modifications. This Agreement may not be modified or amended except ley instrument in writing duly executed by each of the parties hereto as identified in the first 1<Nua2,raph ofthis Agreement, or their successors or assigns, without the necessity of obtaining the signatures of the consenting parties identified below. 10 SEP -25-02 WED 10:38 AM Neiley & Alder FAX NO. 970+925+9396 P. 16 (f) Benefit. This Agreement shall be binding upon and inure to the benefit attic patties hereto and their respective executors, administrators, successors and representatives. (g) Prey ajlinp, Party Costs. In the event of any litigation arising under this A;,t-c; ement, the prova iling party shall Ito entitled to recover reasonable attorneys' fees and court costs in addition to any olher relief to which such party inay be entitled. (h) Ei.mergency Access. Where emergency access is permitted under the tet' t)s of this Agreement, the right to emergency access shall be cleaned g,rantcd to Garfield County, Police and Sheriff's Departments, and ambulance services during such times as emergency services are :lett rally being provided and only when the use of the access through Prehm Ranch is necessary for the most expeditious provision of emergency services. fN WI1'Nl-1SS W h I1- REOF, the parties have executed this Agreement the day and year first written above. MARLIN (COLORADO)), LTD. By___ Tin iothy D. Hong, ong, Manager 1M RANCH OWNERS ASSOCIATION, INC. 13y, President LYNNE S. CANTRELL alk/a LYNN S. CANTRELL WESTBANK RANCH HOMEOWNERS ASSOCTATION By CONSENT OF ALPINE BAND President Alpine Bank, as the holder of the Deed of Trust and other security interests encumbering Lots 1, 2, 4, 5, 6 and 8 of The Preserve at Prelim Ranch, described in Exhibit "A" appended hereto, hereby consents to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement. ALPINE BANK OF ASPEN By George Hart, Vice President 11 SEP -25-02 WED 10:38 AM Neiley & Alder FAX NO. 970+925+9396 P. 17 CONSENT (1" OWNERS OF LOT 3, THE PRESERVE AT PRELIM RANCH RAYMOND N1T.O and JUDITH NIRO, as the Owners of Lot 3, Tho Preserve At Prelim Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement. RAY MON 1) NIRO JUDITH N1RO CONSENT OF OWNER OF LOT 7, THE PRESERVE AT PR.EHM RANCI1 TIIE JUDITIT L. N1RO REVOKABLE TRUST OF 2001 DATED FEBRUARY 14, 2001, as the Owner of Lot 7, The Preserve At Prehnt Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement. S 1'ATF O1' COLORADO COUNTY OF ) ss. ) THE JUDITI1 L. MRO REVOKABLE 'I'RUST OF 2001 DATED FEBRUARY 14, 2001 By Judith L. Niro, Trust The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by Timothy D. Heng, as Manager of MARLIN (C01,61:-ADO),1,TD. WI'1'Nf;,SS my hand and official seal. My commission expires: Notary Public 12 SEP -25-02 WED 10:38 AM Neiley & Alder FAX NO, 970+925+9396 P. 18 STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by as of the PR F,IlM RANCH OWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF Tile foregoing Access Easement Agreement was subscribed and sworn to before me this _ clay of , 2002, by LYNNE S. CANTRELL allda LYNN S. CAPS 1 R ELL. WU'f'NESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing Access Easement Agreement was subscribed and sworn to before me this day of 2002, by _. as of the WESTBANK IZANCii 1COMEOWNERS ASSOCIATION, INC. WITNESS niy hand and official seat My commission expires: Notary Public 13 SEP -25-02 WED 10:38 AM Neiley & Alder STATE OF COLORADO C01JNTY OF FAX NO. 970+925+9396 P. 19 The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by George Hart as Vice President of ALPJNR, BANK Oiz ASPEN. WITN l.SS my hand and official seal. My commission expires: STAT1 a OF C(:)1INTY OF ) ) ss. Notary Public ) Thc foregoing Consent to Access Easement Agreement was subscribed and sworn to before n this clay of , 2002, by RAYMOND NIRO and JUDITH NIRO. W ITN ESS arty hand and official seal. My coinrllission expires: STATE OF ) ) ss. ) COUNTY OF The foregoing Consent to to before inc this day of JUr)1'l1fl L. NIRO REVOKABLE, TRUS' V'JLTNESS my hand and official seal. My commission expires: Notary Public Access Easement Agreement was subscriber] and sworn , 2002, by Judith L. Niro as Trustee of THE f OF2001 DATED FEBRUARY 14, 2001. Notary Public 14 SEP -25-02 WED 10:39 Al Neiley & Alder FAX NO, 970+925+9396 P. 20 LSUMMIT DOOR CO. 970474-1901 FAX 910-874-1919 GARAGE DOORS • ELECTRIC OPENERS • AUTOMATIC GATES I u1 r•. 24, 2002 TO WHOM IT MAY CONCERN: 1630 S. MAIN. • DELTA, CO 81416 TI1E PURPOSE OF THIS LETTER IS TO PROVIDE A DESCRIPTION OF THE GATE AND COUNTING SYSTEM PROPOSED 1`'OR THE PREHM RANCH (ENTRANCES. SUMMIT DOOR COMPANY HAS PREPARED A PROPOSAL. DATED 5/13/02 WIl1Ct1 WOULD PROVIDE FOR AN ELECTRONICALLY OPERATED GATE; AT THE NORTH ENTRANCE TO THE RANCH AND AN ELECTRONICALLY OPERATED GATE AND COUNTING SYSTEM AT THE SOUTH ENTRANCE TO THE RANCH. THE GATES ARE SIMILAR TO THE GATES AT ASPEN GLEN. THE SYSTEM OPERATES AS FOLLOWS: I. ACCESS IS RESTRICTED TO AUTHORIZED PERSONS WITH RESPECT TO BOTH GATES, 2,THE SOUTH GATE WILL. ALLOW ACCESS TO AN OWNER OR OTHER AUTHORIZED PERSON '1 I [BOUGH THE USE OF AN EN'T'RY PHONE SYSTEM, DIGITAL KEY PAD AND TRANSMITTER. THE TRANSMITTER. WORKS LIKE A GARAGE DOOR. OPENER. BY SENDING A RADIO FREQUENCY TO TI -IE GATE.. THE PHONE. 5YS'TEM PERMITS ACCESS WHEN AN OWNER. IS CONTACTED VIA TELEPHONE AND A COI)(: IS ENTERED AT THE OWNERS PHONE TO PHYSICALLY OPEN THE GATE. I. Ill 1 H GATES WILL Bf EQUIPPED WITH A DIRE DEPARTMENT KEY SWITCH. 4. LOTH THE NORTH AND SOUTH ENTRANCES WILL RECORD EACH ENTRY AND CAN IDENTIFY WIlO IS UTILIZING T/1E GATE. A COMPUTER PRINTOUT WILL PROVIDE INFORMATION REGARDING THE USER, DATE, AND TIME OF ENTRY. THE NORTH GATE WILL ONLY RECORD THIS INFORMATION FOR PERSONS BOTH ENTERING AND LEAVING THF, RANCH, 5, i1 Il: COUNTER ON THE SOUTH GATE CAN 13E SET TO PERMIT NO MORE THAN 1,620 VEHICLE Hill S {'1'FIAT I5, F.ACI I TRIP IN OR OUT) WITHIN ANY 60 DAY PERIOD. THE COUNTER MUST BE RESET EVERY 60 DAYS AT L620. EACH TRIP IN OR OUT OF THE GATE CAUSES THE COUNTER TO COUNT DOWN "ONE." WHEN II IE COUNTER. REACHES ZERO, IT SENDS A SIGNAL TO THE GATE 1 FIAT A'1' CAUSES 1T TO LOCK DOWN AND ACTIVATES A LIGHT TO INDICATE THAT THE GATE IS LOCKET) DOWN. A REPORT WILL ISSUE FROM THE GATE SYSTEM TO THE COMPUTER INDICATING 1 HAT IT IS SHUT DOWN. 6. IF TI [E COUNTER MALFUNCTIONS, THE GATE SYSTEM WILL NOT SHUT DOWN. IF THE COUNTER MALF1INC11ONS, 1T CANNOT SEND INFORMATION TO THE GATE SYSTEM. THE COUNTING SYSTEM IS SEPARATE, ANL) DISTINCT FROM THE GATE SYSTEM. WHILE IT CAN PICK YIP INFORMATION WHEN THE GATE OPERATES AND CAN BE EQUIPPED WITH THE COUNTDOWN SYS um, WE ARE UNAWARE OF ANY SYSTEM THAT CAN COMMUNICATE TO THE GATE THAT IT IS MALFUNCTIONING, THEREBY SHUTTING IIIE GATE DOWN. THESE SYSTEMS SIMPLY ARE NOT THAT COMPLEX, AND THIS TYPE OF I' I.JNCTLON I•IAS NEVER BEEN REQUESTED IN THE PAST. THE PQ111PMENT IS, HOWEVER, HIGHLY RELIAI: I . '7, THE EQUIPMENT IN OUR PROPOSAL IS BASICALLY "TIE SAME AS THAT WHICH IS USED AT ASPIN GLEN, EXCEPT TItA'C WE HAVE ADDED EQUIPMENT OT THE SOUTH GATE OF THE RANCH TO RECORD ALL, EXITS FROM THE RANCH. 'WE UNDERSTAND THAT THIS IS A REQUIREMENT FOR '11IE SOUTH EXIT. THE SOUTH EXIT GATE AND COUNTING SYSTEM WILL IDENTIFY EACH` TRIP IN END OUT AS TO USER, TIME, AND DATE. THIS INFORMATION IS CONVEYED VIA THE TELEPHONE SYSTEM 'L O THE MONITORING COMPUTER WHICH CAN GENERATE A DETAILED REPORT REGARDING TIME: USE OF THE SYSTEM_ 13. AF FER SOMEONE ENTERS OR DEPARTS TILE RANCH BY EITHER THE NORTH OR SOUTH GATE, TI IE GATE WILL AUTOMATICALLY SHUT AFTER THE VEHICLE PASSES OVER A BURIED LOOP. . APPENDED D HERETO IS A COPY OF THE PROPOSAL FOR. PREHM RANCH IDENTIFYING THE SPECIFIC FQUICPM1=NT TO BE IT1'ILILEU FOR THESE ENTRANCE SECURITY SYSTEMS. SUMMIT DOOR COMPANY JOHN TRNCER SEP -25-02 WED 10:39 ACI Neiley & Alder TO' L. i1RM(T Do°R GAIWIE COCAS • rcLECIRIC OPINERS • AUTOMATIC GATES 1F3) S. MAIN ST. OE,LTA, COLOBA120 81416 (70j 674-1801 N'r : LEY + ALOER i:1CHARf) Y. NE1I,EY 2,)1 N. MTLL ST. SUITE 102 ASPEN CO. 81611 Ytte API atm '111114 upociUpHt+Gno 'zinc; eiiIinaleco. Tot FAX NO. 970+925+9396 P. 21 PROPOSAL 'PAGE OF 420 r570 925-9393 F92p' 1910 ;; 003 Joe so.18, LOCATIam PREHM RANCH iat.�tfi1;. . • JOE NUMBER 16x5 VI:RTICAJ. LIFT GATES AND OPERATORS. TUBULAR RANCH :TYLE GATES f':,1Nt'MF:'1'r. PADS FOR OPERATORS 2 CATCH YOKES 2 I?t'.DESTALS EOR ENTRY PHONES 4 LOOPS 1N 7RIV1! I nr)1• DETECTORS 2 FIRE DEFT. KEY SWITCIIFS 2 l'1=.0G1t7at4MJ .HLE RADIO RECEIVERS 1 DIGITAL KEYPAD FOR EXIT A'1' GATE WITH COUNT SYSTEM. PEDESTAL MOUNTED 2 ;t 6'1 !i ENTRY PHONES WITH ELECTRONIC_ DIRECTORY'S 1 SET ILOFTWAR' FOR PHONE PROGRAMMING. Cl, oNI'!'.k FOR PREDETERMINED TOTAL 1--NTRYS. MATERIAL 1 INDICATOR LIGHT FOR COUNT SHUTDOWN LABOR TAX TFiE: COUNT SYSTEM CAN GENEREATE A REPORT WHEN THE GATE IS LOCKET) DOWN THAT CAN BE PICKED UP BY THE CnMPu2'i:k THAT IS MANAGING THE SYSTEM. TJIE COUNTER CAN THAN BE RESET BY THE COMPUTER. Ith i CF. DOE:$ NOT TNCLUI)E CONDUIT OR WIRE. TitAld:illlTTEPS 1-9 45.00 EA. ,f TAX 10-30 40.00 EA. + TAX ALL !'ArY)R AMD MATERIAL IS GUARANTEED FOR ONF YEAR tt : i.�;�l OSE tun aby 10lumistt rrar.,arU•} ttc 1 lobar — cc rrlptote In accordance w�Il1 II a atxlve spai i1ic tI. rLs. for the sum 01: Y7I venl.y and 00/100 .�o_, '".---...,. • 0311Ar0 All raarnaauuh10.11O Ary ua Nace.16ed All M•nr}: 1n (IA i.r.y;r'Ill In 0 I•.rdf..;e,)nal 170r.l,lx as• 1 e.n:ti ql tO ::i tlat,i.tl prtrct1tu .. Any llItLArcbtar1 ur '.(r1a•Ipr.110r1i u 1A•,!0p wY,,, tx,t,14 w.{I r.ry * Innd r.iuy upon wrntn.,, arrest., kt,rl w,11 tw. rant an Arux rJ„vl�b r. -.,f e'e1 :.I1't;t! u+^ i:Jtr ratO !.d 1:urt eptYK-fill Cr -0010.41% limn 1.1. .kl41ra117 hl <klwfy, I.. ...t rx.l Ix�.,tnd O.rr, i Im Cur !trio, Qrrl;n*t, hag' ull•+Ir cw,a��,a�y In�urmx.t: 011, mAl rt . het ray l':..urrnl Cy 1.NOrl.nt'3 Comryuv:ttlua IIrAlfriA AC:GFb'•rATt1c'E Or PROPOSAL 'tr..1,.raa t.j na•lhrt vtlnl:•, dn.l ro•dronlr.aa urn 104c.lacway and urn n11,0,y at cot,L00 you ern :,: Ir,i,n.•�.d f.r .S<. e,.. x^,i a. 154 SI,iCdwad P<ly r.tol w,ll t7a. r l:.u.e n : 011'1100d nl,Ova L),alr• ul AO, 1,i IT 4.4./ (n, yen l' :.i1 ih.: ACIP,aI,r.,,wun.+.u.t..wf:ri¢6wNlr1.'1 A1111101 taw Sl9rldIurIl ---- Nolo 1 ni s proposal may be wtaidf;lwn by 14 1t no! ucc elect wit' un 60 days. A,,r+I O IN U A A • SEP -25-02 WED 10:40 AM Neiley & Alder SUMMIT DOOR'CO. FAX N0. 970+925+9396 P. 22 970-874-1901 FAX 970-8741919 GARAGE DOORS • ELECTRIC OPENERS • AUTOMATIC GATES June 24, 2002 PRfiIIM RANCH, 1630 S. MAIN. • DELTA, CO 81416 ALL LABOR AND MATERIAL IS GUARANTEED FOR ONE YEAR FROM DATE OF COMPLETION. AFTER ONE YEAR THE FOLLOWING RATES APPLY. ON SITE LABOR. TRAVEL ONE MAN $?2.00 IIOIJft 538.00 HOUR PLUS .25 MILE TWO MEN $92,00 HOUR S58.00 HOUR PLUS .25 MILE OCT -17-02 THU 04:50 PM Neiley & Alder FAX NO. 970+925+9396 P. 01/18 NEILEY & ALDER 201 North Mill Street, Suite 102 Aspen, Colorado 81611 Richard Y. Neiley, Jr. (970) 925-9393 Eugene M. Allier FAX (970) 925-9396 FACSIMILE TRANSMISSION TO: »on I)eF ord 111.10 Dishier FROM: Rick Neiley DA'T'E: October 17, 2002 TIME: 4:42 pm NUMBER OF PAGES (including cover sheet): 16 COMMENTS OR INSTRUCTIONS: ORI(:INAISTRA NSMITT ED BY: luta FAX #: 970-384-5005 970-925-1090 NOTICE OF CONFIDEN'T'IAL TTY I HE INF DRMATION CONTAINED WIT'I lIN THIS FACSIMILE TRANSMISSION IS ATTORNEY PRIVILEGED AND CONFIDENTIAL lttl CIRMATtOH INTENDED ONLY FOR TI IE USE OF TI IC INDIVIDUAL OR ENTITY TO WHICI I IT 15 ADDRESSED. IF YOU ARE NOT THE DESIGNATED DECIPICNT OF THIS TRANSMISSION, OR Ti It, EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERY OF THIS INFC)RMA1 ION TO TI IL INTENDED rk1-,CIFIENT, YOU ARE FID.CriY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING 01'1171IIRAN SMISSI(N TO ION Il SENDER UY RNITED STATES MAL AT TH ERECEIVED ADDRESSTHIS S T FORTH A OVE IN ERROR, PLEASE RETURN IF THERE ARE ANY PROBLEMS WITH THIS TRANSMISSION OR IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT ANN AT (970) 925-9393 0CT-17-02 THU 04:50 PM Neiley & Alder Richard Y. Neiley, Jr. Eugene M. Alder FAX NO. 970+925+9396 NEILEY & ALDER 201 North Mill Street, Suite 102 Aspen, Colorado 81611 VIA FACSIMILE TRANSMISSION Stcvein M. Beattie, Esquire. Beattie & Chadwick 710 Cooper Avenue, Suite 200 Glenwood Springs, CO 81601 (970) 9.45-8671 1 b1 S, Dishier, Enquire Kaufman & Peterson, P.C. 315 Fast 1fyman Avenue, Sprite 305 Aspen, CO 81611 (9/0) 925-1090 October 17, 2002 P. 02/18 (970) 925-9393 Fax (970) 925-9396 Don K. Dci?ord, Esquire Garfield County Attorney 108 East Eighth Street, Suite 219 Glenwood Springs, CO 81601 (970) 384-5005 Re: BOARD OF COUNTY COMMISSIONERS OF GARFIJ LD COUNTY, STATE OF COLORADO v. MARLIN (COLORADO), LTI)., ALPINE BANK, and LYNNE S. CANTRELL a/Wa LYNN S. CANTRELL and WESTBANK RANCH HOMEOWNERS ASSOCIATION v, MARLIN (COLORADO), LTD., and LYNNE S. CANTRELL, Garliold County District Court, Consolidated Case Nos. 01 CV 207 and 01 CV 208 I)ear Counsel: Transmitted herewith you will find a revised Access Easement Agreement incorporating all of the changes requested by Garfield County and Westbank. T have reviewed this version with my client, and it is acceptable. 1 have Federal Expressed it today to the other signatories, and l have arranged for execution by Alpine Bank and Lynne Cantrell. The revision to the Amendment to the Weslbank Plat has been prepared by High Country}gineeringanclsignedbyFrankllarrington. Ttisavailable tobepicked upatliighCountry by Wcstbank or Stove Beanie's office. I hope 10 have the necessary letter from the fire district tomorrow. OCT -17-02 THU 04:50 PM Neiley & Alder Letter to Messrs. Beattie, l)cFord and fishier October 17, 2002 Page 2 FAX NO. 970+925+9396 P, 03/18 Assuming C get the signatures back on the Access Easement Agreement in a timely fashion, we should be in a position to finolizc this matter on Monday. Please call with any questions. Very truly yours, Mi1T iEY & ALDER F1 ,kichard Y. Ncilcy, Jr. RYN/agl: Enclosuro OCT -17-02 THU 04:51 PM Neiley & Alder FAX NO. 970+925+9396 P. 04/18 ACCESS EASI+:MEN'f AGREEMENT T1 -11S AGREEMENT is made this day of October, 2002, by and among MAR IAN (COLORADO), LTD. ("Marlin"), whose address is c/o Carl B. Linnecke, CPA, 215 South Monarch Street, Aspen, Colorado 81611, LYNNE S. CANTRF,LL a/k/a LYNN S. CANTRELL ("Cantrell"), whose address is P. O. Box 2104, Basalt, Colorado 81621, the PREHM RANCH OWNERS ASSOC/A'1'10N, INC. ("Prehm Ranch HOA"), whose address is do Neiley & Alder, 201 North Mill Street, Suite 102, Aspen, Colorado 81611, and the WESTBANK RANCH 110M1{.OWNERS ASSOCIATION, INC. ("Westbank Ranch HOA"), whose address is P. O. Box 270, Glenwood Springs, Colorado 81602. WHEREAS, Marlin is a Colorado corporation which is the owner of that certain real property located in Garfield C:ounty, Colorado, known as Lots 2, 4, 5, 6 and 8, The Preserve At Pram Ranch, as more fully described in the legal description appended hereto as Exhibit "A" (the "Pt-ehiii Ranch"); and W1IRREAS, Cantrell is the owner of Lot 22, riling No. 1, Westbank Ranch Subdivision, Counly of Garficid, State of Colorado, located adjacent to the Prehm Ranch at the east boundary thereof ("Lot 22"); and WHEREAS, the Prelim 1 ainch 11OA is a Colorado not for profit corporation established for the purpose of, among of her things, administering the common interests of all owners of lots within Prelim Ranch, including the care and maintenance of common roads; and WHEREAS, the Westbank Ranch 1-IOA is a Colorado not for profit corporation etinibIklled for the purpose of, among other things, administering the coronion interests ofall owners or loiwithin tlrc Westbank Ranich Subdivision, Filings 1, 2 and 3 ("Westbank Ranch"); and WHEREAS, LRFAS, the Plat of Westbank Ranch Planned Developnient Subdivision, Filing No. 1, as originally recorded on November 27, 1970, as Reception No, 248729, depicted a "road casement" traversing Lot 22 and Lot 23 of Westbank Ranch, Filing No. 1, between the end of the county road tdent.r rued as "Oak Lane" and the east boundary of Prelim Ranch; and WHEREAS, the Plat of Westbank Ranch Planned Development Subdivision, Filing No.1 was amended to delete and remove the "road easement" traversing Lot 22 of Westbank Ranch, Filing 1, to reflect thereon the creation oflho Access Easement and Driveway Easement described herein, to croute a "Greenbelt/Open Space Parcel" (identified on the Amended Plat of Lot 22, f'csthrrnk Ranch Planned Development Subdivision1, Filing No. 1 as the "Common Opc'n Space Parcel") for the benefit of Westbank Ranch EIOA as depicted on Exhibit "B" and described on l3xl�ibit "C" appended hereto, and to include in the Greenbelt/Open Space Parcel all real property inelllding and encompassed by the road and driveway to serve Prelim Ranch and Lot 22 and pre:;vioti►sly a part of PrelimRanch, which Amended Plat was recorded on — , 2002, as Reception No. _ and WHEREAS, the parties desire to set forth their various rights, interests and obligations with respect to limited access between the public road known as Oak Lane within the Westbank Ranch Subdivision and the Prelim Ranch and Lot 22 and with respect to the creation of the "Greenbelt/Open Space Parcel," all as more fully set forth herein. 1 OCT -17-02 THU 04:59 P11 Neiley & Alder FAX NO. 970+925+9396 P. 05/18 NOW, '1'HERLV OPT, in consideration (Atha foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties atl;rcw as (1)11ows: 1. Greenbelt/Open Space Parcel. (a) Contemporaneously with the execution of this Agreement and execution and recordation of the Amended Plat of Lot 22 of Westbank Ranch Planned Development Subdivision, Filing No, 1, Marlin has conveyed by Special Warranty Deed to the Westbank Ranch FIOA the parcel of land described in Exhibit "C" located along the common boundary between Pi el im Ranch and Westbank Ranch Planucd Development Subdivision, Filing No. 1, extending the entire length of the uphill (south) common boundary between Prehm Ranch and Westbank Ranch, to life north (downhill) across the flul portion of Lot 8 in Prehm Ranch abutting Lot 22 in Westbank Rauch, terminating at the steep embankment uphill from the river's bank; and, all real properly iircliidilil; and encompassed by the road and driveway to serve Prelim Ranch and Lot 22 and proviot'sly a part of Prehm Ranch (the "Driveway Area"), all as depicted on said Amended Plat and Exhibit "B" appended hereto and identified as the "Greenbelt/Open Space Parcel" (hereinafter the "Greenbelt"). (b) The purposo of the conveyance of the Greenbelt by Marlin to the Westbank Ranch IIOA is to create an ownership interest in real property for the benefit of the Westbank Ranch HOA over which tho access road into Prehm Ranch and Lot 22 traverses. (c) The Greenbelt shall at all tirnes be maintained as a passive, undeveloped strip of land which may bo used only in accordance with the terms and conditions set forth herein. Those uses are U nitcd as follows: (1) The Greenbelt maybe developed by Marlin and Cantrell with an access road between Oak Lane and Prehm Ranch with a driveway serving Lot 22, not to exceed a paved Surface of fourteen (14) feet in width, with shoulders, drainage culverts and such other iinprovonients as aro reasonably necessary and incidental to the use and maintenance of said access road and landscaping with the entire width of the Access Easement across the Greenbelt not exceeding twenty (20) feet in the locations depicted on Exhibit "B." (2) Except as to the Driveway Aroa portion of the Greenbelt encompassing the "Access Easement" addressed hereinbelow, rbc; Greenbelt maybe utilized by the owner of Lot 8 for open space, drainage and pedestrian access between Lot 8 and the Roaring Fork River. Landscaping and fencing shall be permitted withintho portion ofthe Greenbelt arca including tiro Di iveway Arca and extending from the Driveway Arca to the north. All expenses of installation of landscaping and fencing shall be the sole responsibility of Marlin, without contribution by Wostlrauik, Alt expenses of continuing maintenance and repairs of tltc landscaping and fencing shall be the responsibility of Marlin, the Prelim Ranch HOA or Cantrell, without contribution by Westbank, Any other uses of the Greenbelt shall be prohibited, except as may be subsequently reviewed and Specificallyapproved tryWestbank. In particular, no road or access other than the road and driveway to be constructed within the Driveway Area shall over he constructed between Westbank- Ranch and Prelim Ranch, and the construction of any additional road or access shall coir.;titule a material breach of this Agreement. No improvements shall be constructed within the Greenbelt except. as permitted Bertin. 2 OCT -17-02 THU 04:59 PM Neiley & Alder FAX NO. 970+925+9396 P. 06/18 (3) An unimproved access exists across the Greenbelt on the i11. giant depicted on Exhibit "13" for use by utility providers who have express easements, including pocky Mountain Natural Gas Company, the Mountain Status Telephone and Telegraph Coriipany, and Holy Cross Electric Association (and their successors). No road shall ever be coi islrneted along the utility colTirlor from the southeast end of the Prelim Ranch Road as shown on Exhibit "13" to the Greenbelt Arca (other than uses by the utility providers pursuant to the terms of their express casements), and no party shall use the corridor for any purposes other than those utility purposes. (4) No right of access to the Greenbelt shall be deemed granted or available to Westbank Ranch property owners, other than access by the authorized and designated representatives of the Westbank Ranch I -TOA for purposes expressly related to monitoring the care and maintenance of tlic Access Easement and the control gate, inspecting, repairing and replacing the llisloric boundary fence along the Greenbelt, and inspecting the Greenbelt to monitor compliance with the terns of this Agreement. (5) Neither the Westbank Manch HOA nor any property owner in Westbank Ranch shall have any right to construct any improvements upon any portion of the Greenbelt. (6) The Westbank Ranch 110A may not grant any interest in the Greenbelt to any third party. 2. Grant orEasements Across Greenbelt. (a) Prchm Ranch Access Easement. (1) The Westbank Ranch HOAhereby grants and conveys to Marlin, the owners of the eight (8) lots in Prelim Manch, the Prchm Ranch HOA, and Cantrell, and their successors and assigns, a perpetual, exclusive Access Hamm -tent over and across the Driveway Area poi tion of the Greenbelt in the location depicted on Exhibit "13" and identified thereon as the "rlcccsw Easement." Tha Access Easement shall be twenty (20) feet in width. This grant of easement is subject to Westbank's enforcement rights as provided herein in the event of noncompliance. (2) The Access Easement shall be limited to the right of Marlin, the 1'Y ehrit Ranch HOA and Cantrell to construct, maintain, repair and replace a private access road and driveway, Landscaping shall be permitted as provided in paragraph 1(c)(2) above. Underground telephone and electric service shal I bepernllltcdwithin the Access Easement to the extent necessary to provide service to the gale and traffic counting device addressed below. Installation of other trtili(ios within the Access Easement shall be prohibited unless reviewed and approved in advance lty Westbank, in its discretion. The Access Easement shall constitute the only access between Westbuillc Raneli and the Prelim Ranch for any purposes other than as provided irtparagraph 1(c)(3) tilove. 1'hc Access basement shall constitute the only access between Oak Lane and Lot 22 unless (Alm wiwc agreed by Westbank. 3 OCT -17-02 THU 05:00 PM Neiley & Alder FAX NO. 970+925+9396 P. 07/18 (b) The Access Easement may be used as alternate primary access to Lot 8, and Lis secondary access to the other seven (7) lots within Prehm Ranch. The entrance at the north earl of Prelim Ranch shall be primary access for all of Prehin Ranch. Such uses shall be restricted as follows; (1)The owner ofLot 22shall have unlimited and unrestricted access across 'die Access Easement for all purposes to Lot 22. No right of access to Prehm Ranch through the .Access Easement is conferred upon the owner of Lot 22 by this Agreement. The owner of Lot 22 shall stand in the same position as any other member of the general public relative to such access. (2) Only owners of lots in Prehm Ranch, their accompanied guests and designated representatives of the Prehrti Ranch 1•IOA engaged in Prehm Ranch HOA business defined in paragraph 2(b)(7)(xii i) below, and emergency service providers shall be entitled to utilize the Access Easement. (3) No construction vehicles shall be permitted to use the Access 1. L.ufclit except related to development, maintenance, repair and replacement of improvements, landscaping and other uses 011 Lot 22 and the construction, maintenance and replacement of improvements within the ACCCSS Easement. (4) No service, delivety or commercial vehicles shall be permitted to use the Access Easement, except those providing services to Lot 8 and Lot 22. (5) No public access shall be permitted within the Access Easement or any portion of the Greenbelt. Marlin shall cause a sign to be posted at the entrance to the Access El1P',ucnt from Oak Lane clearly establishing the private nature of the road. The appearance and content of the sign shall be subject to Weslbank's review and approval, which shall not bc unreasonably withheld. (6) No commercial uses shall be permitted within the Access Ealsentlnt, on any of the lots within Prehm Ranch or on Lot 22, IIome offices permitted under Gal fedi County zoning and subdivision regulations shall not be deemed prohibited commercial Uses so long as there is no customer traffic across the Access Easement, no outside storage of goods or equipment related to the home office, and no other activities generally and commonly associated with commercial uses. (7) The access road connecting the Prehm Ranch to Oak Lane, traversing the Driveway Area portion of the Greenbelt within the Access Easement as depicted on Exhibit "B," shall be electronically gated at Marlin's expense along the con -non boundary between the Prehm Ranch and the Driveway Arca portion of the Greenbelt at the location shown as "Gate & Counter" on Exhibit "13" (the "Prelim Ranch Access Gate"). Additionally, the same access road shall bc separately monumented or gated at Marlin's election and expense within the first ten (10) 1b t of the Driveway Arca portion of the Greenbelt within the Access Easement as depicted on Exhibit "13"' (the "Driveway Area Access"). The Prchnt Ranch Access Gate shall be kept closed when not in use. Both the Prehm Ranch Access Gate and the Driveway Arca Access shall be clearly and conspicuously posted as private, and the gate, counting mechanism, fencing and related impr•oPcint>nts shall be installed nut later than November 28, 2002 (subject to availability of equipment and weather conditions). The following restrictions and conditions shall apply: 4 OCT -17-02 THU 05:00 PM Neiley & Alder FAX NO. 970+925+9396 P. 08/18 (i) The Prelim Ranch Access Gate shall be an electronic gate and vehicle counting system , The Dri veway Area Access shall include, at amntimum, stone or other architectural pillars establishing the appearance of an entry, connected to fences on the north and south of the pillars, and shall not be electronically gated. (ii) A second electronic gate will be installed and maintained at Marlin's expense at the north end ofPrehnr Ranch at a location to he determined by Marlin in. the arca of the boundary ofPrelmi Ranch and County Road 163, which will prohibit unrestricted public aec ss through I relnn Ranch from the north. All public traffic which may enter Prchm Ranch from the north shall also exit Prchm Ranch through the north entrance, unless otherwise permitted to utilize the Access Easement by the terns ofthis Agreement. (iii) All traffic entering and leaving Prchm Ranch via Oak Laic will be, counted mechanically or electronically at the Prchm Ranch Access Gate, Average vehicle trips per day may not exceed twenty-seven (27), averaged ori a hi -monthly basis. (iv) Vehicle trips per day will be averaged bi-monthly, commencing as soon as the Prelim Ranch Access Gate and counter are installed, with traffic reports generated by computer or other reasonably acceptable means for both the Prelim Ranch HOA and the Wcatbaiik. Ranch I!OA and maintained as part of the Prelim Ranch HOA corporate records for at least twelve (12) months following each bi-monthly reporting/averaging period. The gate and counting luc•c`hanislln shall be designed such that the gate will automatically shut down in the event there are one thousand six hundred twenty (1,620) vehicle trips in such sixty (60) day rcporting/averaging period. All avai lab le vehicle trip data shall be supplied to Westbank within ten (1 0) days following each bi-monthly averaging period, in form and substance acceptable to West bank, including a list of owners and the number of entry devices issued to each lot. The plans for irtst,tllation of said gale shall include, and Marlin shall install at its sole expense, fencing around the entire exterior boundaries of the road and driveway within the Driveway Arca portion of the Cireenbelt. 'flit; fence shall be continuous from the fence along the historic Westbank Ranch/Prehm Ranch bourxlar•y al the Driveway Area Access Gate to the Prelim Ranch Access Gate, and from the fence along the historic Wesibank R.anch/Prehm Ranch boundary at the east end of the Lot 22 Driveway Easement to the Prchm Ranch Access Gate, all as shown on Exhibit "B." Said fencing shall prohibit all vehicular access between Prelim Ranch and Westbank Ranch except through the I'relirn Ranch Access Gate, to insure that vehicles cannot pass through without operating the counting mechanism_ The type and style of fencing shall bo subject to Wesibank's review and approval, which shall not be unreasonably withheld. Four rail split rail or ranch style fencing which otherwise complies with the terms of this Agreement shall be permitted. (v) The plants for installation and any future re -placement of the Prelim R<ich Accts` Gate and the Driveway Area Access, and related structures and the traffic counting device, will be subject to Westbank Ranch IIOA's advance review and approval, which approval shall not be unreasonably withheld. 'Co the extent of available technology, the system will be designed in such a manner that, if the traffic counting device does not operate, the gate will not open. The device shall count each vehicle trip. The Prchm Ranch Access Gate and the fence shall t e desis;ned in ar manner which will prohibit access by all forms of motorized vehicles of all kinds, except through the gate. The counting mechanism gate will be designed as a substantial gate, and not merely Ei "traffic arm" typo of gate. 5 OCT -17-02 THU 05:01 PM Neiley & Alder FAX NO. 970+925+9396 P. 09/18 (vi) if requested by the Westbank Ranch I -10A, prior to time install,ition of the permanent gate and traffic counter, and in addition, in the event ofany mal function of the permanent gate and/or counting system which cannot be repaired within three (3) business days, Marlin shall install a temporary traffic counting device reasonably acceptable to Westbank Ranch IIOA and shall provide Westbank Ranch 1 -TOA with access to the traffic count information flour such tel system in accordance with the requirements of this Agreement. In the event of a rtra f unction of the counting system, the temporary traffic counting device shall be installed within twenty jour (24) hours of the time that Marlin is notified of'or discovers the malfunction. If the; temporary coau►timg device is not installed within said twenty-four (24) hour period, the gate shall be closed and locked so as to prohibit any access until the earlier of the time at which the temporary counting device has been installed or the rnalfw:ction has been corrected. In the event of rt rnalft+nclion of theperm anentgatesystem, Marlin shall insure that the gate is not left in an open pavilion such that unrestricted access to and from Prelim Ranch could result. In such circumstance, Malin lin strall promptly cause the gate to be inanually closed in such a fashion that it may only be opened by authorized persons and repair personnel. In the event the gate tnalf tnctiotrs such that it restrains open and Marlin has not caused the gate to be manually closed within twenty four (24) hours of receipt of notice of the t,ralfitnclior, a designated representative of the Westbank Ranch 11(0,4 shall be authorized to physically close trete gate in such a fashion that it cannot he utilized by unauthorized persons. (vii) Except as to remedies which may be available in the event of breach oldie terms ofthis Agreement by the owner of Lot 22, and except as to limitations applicable to all Westbank residents, access to Lot 22 will not be limited. (viii) As of the time ofthis Agreement, the parties anticipate iIi'tt access shall be controlled by an electronic card system or other electronic gale and counting system that will idcnti fy and record the date, time and lot owner each time the Prclvn Ranch Access finale is act lvated. No permanent access control systema shall be installed at the south gate that does trot identify the owner, guest, homeowners association representative or other authorized user and the date and time of entry or departure. The entry control system and fence shall he designed and maintained in a manner to prohibit use by unauthorized persons. "Unauthorized persons" shall include, without limitation, all persons not expressly authorized to use the Access Easement by the terms ofthis A ;reenient, and in particular, members of ilic general public who may attempt to utilize the Access Easement for pedestrian, bicycle or other vehicular access. (ix) Marlin and the Prelim Ranch IIOA shall bo responsible liar all maintenance and repair of the gate and counting system and the costs thereof. In the event ol'foal function, damage or required maintenance and repair to the gate and counting system, such maintenance. and repair shall be conducted as promptly as reasonably possible. in the event msaiutcntanee and repairs cannot be promptly accomplished as a consequence of a lack of available service, parts or materials, or because of other conditions beyond the control of the parties, the Ace;ess Vascntctit may continuo to be utilized in accordance with the terms of this Agreement so long as the temporary counting system described above bas been installed within the Access Easement, i� operational and provides the parties with the required vehicle trip counts. (x) Marlin and llie Prehm Ranch HOA agree that the recently constructed road known as the "Prelim Ranch Road" extending from Four Mile Creek south to the C OCT -17-02 THU 05:01 PM Neiley & Alder FAX NO. 970+925+9396 P. 10/18 Access Basement shall be inaintaincd as a singlc-lane road, with such pull-outs as maybe reasonably necessary to allow vehicles to pass aril to satisfy safely requirements, and that such road shall not be widened into a two-lane road so long as lots within Prelim Ranch continue to utilize the Access Easement. (xi) For purposes of this Agreement, the term "owner" shall iucic:dc the record owner of any lot within Prchm Ranch, family members, a property caretaker if residing cm -site and such residency is authorized by applicable Garfield County rules and regulations, or adesignated property manager if the record owner is not present in the area. In the case of corporate ownership, the "owner" shall include the corporation's officers and directors. In rho case of trust ownership, the "owner" shall include the trust's trustees and beneficiaries. In the case of limned liability company ownership, the "owner" shall include the members and managers of the limited liability company. In the case ora partnership, the term "owner" shall include the partners o CUR:: partnership. In all cases o f entity ownership, the use of lots in Prelim Ranch shall not exceed standard and customary uses for single family residences. Corporate retreats or other uses inconsistent witli single fancily residential use shall not be permitted on any ofPrehm Ranch Lots 1-8. Additionally, access shall be limited to the average number of vehicle trips permitted hereunder, including all owners, fancily members, accompanied guests and, as to Lot 8 only, other authorized tlS3n (xii) For purposes of this Agreement, the term "accompanied giiest" shall mean quests physically accompanied by an owner as defined above, whether such owner is in clic; guest's vehicle, in another vehicle accompanying the guest's vehicle, meets the burst al the gate or otherwise physically opens the gate for the guest. Ilan owner invites guests to a function on the Prelim Ranch such as a wedding, the owner may designate a family member or other rcprescntativc to rilcct guests at the gale and facilitate access by such guests. A telephone en!ry sy.rtaein ,shrill lac permitted at the south entrance to Prelim Ranch in the vicinity of the gate as shown on Evhibit "B" to the Access Easement Agreement. The telephone entry system may be utilized to - callow guests to access Prc:lrnr Ranch via Oalc Lane so long as the owner opening the gate for the guests is physically on Prehm Ranch, identifies the guests via the telephone entry system and operas the sate by utilizing the type of systeent described in the Securaas and Sumnril Doors Proposals. The telcpfaonc entry feature of the gale and counting systema shall not be activated so as to permit telephone access by guests prior to August 6, 2004. Notwithstanding the foregoing, at the time of completion of imju-ovements on any lot or lots within The Preserve at Prehm Ranch prior to August 6, 2001 but after August 6, 2003, upon issuance of a certificate of occaapancyfor such lot or lots, the owner thereof shall be entitled to utilize the telephone ent,y feature. The gate controlling access between T)rehna Ranch and Oak Lane shall not incorporate an automatic loop system which will permit the gate to open without reg ording the information required hereunder. Notwithstanding die foregoing, access shall be limited to the average number of vehi cle trips permitted hereunder, and each vchicic entering or leaving Prchm Ranch shall constitute one (1) vehicle trip. (ilii) Access by representatives of Prelim Ranch 110 shall be for the sole purposes of maintenance and repair to the access road, utilities, the gate and counting system, and permitted landscaping, and to perform the functions noniiallyincidentalto the care and ni:aialionanee, of the Prelim Ranch ro;id (such as plowing) and the faci lilies required or permitted to be inaiaitained hereunder within the Access Easement. All vehicle trips by any representative of the Prelim Ranch I-IOA shall be included in the total vchicic trip counts. Access for emergency purposes as defined in Paragraph 7(h) below shall not he included in the vehicle trip counts. 7 OCT -17-02 THU 05:02 PM Neiley & Alder FAX NO. 970+925+9396 P. 11/18 (xiv) So long as the Prehm Ranch Access Gate and the fence around the Driveway Area can be designed and maintained to prevent public and unauthorized pedestrian and bicycle tra ffic, pedestrian and bicycle use of the Access Easement by owners of Prelim Ranch Lots 1-8 and their guests shall not be subject to the obligation to count, record and limit the number of vehicle trips. The gate controlling bicycle and pedestrian access shall inroiporate a lucking device so as to preclude unauthorized access by members of the public. Uses ofthe Access E,:tsemenl for snowmobiles, unlicensed vehicles including but. not limited to unlicensed all -terrain vehicles, tnid horses, shall be entirely prohibited. Such prohibition shall extend to owners of -Prelim Ranch Loris 1-8 and all oilier persons. (8) Each of Lots 1-8 in Prehm Ranch shall be utilivcd solely for singly' -family residences, with one (1) accessory dwelling unit or guest house if authorized under applicable Garfield County zoning and subdivision regulations. Multi -family units (that is, duplexes, apartment, condominium units and the like) shall not be permitted on any of Lots 1-8 so long as the Access Easement remains,' in use. So long as the owners of any lots within the Prehm Ranch continue to utilize the Access Easement, none of the loth shall be further subdivided. The creation of accessory dwelling units, guest houses or similar units which maybe permitted underthc Garfield County Regulations aid which do not result in die creation of more than eight (8) residential lots within the Prehm Ranch shall not be deemed a further subdivision of the Prehm Ranch. In the event of any violation of any oldie terms of this paragraph, this Agreement and the Access Easement may be terminated by any party hereto following written notice and opportunity to cure in the manner set forth in Section 6 below; provided, however, that for purposes of this paragraph, the patty committing the breach ,Ball have thirty (30) days within receipt of written notice to fully cure, remedy or otherwise correct and rectify the alleged breach; and provided further that any such termination shall not affect continuing access to Lot 22 through the Driveway Area, (c) Lot 22 Driveway Easement. (1) The WesthankRanch IIOA hereby grants and conveys to Cantrell and her suecossors and assigns a perpetual non-exclusive driveway easement over and across the Access Easement within the Driveway Area portion of the Greenbelt in the location depicted on Exhibit "E3," hereinafter called the "Lot 22 Driveway Easement," for the use and benefit of Cantrell, her successors and assigns to use, construct, maintain, repair and replace a driveway, to facilitate normal and reasonable residential uses on Lot 22, including construction, development, Maintenance, repair, replacement, use and enjoyment of a single-family residence and related improvements on that Lot. This easement is subject to Wcstbanl<'s enforcement rights as provided herein in the event of noncompliance. The Lot 22 Driveway Easement shall be twenty (20) feet in width, matching the Access Easement and extending to Lot 22 as depicted on Exhibit "13." (2) The I .ot 22 Driveway Easement shall be used as the sole vehicular nece.5s to Lot 22 for single-family, residential purposes in accordance with the Amended and Restated Westbank Ranch Subdivision Protective Covenants recorded on October 24, 2000, as Reception No. 5712)9. Except as to the limitation that the Lot 22 Driveway Easement shall be the only vehicular access serving Lot 22, and except as to the obligations of the owner of Lot 22 to perform certain obligations in accordance with the terms of this Agreement, neither the use of Lot 22 nor tlio use oldie Lot 22 Driveway Easement shall be limited in any way that is different or more restrictive than any other lot within the Wes thank Ranch Subdivision. 8 OCT -17-02 THU 05:02 PM Neiley & Alder FAX NO. 970+925+9396 P. 12/18 (ci) Liens/Adverse Claims. Neither Marlin, the Prclun Ranch HOA nor Cull reit shall allow any liens or claims to be asserted against or encumber the Access Easement, the Driveway Easement or the Greenbelt in connection with or as a result o f any work performed within the cascrlteatt by Marlin, the Prelim Ranch ICDA, Cantrell or their contractors, representatives, sttcr.cssors aful assigns. (e) Westhank Orel: Lane Fasement. Cantrell hereby grants and conveys to Woslhalk and its successors and assigns a perpetual non-exclusive easement over and across the portion of the driveway extending across the southwest portion of Lot 22, from the Oak Lane ctrl -de - sac to the point where the driveway enters the Greenbelt in the location depicted on Exhibit "B." Said Casement shall he utilized by Westbanlc solely for thc purposes authorized by this Agreement. This grant of easement is subject to Can lrcll's enforcement rights as provided herein in the event of nc)R1-compliance. The easement shall be twenty (20) feet in width. 3, Maintenance of Fasonlent5. The Prchm Ranch Owners Association shall be responsil)le for all costs ofnlaintaining, repairing and replacing all improvements and landscaping within the Access Easement. Cantrell shall be responsible for all costs related to the maintenance and repair of -the improvements and landscaping within the Driveway Easement. The parties agree that all improvements within the easement areas shall al all times be maintained in good condition and repair, free of defects or hazardous conditions. 4. The Reciprocal Access basement Agreement. On September 4, 2001, Marlin and Cantrell entered into Ili at certain Reciprocal Access Easement Agreement which was recorded. in the real estate records of Garfield County on that date as Reception No. 587702. Certain provisions of said Reciprocal Access Easement Agreement conflict with this Agreement. To the extent of such conflict, this Agreement shall be deco icd to supplement and amend the Reciprocal Access Easement Agreement., Except as to such conflicts, with respect to which this Agreement shall be deemed to govern and control, all ofihc terms, conditions, rights and interests set forth in the Reciprocal Access las(3f11ent Agreement shall remain in full force and effect, binding upon the parties thereto and their successors and assigns. 5. Non-interference/Third Parties. Nothing contained herein shall be deemed to ;rant to any third party any rights or interests in the real property of the parties affected by this Agreement or the casements granted hereunder except as expressly set forth herein. None of the parties, their agents, rncmbcrs, representatives, successors or assigns shall interfere with, impair or ofr,lav,e in any self-help or other notion with respect to the real property interests, equipment, personal property or the rights or interests of the parties hereto arising out of or related to this Agreement and the respective rights and obligations of the parties hereunder. Speci fically, but without limitation, ti ,e parties acknowledge that only the parties hereto and their successors in interest with respect to the title to real property affected bythis Agreement and the Prelim Ranch HOA and Westbank Ranch LHON shall be deemed to have acquired any rights or interests under this Agreement, and the right to enforce the terms hereof shal l be deemed limited to those parties. Nothing contained herein shall he deemed a rant of any right or interest to any property owner within the Westhank Ranch Subdivision or to any member of the public of any of access to, within or through the Prehnt Ranch or any of the roads lltcrein, 9 OCT -17-02 THU 05:03 Ph[ Neiley & Alder FAX NO. 970+925+9396 P. 13/18 6. Enforcement. forcement. (a) in the event of any claimed breach of this Agreement, the parly(ics) asserting; such breach shall provide written notice thereof to the other party(ics), which written notice shall identify the specific breach, including the date and time thereof. The party committing such breech shall, within live (5) days of receipt of such written notice, fully cure, remedy or otherwise correct and rectify all Such breaches, and a failure to do so shall entitle the non -breaching party(ies) to eommcnee an action for the on forcement ofthis Agreement and to recover damages and attorneys' fees, Lill as more fully set forth below. In the event of the same breach or breaches ofthis Agreement within any six (6) month period following the curing, remedying, correction of or other action recti Eying such prior breach or breaches, the breaching party(ics) shall not be entitled to the live (5) day Circe period set forth above, and the non -breaching party(ies) shall be entitled to immediately seek on enforcement oftits terms and conditions ofthis Agroernenl and the recovery ofdamages and attorneys' fees as set forth below, (b) 'I'Itis Agreement and all of its terms and conditions, and all of the rights and it iWrest of the parties hereunder, maybe enforced by any patty hereto and their representati ves aril snccessors, by the comm ettccm' nt of an action in the Garfield County District Court, in which event the parties shalt have: the ri ght to assert. all claims in law and in equity, and to enforce the tears and conditions of this Agreement by all means available at law and in equity, including the rights to injunctive relief and to damages. In any action for injunctive relief, the party claiming the right to such relief shall not be obligated to demonstrate irreparable harm or the lack of an adequate and immediate remedy at law, those matters being acknowledged to exist by virtue of the parties' execution of this Agreement. in Any such action, tate party ultimately prevailing shall be entitled to recover all costs and attorneys' Cees incurred in connection therewith. 7. Miscellaneous. (a) Further Assclrances. The parties hereto agree that each of them will take whatever actions are reasonably necessary or desirable from time to time to effectuate the provisions or intent of this Agreement, and to that end, the parties agree to execute, acknowledge, seal and deliver any further instruments or documents which may be necessary to give full force and effect to its Agreement or any ofthe provisions hereof or to carry out the intent of this Agreement or any of tills provisions hereof. (b) Countel;l)arts. This Agreement may be executed in any number of countetparts, each of which shall be effective upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, ofthe sante effect as if all parties hereto had signed the same signature page. Any signature page of this Agreement may be detached fromany counterpart ofthis Agreement without impairing the legal effect ofany signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but liavieg ultached to it ono or more additional signature pages. (c) Notices. For purposes of providing notices hereunder, notice shall be deemed received when delivered by hand delivery or facsimile transmission upon the date thereof. If notice is given by mail, notice shall be deemed given upon the date of actual receipt or three (3) (lays after deposit into the U.S, postal system, whichever is earlier. Notice by mail shall be by certified maii, return receipt requested. Each ofthe parties designates the addresses set forth above 10 OCT -17-02 THU 05:03 PM Neiley & Alder FAX NO. 970+925+9396 P. 14/18 thQ addresses for service of notices, which Addresses maybe changed from time to time by written notice to the other patties hereto. (d) Goveming Law. The law applicable to this Agreement and its interpretation shall be that of the State of Colorado (regardless of Colorado's choice of law provisions); any dispute arising out of or concerning this Agreement shall be commenced and maintained in Garfield County, Colorado; and the parties hereby submit to the jurisdiction of Colorado in connection therewith (c) Modifications. This Agreement may not be modified or amended except by instrument in wrilinP, duly executed by each of the parties hereto as identified in the first paragraph oftiiis Agreement, or their successors or assigns, without the necessity of obtaining the sign itltres of the consenting parties identified below. (f) Benefit,. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, successors and representatives. (g) Prevailing Party Costs. In the event of any litigation arising under this A greunient, the prevailing party shall he entitled to recoverrcasonable attorneys' fens and court costs in addition to any other relief to which such party may be entitled. (ll) rmergcncy Access. Where emergency access is permittod under the ternis of this Agreement, the right to emergency access shall be deemed granted to Garfield County, Poiicc; and Sheri fI's i)epatt nen Is, and ambulance services during such times as emergency services are actually being provided and only when the use of the access through Prohm Ranch is necessary for the most expeditious provision of emergency services. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year firs! wri ltcrl above. MARLIN (COLORADO), L'I 1). Timothy D. l long, Manager pr&lil1M RANCH OWNERS ASSOCIA'T'ION, INC. LYNNE S. CANTRELL ailc/a LYNN S. CANTRELL WESTBANK RANCH HOMEOWNERS ASSOCIATION _ By President President 11 OCT -17-02 THU 05:03 PM Neiley & Alder FAX NO. 970+925+9396 P. 15/18 CONSENT OF ALPINE BANK Alpine Bink, as the holder of the Deed of Trust and other security interests encumbering, Lots 2, 4, 5, 6 and 8 of Th© Preserve at Prehm Ranch, described in Exhibit "A" appended hereto, Hereby consents to the terns and conditions and the granting of the rights and interests As set forth in this Access Easement Agreement and the Second Amended Prelim Ranch Exemption flat, ALPINE BANK OF ASPEN 13y George Hart, Vice President CONSENT OF OWNER OF LO'[ 1, THE PRESERV.E AT PRFHM RANCH MULKEY Il LIMITED PARTNERSHIP, as the Owner of Lot 1, The Preserve At Preh ni Rai tch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions riud the granting of the rights and interests a set forth in this Access Easement Agreement and the Second Arrrcnrlecl Prehm Ranch Exemption flat. MULKEY 11 LIMITED PARTN[ RS111P 13y David Mulkey, General Partner CONSENT OF OWNERS OF LOT 3, TELL PRESERVE AT PREIIM RANCH RAYMOND NIRO and JUDITH NIRO, as the Owners of Lot 3, The Preserve At Prchm Ranch, described in Exhibit "A" appended hereto, hereby consent to thcterms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the S'ecanc1 Amended Pre/iin Ranch Exemption Plat. RAYMOND NIRO JUDITII NIRO 12 OCT -17-02 THU 05:04 P11 Neiley & Alder FAX NO, 970+925+9396 P. 16/18 CONSENT OF OWNER OF LOT 7, "1116 PRESERVE AT PRFHM RANCH. THE JUDITH L. NIRO REVOKABLE TRUST OF 2001 DATED FEBRUARY 14, 2001, as the Owner of Lot 7, The Preserve At Prehm Ranch, described in Exhibit "A" appended hcre(o, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prelim Ranch Exemption Plat. TI1F JUDTI'H L. NIRO REVOKAB[,E TRUST O1 2001 DATED FEBRUARY 14, 2001 By Judith L. Niro, Trustee STATE, OF COLORADO ) )ss. COUNTY OF The foregoing Access Easement Agreement was subscribed and sworn to before mc this day of ., 2002, by Timothy D. lleng, as Manager of MARLIN (COLORADO), 1,TD. W1'1''NPAS my hand and official seat. My commission expires: s•l'Affi OI' COLORADO COUNTY OF _ ) ss. ) Notary Public The foregoing AecCss Easement Agreement was subscribed and sworn to before me this day of 2002, by as of the PRIsI.IM RANCH OWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: Notary Public 13 0CT-17-02 THU 05:04 PM Neiley & Alder STATE OF COLORADO COI1N'CY (W )ss. '1'}1e foregoing Access Easement Agreement was subscribed and sworn to before -me tlri, _ play of —.� _ ,, 2002, by LYNNE S. CANTRELL a/lda LYNN S. CANI'1U L'I,. FAX NO. 970+925+9396 P. 17/18 WI'I NESS my hand tend official seal. My conrrnl$slan expires: Notary Public six -II, O[' COLORADO ) ) ss. COUNTY OF _ ) The foregoing Access Easement Agreement was subscribed and sworn to before me _, 2002, by as of the tins day or _..,,.. .. �., - WI STRANK RANCH. HOMEOWNERS ASSOCIATION, INC. WII'NF;SS my Band and official scal. My commission expires: Notary Public S'L'ATE OF COLORADO ) )6S. COUNTY OF - ) The foregoing Consent to Access Pas202tbg,twas ssLd and n� rn tc before nye this day of 0YGcorgeHaRaVice lresidcof ALPINE BANK OF ASPEN. WITNESS my band and official seal. My commission expires: Notary Public 14 OCT -17-02 THU 05:04 PM Neiley & Alder STATl; OF COLORADO ) ) Ss. COUNTY OF -- ) FAX NO. 970+925+9396 P. 18/18 The foregoing Consent to Access Easement Agreement was subscribed and sworn to belore me this clay of , 2002, by David Mulkey as General Partner of Ml II..KEY it LIMITED PARTNERSHIP, WITNESS my hand and official seal. My commission expires: STATE OF COI.JN'I'Y OF Notary Public The foregoing Consent to Access Easement Agreement was subscribed and sworn to Iscl'orc me this day of , 2002, by RAYMOND NIRO and 1 UDITII NIRO. VJ!'t NUSS my hand and official seal My coi i nission expires S''A'C13, OF COUNTY OF Notary Public The foregoing Consent to Access Easement Agreement was subscribed and sworn to belbre enc this _ day of , 2002, by Judith L. Niro as Tnistcc of THE JUDITH L. NIRO REVOKABLE TRUST 0F2001 DATED FEBRUARY 14, 2001, WITNESS my hand and official seal. My commission expires: Notary Public 15 jA Please Reply To 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Fax (970) 925-9396 ,ECEIVED NEILEY & ALDER ATTORNEYS OCT 0 2002 GARFIELD COUNTY Please Reply To 3UILDING & PLANNti� Richard Y. Neiley, Jr. Eugene M. Alder October 30, 2002 Mr. Mark Bean Garfield County Community Development 109 Eighth Street, Suite 303 Glenwood Springs, CO 81601 Re: Prehm Ranch Dear Mark: 6800 Highway 82, Suite 1, Upper Level Glenwood Springs, Colorado 81601 (970) 928-9393 Fax (970) 928-9399 HAND DELIVERY Enclosed herewith you will find the original fully executed mylar for the Amended Plat of Lot 22, Westbank Ranch. Also enclosed is a copy of the Access Easement Agreement containing all necessary signatures with the exception of Garfield County. We will have the original available for execution by the County at the time the County authorizes the chairman to execute the document. Ron Biggers of the Glenwood Springs Fire Department advised me that he would provide the letter regarding emergency access to Prehm Ranch directly to you. I have not seen this letter yet, but I did advise him that it needed to be in your hands in advance of the November 4, 2002 County Commissioners meeting. It is my understanding that you have the fully executed Second Amended Prehm Ranch Exemption Plat. Please let me know if you need anything further with respect to finalizing these matters. Thank you for your assistance. Vtruly yours, Y & ALDER zj 44 I G ichard Y. Neiley, Jr. RYN/agk Enclosures cc: Marlin (Colorado), Ltd. Don DeFord, Esquire Steven Beattie, Esquire Hal Dishler, Esquire ACCESS EASEMENT AGREEMENT THIS AGREEMENT is made this day of October, 2002, by and among MARLIN (COLORADO), LTD. ("Marlin"), whose address is c/o Carl B. Linnecke, CPA, 2 1 5 South Monarch Street, Aspen, Colorado 81611, LYNNE S. CANTRELL afkla LYNN S. CANTRELL ("Cantrell"), whose address is P. O. Box 2104, Basalt, Colorado 81621, the PREHM RANCH OWNERS ASSOCIATION, INC. ("Prehm Ranch HOA"), whose address is c/o Nei ley & Alder, 201 North Mill Street, Suite 102, Aspen, Colorado 81611, and the WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. ("Westbank Ranch HOA"), whose address is P. O. Box 2703, Glenwood Springs, Colorado 81602. WHEREAS, Marlin is a Colorado corporation which is the owner of that certain real property located in Garfield County, Colorado, known as Lots 2, 4, 5, 6 and 8, The Preserve At Prehm Ranch, as more fully described in the legal description appended hereto as Exhibit "A" (the "Prehm Ranch"); and WHEREAS, Cantrell is the owner of Lot 22, Filing No. 1, Westbank Ranch Subdivision, County of Garfield, State of Colorado, located adjacent to the Prehm Ranch at the east boundary thereof ("Lot 22"); and WHEREAS, the Prehm Ranch HOA is a Colorado not for profit corporation established for the purpose of, among other things, administering the common interests of all owners of lots within Prehm Ranch, including the care and maintenance of common roads; and WHEREAS, the Westbank Ranch HOA is a Colorado not for profit corporation established for the purpose of, among other things, administering the common interests of all owners of lots within the Westbank Ranch Subdivision, Filings 1, 2 and 3 ("Westbank Ranch"); and WHEREAS, the Plat of Westbank Ranch Planned Development Subdivision, Filing No. 1, as originally recorded on November 27, 1970, as Reception No. 248729, depicted a "road easement" traversing Lot 22 and Lot 23 of Westbank Ranch, Filing No. 1, between the end of the county road identified as "Oak Lane" and the east boundary of Prehm Ranch; and WHEREAS, the Plat of Westbank Ranch Planned Development Subdivision, Filing No. 1 was amended to delete and remove the "road easement" traversing Lot 22 of Westbank Ranch, Filing 1, to reflect thereon the creation of the Access Easement and Driveway Easement described herein, to create a "Greenbelt/Open Space Parcel" (identified on the Amended Plat of Lot 22, Westbank Ranch Planned Development Subdivision, Filing No. 1 as the "Common Open Space Parcel") for the benefit of Westbank Ranch HOA as depicted on Exhibit "B" and described on Exhibit "C" appended hereto, and to include in the Greenbelt/Open Space Parcel all real property including and encompassed by the road and driveway to serve Prehm Ranch and Lot 22 and previously a part of Prehm Ranch, which Amended Plat was recorded on , 2002, as Reception No. ; and WHEREAS, the parties desire to set forth their various rights, interests and obligations with respect to limited access between the public road known as Oak Lane within the Westbank Ranch Subdivision and the Prehm Ranch and Lot 22 and with respect to the creation of the "Greenbelt/Open Space Parcel," all as more fully set forth herein. 1 NOW, THEREFORE, in consideration ofthe foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Greenbelt/Open Space Parcel. (a) Contemporaneously with the execution of this Agreement and execution and recordation of the Amended Plat of Lot 22 of Westbank Ranch Planned Development Subdivision, Filing No. 1, Marlin has conveyed by Special Warranty Deed to the Westbank Ranch 11OA the parcel of land described in Exhibit "C" located along the common boundary between Prehm Ranch and Westbank Ranch Planned Development Subdivision, Filing No. 1, extending the entire length of the uphill (south) common boundary between Prehm Ranch and Westbank Ranch, to the north (downhill) across the flat portion of Lot 8 in Prehm Ranch abutting Lot 22 in Westbank Ranch, terminating at the steep embankment uphill from the river's bank; and, all real property including and encompassed by the road and driveway to serve Prehm Ranch and Lot 22 and previously a part of Prehm Ranch (the "Driveway Area"), all as depicted on said Amended Plat and Exhibit "B" appended hereto and identi fied as the "Greenbelt/Open Space Parcel" (hereinafter the "Greenbelt"). (b) The purpose of the conveyance of the Greenbelt by Marlin to the Westbank Ranch HOA is to create an ownership interest in real property for the benefit of the Westbank Ranch HOA over which the access road into Prehm Ranch and Lot 22 traverses. (c) The Greenbelt shall at all times be maintained as a passive, undeveloped strip of land which may be used only in accordance with the terms and conditions set forth herein. Those uses are limited as follows: (1) The Greenbelt may be developed by Marlin and Cantrell with an access road between Oak Lane and Prehm Ranch with a driveway serving Lot 22, not to exceed a paved surface of fourteen (14) feet in width, with shoulders, drainage culverts and such other improvements as are reasonably necessary and incidental to the use and maintenance of said access road and landscaping with the entire width of the Access Easement across the Greenbelt not exceeding twenty (20) feet in the locations depicted on Exhibit "B." (2) Except as to the Driveway Area portion of the Greenbelt encompassing the "Access Easement" addressed hereinbelow, the Greenbelt may be utilized by the owner of T of 8 for open space, drainage and pedestrian access between Lot 8 and the Roaring Fork River. Landscaping and fencing shall be permitted within the portion ofthe Greenbelt area including the Driveway Area and extending from the Driveway Area to the north. All expenses of installation of landscaping and fencing shall be the sole responsibility of Marlin, without contribution by Westbank. All expenses of continuing maintenance and repairs of the landscaping and fencing shall be the responsibility of Marlin, the Prehm Ranch HOA or Cantrell, without contribution by Westbank. Any other uses of the Greenbelt shall be prohibited, except as may be subsequently reviewed and specifically approved by Westbank. In particular, no road or access other than the road and driveway to be constructed within the Driveway Area shall ever be constructed between Westbank Ranch and Prehm Ranch, and the construction of any additional road or access shall constitute a material breach of this Agreement. No improvements shall he constructed within the Greenbelt except as permitted herein. 2 (3) An unimproved access exists across the Greenbelt on the alignment depicted o,i Exhibit "Q" for use by utility providers who have express easements, including Rocky Mountain Natural Gas Company, the Mountain States Telephone and Telegraph Company, and Holy Cross Electric Association (and their successors). No road shall ever be constructed along the utility corridor from the southeast end of the Prehm Ranch Road as shown on Exhibit "B" to the Greenbelt Area (other than uses by the utility providers pursuant to the terms of their express easements), and no party shall use the corridor for any purposes other than those utility purposes. (4) No right of access to the Greenbelt shall be deemed granted or available to Westbank Ranch property owners, other than access by the authorized and designated representatives of the Westbank Ranch HOA for purposes expressly related to monitoring the care and maintenance of the Access Easement and the control gate, inspecting, repairing and replacing the historic boundary fence along the Greenbelt, and inspecting the Greenbelt to monitor compliance with the terms of this Agreement. (5) Neither the Westbank Ranch HOA nor any property owner in Westbank Ranch shall have any right to construct any improvements upon any portion of the Greenbelt. (6) The Westbank Ranch HOA may not grant any interest in the Greenbelt to any third party. 2. Grant of Easements Across Greenbelt. (a) Prehm Ranch Access Easement. (1) The Westbank Ranch HOA hereby grants and conveys to Marlin, the owners of the eight (8) lots in Prehm Ranch, the Prehm Ranch HOA, and Cantrell, and their successors and assigns, a perpetual, exclusive Access Easement over and across the Driveway Area portion of the Greenbelt in the location depicted on Exhibit "B" and identified thereon as the "Access Easement." The Access Easement shall be twenty (20) feet in width. This grant of easement is subject to Westbank's enforcement rights as provided herein in the event of noncompliance. (2) The Access Easement shall be limited to the right of Marlin, the Prehm Ranch HOA and Cantrell to construct, maintain, repair and replace a private access road and driveway. Landscaping shall be permitted as provided in paragraph 1(c)(2) above. Underground telephone and electric service shall be permitted within the Access Easement to the extent necessary to provide service to the gate and traffic counting device addressed below. Installation of other utilities within the Access Easement shall be prohibited unless reviewed and approved in advance by Westbank, in its discretion. The Access Easement shall constitute the only access between Westbank Ranch and the Prehm Ranch for any purposes other than as provided in paragraph 1(c)(3) above. The Access Easement shall constitute the only access between Oak Lane and Lot 22 unless otherwise agreed by Westbank. 3 (b) The Access Easement may be used as alternate primary access to Lot 8, and as secondary access to the other seven (7) lots within Prehm Ranch. The entrance at the north ens: of Prehm Ranch shall be primary access for all of Prehm Ranch. Such uses shall be restricted as follows: (1) The owner of Lot 22 shall have unlimited and unrestricted access across the Access Easement for all purposes to Lot 22. No right of access to Prehm Ranch through the Access Easement is conferred upon the owner of Lot 22 by this Agreement. The owner of Lot 22 shall stand in the same position as any other member of the general public relative to such access. (2) Only owners of lots in Prehm Ranch, their accompanied guests and designated representatives of the Prehm Ranch HOA engaged in Prehm Ranch HOA business defined in paragraph 2(b)(7)(x iii) below, and emergency service providers shall be entitled to utilize the Access Easement. (3) No construction vehicles shall be permitted to use the Access Easement except related to development, maintenance, repair and replacement of improvements, landscaping and other uses on Lot 22 and the construction, maintenance and replacement of improvements within the Access Easement. (4) No service, delivery or commercial vehicles shall be permitted to use the Access Easement, except those providing services to Lot 8 and Lot 22. (5) No public access shall be permitted within the Access Easement or any portion of the Greenbelt. Marlin shall cause a sign to be posted at the entrance to the Access Easement from Oak Lane clearly establishing the private nature of the road. The appearance and content of the sign shall be subject to Westbank's review and approval, which shall not be unreasonably withheld. (6) No commercial uses shall be permitted within the Access Easement, on any of the lots within Prehm Ranch or on Lot 22. Home offices permitted under Garfield County zoning and subdivision regulations shall not be deemed prohibited commercial uses so long as there is no customer traffic across the Access Easement, no outside storage of goods or equipment related to the home office, and no other activities generally and commonly associated with commercial uses. (7) The access road connecting the Prehm Ranch to Oak Lane, traversing the Driveway Area portion of the Greenbelt within the Access Easement as depicted on Exhibit "B," shall be electronically gated at Marlin's expense along the common boundary between the Prehm Ranch and the Driveway Area portion of the Greenbelt at the location shown as "Gate & Counter" on Exhibit "B" (the "Prehm Ranch Access Gate"). Additionally, the same access road shall be separately monumented or gated at Marlin's election and expense within the first ten (10) feet of the Driveway Area portion of the Greenbelt within the Access Easement as depicted on Exhibit "B" (the "Driveway Area Access"). The Prehm Ranch Access Gate shall be kept closed when not in use. Both the Prehm Ranch Access Gate and the Driveway Area Access shall be clearly and conspicuously posted as private, and the gate, counting mechanism, fencing and related improvements shall be installed not later than November 28, 2002 (subject to availability of equipment and weather conditions). In the event the gate and counting system are not installed by 4 November 28, 2002, the south access shall not be utilized for access to Prelim Ranch until installation has been completed. The following restrictions and conditions shall apply: (i) The Prehm Ranch Access Gate shall he an electronic gate and vehicle counting system. The Driveway Area Access shall include, ata minimum, stone or other architectural pillars establishing the appearance of an entry, connected to fences on the north and south of the pillars, and shall not he electronically gated. (ii) A second electronic gate will be installed and maintained at Marlin's expense at the north end of Prehm Ranch at a location to be determined by Marlin in the area of the boundary of Prehm Ranch and County Road 163, which will prohibit unrestricted public access through Prehm Ranch from the north. All public traffic which may enter Prehm Ranch from the north entrance shall also exit Prehm Ranch through the north entrance, unless otherwise permitted to utilize the Access Easement by the terms of this Agreement. (iii) All traffic entering and leaving Prehm Ranch via Oak Lane will be counted mechanically or electronically at the Prehm Ranch Access Gate. Average vehicle trips per day may not exceed twenty-seven (27), averaged on a bi-monthly basis. (iv) Vehicle trips per day will be averaged bi-monthly, commencing as soon as the Prehm Ranch Access Gate and counter are installed, with traffic reports generated by computer or other reasonably acceptable means for both the Prehm Ranch HOA and the Westbank Ranch HOA and maintained as part of the Prehm Ranch HOA corporate records for at least twelve (12) months following each bi-monthly reporting/averaging period. The gate and counting mechanism shall be designed such that the gate will automatically shut down in the event there are one thousand six hundred twenty (1,620) vehicle trips in such sixty (60) day reporting/averaging period. All available vehicle trip data shall be supplied to Westbank within ten (10) days following each bi-monthly averaging period, in form and substance acceptable to Westbank, including a list of owners and the number of entry devices issued to each lot. The plans for installation of said gate shall include, and Marlin shall install at its sole expense, fencing around the entire exterior boundaries of the road and driveway within the Driveway Area portion of the Greenbelt. The fence shall be continuous from the fence along the historic Westbank Ranch/Prehm Ranch boundary at the Driveway Area Access Gate to the Prehm Ranch Access Gate, and from the fence along the historic Westbank Ranch/Prehm Ranch boundary at the east end of the Lot 22 Driveway Easement to the Prehm Ranch Access Gate, all as shown on Exhibit "B." Said fencing shall prohibit all vehicular access between Prehm Ranch and Westbank Ranch except through the Prehm Ranch Access Gate, to insure that vehicles cannot pass through without operating the counting mechanism. The type and style of fencing shall be subject to Westbank's review and approval, which shall not be unreasonably withheld. Four rail split rail or ranch style fencing which otherwise complies with the terms of this Agreement shall be permitted. (v) The plans for installation and any future re -placement of the Prehm Ranch Access Gate and the Driveway Area Access, and related structures and the traffic counting device, will be subject to Westbank Ranch HOA's advance review and approval, which approval shall not be unreasonably withheld. To the extent of available technology, the system will be designed in such a manner that, if the traffic counting device does not operate, the gate Evill not open. The device shall count each vehicle trip. The Prehm Ranch Access Gate and the fence shall be designed in a manner which will prohibit access by all forms of motorized vehicles of all kinds, 5 except through the gate. The counting mechanism gate will be designed as a substantial gate, and not merely a "traffic arm" type of gate. (vi) If requested by the Westbank Ranch HOA, prior to the installation of the permanent gate and traffic counter, and in addition, in the event ofany malfunction of the permanent gate and/or counting system which cannot be repaired within three (3) business days, Marlin shall install a temporary traffic counting device reasonably acceptable to Westbank Ranch HOA and shall provide Westbank Ranch HOA with access to the traffic count information from such temporary system in accordance with the requirements of this Agreement. In the event of a malfunction of the counting system, the temporary traffic counting device shall be installed within twenty-four (24) hours of the time that Marlin is notified of or discovers the malfunction. If the temporary counting device is not installed within said twenty- four (24) hour period, the gate shall be closed and locked so as to prohibit any access until the earlier of the time at which the temporary counting device has been installed or the malfunction has been corrected. In the event of a malfunction of the permanent gate system, Marlin shall insure that the gate is not left in an open position such that unrestricted access to and from Prehm Ranch could result. In such circumstance, Marlin shall promptly cause the gate to be manually closed in such a fashion that it may only be opened by authorized persons and repair personnel. In the event the gate malfunctions such that it remains open and Marlin has not caused the gate to be manually closed within twenty-four (24) hours of receipt of notice of the malfunction, a designated representative of the Westbank Ranch HOA shall be authorized to physically close the gate in such a fashion that it cannot be utilized by unauthorized persons. (vii) Except as to remedies which may be available in the event of breach of the terms of this Agreement by the owner of Lot 22, and except as to limitations applicable to all Westbank residents, access to Lot 22 will not be limited. (viii) As of the time of this Agreement, the parties anticipate that access shall be controlled by an electronic card system or other electronic gate and counting system that will identify and record the date, time and lot owner each time the Prehm Ranch Access Gate is activated. No permanent access control system shall be installed at the south gate that does not identify the owner, guest, homeowners association representative or other authorized user and the date and time of entry or departure. The entry control system and fence shall be designed and maintained in a manner to prohibit use by unauthorized persons. "Unauthorized persons" shall include, without limitation, all persons not expressly authorized to use the Access Easement by the terms of this Agreement, and in particular, members of the general public who may attempt to utilize the Access Easement for pedestrian, bicycle or other vehicular access. (ix) Marlin and the Prehm Ranch HOA shall be responsible for all maintenance and repair of the gate and counting system and the costs thereof. In the event of malfunction, damage or required maintenance and repair to the gate and counting system, such maintenance and repair shall be conducted as promptly as reasonably possible. In the event maintenance and repairs cannot be promptly accomplished as a consequence of a lack of available service, parts or materials, or because of other conditions beyond the control of the parties, the Access Easement may continue to be utilized in accordance with the terms of this Agreement so long as the temporary counting system described above has been installed within the Access Easement, is operational and provides the parties with the required vehicle trip counts. 6 (x) Marlin and the Prehm Ranch HOA agree that the recently ccristructed road known as the "Prelim Ranch Road" extending from Four Mile Creek south to the A.;Less Easement shall be maintained as a single-lane road, with such pull-outs as maybe reasonably necessary to allow vehicles to pass and to satisfy safety requirements, and that such road shall not be widened into a two-lane road so long as lots within Prehm Ranch continue to utilize the Access Easement. (xi) For purposes of this Agreement, the term "owner" shall include the record owner of any lot within Prehm Ranch, family members, a property caretaker if residing on-site and such residency is authorized by applicable Garfield County rules and regulations, or a designated property manager if the record owner is not present in the area. In the case of corporate ownership, the `owner" shall include the corporation's officers and directors. In the case of trust ownership, the "owner" shall include the trust's trustees and beneficiaries. In the case of limited liability company ownership, the "owner" shall include the members and managers of the limited liability company. In the case of a partnership, the term "owner" shall include the partners of the partnership. In all cases of entity ownership, the use of lots in Prehm Ranch shall not exceed standard and customary uses for single family residences. Corporate retreats or other uses inconsistent with single family residential use shall not be permitted on any of Prehm Ranch Lots 1-8. Additionally, access shall be limited to the average number of vehicle trips permitted hereunder, including all owners, family members, accompanied guests and, as to Lot 8 only, other authorized uses. (xii) For purposes of this Agreement, the term "accompanied guest" shall mean guests physically accompanied by an owner as defined above, whether such owner is in the guest's vehicle, in another vehicle accompanying the guest's vehicle, meets the guest at the gate or otherwise physically opens the gate for the guest. If an owner invites guests to a function on the Prehm Ranch such as a wedding, the owner may designate a family member or other representative to meet guests at the gate and facilitate access by such guests. A telephone entry system shall be permitted at the south entrance to Prehm Ranch in the vicinity of the gate as shown on Exhibit "B" to the Access Easement Agreement. The telephone entry system may be utilized to allow guests to access Prehm Ranch via Oak Lane so long as the owner opening the gate for the guests is physically on Prehm Ranch, identifies the guests via the telephone entry system and opens the gate by utilizing the type of system described in the Securus and Summit Doors Proposals. The telephone entry feature of the gate and counting system shall not be activated so as to permit telephone access by guests prior to August 6, 2004. Notwithstanding the foregoing, at the time of completion of improvements on any lot or lots within The Preserve at Prehm Ranch prior to August 6, 2004 but after August 6, 2003, upon issuance of a certificate of occupancy for such lot or lots, the owner thereof shall be entitled to utilize the telephone entry feature. The gate controlling access between Prehm Ranch and Oak Lane shall not incorporate an automatic loop system which will permit the gate to open without recording the information required hereunder. Notwithstanding the foregoing, access shall be limited to the average number of vehicle trips permitted hereunder, and each vehicle entering or leaving Prehm Ranch shall constitute one (1) vehicle trip. (xiii) Access by representatives of Prehm Ranch HOA shall be for the sole purposes of maintenance and repair to the access road, utilities, the gate and counting system, and permitted landscaping, and to perform the functions normally incidental to the care and maintenance of the Prehm Ranch road (such as plowing) and the facilities required or permitted to be maintained hereunder within the Access Easement. All vehicle trips by any representative of the 7 Prehm Ranch HOA shall be included in the total vehicle trip counts. Access for emergency purposes as defined in Paragraph 7(h) below shall not he included in the vehicle trip counts. (xiv) So long as the Prehm Ranch Access Gate and the fence around the Driveway Area can he designed and maintained to prevent public and unauthorized pedestrian and bicycle traffic, pedestrian and bicycle use of the Access Easement by owners of Prehm Ranch Lots 1-8 and their guests shall not be subject to the obligation to count, record and limit the number of vehicle trips. The gate controlling bicycle and pedestrian access shall incorporate a locking device so as to preclude unauthorized access by members of the public. Uses ofthe Access Easement for snowmobiles, unlicensed vehicles including but not limited to unlicensed all -terrain vehicles, and horses, shall be entirely prohibited. Such prohibition shall extend to owners of Prehm Ranch Lots 1-8 and all other persons. (8) Each of Lots 1-8 in Prehm Ranch shall be utilized solely for single-family residences, with one (1) accessory dwelling unit or guest house if authorized under applicable Garfield County zoning and subdivision regulations. Multi -family units (that is, duplexes, apartment, condominium units and the like) shall not be permitted on any of Lots 1-8 so long as the Access Easement remains in use. So long as the owners of any lots within the Prehm Ranch continue to utilize the Access Easement, none of the lots shall be further subdivided. The creation of accessory dwelling units, guest houses or similar units which may be permitted under the Garfield County Regulations and which do not result in the creation of more than eight (8) residential lots within the Prehm Ranch shall not be deemed a further subdivision of the Prehm Ranch. In the event of any violation of any of the terms of this paragraph, this Agreement and the Access Easement may be terminated by any party hereto following written notice and opportunity to cure in the manner set forth in Section 6 below; provided, however, that for purposes of this paragraph, the party committing the breach shall have thirty (30) days within receipt of written notice to fully cure, remedy or otherwise correct and rectify the alleged breach; and provided further that any such termination shall not affect continuing access to Lot 22 through the Driveway Area. (c) Lot 22 Driveway Easement. (1) The Westbank Ranch HOA hereby grants and conveys to Cantrell and her successors and assigns a perpetual non-exclusive driveway easement over and across the Access Easement within the Driveway Area portion of the Greenbelt in the location depicted on Exhibit "B," hereinafter called the "Lot 22 Driveway Easement," for the use and benefit of Cantrell, her successors and assigns to use, construct, maintain, repair and replace a driveway, to facilitate normal and reasonable residential uses on Lot 22, including construction, development, maintenance, repair, replacement, use and enjoyment of a single-family residence and related improvements on that Lot. This easement is subject to Westbank's enforcement rights as provided herein in the event of noncompliance. The Lot 22 Driveway Easement shall be twenty (20) feet in width, matching the Access Easement and extending to Lot 22 as depicted on Exhibit "B." (2) The Lot 22 Driveway Easement shall be used as the sole vehicular access to Lot 22 for single-family, residential purposes in accordance with the Amended and Restated Westbank Ranch Subdivision Protective Covenants recorded on October 24, 2000, as Reception No. 571299. Except as to the limitation that the Lot 22 Driveway Easement shall be the only vehicular access serving Lot 22, and except as to the obligations of the owner of Lot 22 to perform certain obligations in accordance with the terms of this Agreement, neither the use of Lot 8 22 nor the use of the Lot 22 Driveway Easement shall be limited in any way that is different or more restrictive than any other lot within the Westhank Ranch Subdivision. (d) Liens/Adverse Claims. Neither Marlin, the Prelim Ranch 1IOA nor Cantrell shall allow any liens or claims to be asserted against or encumber the Access Easement, the Driveway Easement or the Greenbelt in connection with or as a result of any work performed within the easement by Marlin, the Prehm Ranch 1-10A, Cantrell or their contractors, representatives, successors and assigns. (e) Westbank Oak Lane Easement. Cantrell hereby grants and conveys to Westbank and its successors and assigns a perpetual non-exclusive easement over and across the portion of the driveway extending across the southwest portion of Lot 22, from the Oak Lane cul-de- sac to the point where the driveway enters the Greenbelt in the location depicted on Exhibit "B." Said easement shall be utilized by Westbank solely for the purposes authorized by this Agreement. This grant of easement is subject to Cantrell's enforcement rights as provided herein in the event of non-compliance. The easement shall be twenty (20) feet in width. 3. Maintenance of Easements. The Prehm Ranch Owners Association shall be responsible for all costs of maintaining, repairing and replacing all improvements and landscaping within the Access Easement. Cantrell shall be responsible for all costs related to the maintenance and repair of the improvements and landscaping within the Driveway Easement. The parties agree that all improvements within the easement areas shall at all times be maintained in good condition and repair, free of defects or hazardous conditions. 4. The Reciprocal Access Easement Agreement. On September 4, 2001, Marlin and Cantrell entered into that certain Reciprocal Access Easement Agreement which was recorded in the real estate records of Garfield County on that date as Reception No. 587702. Certain provisions of said Reciprocal Access Easement Agreement conflict with this Agreement. To the extent of such conflict, this Agreement shall be deemed to supplement and amend the Reciprocal Access Easement Agreement. Except as to such conflicts, with respect to which this Agreement shall be deemed to govern and control, all of the terms, conditions, rights and interests set forth in the Reciprocal Access Easement Agreement shall remain in full force and effect, binding upon the parties thereto and their successors and assigns. 5. Non-Interference/Third Parties. Nothing contained herein shall be deemed to grant to any third party any rights or interests in the real property of the parties affected by this Agreement or the easements granted hereunder except as expressly set forth herein. None of the parties, their agents, members, representatives, successors or assigns shall interfere with, impair or engage in any self-help or other action with respect to the real property interests, equipment, personal property or the rights or interests of the parties hereto arising out of or related to this Agreement and the respective rights and obligations of the parties hereunder. Specifically, but without limitation, the parties acknowledge that only the parties hereto and their successors in interest with respect to the title to real property affected by this Agreement and the Prehm Ranch HOA and Westbank Ranch HOA shall be deemed to have acquired any rights or interests under this Agreement, and the right to enforce the terns hereof shall be deemed limited to those parties. Nothing contained herein shall be deemed a grant of any right or interest to any property owner within the Westbank Ranch Subdivision or to any member of the public of any of access to, within or through the Prelim Ranch or any of the roads therein. 9 6. Enforcement. (a) In the event of any claimed breach of this Agreement, the party(ies) asserting such breach shall provide written notice thereof to the other party(ies), which written notice shall identify the specific breach, including the date and time thereof. The party committing such breach shall, within live (5) days of receipt of such written notice, fully cure, remedy or otherwise correct and rectify all such breaches, and a failure to do so shall entitle the non -breaching party(ies) to commence an action for the enforcement of this Agreement and to recover damages and attorneys' fees, all as more fully set forth below. In the event of the same breach or breaches of this Agreement within any six (6) month period following the curing, remedying, correction of or other action rectifying such prior breach or breaches, the breaching party(ies) shall not be entitled to the live (5) day cure period set forth above, and the non -breaching party(ies) shall be entitled to immediately seek an enforcement of the terms and conditions of this Agreement and the recovery of damages and attorneys' fees as set forth below. (b) This Agreement and all of its terms and conditions, and all of the rights and interests of the parties hereunder, may be enforced by any party hereto and their representatives and successors, by the commencement of an action in the Garfield County District Court, in which event the parties shall have the right to assert all claims in law and in equity, and to enforce the terms and conditions of this Agreement by all means available at law and in equity, including the rights to injunctive relief and to damages. In any action for injunctive relief, the party claiming the right to such relief shall not be obligated to demonstrate irreparable harm or the lack of an adequate and immediate remedy at law, those matters being acknowledged to exist by virtue of the parties' execution of this Agreement. In any such action, the party ultimately prevailing shall be entitled to recover all costs and attorneys' fees incurred in connection therewith. 7. Miscellaneous. (a) Further Assurances. The parties hereto agree that each of them will take whatever actions are reasonably necessary or desirable from time to time to effectuate the provisions or intent of this Agreement, and to that end, the parties agree to execute, acknowledge, seal and deliver any further instruments or documents which may be necessary to give full force and effect to this Agreement or any of the provisions hereof or to carry out the intent of this Agreement or any of rhe provisions hereof. (b) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be effective upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, of the same effect as if all parties hereto had signed the same signature page. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. (c) Notices. For purposes of providing notices hereunder, notice shall be deemed received when delivered by hand delivery or facsimile transmission upon the date thereof. If notice is given by mail, notice shall be deemed given upon the date of actual receipt or three (3) days after deposit into the U.S. postal system, whichever is earlier. Notice by mail shall be by certified mail, return receipt requested. Each of the parties designates the addresses set forth above 10 as the addresses for service of notices, which addresses may be changed from time to time by written notice to the other parties hereto. (d) Governing 1.aw. The law applicable to this Agreement and its interpretation shall be that of the State of Colorado (regardless of Colorado's choice of law provisions); any dispute arising out of or concerning this Agreement shall he commenced and maintained in Garfield County, Colorado; and the parties hereby submit to the jurisdiction of Colorado in connection therewith. (e) Modifications. This Agreement may not be modified ied or amended except by instrument in writing duly executed by each of the parties hereto as identified in the first paragraph of this Agreement, or their successors or assigns, without the necessity of -obtaining the signatures of the consenting parties identified below. (f) Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, successors and representatives. (g) Prevailing Party Costs. In the event of any litigation arising under this Agreement, the prevailing party shall he entitled to recover reasonable attorneys' fees and court costs in addition to any other relief to which such party may be entitled. (h) Emergency Access. Where emergency access is permitted under the terms of this Agreement, the right to emergency access shall be deemed granted to Garfield County, Police and Sheriff's Departments, and ambulance services during such times as emergency services are actually being provided and only when the use of the access through Prehm Ranch is necessary for the most expeditious provision of emergency services. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first written above. MARLIN (COLORADO), LTD. B3`;J5 ,) pc Timothy D. Heng, lager PRET NCH OWNERS 11 sc. LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL WESTBANK RANCH HOMEOWNERS ASSOCIATION By President CONSENT OF ALPINE BANK Alpine Bank, as the holder of the Deed of Trust and other security interests encumbering Lots 2, 4, 5, 6 and 8 of The Preserve at Prehm Ranch, described in Exhibit "A" appended hereto, hereby consents to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. ALPINE BANK OF ASPEN By George Hart,ice President CONSENT OF OWNER OF LOT 1, THE PRESERVE AT PREHM RANCH MULKEY II LIMITED PARTNERSHIP, as the Owner of Lot 1, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prelim Ranch Exemption Plat. MULKEY II LIMITED PARTNERSHIP By David Mulkey, General Partner CONSENT OF OWNERS OF LOT 3, THE PRESERVE AT PREHM RANCH RAYMOND NIRO and JUDITH NIRO, as the Owners of Lot 3, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. RAYMOND NIRO JUDITH NIRO 12 CONSENT OF ALPINE BANK Alpine Bank, as the holder of the Deed of Trust and other security interests encumbering Lots 2, 4, 5, 6 and 8 of The Preserve at Prelim Ranch, described in Exhibit "A" appended hereto, hereby consents to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. ALPINE BANK OF ASPEN By George Hart, Vice President CONSENT OF OWNER OF LOT 1, THE PRESERVE AT PREHM RANCH MULKEY II LIMITED PARTNERSHIP, as the Owner of Lot 1, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. MULKEY II LIMITED PARTNERSHIP By David Mulk , Gene a artner CONSENT OF OWNERS OF LOT 3, THE PRESERVE AT PREHM RANCH RAYMOND NIRO and JUDITH NIRO, as the Owners of Lot 3, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. RAYMOND NIRO JUDITH NIRO 12 CONSENT OF ALPINE BANK Alpine Bank, as the holder of the Deed of Trust and other security interests encumbering Lots 2, 4, 5, 6 and 8 of The Preserve at Prehm Ranch, described in Exhibit "A" appended hereto, hereby consents to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. ALPINE BANK OF ASPEN By George Hart, Vice President CONSENT OF OWNER OF LOT 1, THE PRESERVE AT PREHM RANCH MULKEY II LIMITED PARTNERSHIP, as the Owner of Lot 1, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. MULKEY II LIMITED PARTNERSHIP By David Mulkey, General Partner CONSENT OF OWNERS OF LOT 3, THE PRESERVE AT PREHM RANCH RAYMOND NIRO and JUDITH NIRO, as the Owners of Lot 3, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. 12 /vt e) D JU H NIRO CONSENT OF OWNER OF LOT 7, THE PRESERVE AT PREHM RANCH THE JUDITH L. NIRO REVOKABLE TRUST OF 2001 DATED FEBRUARY 14, 2001, as the Owner of Lot 7, The Preserve At Prehm Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms arid conditions and the granting ofthe rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. STATE OF COLORADO COUNTY OF ) ss. THE JUDffi 1 L. NIRO REVOKABLE TRUST OF 2001 DATED FEBRUARY 14, 2001 Byif(4u Judith . Niro, Trustee The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by Timothy D. Heng, as Manager of MARLIN (COLORADO), LTD. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO COUNTY OF ) ss. Notary Public The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by as of the PREHM RANCH OWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: Notary Public 13 CONSENT OF OWNER OF LOT 7, THE PRESERVE AT PREHM RANCH THE JUDITH L. NIRO REVOKABLE TRUST OF 2001 DATED FEBRUARY 14, 2001, as the Owner of Lot 7, The Preserve At Prelim Ranch, described in Exhibit "A" appended hereto, hereby consent to the terms and conditions and the granting of the rights and interests as set forth in this Access Easement Agreement and the Second Amended Prehm Ranch Exemption Plat. THE JUDITH L. NIRO REVOKABLE TRUST OF 2001 DATED FEBRUARY 14, 2001 By Judith L. Niro, Trustee STATE OF COLORADO ) ) ss. COUNTY OF 19Li) The foregoing Access Easement Agreement was subscribed and sworn to before me this I day of Q&ober , 2002, by Timothy D. Heng, as Manager of MARLIN (CO TD. ............ C • ESS my h'nh�.�nd official gal. My. o ii i e i -s: i1 zt =Q STATE OF COLORADO ) ss. COUNTY OF P_.—`I I' `- I ) The foregoing Access Easement Agreement was subscribed and sworn to before me this � � day of OL tb be r , 2002, by e i chard v.. NL, ley ' as Pres cd e rttf the PREHM RANCH OWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: 5//10 OD+ /� -A Notary Public 13 STATE OF COLORADO ) )ss. COUNTY OF �- c(y ) The foregoing Access Easement Agreement was subscribed and sworn to before Inc this !{ i day of (�(,, ;, • ; 2002, by LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL. WITNESS my hand and official seal. My commission expires: my Commission Expire 10/03/2005 STATE OF COLORADO COUNTY OF ) ) ss. Notary Public N � ( Q Q The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by as of the WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO COUNTY OF Notary Public The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by George Hart as Vice President of ALPINE BANK OF ASPEN. WITNESS my hand and official seal. My commission expires: Notary Public 14 STATE OF COLORADO ) ss. COUNTY OF ) The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO COUNTY OF ) ss. Notary Public The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by as of the WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF ) The forgoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by George Hart as Vice President of ALPINE BANK OF ASPEN. WITNESS my hand and official seal. My commission expires: My Commission Expires 09/06/2006 Notary Public 14 STATE OF A i/Ap, ) ) ss. COUNTY OF C!,/,02 L _ ) The foregoing Co sent to Access Easement Agreement was subscribed and sworn to before me this a day of LI tic, , 2002, by David Mulkey as General Partner of MULKEY II LIMITED PARTNERSHIP. WITNESS my hand and oflici3 I se� I. My commission expires: osSab NOTARY PUSUC STATE OF NEVADA County of Clark LINDA D. PRITCHETT Appt. No. 94-5438-1 My Appy. Erea May 25. 2006 STATE OF COUNTY OF The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by RAYMOND NIRO and JUDITH NIRO. WITNESS my hand and official seal. My commission expires: STATE OF COUNTY OF Notary Public The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by Judith L. Niro as Trustee of THE JUDITH L. NIRO REVOKABLE TRUST OF2001 DATED FEBRUARY 14, 2001. WITNESS my hand and official seal. My commission expires: Notary Public 15 STATE OF COUNTY OF ) ss. The foregoing Consent to Access Easement Agrecnncut was subscribed and sworn to before me this day of , 2002, by David Mulkey as General Partner of MULKEY II LIMITED PARTNERSHIP. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF k,,gile ) ss. COUNTY OF Cell, ) The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this frxday of . , 2002, by RAYMOND NIRO and JUDITH NIRO. WITNESS my hand and official seal. yc SUE BURKE NOTARY PUBLIC STATE OF ILLINOIS MY COMMISSION EXP. JULY 22, 2006 STATE OF ) ) ss. COUNTY OF ) atAit Notary Public The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by Judith L. Niro as Trustee of THE JUDITH L. NIRO REVOKABLE TRUST OF2001 DATED FEBRUARY 14, 2001. WITNESS my hand and official seal. My commission expires: Notary Public 15 Oct.30. 2002 4:02PM Beattie and Chadwick No.2600 P. 2/3 as the addresses for service of notices, which addresses may be changed from time to time by written notice to the other parties hereto. (d) Governing Law. The law applicable to this Agreement and its interpretation shall he that of the State of Colorado (regardless or Colorado's choice of law provisions); any disputc arising out of or concerning this Agreement shall be commenced and maintained in Garfield County, Colorado; and the parties hereby submit to the jurisdiction of Colorado in connection therewith. (e) Modifications. This Agreement may not be modified or amended except by instrument in writing duly executed by each of the parties hereto as identified in the first paragraph of this Agreement, or their successors or assigns, without the necessity of obtaining the signatures of the consenting partics identified below. (f) Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hcrcto and thcir respective cxccutors, administrators, succcssors and representatives. (g) Prevailing Party Costs. In the event of any Iitigation arising under this Agreement, the prevailing party shall he entitled to recover reasonable attorneys' fees and court costs in addition to any other relief to which such party may be entitled. (h) Emergency Access. Where emergency access is permitted under the terms of this Agreement, the right to emergency access shall be deemed granted to Garfield County, Police and Sheriff's Departments, and ambulance services during such times as emergency services arc actually being provided and only when the use of the access through Prelim Ranch is necessary for the most expeditious provision of emergency services. IN WITNESS WHEREOF, theparties have executed this Agreement the day and year first written above. MARLIN (COLORADO), LTD. By Timothy D. Hcng, Manager LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL PRELIM RANCH OWNERS WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. ASSOCIATION By By President � 11 Prcsidcnt Oct.30. 2002 4:02PM Beattie and Chadwick No.2600 P. 3/3 STATE OF COLORADO COUNTY OF ) ss. The foregoing Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by LYNNE S. CANTRELL a/k/a LYNN S. CANTRELL. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF g.ar Reid ) The foregoing Access Easement Agreement was subscribed and sworn to before me this 21s4 day of Oc+ober , 2002, by J/,1 S /-/Qines as Pres4'den1 of the WESTBANK RANCH HOMEOWNERS ASSOCIATION, INC. WITNESS my hand and official seal.. My commission expires: f_ _Zoay STATE OF COLORADO COUNTY OF ) ss. The foregoing Consent to Access Easement Agreement was subscribed and sworn to before me this day of , 2002, by George Hart as Vice President of ALPINE BANK OF ASPEN. WITNESS my hand and official seal. My commission expires: Notary Public 14 EXHIBIT "A" LEGAL DESCRIPTION Lo -S. 1 , 2 , 5 6 7 & 8 Pfil:SERVE AT PREi1M RANCH, As ifcpic_L2ti tflt2 Pram Ranch Exemption Hit recorded June 13, 2001, in nook 12F...0 :_tt Page 358 as Reception No. r,C2501,N, !rendcd Praha) R,1) 'Exemption Plat recorded August 30, 2001, In f.).:ok 1281 a Pago /44 as 1tecepti;/1 No. 513/:3t111, the Master Plat for the Pre!.;erve at Prehm Ranch recorded September 25, 2001 as Reception Ho_ arid tho Amended Master Plat for The Preserve at Prehm Ranch recorded October 17, 2001 as Reception No. .f,;goit3f; recorded in the real estate records of Garfield County. AU q 05 02 10 2 771, PRLIIM ANCH (LOT 8) 970 945 / P _ 02 CN 0 DA Tr GRADED BERM, LANDSCAPED `e.•,. &• REVEGETATED GATE & COUNTER (Prelim Ranch • •\ Access. Gate) LOT 22 WESTBANK RANCH 40 RAIL FENCE 4)4, DRIVEWAY AREA • (Triangular Hatched Area) RAIL FENCE 'ENTRANCE GATE OR MONUMENT (Driveway Area Access) 1 WESTBANK/OAK LANE EASEMENT ACCESS EASEMENT AND LOT 22 • DRIVEWAY. EASEMENT. 05/05/02 r1IFLAAT1r ENC,NEE. C. HALL Dwe FILE tht:tCrithMD/V.Org AM 4 39-02 1 18' GREENBELT/OPEN SPACE PA CEL PREHM RANCH SOUTH ACCESS ** EXHIBIT B ** • ENARTECH INC. CON'il 11 1INC I MINI 14; ANI) I IY1)1M1 ow; r,.% 7/ 1 \\\ ..502 81h ;1., ri.LNw000 9-sit1N(1, mi tit)1 P.O. BOX 1YV 0, CLLN001) CO 81602 \ (UM 915-22 FAX (970) 945 20// Exhibit "C" COMMON OPEN SPACELDRIEWAY EASEMENT AREA DESCRIPTION A PARCEL OF LAND SITUATED IN THE SW1 /2SW1 /4 OF SECTION 35, TOWNSHIP 6 SOUTH, RANGE 89 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SECTION 35, A U.S. BRASS CAP IN PLACE AS SHOWN ON THE WESTBANK RANCH PLANNED DEVELOPMENT SUBDIVISION, FILING NO. 1, RECEPTION NO. 248729; THENCE N 7618'36" W A DISTANCE OF 4748.94 FEET TO A POINT ON THE WEST BOUNDARY LINE OF WESTBANK RANCH PLANNED DEVELOPMENT SUBDIVISION, FILING NO. 1, SAID POINT ALSO BEING S 01'54'32" W 105.00 FEET FROM THE NORTHWEST CORNER OF LOT 22 OF SAID WESTBANK RANCH, THE POINT OF BEGINNING; THENCE ' t 32 W ALONG THE WEST RCUNDAPY UNE OF SAID ' Y T0Ar.'K ;.:,':"Ia A DISTANCE OF 1023.13 FEET TO THE SOUTHWESTERLY CORNER OF SAID WESTBANK RANCH ALSO BEING THE SOUTHWEST CORNER OF LOT 23 OF SAID WESTBANK RANCH; THENCE LEAVING SAID WEST BOUNDARY LINE N 88'05'28" W 18.00 FEET; THENCE N 01'54'32" E 789.03 FEET; THENCE N 3719'22" W 59.43 FEET; THENCE N 41'08'24" E 59.43 FEET; THENCE N 01'54'32" E 142.04 FEET; THENCE S 88'05'28" E 18.00 FEET TO A POINT ON SAID WEST BOUNDARY LINE OF WESTBANK RANCH, THE POINT OF BEGIdNING; SAID PARCEL CONTAINING 0.462 ACRES, MORE OR LESS. 44OOD sp R',iec RECEIVED APR0 . - 4 2002 0EPAR'v April 2, 2002 Comments on: Application to amend the subdivision exemption plat of Prehm Ranch Garfield County Board of County Commissioners 109 8th street Glenwood Springs, CO 81601 Dear l Garfied County Board of County Commissioners, It is my understanding, that the amendment that is going to be discussed deals with access to the Prehm Ranch properties, from Oak Lane and possibly from the North on County Road 163. The following needs to be addressed in this amendment. EMERGENCY VEHICLE ACCESS: Should some type of traffic control gates be put on the Oak Lane and County Road 163 accesses to the Prehm Ranch Subdivision, the Glenwood Springs Fire Department needs to be included in the discussion on what type of security system will be used on the gates. To respond to an emergency in the Prehm Ranch Subdivision the Glenwood Springs Fire Department will need keys, code information or other information on how to open the gates without damaging the gates or the emergency response equipment. This point is also discussed in NFPA 299 Chapter 5-3.4 Fire Service Access, Gate Openings. VEGITATION GROWTH MANAGEMENT: Homes built in Prehm Ranch need to comply with the UFC 1994 or 1997 Div II, Special Hazards, Appendix II -A, Section 15 - clearance of brush or vegetative growth from electrical transmission lines; Section 16 - Clearance of Brush or Vegetative Growth From Structures, Section 17- Clearance of brush or vegetative growth from roads. These items are to be added to the notes on the second amended Prehm Ranch exempt plat filed 1/18/02. Sincerely, Ron Biggers, Fire Protection Analyst Glenwood Springs Fire Department 806 COOPER AVENUE GLENWOOD SPRINGS, COLORADO 81601 970/945-4942 FAX 970/945-6040 November 1,2002 OEPAR1 Garfield County Board of County Commissioners 109 8th street Glenwood Springs, CO 81601 Dear Garfield County Board of County Commissioners, Below is a copy of my comments made on 4/2/02 on emergency vehicle access needs for Prehm Ranch. Rick Neily has been working with Summit Door Co., of Delta Colorado to have key switches installed on the gates. The key switches have been ordered from the Knox Company (see attached copy of the order). I spoke with a representative from the Knox Company today and was told these switches were out of stock and would not be shipped to Summit Door Co. until mid November 2002. From all indications Rick and John are moving this project forward and had the Knox Company been able to ship the gate switches in October the project would have been completed by the meeting they have with you on November 4, 2002. I trust Rick and John to complete this project. The Knox key switch system to be installed on the gates meets our requirements for emergency access to Premhm Ranch. Copy of comments I made on April 2, 2002. EMERGENCY VEHICLE ACCESS: Should some type of traffic control gates be put on the Oak Lane and County Road 163 accesses to the Prehm Ranch Subdivision, the Glenwood Springs Fire Department needs to be included in the discussion on what type of security system will be used on the gates. To respond to an emergency in the Prehm Ranch Subdivision the Glenwood Springs Fire Department will need keys, code information or other information on how to open the gates without damaging the gates or the emergency response equipment. This point is also discussed in NFPA 299 Chapter 5-3.4 Fire Service Access, Gate Openings. I you have any question on this matter please contact me at 384-6433. Ron Biggers, Fire Protection Analyst, Glenwood Springs Fire Department Cc. Mike Piper, Fire Chief 101 WEST 8TH STREET GLENWOOD SPRINGS, COLORADO 81601 970-384-6480 FAX 970-945-8506 November 5, 2002 Garfield County Board of County Commissioners 109 8th street Glenwood Springs, CO 81601 Dear Garfield County Board of County Commissioners; Re: Emergency Vehicle access to Prehm Ranch: RECEIVED NOV 0 .(; 2002 GsARFIELD COUNTY 10LDING & PLANNING The Knox key switches that will be installed on the North and South gates, on the road to the Prehm Ranch Subdivision will meet our requirements for emergency access to the subdivision. At the present time Glenwood Springs Fire Departments has the combinations to the tempory locks on the North and South gates to gain access to Prehm Ranch. Based on discussions I have had with the representatives of Prehm Ranch on this issue and information provided by them, The Glenwood Springs Fire Departments requests in the comments of April 2, 2002 on emergency vehicle access to Prehm Ranch have been satisfied. If you have any further questions on this matter please contact me at 384-6433. Sincerely, a/8 Ronald L. Biggers, Fire Protection Analyst, Glenwood Springs Fire Department Cc. Mike Piper, Fire Chief Richard Y Neily, Jr Esquire Steve Beattie, Esquire j 101 WEST 8TH STREET GLENWOOD SPRINGS. COLORADO 81601 970-384-6480 FAX 970-945-8506 ' OCT -28-02 MON 05:06 PM Neiley & Alder FAX NO. 970+925+9396 OO2Fire/Law Enforcement Rapid Entry System AUTHORIZATION/ORDER FORM ttective /2612 GROEFiCili , ate: SlAriet: jl/ ft AA 57 Cy/St; C't) S.::/i44;., zip: Section 1 (ionto,',t Phorie: 94, (Gpv. gancies only): SHIP Th: Address ONLY No P.O. Box.) City: Coninct Countyl State: Zip: Phone: ( (to receive UPS tracking) ORDER WILL NOT DE PROCESSED Section WiTMOUT AUTHORIZED SIGNATURE 3 SPR1NOS FIRE DEPT .806 WOPER AVE GUNLA1613 tiPk1N5,S, CO 31801 ED PIRE IGENQYSIGNATURE FS -07-02R System Code INSTALLATION ADDRESSES (Required by Fire Department) List street addresses and cities where items will be installed. Attach separate sheet for additional installation addresses. P. 03/03 Section 2 n-1 1. Bldg. NamerkLiLt.f5itil-v-e Street / b eo it;77" 01.2. 4,o1 City ‘14-14.44,-arftel ip Cf_. 2. eldg. Name Street Zip PAYMENT INFORMATION We are a prepayment company ONLY, except for government agencies. Federal ID. #95-3617858 D Check or Money Order made payable to: KNOX COMPANY D Visa IJ MC Exp. Date: Card Number signature /wee 4? pay riyi, rola/ aniowa accarctini; to card issuer agretment. VERIFY FiEC'D USE 2001 PRODUCT PRICE LIST ON RACK OF THIS PAGE s ection Qty: PM' t [Writ Doicription Color Weight Price Ea. Total FireDeptUseenly CI Check here If products ordered on this form must be O/e2 X" SUBMASTERED i*LCCINS PAYABLE TO: KN Send This Frio with Payment to: KNOX COMPANY 17b7 Ava,lleng Ave. Irvine, C1926145728 1(9-28-02 17:57 COMPANY SUBTOTAL t2I/ trP Shipping & Handling b. to 7 lbs $6.00 8 lbs lo 28 lbs. $13.00 26 lbs. to 50 lbs. $25.00 51 lbz. to 75 Jh 3 1.00 75 WA- esii J6= for 4tmle, Alaska, !knob • Cad 1dr ri6e, NQ St4te Tax Rbquirod Shipping &Handling Priority Shippino (Ploase call Knox) $---- Pre -Pa yrnen t TOTAL: $i10-"--6-6 •tA 7-25% • elk, Dram County Tax:7.75% Order Online at www.knoxbox.com TO:GLENWOOD FIRE DEPT Add $7.00 to EACH item ordered Impintikat Male: ling; ilra piovided ta fire rkpartrnt,nI5orothel reoisierad enIrties ori an as- noaded batis 36 QOurioty. The Sow code:: c4itiO with the kepi xu-,dkay.Nays an" (N./Nati and n-kaInta;noti ky The Knox Company in Irvine. California For queations regarding this poiicy. cornact Knox lNOO-552-Si. Customer Service liours: M -F 8:01) am - 4:00 pm PST WIILINNO411C IIMJCOIVIPANY 800-552-5669 • 949-252-8181 Fax 949-252-0482 CoP/Nryht - OO COMPANY 2C,91 FROM:970+925+9396 P03