HomeMy Public PortalAboutTBP 2012-05-16
BOARD OF TRUSTEES REGULAR MEETING AGENDA
WEDNESDAY, MAY 16, 2012
FRASER TOWN HALL
Members of the Board may have dinner together @ 5:30 p.m. - Fraser Town Hall
1. Workshop -
6:00 Public Officials Liability Tami Tanoue (CIRSA)
2. Regular Meeting -
7:00 Roll Call
3. Approval of Agenda
4. Consent Agenda
a) Minutes May 2, 2012
b) Resolution 2012-05-04 Water/Wastewater Committee Appointments
c) Ordinance 395 Amending Various Rates, Fees and Schedules of the
Fraser Town Code
5. Open Forum
a) Business not on the agenda
6. Updates
a) USFS Roadside Hazard Project
7. Public Hearing
a) Bottle Pass Liquors Change of Location Application continued from
April 18, 2012
8. Discussion and Possible Action Regarding
a) Resolution 2012-04-04 regarding Bottle Pass Liquors Change of Location
Application
b) Colorado Adventure Park
c) Local Licensing Authority
d) Zoning Code Enforcement
9.Executive Session:
For a conference with Town Attorney for the purpose of
receiving legal advice on specific legal questions under C.R.S. Section 24-6-
402(4)(b) and for the purpose of determining positions relative to matters that
may be subject to negotiations, developing strategy for negotiations, and/or
instructing negotiators, under C.R.S. Section 24-6-402(4)(e) agreements with
Winter Park Ranch Water and Sanitation.
10. Community Reports
11. Staff Reports
12. Other Business
Upcoming Meetings:
Wed. June 6, 2012 Board of Trustees
Wed. May 23, 2012 Planning Commission
Lu Berger
Posted May 10, 2012
/X%HUJHU7RZQ&OHUN
Town Board Briefing
May 16, 2012
Please note that Members of the Board may have dinner together @ 5:30 p.m. at the
Fraser Town Hall.
The Town Board and Planning Commission will have a Workshop at 6:00pm regarding
Public Officials Liability.
The Regular Meeting will begin at 7:00 p.m.
On the Consent Agenda the Board will consider a Resolution appointing the members of
the Water and Wastewater Committee. The terms of office for the Committee are all two
years, concurrent with the regular election cycle. While the Town Board appointed
Adam Cwiklin at the last meeting, this resolution is provided to confirm all of the
appointees.
The Board will also consider an amendment to Section 13-2-210 of the Town Code that
would correct an erroneous reference in the fee schedule.
Representatives from the U.S. Forest Service will be providing a presentation and
update regarding the Roadside Hazard Project.
The Public Hearing in consideration of a Change of Location Application for Bottle Pass
Liquor was continued from April 18, 2012 to this meeting in order to confirm that the
applicant has legal interest in the proposed location. See enclosed materials.
Grand County is considering an Amendment to the Special Use Permit for the Colorado
Adventure Park and has requested comment from the Town of Fraser. Materials
regarding the request are enclosed in the packet. Pending Board direction, staff can
prepare an appropriate letter.
As you may recall, the Town of Fraser will need to either prohibit medical marijuana
centers or establish a local licensing authority and associated regulations prior to July 1,
2012. Staff would like to provide a brief update and confirm the direction of the Town
Board prior to completing these ordinances. The ordinances would be brought back for
consideration in June.
Upon adoption of the Sign Code Amendments, the Board provided staff with direction to
proceed with enforcement of these regulations. This has raised a series of procedural
concerns that we have been working to address and enclosed in the packet is a
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
and confirm support prior to proceeding much further. This information will also be
provided to the Planning Commission.
proposed an Executive Session with the Town Attorney to update the
board on the status of some water matters and negotiations with Winter Park Ranch.
As always, feel free to contact me if you have any questions or need any additional
information.
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
FRASER BOARD OF TRUSTEES
MINUTES
DATE:
Wednesday, May 2, 2012
MEETING:
Board of Trustees Regular Meeting
PLACE:
Fraser Town Hall Board Room
PRESENT
Board:
Mayor Peggy Smith; Mayor Pro-Tem Steve Sumrall; Trustees; Philip Naill,
Eileen Waldow, Vesta Shapiro, Cheri Sanders and Adam Cwiklin
Staff:
Town Manager Jeff Durbin; Town Clerk, Lu Berger; Finance Manager Nat
Havens; Public Works Director Allen Nordin; Town Planner, Catherine
Trotter; Police Chief, Glen Trainor, Plant Supervisor Joe Fuqua, Town
Attorney Rod McGowan
Others:
See attached list
Mayor Smith called the meeting to order at 6:03 p.m.
1.Regular Meeting:
Roll Call
2.Approval of Agenda:
motion
Trustee Waldow moved, and Trustee Cwiklin seconded the to approve the
Motion carried: 7-0.
Agenda.
3. Executive Session:
For a conference with Special Counsel for the purpose of receiving
legal advice on specific legal questions under C.R.S. Section 24-6-402(4)(b) and for the
purpose of determining positions relative to matters that may be subject to negotiations,
developing strategy for negotiations, and/or instructing negotiators, under C.R.S. Section
24-6-402(4)(e) regarding water matters and to include TM Durbin, PW Nordin, WS
Fuqua and SC Chris Thorne.
motion
Trustee Cwiklin moved, and Trustee Waldow seconded the to open the
Motion carried: 7-0.
Executive Session.
Open: 6:08
Exit: 7:05
motion
Trustee Sanders moved, and Trustee Shapiro seconded the to close the
Motion carried: 7-0.
Executive Session.
Attorney’s Opinion Required by C.R.S. 24-6-402(2)(d.5)(II)(B).
As the attorney representing the Town of Fraser, I am of the opinion that the entire
Executive Session, which was not recorded, constituted a privileged attorney-client
communication.
Chris Thorne, Special Counsel
4.Consent Agenda:
Page 2 of 2
a) Minutes – April 18, 2012
b) Business Enhancement Grant Application – Winter Park Wellness Center
c) Resolution 2012-05-02 A Resolution Extending The Approval Of The Village At
Grand Park – Filing 2, Lots 10, 11a And 11b Final Plats.
motion
Trustee Cwiklin moved, and Trustee Shapiro seconded the to approve the
Motion carried: 7-0.
consent agenda.
5.Open Forum:
6.Updates:
7.Public Hearings:
8.Discussion and Possible Action Regarding:
a) Resolution 2012-05-01 A Resolution Authorizing Execution Of The Colorado
River Cooperative Agreement Article Iii Implementation Agreement, The 2012
Grand County Water Users Operating Plan, And The Coordination And
Integration Agreement
motion
Trustee Naill moved, and Trustee Cwiklin seconded the to approve Resolution
Motion carried: 7-0
2012-05-01.
b) 2011 Audit Presentation
Paul Backes, McMahan and Assoc. briefed the Board on the 2011 audit results.
c) Resolution 2012-04-03 Streets and drainage improvements
PW Nordin outlined the information provided the Board regarding the comparisons on
contractors, towns and treatments in regards to streets and drainage improvements.
motion
Trustee Sanders moved, and Trustee Waldow seconded the to approve
Motion carried: 7-0.
Resolution 2012-04-03.
d)Amendment to the minimum requirement for meetings of the Water and
Wastewater Committee (from monthly to quarterly).
TM Durbin briefed the Board on the organization of the Water and Wastewater
Committee. The original concept was monthly meetings. TM Durbin recommends
changing the meetings from monthly to quarterly. The Board directed staff to return with
an Ordinance amending the meetings from monthly to quarterly.
9.Community Reports:
10.Other Business:
motionMotion
Trustee Shapiro moved, and Trustee Naill seconded the to adjourn.
carried: 7-0.
Meeting adjourned at 8:49 p.m.
Lu Berger, Town Clerk
TOWN OF FRASER
RESOLUTION NO. 2012-05-04
A RESOLUTION CONFIRMING APPOINTMENTS TO THE WATER AND WASTEWATER
COMMITTEE
BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO THAT:
1. That the following individuals are appointed to the Water and Wastewater Committee in
accordance with the provisions of Chapter 2 Article 10 of the Town Code:
a. Ron Anderson
b. Adam Cwiklin
c. Doug Laraby
d. Dennis Soles
e. Vesta Shapiro
f. Peggy Smith
g. Steve Sumrall
READ, PASSED ON ROLL CALL VOTE, AND ADOPTED BY THE BOARD OF TRUSTEES
h
THIS 16 DAY OF MAY, 2012.
Votes in Favor:
Votes Opposed:
Absent:
Abstained:
BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO
( S E A L )
By:
Mayor
ATTEST:
Town Clerk
TOWN OF FRASER
ORDINANCE NO. 395
Series 2012
AN ORDINANCE ADOPTING, AMENDING AND CONFIRMING VARIOUS FEES,RATES AND
SCHEDULES APPLICABLE WITHIN THE TOWN OF FRASER AND AMENDING SECTION 13-
2-210 OF THE MUNICIPAL CODE OF THE TOWN OF FRASER, COLORADO.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO, THAT:
PART 1: FEES, RATES AND SCHEDULES. Appendix A, Chapters 1, of the Fraser Municipal
Code is hereby amended to read as follows, and the fees, rates and schedules set forth in said
Appendix are hereby approved and adopted by the Board of Trustees. (Note: additions are
bold and Underlined
shown in print; deletions are shown as strikethrough print)
APPENDIX A
FEE SCHEDULE
NOTE: In the event of a conflict between the fees, costs, deposits, occupation taxes and other charges
listed in this Appendix A and the text of any individual section of the Code, the provisions of the applicable
section of the Code shall control.
Municipal Code-Based Fees, Costs and Deposits
Code
SectionFee/ChargeAmount
Chapter 11
14-6-20Variance (from construction standards)
$250.00
17-7-20Variance (from construction standards)$250.00
There shall be no other changes to Appendix A.
PART 2: AMENDMENT TO CODE. Section 13-2-210 (d) (5) shall be amended by deleting the
5/8” meter and corresponding 1 SFE from the chart.
PART 3: APPLICABILITY. Any new or amended fees or rates established by this Ordinance
shall not apply to any complete application that has been filed along the appropriate fees prior
to the effective date hereof.
PART 4: REPEAL. Any and all existing ordinances or parts of ordinances of the Town of
Fraser covering the same matters as embraced in this Ordinance are hereby repealed and all
ordinances or parts of ordinances inconsistent with the provisions of this ordinance are hereby
repealed; provided, however, that such repeal shall not affect or prevent the prosecution or
punishment of any person for any act done or committed in violation of any ordinance hereby
repealed prior to the taking effect of this Ordinance; and provided further, the fact that any fee,
rate or schedule previously adopted by the Town of Fraser has been omitted from this
Ordinance shall not operate as a repeal of such fee, rate or schedule, but the same shall remain
in effect.
PART 5: SEVERABILITY. If any section, subsection, sentence, clause or phrase of this
Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect
the validity or constitutionality of the remaining portions of this Ordinance. The Town of Fraser
hereby declares that it would have adopted this Ordinance, and each section, subsection,
clause or phrase thereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses and phrases thereof be declared invalid or unconstitutional.
PART 6: EFFECTIVE DATE. This Ordinance shall take effect thirty (30) days after publication
thereof as provided by law.
READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES
AND SIGNED THIS 6TH DAY OF JUNE, 2012.
Votes in favor: TOWN OF FRASER, COLORADO
Votes opposed:
Votes abstained:
Peggy Smith, Mayor
ATTEST:
Lu Berger, Town Clerk
Published in the Middle Park Times on ________________.
EXHIBIT A -1
LEGAL DESCRIPTION
Lot 3, SAFEWAY FRASER MARKETPLACE FINAL DEVELOPMENT PLAN PLAT, according to the Plat thereof
recorded June 9, 1998 under Reception No. 98006151 and as corrected in the Affidavit recorded November 18, 1998 under
Reception No 98012346, County of Grand, State of Colorado.
27
E 1; IT A -2
PLAN
28
EXH I JT A-3
FL( C1!R PLAN
29
EXHIBIT B
DRAWINGS
30
Lease Dated: May 1, 2012
Landlord: Fraser Marketplace, LLC, a Colorado Iimited liahiIity company
Tenant: Bottle Pass Liquors, Inc.
Premises: Unit IA, VFioor
EXHIBIT C
TENANT ACCEPTANCE LETER
The undersigned, Tenant under the above described Lease, hereby confirms, as of the date hereof, the following.
(1) That it is in full and complete possession of the Prernises, such possession having been delivered by Landlord and
having been accepted by the undersigned on May 1, 2012
(2) That the space and improvements required to be furnished by the terms of the Lease have been completed in all
respects to the satisfaction of the undersigned and are made available for the use of the undersigned, its employees and
invitees.
(3) That all duties of an inducement nature required of Landlord in said Lease have been fulfilled.
(4) That said Lease is in full force and effect; that there are no existing defaults on the part of Landlord under the
terms thereof except as follows (if none, so indicate):
That no rents have been prepaid except as provided by said Lease; that the undersigned does not now have or hold
any claims against Landlord which might be set-off or credited against future accruing rents
(6) That rents provided in said Lease commence to accrue on June 1, 2012, and such date shall be the Rent
Commencement Date.
(7) That the Term of said Lease is five (5) years, and the Expiration Date is May 31, 2017.
TENANT:
Name: Bottle Pass Liquors, Inc
By:
Dated:
31
1. Storefront with one three foot (3') wide by seven foot (7') high (minimum) lockable storefront 'front' door.
2. One three foot (3') wide by seven foot (7') high 'rear' lockable door.
3. One 4" sanitary sewer line within tenant space (adjacent to the back wall).
4. One 1" water line stub into tenant space (typically above ceiling grid height).
5. All demising walls sheet-rocked from floor to roof deck, taped, sanded and ready for paint, no texture (no
additional interior walls included).
6. Smooth concrete floor ready for floor covering.
7. One HVAC (or equivalent fumace/condensing unit) roof top unit sized to provide 1 TON per 350 square
feet of leasable space. Unit to be placed on roof by landlord. Supply and return (ducted) diffusers to be
provided by landlord, modifications for specific tenant finish layout shall be by tenant
8. One (1) 400 AMP electrical service (typically located on the rear wall).
9. One (1) duplex outlet per 300 square feet of leasable space evenly spaced.
10. Duplex outlets over storefront windows per code.
11. A 2 foot by 4 foot acoustical tile drop ceiling at 10'-0" above finished floor.
12. One (1) two foot by 4 four tube lay m fluorescent light fixture per 200 square feet of leasable space. This
unit has a "High-bay" lighting configuration different from what is described above. Tenant agrees to accept the
lighting configuration "as-is", any changes to the lighting configuration will be at Tenant's expense.
13. One (1) J-box located on the front facade with a conduit and pull tape stubbed into tenant space (for tenant
signage, signage by tenant).
14. All EXIT signs required per code for the 'Vanilla Shell' tenant space.
15. One (1) ADA standard restroom. Standard restroom to include: one lock-able door, one sink, one toilet,
smooth concrete floor, one mirror, one toilet paper holder, ADA grab bars, floor base, one switch controlling
one florescent light and exhaust fan and water resistant walls to code.
16. One electric six (6) gallon hot water heater (installed above the restroom).
17. A fully sprinkled 'Vanilla Shell' tenant space. (sprinkler heads may need to be modified by lessee per their
tenant finish plan).
18. One (1) 24"x24" floor mounted mop basin.
19. One 1" empty conduit stubbed into tenant space for future connection to telephone service.
20. Sufficient service panel to provide electrical service to the Cooler and Ice Machinery. As stated above,
there is a 400 AMP panel serving the space, while we believe this is sufficient to provide adequate power for the
Tenant's use, Landlord has not verified such. Any additional electrical construction necessary to provide
sufficient power for Tenant's use will be constructed by Tenant, at Tenant's expense.
21. Sufficient drainage for the cooler and ice machinery.
EXHIBIT D
LANDLORD'S SPECIFICATIONS
32
Tenant shall be responsible for "Tying-in" the cooler condensate line to the existing drainage line provided by
Landlord.
33
EXHIBIT E
WORK LETTER
This is the Work Letter referred to in and specifically made a part of the Lease to which this Exhibit E is annex
covering the Premises, as more particularly described in the Lease. Landlord and Tenant a ee as follows:
34
Defined Temis. The following defined terms shall have the meaning set forth below and, unless provided to the
contrary herein, the remaining defined terms shall have the meaning set forth in the Lease:
Landlord' s Representative: Wes Becker
Tenant's Representative: Michael A. La Porte
Tenant's General Contractor: Colorado Regional Construction
Landlord's Contribution: The actual cost of Tenant Improvements, as defined below.
Space Plan: The plans prepared by Wyatt Associates P.C.
2. Landlord's Work As soon as reasonably possible, Landlord shall undertake and complete, at its own cost and
expense, Landlord's Work as described in Exhibit D of this Lease. If Tenant shall be in possession of the Premises prior to
the final completion of Landlord's Work, Tenant hereby acknowledges that Tenant shall accept disruptions and
disturbances of its use and occupancy of the Premises as reasonably necessary for Landlord to timely and cost effectively
complete Landlord's Work. Further, Tenant covenants and agrees that Tenant's contractors shall coordinate the installation
of Tenant's Work, as hereinafter provided, in accordance with the construction schedule for Landlord's Work such that, if
any interference or conflict arises, upon receipt of written notice from Landlord, Tenant agrees to cause such interference
conflict to cease.
3. Tenant Improvements. The "Tenant Improvements" shall mean the interior walls, partitions, doors, door
hardware, wall coverings, wall base, counters, lighting fixtures, electrical and telephone wiring, cabling for computers,
metering and outlets, ceilings, floor and window coverings, HVAC system, fire sprinklers system, and other items of
general applicability that Tenant desires to be installed in the interior of the Premises. All previous Tenants Improvements
will remain in the Premises for use by the Tenant.
4. Performance of Tenant's Work. Tenant accepts the Premises in its current "AS IS" condition and acknowledges
that Landlord shall have no obligation to do any work in or on the Premises to render it ready for Tenant's use or
occupancy except as provided for in EXHIBIT D.. Tenant shall timely commence and diligently prosecute to full
completion Tenant's Work in accordance with the Drawings. The parties agree that no demolition work or other Tenant's
Work shall be commenced on the Premises until such time as Tenant has provided to Landlord copies of the demolition and
building permits required to be obtained from all applicable governmental authorities and all other conditions precedent
have been fully satisfied MI materials, work, installations, equipment and decorations of any nature whatsoever brought on
or installed in the Premises before the commencement of the Term or during the Term shall be at Tenant's risk, and neither
Landlord nor any party acting on Landlord's behalf shall responsible for any damages thereto or loss or destruction
thereof due to any reason or cause whatsoever, excluding by reason of Landlord's gross negligence or willful or criminal
misconduct.
5. Drawings. Tenant shall engage and pay for the services of a licensed architect to prepare a space layout, drawings
and specifications for all Tenant Improvements, which architect shall be subject to Landlord's reasonable approval (the
"Architect"). Tenant shall devote such time in consultation with Tenant's architect as shall be necessary to enable Tenant's
architect to develop complete and detailed architectural, mechanical and engineering drawings and specifications, as
necessary, for the construction of Tenant Improvements, showing thereon all Tenant Improvements ("Drawings") Tenant
hereby acknowledges and agrees that it is Tenant's sole and exclusive responsibility to cause the Premises and the
Drawings to comply with all applicable laws, including the Americans with Disabilities Act and other ordinances, orders,
rules, regulations and requirements of all governmental authorities having jurisdiction thereof.
6, Tenant's Work, It is tmderstood and ap eed by the parties that, as hereinafter set forth, Tenant has elected to
arrange for the construction and installation of Tenant Improvements itself in a good and workmanlike manner ("Tenant's
Work"). On or before the applicable Time Limit set forth below, Tenant shall submit to Landlord the names of the
electrical, ventilation, plumbing and heating subcontractors (hereinafter "Major Subcontractors"), as applicable for
Landlord's approval, which approval shall not be unreasonably withheld. If Landlord shall reject any Major Subcontractor,
Landlord shall advise Tenant of the reason(s) in writing and, Tenant shall choose another Major Subcontractor.
7. Tenant's Construction of Tenant Improvements.
(a) Payment Liens. Tenant shall promptly pay any and all costs and expenses in connection with or arising
out of the performance of Tenant Improvements and shall furnish to Landlord evidence of such payment upon request.
Landlord shall post and serve notices of non-liability in accordance with applicable laws. In the event any lien is filed
against the Building or any portion thereof or against Tenant's leasehold interest therein, the provisions of Section .07 of
the Lease shall apply.
(b) Indemnity. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all
suits, claims, actions, loss, cost or expense (including claims for workers' compensation, attorneys' fees and costs) based on
personal injury or property damage caused in, or contract claims (including„ but not limited to claims for breach of
warranty) arising from Tenant's Work Tenant shall repair or replace (or, at Landlord's election, reimburse Landlord for
the cost of repairing or replacing) any portion of the Building or item of Landlord's equipment or any of Landlord's real or
personal property damaged, lost or destroyed in the construction of Tenant Improvements.
(c) Contractors. The Major Subcontractors employed by Tenant and any subcontractors thereof shall be (1)
duly licensed in the state in which the Premises are located, and (ii) except as otherwise approved herein, On or before ten
(10) business days prior to the commencement of any construction activity in the Premises, Tenant and Tenant's contractors
shall obtain and provide Landlord with certificates evidencing Workers' Compensation, public liability and property
damage insurance in amounts and forms and with companies satisfactory to Landlo s. If Landlord should disapprove such
insurance, Landlord shall specify to Tenant the reasons for its disapproval within five (5) business days after delivery of
such certificates. Tenant's agreement with its contractors shall require such contractors to provide daily clean up of the
construction area to the extent such clean up is necessitated by the construction of Tenant Work, and to take reasonable
steps to minimize interference with other tenants' use and occupancy of the Building. Nothing contained herein shall make
or constitute Tenant as the agent of Landlord. Tenant and Tenant's contractors shall comply with any other reasonable
rules, regulations or requirements that Landlord may impose.
(d) Use of Common Areas. Also during the construction period, Tenant shall ensure that the Building, all
common areas, and the Premises are kept in a clean and safe condition at all times. Further, all construction activities shall
be conducted so as to use reasonable efforts to minimize interference with the use and occupancy of the Building by the
tenants thereof. Such entry shall be deemed to be under all the terms, covenants, provisions and conditions of the Lease.
(e) Assumption of Risk. All materials, work, installations, equipment and decorations of any nature
whatsoever brought on or installed in the Premises pursuant to the provisions of this Work Letter before the commencement
of the Tenn or throughout the Term shall be at Tenant's risk, and neither Landlord nor any party acting on Landlord's
behalf shall be responsible for any damage thereto or loss or destruction thereof due to any reason or cause whatsoever,
excluding by reason of Landlord's or such other party's gross negligence or willfu or criminal misconduct.
8. Time Limits The following maxim time limits and periods shall be allowed for the indicated matters: This
section is not applicable, as Landlord will assist Tenant in completing all construction drawings. Tenant shall be
responsible for the costs associated with that portion of the architectural costs associated with their specific tenant finish
requirements.
Action Time Limit
35
Tenant submits Drawings for building permit, if a icable. On or er the date Tenant and Landlord mutually approve
the final, revised Drawings.
Tenant allowed access to the Premises to commence After providing copies of the building permit to Landlord
construction of Tenant Improvements.
(the "Construction Entry Date").
Except as may be otherwise specifically provided for herein, in all instances where either Tenant's or Landlord's approval
is required, if no written notice of disapproval is given with the applicable Time Limit, at the end of such period the
applicable party shall be deemed to have given its approval and the next succeeding time period shall commence. Any
delay in any of the foregoing dates (including any "re-do", continuation or abatement of any item due to Tenant's or
Landlord's disapproval thereof) shall automatically delay all subsequent deadlines by a like amount of time
9. Substantial Completion. Tenant shall timely commence and diligently prosecute to full completion the
constniction of the Tenant Improvements in accordance with the Drawings. Tenant Improvements shall be deemed
substantially complete when all work called for by the Drawings has been finished and the Premises is ready to be used and
occupied by Tenant, even though minor items may remain to be installed, finished or corrected ("Substantial Completion
Date" or the "Date of Substantial Completion"). Tenant shall cause the contractors to diligently complete any items of
work not completed when the Premises are substantially complete. In the event of any dispute as to substantial completion
of Tenant Improvements, the statement of Landlord's construction manager shall be conclusive. Substantial completion
shall have occurred notwithstanding punch list items. Promptly after the Substantial Completion Date, the parties will
execute an instrument in the form attached hereto as Exhibit C, setting forth the Commencement Date of the Lease, so that
said date is certain and such instnunent, when executed is hereby made a part of this Lease and incorporated herein by
reference.
10. Tenant's Representative. Tenant has designated Tenant's Representative as its sole representative with respect to
the matters set forth in this Work Letter, who shall have full authority and responsibility to act on behalf of Tenant as
required in this Work letter. Tenant shall not change Tenant's Representative except upon prior written notice to Landlord.
11. Landlord's Representative. Tenant acknowledges that neither Tenant's Architect nor any contractor engaged by
Tenant is Landlord's agent and neither entity has authority to enter into agreements on Landlord's behalf or otherwise bind
Landlord. Landlord has designated Landlord's Representative as its sole representative with respect to the matters set forth
in this Work letter, who shall have full authority and responsibility to act on behalf of Landlord as required in this Work
Letter. Landlord shall not change Landlord's Representative except upon notice to Tenant.
12. No Representations or Wananties. Notwithstanding anything to the contrary contained in the Lease or herein,
Landlord's participation in the preparation of the Drawings, the cost estimates for Tenant and the construction of Tenant
Improvements and/or Tenant Improvements shall not constitute any representation or warranty, express or implied, that (i)
the Drawings are in conformity with applicable governmental codes, regulations or rules or (ii) Tenant Improvements, if
built in accordance with the Drawings, will be suitable for Tenant's intended purpose. Tenant acknowledges and agrees
that Tenant Improvements are intended for use by Tenant and the specification and design requirements for such
improvements are not within the special knowledge or experience of Landlord. Landlord's obligations shall be to review
the Drawings; and any additional cost or expense required for the modification thereof to more adequately meet Tenant's
use, whether dining or after construction thereof, shall be borne entirely by Tenant.
13. Incorporation. This Work Letter is incorporated in the Lease; and all of the terms and provisions of the Lease are
incorporat, herein by this reference.
36
EXfl T F
RULES AND REGULATIONS
(1) Security. Landlord may from time to time adopt appropriate systems and procedures for the security or safety of
the Building, any persons occupying, using or entering the same, or any equipment, finishings or contents thereof, and
Tenant shall comply with Landlord's reasonable requirements relative thereto.
(2) Locks. Landlord may from time to time install and change locking mechanisms on entrances to the Building,
common areas thereof, and the Premises and (unless 24 hour security is provided by the Building) shall provide to Tenant a
reasonable number of keys and replacements therefore to meet the bona fide requirements of Tenant. In these rules "keys"
include any device serving the same purpose. Tenant shall not add to or change existing locking mechanisms on any door
in or to the Premises without Landlord's prior written consent, nor duplicate in any manner any keys provided for access to
the Building, common areas thereof, or the Premises. If without Landlord's consent, Tenant installs lock(s) incompatible
with the Building master locking system:
(a) Landlord, without abatement of rent, shall be relieved of any obligation under the Lease to provide any
service to the affected areas which requires access thereto;
(b) Tenant shall indemnify Landlord against any expense as a result of forced entry thereto which may be
required in an emergency; and
(c) Tenant shall at the end of the Term and at Landlord's request remove such lock(s) at Tenant's expense.
Return of Keys. At the end of the Term, Tenant shall promptly
Premises, which are in possession of Tenant.
Signs. Unless otherwise expressly agreed to in writing by Landlord:
ord all keys for the Building and
(4) Window Coverings. Tenant shall observe Landlord's rules with respect to maintaining uniform windows in the
Premises so that the Building represents a uniform exterior appearance, and shall not install deflective film, window shades,
screens, drapes, covers or other materials on or at any window in the Premises without Landlord's prior written consent,
(a) No signs will be allowed in any form on the exterior of the Building. With the exception of the approved
exterior building signage, Interior window signs shall be permissible.
(b) No signs except in uniform location and uniform style fixed by Landiord will be permitted in the public
corridors or on conidor doors or entrances to Tenant's space; and
(6) Repair, Maintenance, Alterations and Improvements. Tenant shall carry out Tenant's repair, maintenance,
alterations and improvements in the Premises only during times agreed to in advance by Landlord and in a manner, which
will not interfere with the rights of other tenants in the Building.
Water Fixtures. Tenant shall not use water closets or water fixtures for any purposes for which they are not
intended, nor shall water be wasted by tampering with such fixtures. Any cost or damage resulting from such misuse by
Tenant shall be paid for by Tenant
(8) Damage to Premises. Except as permitted by Landlord, no tenant shall mark up, paint signs upon, cut, drill into,
drive nails or screws into, or in any way mar or deface the walls, ceilings, partitions or floors of any premises or the
Building. Notwithstanding the foregoing, normal picture hanging is permitted within the Premises. Any defacement,
damage or injury caused by any tenant, its agents or employees shall be paid for by such tenant.
(9) Prohibition Against Inflammable or Hazardous Materials. The use of oil, gas, or other inflammable liquids for any
purpose is expressly prohibited. Explosives or any other article deemed hazardous shall not be brought into the Building,
(10) Antennas and Aerials. No antenna or aerial shall be erected on the roof or exterior walls of the Building without
the prior written consent of Landlord. Notwithstanding that Landlord grants its permission, Landlord reserves the right to
assess a reasonable charge for such use, which charge shall be paid monthly as Additional Rent. Any antenna or aerial so
installed without prior consent shall be subject to removal without notice at any time, and Tenant shall bear all costs of such
removal and costs of all repairs necessitated by virtue of its attachrnent to the Building.
(11) Personal Use of Premises. The Premises shall not be used or permitted to be used for residential, lodging or
sleeping purposes or for the storage of personal effects or property not required for business purposes.
(12) Heavy Articles. Tenant shall not place in or move about the Premises, without Landlord's prior written consent,
any safe or other heavy article which in Landlord's reasonable opinion may damage the Building and Landlord may
designate the location of any heavy articles in the Premises.
(13) :icycles, Animals. Tenant shall not bring any animals or birds into the Building, and shall not permit bicycles or
other vehicles inside or on the sidewalks outside the Building except in areas designated from time to time by Landlord for
such purposes.
(14) Deliveries. Tenant shall ensure that deliveries of materials and supplies to the Premises are made through such
entrances, as may from time to time be designated by Landlord, and shall promptly pay or cause to be paid to Landlord the
cost of repairing any damage in or to the Building caused by any person making such deliveries. Tenant is expressly
permitted to take deliveries through the rear of the Premises and from time to time if necessary, to park delivery trucks to
the rear or South side of the premises and take deliveries through the front door of the Premises.
(15) Furniture and Equipment. Tenant shall ensure that furniture and equipment being moved into or out of the
Premises is moved through such entrances and at such times as may from time to time be designated by Landlord, and by
movers or a moving company approved by Landlord, and shall promptly pay or cause to be paid to Landlord the cost of
repairing any damage in or to the Building caused thereby.
(16) Solicitations. Landlord reserves the right to restrict or prohibit canvassing, soliciting or peddling in the Building.
(17) Food and Beverage. Only persons approved from time to time by Landlord may prepare, solicit orders for, sell,
serve or distribute foods or beverages in the Building, or use the common areas for any such pu ose. Except with
Landlord's prior written consent and in accordance with arrangements approved by Landlord, Tenant shall not permit on the
premises the use of equipment for dispensing food or beverages or for the preparation, solicitation of orders for, sale,
serving or distribution of food or beverages. Landlord recognizes that Tenant may from time-to-time provide food for
specific promotional purposes and approval will not be required. Landlord recognizes that Tenant may from time-to-time
provide wine or other beverages for tasting to customers and approval will not be required.
(18) Refuse, Tenant shall place all refuse in proper receptacles provided by Tenant at its expense in the Premises or in
receptacles (if any) provided by Landlord for the Building, and shall keep the Building free of all refuse.
(19) Obstruction. Tenant shall not obstnict or place anything in or on the sidewalks or driveways outside the Building
or in the common areas of the Building, or use such locations for any purpose except access to and exit from the Premises
without Landlord's prior written consent. Landlord may remove at Tenant's expense any such obstruction or thing
(unauthorized by Landlord) without notice or obligation to Tenant.
(20) Dangerous or Immoral Activities. Tenant shall not make any use of the Premises, which involves the danger of
injury to any person, nor shall the same be used for any inunoral purpose,
(21) Proper Conduct. Tenant shall not conduct itself in any manner which is inconsistent with the character of the
Building as a quality historic building or which will impair the comfort and convenience of other tenants in the Building.
(22) Employees, Agents and Invitees. In these Rules and Regulations, "Tenant" includes the employees, agents,
invitees and licensees of Tenant and others permitted by Tenant to use or occupy the Premises.
(23) Outside Sales and Storage. No tenant may display or offer for sale any merchandise, nor allow carts, portable
signs or devices, or any other objects to be stored or to remain outside the defined exterior walls or roof and permanent
38
doorways of its premises. All sidewalks, entryways, and common areas shall remain unobstructed, and shall used only
for ingress and egress from the Premises and the Building.
(24) Parking Lot Solicitation. No tenant may solicit in any mamier in any of the automobile parking, sidewalk, or other
common areas of the Building.
(25) Deliveries. All deliveries, loading and unloading shall be accomplished by use of entryways other than the
entryway commonly used by Tenant's customers except as provided for elsewhere in this lease. In no event shall delivery
trucks or other vehicles servicing the Building be allowed to park or remain in front of the Building between the hours of
10:00 a.m. and 9:00 p.m. of each day.
(26) Hours of Operation. Each tenant shall open its premises for business to the general public no later than 10:00 am.
and continuously remain open for business throughout the day until at least 6:00 p.m., Monday through Saturday, or during
such other reasonable hours and days as are established by the merchants association, if any, provided that such hours and
days are not in violation or any applicable law, rule, regulation, or ordinance. No tenant shall use any space within its
premises to serve any business taking place at other locations. All tenants shall warehouse, store or stock in their premises
only such goods and merchandise as are reasonably required for sale at, in or from the Premises.
(27) Parking
(a) Parking areas shall be used only for parking vehicles no larger than full size passenger automobiles herein
called "Permitted Size Vehicles." Vehicles other than Permitted Size Vehicles are herein referred to as "Oversized
Vehicles."
(b) Tenant shall not permit or allow any vehicles that belong to or are controlled by Tenant or Tenant's
employees, suppliers, shippers, customers, or invitees to be loaded, unloaded, or parked in areas other than those
designated by Landlord (if any) for such activities.
(c) Parking stickers or identification devices shall be the property of Landlord and shall be returned to
Landlord by the holder thereof upon termination of the holder's parking privileges. Tenant will pay such
replacement charge as is reasonably established by Landlord for the loss of such devices.
(d) Parking stickers or identification devices must be clearly displayed at all times.
(e) Landlord reserves the right to relocate all or a part of parking spaces within the parking facilities serving
the Building or to a reasonably adjacent off site locations(s), and to reasonably allocate them between compact and
standard size s ces, as long as the same complies with applicable laws, ordinances and regulations.
Users of the parking area will obey all posted signs and park only in the areas designated for vehicle
parking. Users shall not park in any space designated as "Handicapped," "Visitors Only," or any spaces(s) other
than the space(s) assigned or designated for Tenant's use.
(g) Unless otherwise instructed, every person using the parking area is required to park and lock his own
vehicle. Landlord will not be responsible for any damage to vehicles, injury to persons or loss of property, all of
which risks are assumed by the party using the parking area
(h) The parking facilities serving the Building shall be used only for daily (short term) parking purposes, and
shall not be used for overnight or long tenni parking or storage of vehicles. Any vehicle remaining in a parking
space for more than seventy-two (72) hours shall be deemed abandoned any may be towed at its owner's expense.
The maintenance, washing, waxing or cleaning of vehicles in the parking facilities is prohibited.
(i) Tenant shall provide such information concerning vehicle ownership and identification as may be
reasonably required by Landlord in the management of the parking facilities, including make, model, year,
owners' name, and tag number of vehicles, which will be parked in the spaces assigned to Tenant. Tenant a ees
to notify Landlord (or its parking facilities manager) of any changes in such information as they occur.
(j) Such parking use as is herein provided is intended merely as a license only and no bailment is intended or
shall be created hereby.
39
(k) Tenant shall be responsible for seeing that all its employees, agents and invitees comply with the
applicable parking rules, regulations, laws and agreements. Landlord reserves the right to refuse (or revoke) the
issuance of monthly identification devices to any person or entity who willfully refuses to comply with the
applicable rules, regulations, laws and/or agreements governing parking. Landlord further reserves the right to
ticket or fine violators or tow vehicles parked in violation of these parking rules and regulations.
(28) No Smoking. The Building is a no-smoking building. Accordingly, Tenant shall not permit its agents, employees,
contractors, guests or invitees to smoke within the Building, on its grounds, or any of its entrances, corridors, stairwells,
restrooms, sidewalks, parking areas, planting areas, paved areas or other areas. Smoking shall only be permitted in those
areas specifically designated by Landlord from time to time." Tenant may be assessed a $50.00 fee for each violation of
the foregoing rule, which fee shall be deemed Additional Rent and be partial compensation for Landlord's increased
administrative, cleaning and insurance costs,
40
1. Prohibited Uses
No part of the shopping center shall be devoted to the use or operation of any entertainment or recreational
facility. "Entertainment or recreational facility" includes, without limitation, a theater, carnival, bowling
alley, skating rink, amusement center, electronic or mechanical games arcade, pool or billiard hall, betting
parlor, bingo parlor, massage pallor, pornographic shop, adult book store, nightclub, dance hall, tavern,
cocktail lounge, any facility for the on-premises consumption of alcoholic beverages except as an incidental
part of the operation of a Liquor Store, No part of the shopping center within three hundred feet (300') of any
exterior building wall of any Lot 2 (Safeway parcel) building shall be devoted to the use or operation of any
restaurant (take-out, fast-food or sit-down).
No part of the shopping center shall be devoted to the use or operation of any training or educational facility.
"Training or educational facility" includes, without limitation, a beauty school, barber college, place of
instruction, or any other operation catering primarily to students or trainees rather than to customers, but
excludes employee training by owners or owner's tenants incidental to the conduct of their businesses within
the shopping center.
2. Exclusive Use
EMI IT G
SPECIAL PROVISIONS
41
Except as provided in the Declaration of Easements, the store on Lot 2 (Safeway parcel) shall have the sole
and exclusive right to: (i) sell food for off-premises consumption; (ii) sell merchandise which, under the laws
of the State of Colorado, is required to be dispensed by or under the supervision of a registered or licensed
pharmacist ("prescription pharmacy merchandise"), and (iii) sell pet foods. Stores in the shopping center
other than the store on Lot 2 may devote up to, but not more than, the lesser of (a) one thousand five hundred
(1,500) square feet of sales area (including aisle space adjacent thereto), or (b) sales area (including aisle
space adjacent thereto) of up to ten percent (10%) of the total square footage of the store, to the sale of food
for off-premises consumption. However, the terms of the Declaration of Easements shall not be deemed to
prohibit a restaurant from selling food prepared on-premises for off-premises consumption, subject, however,
to the provisions of the Declaration of Easements. Spirits, wine, cigars, miscellaneous liquor related food
items, and beer are not defined as food for the purposes of these special provisions.
The restriction against the sale of food for off-premises consumption and pet foods shall terminate and be of
no further force or effect if a grocery supermarket of at least 45,000 square feet in size is not operated on Lot
2 for a continuous period of six (6) months or more, for any reason other than (1) a strike, lockout or other
labor difficulty, fire or other casualty, condemnation, war, riot, insurrection, act of God, the requirements of
any local, state or federal law, rule, regulation, or any other reason beyond the reasonable control of the owner
or occupant of Lot 2 (other than financial) or (ii) temporary closure due to the restoration, reconstruction,
expansion, alternation or remodeling of any buildings or improvements located in the shopping center.
Furthermore, the restriction against the sale of prescription pharmacy merchandise shall terminate and be of
no further force or effect if prescription pharmacy merchandise is not sold from Lot 2 for any reason other
than those set forth in (i) and (ii) of the previous sentence, or if, at any time after prescription pharmacy
merchandise is not sold from Lot 2 for a continuous period of six (6) months or more for any reasons other
than those set forth in (i) and (ii) of the previous sentence. The provisions are for the benefit of Lot 2 and
exclusive use may be enforced pursuant to the provisions of Article 15 of the Declaration of Easements only
by the owner of Lot 2.
Lease Termination by Tenant
If Colorado State Liquor Laws change during the term of this lease in such a fashion as to permit
Safeway or any other grocery or convenience store within two (2) miles of the premises to sell packaged
alcoholic beverages other than 12 beer, Tenant shall have the right to terminate this Lease without
damages ninety (90) days after notifying the landlord in writing of its intent to terminate.
a If the Safeway store ceases to operate in the shopping center, Tenant shall have the right to terminate this
Lease without damages ninety (90) days after notifying the landlord in writing of its intent to terminate.
Exclusive product distribution.
Landlord agrees that Tenant shall have the exclusive right to sell packaged alcoholic beverages within the
shopping center with the exception of sales of 3.2 beers by Safeway.
Signage exceptions
Tenant shall be entitled to post temporary sale banners from time to time without prior consent of Landlord.
In addition, Tenant shall be entitled to display customary Liquor Store signage either lighted or not inside the
Premises and inside the Premises windows as long as the signage is in compliance with the Town of Fraser
sign code.
Conditions negating the terms of this lease.
Landlord agrees that in the event of the occurrence of any of the following, the terms and provisions f this
lease will become null and void:
Inability of the Tenant to secure the appropriate approvals from State and or local governments for the
relocation of their existing liquor license to the Premises.
The inability of the Tenant to terminate its existing lease in the Fraser Valley Shopping Center at 535 Zerex
Street, unit C-201,Fraser, Colorado on or before March 1' 2012 without penalty, cost, or liability of any kind
to Bottle Pass Liquors, Inc or its owners.
42
1. Renewal Option(s).
EXII HIT li
TENANT OPTIONS
As additional consideration for the execution of this Lease, the Landlord grants to Tenant two (2) separate
option(s) to extend the term of this Lease for two (2) separate additional sixty (60)-month period(s) upon the same terms
and conditions herein contained, except for the extension option granted herein, so long as Tenant shall have fulfilled
completely and timely all of the terms and conditions of this Lease; provided, however, that the Minimum Rent shall be
equal to the Prevailing Market Rental Rate, as defined below.
If Tenant elects to exercise an option hereunder, it shall do so by giving Landlord written notice ("Renewal Notice") of such
election at least three (3) months prior to the beginning of the additional period for which the term hereof is to be extended
by the exercise of such option. Provided Tenant gives such notice, and provided that Tenant has fulfilled completely and
timely all the terms and conditions of this Lease, the term of this Lease shaft be automatically extended for the additional
period of years covered by the option so exercised without execution of an extension or renewal lease. The failure of
Tenant to exercise its option for any additional period shall conclusively waive its option for subsequent additional periods,
if any.
No later than ten (10) days following Landlord's receipt of the Renewal Notice, Landlord and Tenant shall meet in an effort
to negotiate, in good faith, the Market Rental Rate applicable to the Premises as of the date Landlord receives the Renewal
Notice, If Landlord and Tenant have not agreed upon the Market Rental Rate applicable to the Premises within such (10)
day period, then Landlord and Tenant shall attempt to agree, in good faith, upon a single broker not later than fifteen (15)
days following Landlord's receipt of the Renewal Notice who shall determine the Market Rental Rate for the Premises. If
Landlord and Tenant are unable to agree upon a single broker within such time period, then Landlord and Tenant shall each
appoint one broker not later than twenty (20) days following Landlord's receipt of the Renewal Notice. Not later than
twenty-five (25) days following Landlord's receipt of the Renewal Notice, the two appointed brokers shall appoint a third
broker. If either Landlord or Tenant fails to appoint a broker within the prescribed time period, the single broker appointed
shall determine the Market Rental Rate. If both parties fail to appoint brokers within the prescribed time periods, then the
first broker thereafter selected by a party shall determine the Market Rental Rate. If a single broker is chosen, then such
broker shall determine the Market Rental Rate applicable to the Premises. Otherwise, the Market Rental Rate shall be the
arithmetic average of two (2) of the three (3) appraisals, which are the closest in amount, and the third appraisal shall be
disregarded. Landlord and Tenant shall instruct the brokers to complete their determination of the Market Rental Rate not
later than forty (40) days following Landlord's receipt of the Renewal Notice. Each party shall bear the costs of its own
broker, and the parties shall share equally the cost of the single or third broker if applicable. Each broker shall have at least
five (5) years' experience in the leasing of retail space in the market in which the Building is located and shall be a licensed
real estate broker.
The term "Market Rental Rate" per square foot of area shall mean the annual rate of Minimum Rent reasonably determined
to be the prevailing market rental rate in the market in which the Building is located, as determined by Landlord, for
comparable retail space for terms commencing on or about the Renewal Commencement Date and shall take into its
consideration (i) the duration of the term for which such space is being leased, (ii) location within the applicable building,
(iii) when the applicable rate first becomes effective, (iv) other concessions customarily given to other tenants including,
without limitation, rent abatement and tenant improvement allowances, but assuming the leasing of the space "as is" on the
Renewal Commencement Date, and (v) other comparable factors. Bona fide written offers to lease comparable space in the
Building received by Landlord from third parties (at arm's length) and consummated between Landlord and such third party
within six (6) months prior to the date of the Renewal Notice may be used by Landlord or Tenant as an indication of the
Market Rental Rate. The components of the Market Rental Rate may include, among other items, the components of rent,
periodic adjustments or additions to a fixed Minimum Rent based upon a share of real estate taxes and other expenses and
increases to adjust for inflation then customary in the geographic area in which the Building is located.
Tenant acknowledges and agrees that the extension option(s) shall be deemed personal to Tenant and if Tenant subleases,
assigns or otherwise transfers any interests hereunder to any person or entity prior to the exercise of the extension option(s),
the extension option(s) shall lapse and be forever waived.
43
Exhibit D:
Exhibit E:
Exhibit F.
Exhibit G:
Exhibit 11:
Exhibit it
TENANT:
Landlord's Specifications
Work Letter
Rides and Regulations
Special Provisions
Tenant Options
Personal Guaranty
By.
Name:
Title.
27
LANDLORD:
Fraser Marl(etpl ce, LLC,
A Colorado limited Liabilil& Company
By:
Name. Wes Becker
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PETITION
I the undersigned, represent that I am an adult at least twenty one (21) years ot age.
i am living and 1 or snopping in tne neignnornood impacted py me application tor tne reiocation
of the liquor Iiscense by Bottle Pass Liquors, Inc. to be relocated next to Safeway in Fraser.
By my signature below I am stating that I believe the needs and desires of the community
are positively impacted if this liscense relocation is approved.
I ask the Fraser town council to approve the application for the liquor license relocation.
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ADDRESS
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Do you want Bottle Pass Liquors
1p relocate
Yes
No
(J
PETITION
1 the undersigned, represent that 1 am an adult at least twenty one (21) years of age.
1 am hying and or snooping in tne neigntaornooa impacted oy me application Tor tne relocation
of the liquor liscense by Bottle Pass Liquors, Inc. to be relocated next to Safeway in Fraser.
By my signature below 1 am stating that I believe the needs and desires of the community
are positively impacted if this Iiscens e relocation Is approved.
I ask the Fraser town council to approve the application for the liquor license relocation.
A
PHYSICAL ADDRESS
ADDRESS
SPLEASE NO P.O.. BOXES)
9
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Do you want Battle Pass Liquors
to relocate
Yes
No
PETITION
1 the undersigned, represent that I am an adult at least twenty one (21) years ot age.
I am living and 1 or snapping in the neignOornood impacted by tne appiicatton tor tne reiocahon
of the liquor liscense by Bottle Pass Liquors, Inc. to be relocated next to Safeway in Fraser.
By my signature below I am stating that I believe the needs and desires of the community
are positively impacted if this Iiscense relocation is approved.
I ask the Fraser town council to approve the application for the liquor license relocation.
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PHYSICAL ADDRESS
ADORES
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Do you want Bottle Pass Liquors
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PETITION
1 the undersigned, represent that i am an adult at least twenty one (21) years or age.
I am living ana 1 or snopping in the neignuornooa impacted uy trie application tor me relocation
of the liquor llscense by Bottle Pass Liquors, Inc. to be relocated next to Safeway in Fraser.
By my signature below I am stating that believe the needs and desires of the community
are positively impacted if this liscense relocation is approved.
I ask the Fraser town council to approve the application for the liquor license relocation.
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NAME
PHYSICAL ADDRESS
ADDRESS
(PLEASE NO P.O. BOXES1
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Do you want Bottle Pass Liquors
to relocate
Yes
No
PETITION'
1 the undersigned, represent that I am an adult at least twenty one (21) years of age.
am wing and or snapping in the neignaorhood impactea ay tne application for tne relocation
of the liquor liscense by Bottle Pass Liquors, Inc. to be relocated next to Safeway in Fraser.
By my signature below I am stating that I believe the needs and desires of the community
are positively impacted if this liscense relocation is approved.
1 ask the Fraser town council to approve the application for the liquor license relocation.
NAME
PHYSIC AL ADDRESS
ADDRESS
IPLEASE NO P.O. BOXES)
Do you want Bottle Pass Liquors
to relocate
Yes
No
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Ad Name: 7642846A
Customer: TOWN OF FRASER
Your account number is: 1095750
PROOF OF PUBLICATION
MIDDLE PARK TIMES
1, Matt Sandberg, do solemnly swear that I am the
publisher of the Middle Park Tirries, that the same is a weekly
newspaper printed, in whole or in-part, and published in
the County of Grand, State of Colorado, and has a general
circulation therein; that said newspaper has been published
continuously and interruptedly in said County of Grand
for a period of more than fifty-two consecutive weeks next
prior to the first publication of the annexed legal notice or
advertisement, that said newspaper has been admitted to the
United States mail as second-class matter under the provisions
of the act of March 3, 1879, or any amendment thereof, and
that said newspaper is a weekly newspaper duly qualified
for publishing legal notices and advertisements within the
meaning of the laws of the State of Colorado.
That the annexed legal notice or advertisement was published
in the regular and entire issue of every number of said daily
newspaper for the period of 1 consecutive insertions; and
that the first publication of said notice was in the issue of said
newspaper dated 3/8/2012 and that the last publication of said
notice was dated 3/8/2012 in the issue of said newspaper.
In witness whereof, I have here unto set my hand this day,
03/13/2012.
Matt Sandberg
Publisher
Subscribed and sworn to before me, a notary public in and for
the County of Eagle, State of Colorado this day 03/13/2012.
Pamela J. Schultz, Notary Public
My Commission expires: November 1, 2015
PAMELA J SCI0ULTI
Puelk
Mite al Goland*
ve. Ap. mg.
NOTICE OF PUBLIC HEARING
Please take notice that Bottle Pass Liquors inc.,
P.O. Box 621, Fraser, 00 80442, on the of 14th of
February, 2012, made application to the Town of
Fraser for a Change of Location to an existing Re-
tail Liquor Store License-Mat Vinous, and Sp rlits-
ous pursuant to the Colorado Liquor Code.
The names and addresses of the officers of the
Corporation are as follows:
President Richard Bennet
366 County Road 506, Fraser, GO 80442
Treasurer: Michael LaPorte
171 ILooking Clans Lane, Fraser, 00 80442
The application requesting a :Change of Location
for en eXi Retail Liquor Store License-Malt, Vi-
nous, ,and Spirituous In the name of Bottle Pass Li-
quors Inc. Is to be relocated to the following de-
scribed properly in the County 01 Grand, Slate of
Colorado to wilt:
Units 1A
Fraser Markel Place
45 County Road 804
Fraser, Colorado 80442
The Fraser Board ol Trustees, acting as the local
liquor tioensing ,authority, wO Mid a public hearing
on sad ,application on Wednesday March 21, 2012
at 7:00 p.m. in the Fraser Town Hall Board Room,
located 01 183 Fraser Avenue, Fraser, Colorado.
Petitions or remonstrations may be filed by for-
warding them to the Fraser Town Clerk, P. a. Box
370, Fraser, CO 80442.
Published by order of the Fraser Town Clerk this
511, day of March, 2012.
Published in the Middle Park Times,
/s/ Lu Berger, Town Clerk
Publication: March 8, 2012
Published in the Middle Park Times March 8, 2012.
(7642846)
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C:1Users \Sandy\Dveu uentslFraser i" rk
17-12.docx
RETAIL EASE
ketpla 13ottle Pass Liquors Retail Lease version 5 1-
ARTICLE 1 NT COMMENCEMENT DATE;
SECTION 1.01 RENT COMMENCEMENT DATE.....,.
SECTION 1.02 TENANT ACCEPTANCE LETTER
SECTION 1.03 MINIMUM RENT 6666.
ARTICLE 2 ALTERATIONS AND ADDITIONS
(A) Taxes
03) Insurance.
(C) Common Area Maintenance Costs
(D) Other Maintenance Costs...
ARTICLE 4 TENANT COVENANTS.
SECTION 4.01 CARE OF PREMISES
SECTION 4.02 COMPLIANCE WITH LAW
SECTION 4.03 TENANT'S INSURANCE
SECTION 4.04 INDEMNITY
ARTICLE 5 LANDLORD'S COVENANTS AND RIGHTS
SECTION 5.02 LANDLORD'S SERV ICES
(A) Services To Premises
TABLE OF CONTENTS
ARTICLE 6 GENERAL PROVISIONS »66 66«..
SECTION 1.01 PARKING.........
SECTION 6.02 ASSIGNMENT AND SUBLETTING
SECTION 6.03 EMINENT DOMAIN
SECTION 6.04 EVENTS OF DEFAULT
NT ,....460 4. 00 00 .4,44,,, 6666,,.,. 6..601,.., 666..0....««...0606•0•61 66. 666 6
1
SECTION 1.04 ADDITIONAL RENT
2
SECTION 1.05 USE 2
SECTION 1.06 RADIUS RESTRICTION 2
Page
1
SECTION 2.01 DELAYED POSSESSION ...w,.
SECTION 2,02 LANDLORD'S WORK
Section 2.03 Tenant's Work
ARTICLE 3 OPERATING EXPENSES 6666,., 6066... „6666» »6666 ..,,..,..3
SECTION 3.01 ADDITIONAL RENT'.,, 3
SECTION 3.02 EXPENSE PASS THROUGH »...,..,..3
SECTION 3.03 PRO RATA SHARE.,..,,.. .3
SECTION 3.04 ESTIMATES AND PAYMENTS .3
SECTION 3.05 EXTRA CHARGES....... 4
SECTION 4.05 UTILITIES 666 6......... .......8
SECTION 4,07 LIENS. 6666... 8
SECTION 4.08 SECURITY DEPOSIT. 8
SECTION 4.09 SIGNS.. 9
SECTION 4.1.0 SURRENDER 9
SECTION 4.11 TELEPHONE SERVICE» ..9
SECTION 4.12 OPERATION OF PREMISES 9
SECTION 5.01 QUIET ENJOYMENT AND SUBORDINATION .10
(C) Limitations 66 66......., .12
SECTION 5.03 ALTERATIONS BY LANDLORD ».,12
SECTION 5.04 ENTRY BY LANDLORD .13
6666,, 60 41.,,,,,,,,,,,,,,,10
.4
.4
5
6
7
.11.
.11
..13
...14
SECTION 6.O5 REMEDIES VF DEFAULT
SECTION 6.U6 DAMAGE BY FIRE mm OTHER CASUALTY
SECTION 6.07 LANDLORDS LIEN AND SECURITY INTEREST
SECTION 6.08 SUBROGATION. .18
SECTION 7.01 ADMINISTRATIVE SERVICE CHARGES AND LATE CHARGES lO
SECTION 7.02 HOLDING OVER
SECTION 7.03 MEASUREMENT AND SQUARE FOOTAGE
SECTION 7.04 TENANT'S DUE DILIGENCE
SECTION 7.05 NOTICES
SECTION 7.06 AumoRrrv OF TENANT.. .20
SECTION 7.07 NOT USED. ERROR! BOOKMARK NOT DEFINED.
SECTION7 08 VENUE _-_--_-__-.-__~---_--_--_--2O
SECTION 7/)9 AUTHORITIES FOR ACTION
SECTION T%O BROKERAGE
SECTION 7.11 DEFrNITION OF LANDLORD 20
SECTION 7.12 ENT!RE AGREEMENT -------__-__---_-..__..21
SECTION 7.l3 JURY TRIAL WAIVER
SECTION 7.14 FORCE MAoonuE_...-.-.._----__-__--._.~..
SECTION 7.15 SEVERABILTFY 21
SooTomN
21
SECTION 11/ RELATIONSHIP 0Y PARTIES
..--_--.2I
SDc�DD� T18 �e��o�Bom��owG 2l
SECTION TI9 SUCCESSORS BOUND ._.-._.-------.~.~..-_-.-_---------2l
SECTION 7.20 brrERP
SECTION 7 21 JOINT AND SEVERAL OBLIGATION
22
SECTION 7.22 TIME OF THE ESSENCE
SECTION 7.27 ASSIGNMENT OF RENTS, LEASES
.22
SECTION 7.23 EASEMENTS
SECTION 7.24 CHANGING USE AND ENI GI[NG THE BUILDING
SECTION 7.25 LIMITATION OF LANDLORD LIABILITY. .23
.23
SECTION 7.28 INTENT OF THE PARTIES NET LEASE
23
SECTION 7.30 ENVIRONMENTAL PROVISIONS
-...23
(A) Covenants and Agreements.
.23
(B) ENVIRONMENTAL INDEMNIFICATION
QC) NOTICE V9CI /uM
..-..24
Survival 24
SECTION 7.31 RULES AND REGULATIONS
.24
SECTION 7.3% STATUS STATEMENT,
SECTION 7.33 DEFINITION OF LEASE .25
Exhibit A-1 Legal Description (Page One)
Exhibit A-2 Site Plan age Two)
Exhibit A-3 Floor Plan
Exhibit B Drawings
Exhibit C Tenant Acceptance Letter
Exhibit D Landlord's Specifications
Exhibit E Work Letter
Exhibit F Rules and Regulations
Exhibit G Special Provisions
Exhibit H Tenant Options
-.__.._.-...25
FRASER MARKETPLACE
Definitions and Basic Lease Terms
For purposes of this Lease, the following terms shall have the meanings ascribed to them below:
1. May 1, 2012
2. Landlord and Landlord's Address for Notice:
Fraser Marketplace, LLC, a Colorado limited liability company
C/o Wes Becker
9432 N. Motsenbocker Road
Parker, CO 80134
And
Martin Wohnlich
5611 Blue Sage Drive
Littleton, CO 80123
3, Rent Payment Address:
Fraser Marketplace, LLC, a Colorado limited liability company
cio Extreme Office Services, Sandy Walker
PO Box 2002
Winter Park, CO 80482
4. Tenant and Tenant's Contact Information for Notice:
Bottle Pass Liquors, Inc
P.O. Box 621
Fraser, Colorado 80442
Tax Identification Number:
Phone Number: 970-726-9476
5. Property: That certain real property on which the Building is located, as more fully described in Exhibit A-1,
attach I hereto and made a part hereof.
6. lidding: That certain property, building and other improvements commonly known as Fraser Marketplace
located at 45 County Road 804, in the Town of Fraser, County of Grand, and State of Colorado, constructed on
the Property and as shown on the Site Plan attached hereto and made a part hereof as Exhibit A-2. For purposes
of this Lease, the Buildings shall be deemed to contain approximately 25,298 rentable square feet.
7. Premises: Unit No. 1A on the first floor of the Building, outlined on the floor plan shown on Exhibit A-3,
containing approximately 3697 square feet.
8. Drawings: NA
9. Term: That period commencing on the Commencement Date and continuing for sixty (60) full months after the
first day of the fist full month following the Commencement Date, unless sooner terminated as provided in this
Lease.
10. Commencement Date: Two (2) days after the substantial cornpletion of dlord's Work (as defined in Section
2.02 below). The Commencement Date is May 1, 2012
11. Rent Commencement Date: The earliest to occur of the following dates: one (1) day following the date on
which Landlord delivers possession of the Premises to Tenant; or (ii) the date on which Tenant completes the
Tenant Improvements described in Exhibit E. The Rent Commencement Date June 1, 2012,
12. Expiration Date: The last day of the Term of this Lease.
13. Minimum Rent:
RATE PER
MONTHS RENTABLE PAYMENTS
SQUARE FOOT
June 1, 2012 through May 31, 2013 IM per month
June 1, 2013 through May 31, 2014 per month
June 1, 2014 through IVIay 31, 2015 Mper month
June 1, 2015 through May 31, 2016 IM per month
June 1, 2016 through May31,2017 $1Mper month
14. Total Minimum Rent for the Term:
15. Tenant's Trade Name: Bottle Pass Liquors, In
16. Use: Retail Liquor Store
17. Tenant's Pro Rata Share:
net rentable floor area in the
Premises.
18. Security Deposit:
19. Tenant's ours of Operation:
10.00 AM through 9:00 PM Monday through Sunday
20. Broker(s) and Address(es):
Lance Gutersalm
RE/MAX PEAK TO PEAK
21. Landlord's Management Agent and Address:
22. Wes Becker
23. The Jones Realty Group
24. 475 17 Street, Suite 940
25. Denver, CO 80202
4.61% which is the quotient obtained by dividing the total number of square feet of
uilding into the total number of square feet of net rentable floor area within the
to be paid in four equal installments; June, July, August September, 2012.
2
OT such other agent as Landlord may select from time to time.
The defined terms set forth above and the Exhibits attached hereto are incorporated into and made a part of the following
Lease. Each reference in this Lease to any of the defined terms shall mean the respective information above and shall be
construed to incorporate all of the terms provided under the particular Lease paragraph pertaining to such information. In
the event of any conflict between the defined tenns and the provisions of the Lease, the latter shall control.
RETAIL LEASE
THIS LEASE is entered into as of tbe Effective Date set forth above by and between Landiord and Tenant
(collectively referred to as "the Parties").
WITNESSET
Subject to and upon the terms herein set forth, Landlord leases to Tenant and Tenant leases from Landlord the
Premises, together with the right of nonexclusive use, in common with others, of common areas and facilities which may be
furnished by Landlord.
ARTICLE 1
Rent Commencement Date; Rent
Rent Commencement Date. In the event the Rent Commencement Date is a date other than
the first day of a calendar month, Minimum Rent and all other charges shall be prorated for any partial
month on a per diem basis and shall be due and payable on the first day of the month next following the
month in which the Rent Commencement Date occurs along with all charges and payments due for
such following month.
Tenant Acceptance Letter. Subsequent to the Commencement Date, Landlord and Tenant
shall execute a Tenant Acceptance Letter substantially in the form of Exhibit C hereto, setting forth the
precise Commencement and Expiration Dates, The Parties hereto acknowledge and agree that certain
obligations under various articles and sections of the Lease may commence prior to the
Commencement Date, including but not limited to, Landlord's Work, hold harmless liability, and
insurance, and the parties agree to be bound by any such articles or sections prior to the
Commencement Date,
Section 1.03 Minimum Rent Tenant shall 4y to Landlord the Minimum Rent, without notice or
demand and without set-off or deduction for any reason whatsoever, during the Term of this Lease,
plus a pro-rata portion of such amount applicable to any partial month at the beginning athe Term,
payable in advance on the first day of each calendar month (baring the Term in monthly installments as
set forth in Section 14 of the Basic Lease Terms Sheet.
1
Section 1.04 Percentage Rent. In addition to the Minimum Rent, Tenant shall pay to Landlord
an annual percentage rent in a sum equivalent to the amount, if any, of eight percent (8%) of the
Tenants annual sales taxable y oss receipts in excess of one million two hundred thousand dollars
($1,200,000), as define hereinafter (the "Percentage Rent"). Tenant shall also pay one-twelfth (1/12)
of the estimated Percentage Rent, owing hereunder each month as hereafter provided Tenant's
obligation to pay Percentage Rent shall survive the termination of this lease as to any such rental
owing for the period prior to termination.
Percentage of Rent Estimated. At the end of each lease year, during the term thereof,
including the first lease year, Tenant shall pay to landlord the Percentage Rent owing hereunder. In
addition, commencing with the second lease year and each lease year thereafter during the tenn hereof
and any extensions thereof, Tenant shall pay to landlord, in advance, and in equal monthly installments,
one-twelfth (1/12) for the percentage Rent paid by Tenant for the immediately preceding lease year, as
an estimate of the Percentage Rent which will be due and owing by Tenant for such current Lease Year.
Within (60) days following the end of each lease year during the term hereof, and any extensions
thereof, Landlord and Tenant shall determine the exact amount of Percentage Rent owing by Tenant for
the lease year just completed and Tenant shall pay to Landlord, or receive a credit from Landlord, as
the case may be, the difference between the actual Percentage Rent owed for such period and the
estimated Percentage Rent actually paid by the Tenant during such period, if any. If necessary, based
upon the actual Percentage Rent owed for the lease year just completed, an adjustment will be made in
the estimated Percentage Rent to be paid by Tenant for the succeeding lease year, as provided above.
Definition of "Sales Taxable Gross Receipts". For the purpose of ascertaining Percentage
Rent Due the tern "sales taxable gross receipts shall be defined to mean that amount which the Tenant
reports on line four (4) of the its Colorado State Sales Tax return form DR100 defined as net taxable
sales. The Tenant will keep on file all Colorado State Sales Tax returns filed during the term of this
lease and will present copies of said returns to the Landlord from time to time as the Landlord requests
in writing. Any information obtained by the Landlord shall be held in strict confidence except
Landlord may inform the holder of any deed of trust on the Premises of the information contained in
said reports.
Percentage Rent Limitation. The Percentage Rent owed shall be limited to the lesser of the
Percentage Rent calculated annually or an amount equal to seventeen dollars ($17.00) per square foot
of the leased premises as determined on an annual basis. Amounts calculated to exceed seventeen
dollars ($17.00) per square foot shall be retained by the Tenant and not be considered Percentage Rent,
Additional Rent. In addition to Minimum Rent, Tenant agrees to pay on the first day of each
month as Additional Rent its Pro Rata Share of expenses as defined in Article 3 hereof. Tenant agrees
that the amounts indicated below are the specific amounts currently due each month as Additional
Rent, but that such amounts are subject to change annually as provided for within said Article. The
total estimated Additional Rent for the current calendar year is estimated to be 5.25 per rentable
square foot.
Total Monthly Additional Rent Currently Due from Tenant $1,617.44
Use, The Premises shall be used and occupied by Tenant (and any permitted and approved
subtenants and/or assignees of Tenant) only for the Use specifi in Section 17 of the Basic Lease
Terms Sheet, and Tenant shall not use or permit the Premises to be used for any other purpose without
the prior written consent of Landlord, which may be given or withheld in Landlord's sole and absolute
discretion. The Use and Tenant Trade Name are material terms of this Lease, and Landlord is
materially relying on the use of the Premises in strict accordance with the Use under Tenant's Trade
Name in entering into this Lease. Any change in the Use or Tenant's Trade Name at the Premises may
only occur upon the prior written approval of Landlord, which may be given or withheld in Landlord's
sole and absolute discretion.
ARTICLE 2
Alterations and Additions
2
Use Restrictions. The covenants and restrictions which govern the shopping center in which
the Building is located contain certain use restrictions and exclusive use provisions. The use
restrictions and exclusive use provisions are summarized in Exhibit G attached hereto and incorporated
herewith by this reference. Tenant acknowledges having read and understood the contents of Exhibit
G, and agrees to observe and abide by such use restrictions and exclusive use provisions.
Radius Restriction. During the term of this Lease, Tenant or a person or entity which controls
or is controlled by Tenant shall not be permitted to own, operate or become financially interested
(directly or indirectly, either individually or as a partner, stockholder or otherwise) in a business similar
to or in competition with the business of Tenant, which business utilizes Tenant's Trade Name (as may
be modified or replaced in the future in accordance with the terms of Section 1.05 above) or a trade
name which is otherwise substantially similar to Tenant's Trade Name (as may be modified or replaced
in the future in accordance with the terms of Section 1.05 above) and which business is located within a
radius of one (1) mile from the closest point to the outside boundary of the uilding.
Delayed Possession. In the event Landlord is delayed in completing Landlonf s Work and/or
delivering possession of all or any portion of the Premises to Tenant on or before the Commencement
Date for any reason other than Landlord's negligence or intentional wrongful acts, Landlord shall not be
deemed in default or otherwise liable to Tenant for any claims, damages, or liabilities in connection
therewith or by reason thereof, and the Term of this Lease shall nevertheless commence on the
Commencement Date. If any delay in delivery of possession is caused by or attributable to Tenant, its
servants, agents or independent contractors, then this Lease shall be in full force and effect as of the
Commencement Date.
Landlord's Work. Landlord si 1, at its sole cost and expense, undertake and complete the
improvements described in the speciflcaiions attached (or to be attached) hereto as Exhibit D and made
a part hereof ("Landlord's Specifications"), excepting only minor variations as Landlord may deem
advisable ("Landlord's Work").
Upon completion of Landlord's Work in accordance with Landlord's Specifications, Tenant
agrees to execute and deliver to Landlord a letter in substantially the same form as is appended hereto
as Exhibit C, attached hereto and made a part hereof, accepting delivery of the Premises. By so
accepting the Premises, Tenant shall be deemed conclusively to have accepted the same and to have
acknowledged that the Premises are in the condition required by Landlord's Specifications, except as to
incomplete or defective items of Landlord's Work then specified in writing by Tenant. As to any such
items, Landlord shall have a reasonable time following such notification within which to correct same,
but in no event shall Landlord be liable to Tenant for latent defects beyond a period of one (1) year
after the Commencement Date. In the event of any dispute, the final acceptance by the Tenant shall be
conclusive. Landlord shall not be responsible nor have any liability whatsoever at any time for loss or
change to Tenant's Work or to fixtures, equipment or other property of Tenant or others installed or
placed by Tenant, its servants, agents or independent contractors, on the Premises.
Tenant's Work. Except as set forth in Landlord's Specifications (if applicable) attached (or to
be attached) hereto as Exhibit D, Tenant accepts the Premises in its present HAS IS" condition. Tenant
specific work can be completed during vanilla shell construction at an additional cost to be passed on to
the tenant.
Tenant shall not make or allow to be made any alterations, additions or improvements to the
Premises or any part thereof unless in accordance with the Drawings and Work Letter attached hereto
as Exhibit E and made a part hereof, without obtaining the prior written consent of Landlord. Any
alterations, additions or improvements to the Premises, excepting movable furniture and trade fixtures,
coolers and ice machines, and other personal property not physically and permanently attached to the
Premises shall become the property of Landlord and shall be surrendered with the Premises. All
alterations, additions or improvements to the Premises made or requested by Tenant and approved by
Landlord shall be at Tenant's sole cost and expense with the exception of those plumbing and electrical
changes specified elsewhere in this lease. All improvements to the Premises shall be owned by
Landlord and shall remain upon the Premises without compensation to Tenant.
Operating Expenses
Additional Rent. All Operating Expenses as hereinaft defined shali be paid by Tenant to
Landlord as Additional Rent.
Expense Pass Through. The Operating Expenses for any calendar year (or portion thereof)
during the Term or any renewal thereof shall be paid by Tenant to Landlord as Additional Rent in an
amount equal to Tenant's pro rata share of such Operating Expenses.
Pro Rata Share. Tenant's Pro Rata Share of Operating Expenses and other amounts shall be
computed by multiplying said expense or amount by a fraction, the numerator of which shall be the
number of square feet in the Premises, and the denominator of which shall be the total number of
square feet that was directly served by, or included in, each such expense or amount.
Estimates and Payments. Tenant agrees to pay monthly as Additional Rent its Pro Rata Share
of Operating Expenses based upon Lan el ord's estimate of Operating Expenses for the then current
calendar year. Landlord will give Tenant written notice of such estimated amounts, and Tenant shall
pay one-twelfth (1/12th) of said estimated amounts monthly to Landlord in the same manner as
3
Minimum Rent. As soon as is reasonably practicable following the end of each calendar year,
Landlord will submit to Tenant a statement showing in reasonable detail the Operating Expenses for the
preceding calendar year along with a reconciliation of estimated payments made by Tenant as
compared to Tenant's actual Pro Rata Share of the amount by which the actual Operating Expenses
exceeded the estimated Operating Expenses. However, failure by Landlord to provide Tenant with
such statement and reconciliation shall not constitute a waiver by Landlord of its rights to reconcile
Tenant's Operating Expense payments. Within thirty (30) days of receipt of such statement and
reconciliation. Tenant shall pay to Landlord any additional amounts owed to Landlord thereunder. Any
monies owed Tenant by Landlord shall be applied by Landlord against the next accruing monthly
installment(s) of Additional Rent due from Tenant. Operating Expenses for each calendar year shall be
computed on an accrual basis and shall be determined in accordance with generally accepted
accounting principles, consistently applied.
Section 2.08 Review of Records. Tenant or its representative shall have the right, at its expense
during normal business hours and at the location of Landlord's books and records, to review
Landlord's books and records with respect to Operating Expenses for the year subject of the
reconciliation at any time within fifteen (15) days following the delivery by landlord to Tenant of the
statement and reconciliation. If Tenant disputes such statement and reconciliation within 30 days of
receipt of the statement and reconciliation, Tenant shall have the option to either pay those monies into
a mutually agreeable escrow account or to pay the monies set forth therein and any other monies owed
by Tenant under this Lease to the Landlord as a condition precedent to contesting said obligation. Any
payments due under this Article 2 shall be prorated for any partial calendar year of the Term by
multiplying the amount of Operating Expenses incurred within or attributable to such partial calendar
year by Tenant's Pro Rata Share. Tenant's obligation to pay any amounts due under this Article 3 and
Landlord's obligation to refund any overpayments made by Tenant under this Article 2 for the final
year of the Term shall survive the Expiration Date or earlier termination as herein provided.
Extra Charges. Tenant agrees to pay, as its obligation, the entirety of all expenses incurr by
Landlord which are solely attributable to Tenant's use and occupancy or which are incurred pursuant to
Tenant's speci request for additional services. Any such extra charges shall be due and payable by
Tenant within ten (10) days of receipt of invoices for same from Landlord.
Operating Expenses Defined. "Section 2.10 Operating Expenses" as used herein shall consist
of all Operating Expenses of the Building, including all expenditures or obligations made or incurred
by Landlord associated with the ownership, management, maintenance and operation of the Building as
may be determined by Landlord to be necessary. Without limiting the generality of the foregoing,
Operating Expenses shall include, without limitation, the following:
(a) Taxes "Taxes" shall mean all taxes and assessments and governmental charges levied,
whether by federal, state, county, municipal, or other taxing districts or authorities presently taxing
the Building or by others, subsequently created or otherwise, and any other taxes or assessments, or
substitutions therefore, attributable to the Building or its operation. Should Landlord dispute and
contest the Taxes, all costs associated with such dispute or contest shall be considered Taxes for
purposes of this Lease.
(b) Insurance "Insurance" as used herein shall mean all insurance of any type, and in those
amounts, that Landlord, in its sole discretion, shall deem necessary or advisable to carry in order to
protect the Building, Landlord's personal property used in connection therewith, or its interests
therein. Landlord shall have the right at its option to maintain Insurance during the Term, including
but not limited to the types and amounts herein below set forth:
(I) Comprehensive public liability, property damage insurance, and products liability
insurance insuring against claims for personal injtuy, sickness, disease or death, and
property damage suffered in or about the Building, including independent contractor
coverage;
(II) Fire and extended coverage insurance covering the Building a inst loss or 0 mage by
fire, windstorm, hail, explosion, riot, earthquakes, damage from aircraft and vehicles,
smoke damage, vandalism, malicious mischief and such other risks as are from time to
time covered under "extended coverage" endorsements and special extended coverage
endorsements commonly known as "all risks"' endorsements;
(III) Boiler and machinery insurance;
(IV) State Worker's Compensation Insurance or other similar coverage, in the statutorily
mandated moulds, as necessary.
(v)
Landlord shall have the right and option, but shall not be obligated, to change, cancel,
decrease or increase the foregoing insurance coverage's or add additional forms of
insurance as Landlord shall deem necessary or desirable, and/or to obtain the foregoing
forms of insurance directly and throw. umbrella policies or policies covering both the
uilding and other assets owned by or associated with Landlord. Landlord shall at all
times cany adequate insurance to restore the building in the event of destruction or
damage.
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(c) Common Area Maintenance Costs "Common Area Maintenance" shall mean the
maintenance of all common areas including, without limitation, all parking areas (whether
temporary or permanent), access roads, driveways, curbs, truck ways, loading areas and docks,
retaining walls, lighting facilities, service corridors, comfort stations, pedestrian sidewalks,
foundations, demising walls, roofs over the entire Building including the Premises, courts and
ramps, decorative walls, vacant areas, landscaped and planting areas and facilities, service lines or
conduits for gas, water, electric, sewage, heating, ventilating, air conditioning, and lighting services,
music and intercom equipment, and fire suppression and warning systems, conduits and
appurtenances for use by Tenant in common with other tenants, and such other areas and facilities,
whether within or outside the Building, which may be furnished by Landlord and designated from
time to time by Landlord as common areas. Maintenance of the common areas shall include, but
are not limited to, the following:
(I) All expenses in connection with making available for use by Tenant and others the
parking facilities for the uilding including, but not limited to, any rent or additional
rent that Landlord may be required to pay for such use, and including all costs incurred
for sweeping, cleaning, litter control, resurfacing, repainting, restriping, removal and
replacement of pavement, curbs and car stops, and snow and ice removal;
(II) All expenses in connection with making available to Tenant and others ord's
Services, as set forth in this Lease;
(III) Wages and salaries for all employees engaged in operating, maintaining, or providing
security for the Building and the associated parking areas including all taxes, insurance
and benefits relating to such employees;
(IV) The cost of all supplies, tools, equipment and materials used in the operation and
maintenance of the Building including, but not limited to, uniforms, paper products,
painting and replacement of worn out mechanical or damaged equipment;
The cost of all utilities, including, but not limited to, the cost of water, electrical
service, healing, lighting, air conditioning and ventilation, excepting those utilities
supplied to tenants of the Building at their respective premises and paid for by such
tenants, if any;
(VI) The cost of all maintenance and service agreements for the Building and equipment
therein, including, but not limited to, alarm service, window cleaning, fire protection,
sprinklers, exterminating and landscape maintenance of any kind;
(VII) Landlord's legal fees, management fees (including, without limitation, salaries and
fringe benefits of Building employees), central accounting costs and other professional
services associated with the operation and maintenance athe Building;
(VIII) The cost of maintenance and repair of roofs, ceilings and exterior walls, gutters, glass,
plate glass, show windows, plumbing, pipes and fixtures, and other equipment; and
(IX) The cast of all licenses, permits and other governmental charges pertaining to the
ownership, operation, and/or maintenance of the Building.
(d) Other Maintenance Costs "Other Maintenance Costs" shall mean the cost of any
maintenance determined by Landlord to be required for the Building, the Premises or on the
grounds not part of or included in Common Area Maintenance Costs.
ARTICLE 3
Tenant Covenants
Care of Premises. Tenant shall take good care of the Premises throughout the Term and
preserve same in the condition delivered to Tenant on the Commencement Date, normal wear and tear
excepted. Landlord shall repair or replace any damage done to the Building or any part thereof caused
by Tenant or Tenant's agents, employees, invitees or visitors, Tenant shall pay the cost thereof to
Landlord on demand as Additional Rent. Tenant shall be responsible for maintaining, repairing and or
replacing the heating, ventilating and air conditioning equipment which serves the Premises, and for
repainting and redecorating the Premises, cleaning window coverings and carpets at reasonable
intervals as needed, and making repairs, replacements and alterations as needed. Landlord hereby
reserves the right to require Tenant to maintain and bear the expense of a heating, ventilating and air
conditioning equipment maintenance contract by a qualified contractor approved by Landlord in its
reasonable discretion, and Tenant shall provide a copy of same to Landlord from time to time upon
request. All repairs, replacements or improvements undertaken by Tenant under this Section 4.01 shall
be performed in a good and workmanlike manner, using first quality materials and reputable
contractors, and shall be of equal or better quality and utility to the original work. All contractors who
are to perform work in the Premises for or on behalf of Tenant shall be subject to Landlord's prior
written approval, which approval shall not be unreasonably withheld.
Compliance with Law. Tenant shall neither use the Premises, nor permit any act to be done in
or about the Premises which will in any way conflict with any law, statute, ordinance or governmental
rule or regulation now in force or hereafter enacted or promulgated. Tenant shall neither do, nor permit
any act to be done in or about the Premises, nor bring or store anything therein which is not appropriate
to the permitted use of the Premises, nor which will in any way increase the existing rate of, or
adversely affect, any fire or other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy covering the Building, any part thereof, or any of its contents.
Tenant's Insurance. Tenant shall procure and maintain throughout the Term of the Lease, at its
so le cost and expense, a policy or policies of insurance of the types and amounts as herein below set
forth:
(a) Comprehensive public liability (including broad form contractual liability coverage in
support of the indemnity provisions contained herein), property damage insurance and products
liability insurance (where there is exposure) insuring against claims for personal injury, sickness,
disease or death, and property damage suffered in or about the Premises, including independent
contractor coverage, with a combined single limitation of coverage in an amount of not less than
One Million Dollars ($1,000,000.00) per occurrence or with split limits for bodily injury of not less
than Five Hundred Thousand Dollars ($500,000.00) per occurrence and property damage liability
not less than Five Hundred Thousand Dollars ($500,000.00), which policies shall contain
deductibles in amounts of not more than Ten Thousand Dollars ($10,000.00);
(b) Fire and extended coverage insurance and improvements and betterments insurance
covering Tenant's merchandise, personal property, fixtures, improvements, wall coverings, floor
coverings, window coverings, alterations, furniture, equipment, lighting, ceilings, heating,
ventilation and air conditioning equipment, interior plumbing, plate glass and any other items
installed by Tenant or which constitute non-building standard improvements, against loss or damage
by fire, windstorms, hail, earthquakes, explosion, riot, damage from aircraft and vehicles, smoke
damage, vandalism and malicious mischief and such other risks as are from time to time covered
under "extended coverage" endorsements and special extended coverage endorsements commonly
known as "all risks" endorsements, in an amount equal to the greater of the full replacement value
or that amount required by Landlord's mortgagee from time to time with deductible amounts not to
exceed Five Thousand Dollars ($5,000.00);
(c) State Worker's Compensation Insurance, or other similar coverage, in the statutorily
mandated amounts, if the nature of Tenant's undertakings with respect to this Lease and the
Building require that any or all of its employees be provided such coverage.
It is expressly understood and agreed that the foregoing minimum limits of insurance coverage
shall not limit the liability of Tenant for its acts or omissions as provided in this Lease. All of
the foregoing insurance policies (with the exception of Worker's Compensation Insurance to the
extent not available under statutory law) shall name Landlord, its agents, and such other
interested parties as Landlord may from time to time designate, as additional insureds and shall
provide that any loss shall be payable to Landlord and any other interested parties as Landlord
shall designate, as their respective interests may appear. All such policies shall be written as
primary policies, noncontributing with and in excess of coverage, which Landlord may carry.
Tenant shall deliver copies of all such policies and all endorsements thereto, certified as true and
complete by the issuer thereof, prior to the Commencement Date, or, in the case of renewals
thereto, fifteen (15) days prior to the expiration of the prior insurance policy, together with
evidence from the insurer that such policies are fully paid for, and that no cancellation, material
change or non-renewal thereof shall be effective except upon thirty (30) days' prior written
notice from the insurer to Landlord and its designees. If Tenant shall at any time fail to procure
and/or maintain insurance as herein provided, Landlord shall be at liberty to do so as often as
such failure shall occur without waiving any other rights under this Lease. Any premiums or
other sums paid by Landlord in obtaining or maintaining such insurance shall be and become,
and are hereby declared to be, Additional Rent hereunder, payable on demand, for the collection
of which Landlord shall have all the remedies provided for in this Lease or by law for the
collection of rent. Payment by Landlord of such premium or the carrying by Landlord of any
such policy shall not be deemed to waive or release the default of Tenant with respect thereto.
Tenant's failure to provide and maintain in force the insurance provided for herein or to provide
Landlord with satisfactory evidence thereof, shall be regarded as a default hereunder, entitling
Landlord to exercise any or all of the remedies provided in this Lease upon the occurrence of an
Event of Default.
Indemnity. Tenant hereby covenants and agrees to indemnify, defend and save harmless,
Landlord and its affiliated companies, and their respective managing agents, leasing agents, and other
agents, managers, members, employees, and representatives (collectively referred to herein as
"Indemnitees") from and against any and all liabilities, lawsuits, expenses (including attorneys' fees),
damages, claims, suits, costs, and causes of action of any kind whatsoever arising out of, or alleged to
have arisen out of, in whole or in part, (i) any act, omission or negligence on the part of Tenant,
Tenant's contractors, subcontractors, agents, or employees by reason of Tenant's operations, use or
occupancy of the Premises, (ii) any breach, violation, or nonperformance of any covenant of Tenant
under this Lease, or (iii) any accident, injury, death or damage whatsoever and howsoever caused to
any person, or any property, occurring in, on or about the Premises regardless of whether or not such
liabilities, damages claims, suits, costs, accidents, injuries or deaths are caused by or attributed in any
way to the negligence of Landlord or any Indemnitees. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the
Premises from any cause, and Tenant hereby waives all claims with respect thereof against Landlord.
Tenant shall give prompt notice to Landiord in case of casualty or accidents in or about the Premises.
Neither Landlord nor any Indernnitees shall be liable for any loss or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from
any part of the Building or from the pipes, appliances or plumbing works therein or from the roof,
street or subsurface or from any other places resulting from dampness or any other cause whatsoever,
except personal injury caused by or due to the negligence of Landlord; nor shall Landlord or any
Indemnitee be liable for interference with the electrical service, ventilation, or for any latent defect in
the Premises. In no event shall Landlord or any Indemnitee be liable in any /runner to Tenant, its
agents or employees, for any loss or damage resulting from or arising out of the acts or omissions of
other tenants, their employees, agents, customers or invitees or any other persons whatsoever.
Utilities. Tenant shall not install any equipment (such as computing equipment) in the
Premises without Landlord's prior written consent that requires an electrical current other than 120 volt,
single phase, or equipment, which singly consumes more than 0.5 kilowatts at rated capacity. The
Landlord agrees to supply an electrical panel and drainage sufficient to supply the requirements of
Tenants Cooler and Ice production and storage at Landlords expense prior to occupancy by the Tenant
The cost of any other special electrical installations which must be approved by Landlord shall be paid
by Tenant.
Tenant shall pay for all utility services, including electricity and gas charges, and charges for
telephone service and all other services and utilities supplied to the Premises, together with any taxes
thereon. Landlord reserves the right to have installed, at Tenants' expense, separate metering devices
by which Tenant will be billed for actual usage. At no time shall Tenant perniit the use of electricity
consumed in the Premises to exceed the capacity of feeders to the Building or the risers or irim
installation. Landlord does warrant or represent that such capacity shall be adequate for Tenant's
purposes.
Section 3.06 Personal Property Taxes. Tenant shall pay or cause to be paid before delinquency, any
and all taxes levied or assessed and payable during the term hereof upon all of Tenant's leasehold
improvements, equipment, fiuniture, fixtures, and other personal properly located in the Premises.
Liens. Tenant shall keep the Premises and the Property on which the Building is located free
from any liens arising out of any work performed, materials furnished, or obligations incurred by or on
behalf of Tenant fluffier, Tenant shall post the property or take whatever actions are required to avail
itself and Landlord of any statutory protections offered by the laws and statutes of the State in which
the Building is located. Should any mechanic's or other lien be filed against the Premises or the
Building by reason of Tenant's acts or omissions or because of a claim against Tenant, Tenant shall
cause the same to be canceled and discharged of record by bond or otherwise within forty-five (45)
days after notice by Landlord. Should Tenant fail to discharge said lien within forty-five (45) days
after receipt of notice from Landlord, Landlord may pay the amount claimed in the lien. If Landlord
elects to pay the amount claimed in said lien, Tenant hereby agrees to reimburse Landlord for the
amount so paid by Landlord, plus an amount equal to twenty percent (20%) of said amount as
administrative costs, all of which shall be deemed Additional Rent, payable on demand. The remedies
herein provided shall be in addition to all other remedies available to Landlord.
Security Deposit. Upon the execution of this Lease, Tenant shall deposit the Security Deposit
with Landlord, and Landlord will keep the Security Deposit on deposit at all times during the Term.
Landlord hereby acknowledges receipt of the Security Deposit as security for the payment by Tenant of
the rents herein ai eed to be paid and for the faithful performance of all the terms, conditions and
covenants hereof. The Security Deposit shall be held by Landlord without liability for interest, and
Landlord shall not be required to segregate such deposit from other deposits or other funds of Landlord.
15, at any time during the Term, Tenant does not fulfill any of its obligations under this Lease, Landlord
shall have the right without prejudice to any other remedy or remedies, which Landlord may have to
use, said deposit, or so much thereof as necessaiy, to satisfy said obligations. If any portion of the
Security Deposit is used, applied, or retained by Landlord as herein described, then Tenant shall, within
five (5) days after written demand therefore, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original or adjusted amount, and Tenant's failure to do so shall be a
material breach of this Lease. If Tenant fully and faithfully performs every term, condition, covenant,
8
and obligation of this Lease during the Term thereof, the Security Deposit, or any balance thereof,
without interest, shall be retumed to Tenant within thirty (30) days after the expiration of the Term of
this Lease. Landlord may deliver the funds deposited herein by Tenant to the purchaser of Landlord's
interest in the Premises in the event such interest is sold, and thereupon Landlord shall be discharged
from any further liability with respect to such deposit. Said deposit shall not be construed as liquidated
damages, and if Landlord's claims exceed said deposit, Tenant shall remain liable for the balance of
such claims.
Landlord (and not its managing agent) will hold the Security Deposit and assumes full financial
responsibility to the Tenant for the return of the Security Deposit (if, in fact, any portion or all of the
Security Deposit is to be returned to Tenant by the terms of this Agreement). Landlord's managing
agent is authorized to receive notices of behalf of Landlord concerning the Security Deposit. Tenant
should direct all inquiries concerning the Security Deposit to Landlord's managing agent at the address
set forth in Section 2 of the Basic Lease Terms Sheet. All such inquiries should be in writing and
identify the Tenant's name, building name, street address and unit number, and explain the reason(s)
for the inquiry.
Signs. Tenant agrees to abide by the sign regulations of the town of Fraser and those
mentioned in the Rules and Regulations attached. Tenant shall pay all costs of fabrication, installation
and maintenance of all permitted signs, displays, and other advertising media. Tenant has the right to
remove and keep all signage at the cessation or end of the lease. Landlord shall have the right to
approve the permanent store front signage mounted above the space. All signs shall be kept in good
repair and proper operating order at all times throughout the Term hereof.
Sign repairs. Tenant, upon vacation of the Premises and at its sole cost and expense, shall
promptly remove its sign(s), and upon the removal or alteration of its sign(s) for any reason, shall be
responsible for the repair, painting, restoration or replacement of the surface where its sign(s) were
anchored or attached.
Surrender. Upon the expiration of the Tenn or other termination of the Tenn, and without
further notice, Tenant shall peaceably and quietly quit and surrender to Landlord the Premises, broom
clean, in as good a condition as existed on the Commencement Date, excepting only ordinary wear and
tear, and loss by fire, casualty and other casualty not attributable to the acts or omissions of Tenant, its
agents, employees, invitees, servants, or licensees. Tenant's obligation to observe or perform this
covenant shall survive the Expiration Date or prior termination of the Term.
Telephone Service. Tenant shall separately arrange with the applicable local public authorities
or utilities, as the case may be, and directly pay for the furnishing, installation and maintenance of all
telephone services and equipment as may be required by Tenant in the use of the Premises. Landlord
shall not be liable for any damage resulting from Tenant's inability to receive such services, and any
such inability shall not relieve Tenant of any of its obligations under this Lease.
Qperation of Premises. Tenant shall use, occupy and operate the entire Premises continuously
and without interruption during the Term (using only minor portions of the Premises for storage and
office purposes as are reasonably required), shall not abandon or vacate the Premises, shall not permit,
license, or suffer the occupancy of any other party in the Premises and shall:
(a) Keep the Premises open for business continuously and without interruption during Hours
of Operations and such other hours as Landlord may reasonably designate, unless prohibited by
applicable laws;
(b) Operate its business under Tenant's Trade Name as set forth in Section 16 of the Basic
Lease Terms Sheet, with adequate inventory and personnel and in a first-class manner as will
enhance the Building and its reputation as a desirable place to shop and as will achieve the
maximum profitable volume of sales;
(c) Conduct no auction, fire or bankruptcy sales or gage in sirnilar
9
(d) Erect no displays outside the Premises or in any way obstruct the common areas; and
(e) Prevent the Premises from being used in any way which will injure the reputation of the
same or of the Building or from being used in any way which may be a nuisance, annoyance,
inconvenience or damage to the other tenants or occupants of the Building including, without
limitation, noise by the playing of any musical instrument or radio or television or the use of a
microphone, loud speaker, electrical equipment or other equipment which may be heard outside the
Premises.
For a period of 60 days Tenant shall have the right prior to termination of the lease to post
signage in the windows directing customers to any new location of the Tenant
(g) Tenant shall have the right to stop operations for a period of up to 60 days prior to the
termination of the lease and shall not be obligated to the Percentage Rent during the period
operations are stopped.
(h) Tenant shall operate during the hours stipulated above but reserves the right to adjust those
hours of operations to accommodate seasonal trends as well as any vacation or leave time needed by
the owners of the Tenant,
Landlord and Tenant agree that Landlord's damages would be difficult to ascertain and that
no adequate remedy at law may exist to compensate Landlord in the event Tenant fails to strictly
adhere to the provisions hereof. Failure of Tenant to so adhere to the provisions of this Section for a
period greater than five (5) days shall be an Event of Default under this Lease for which the
Landlord may seek all remedies available to it under this Lease, at law and in equity, including, at
its election, the obtainment of injunctive relief for Tenant's default hereunder.
ARTICLE 4
Landlord's Covenants and Rights
Quiet Enjoyment and Subordination. Provided Tenant performs all of Tenant's obligations
under this Lease, including the payment of Minimum Rent, Percentage Rent, and Additional Rent and
other sums payable by Tenant hereunder, Tenant shall, during the Term, peaceably and quietly enjoy
the Premises without disturbance from Landlord or any other persons acting by, through or under
Landlord; subject, however, to the ground leases, deeds of trust, mortgages and security agreements to
which this Lease is subject and subordinate, and to all applicable laws and other governmental and
legal requirements, all applicable easements, encumbrances and restrictive covenants (including that
certain Declaration of Easements with Covenants and Restrictions Affecting Land which was recorded
in the real estate records of Grand County, Colorado, on June 9, 1998 at Reception No. 98006144), the
lien of any real estate taxes, and all applicable insurance requirements and regulations, whether now
existing or hereafter arising, This covenant and all other covenants of Landlord under this Lease shall
be binding upon Landlord and its successors only with respect to breaches occurring during its and
their respective ownership of Landlord's interest hereunder. Notwithstanding the foregoing, however,
no diminution or abatement of payments due hereunder shall be claimed by or allowed to Tenant for
inconvenience or discomfort arising from the making of any repairs or improvements to the Premises or
the Building, nor for any space taken to comply with any law, ordinance or order of any governmental
authority, except as provided for herein. The obligation of Tenant to pay rent of all kinds hereunder is
an independent covenant and an absolute obligation.
This subordination provision shall be self-operative, and no further instrument of subordination shall be
required; provided, however, that Tenant agrees to execute and deliver, upon request, such further
instrument(s) confirming this subordination as may be requested by Landlord, its mortgagee, or
proposed mortgagee. Such instrument(s) may require Tenant to notify the mortgagee of defaults by
Landlord hereunder, to make rental payments to the mortgagee upon proper notice, and to allow the
mortgagee a reasonable time to cure defaults hereunder if Landlord bas not done so
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After delivery to Tenant of a notice from Landlord that Landlord has entered into a lien instrtunent
covering the Premises, or any portion thereof, Tenant agrees to thereafter deliver to any such lienholder
a copy of any notices to Landlord of any default and such lienholder shall have the ri t (but not the
obligation) to cure any such default within a reasonable time thereafter, and Tenant further agrees that,
except with the prior written consent of such lienholder, Tenant shall not (i) amend or modify this
Lease or (ii) pay any rent more than one month in advance.
Tenant covenants and agrees that, in the event a lien covering the Building is foreclosed, or title thereof
is passed pursuant to a deed-in-lieu of foreclosure, Tenant will attom to the purchaser under any
foreclosure sale (or grantee under a deed-in-lieu of foreclosure) if so requested by such purchaser or
grantee, and Tenant shall recognize same as Landlord under this Lease. Tenant agrees to execute and
deliver upon request of Landlord or any such lienholder, purchaser or grantee such instrument(s) as
may be requested to evidence such attormnent
Landlord's Services. Subject to Tenant's yment of its Minimum Rent and Additional Rent
and such additional charges as are set forth in this Lease, including without limitation, Operating
Expenses, Landlord shall provide the following services:
(a) Services To Premises: Landlord shall provide to the Premises:
(I) Heating and refrigerated air conditioning in season at such temperatures and in such
amounts as shall be considered by Landlord to be standard; provided, however, that the
cost thereof, including the cost of installation, operation, use, maintenance, and
metering shall be paid by Tenant. Whenever machines, equipment, or nonstandard
lighting that generate abnormal heat are used m the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord shall have
the right to install supplemental air conditioning equipment in or about the Premises,
and the additional cost thereof, including the cost of installation, operation, use,
maintenance, and metering, shill be paid by Tenant to Landlord on demand together
with interest at the highest lawful rate per annum from the due date until paid.
(II) Throughout the Term, Landlord shall redistribute electrical energy to the Premises (not
exceeding e present electrical capacity of the Building) upon the following terms and
conditions:
(IV)
(V)
Landlord shall not be obligated to provide electricity required for equipment which
(singly) consumes more than 0.5 kilowatts per hour at rated capacity or requires a
voltage other than 110 volts single phase with the exception of providing electricity
adequate for the cooler;
Landlord shall not be liable to Tenant in any way for any loss, damage, failure, effects
or change in the quantity or character of electricity furnished to the Premises, or in the
event such quantity or character of electricity furnished to the Premises is no longer
available or suitable for Tenant's requirements;
The Landlord has confirmed the existence of a 400 amp panel serving the space, any
additional electrical work associated to the Tenant's improvements will be at their
expense.
Landlord shall not be liable in the event of any diminution, cessation or interruption in
the supply of electricity, or of any other utility, including but not limited to, air
conditioning, heat or water, and Tenant agrees that such supply may be interrupted for
inspection, repairs, replacement or in case of emergency; nor shall the diminution,
cessation or the interruption of the same be construed as a constructive eviction of
Tenant, or excuse Tenant from failing to perform any of its obligations hereunder.
(b) Services To Building: Landlord shall provide in the Building:
11
(1) Water, both hot and cold at those points of supply provided for general use of tenants in
the Building;
(II) Tenant shall be responsible for providing security for the Premises and Landlord shall
have no liability therefore; provided, however, that Landlord shall have the right, but
not the obligation, to provide security for the Building in such forms as Landlord may
deem appropriate, from time to time In such event, Tenant agrees to cooperate fully
with any security personnel or systems and with any efforts by Landlord to maintain
security in the Building and shall follow all rules and regulations promulgated by
Lan ord with respect thereto; but Tenant expressly agrees and acknowledges that
Landlord shall have no liability to Tenant, its employees, agents, invitees or licensees
for losses or injuries due to any criminal act or for damage done by any unauthorized
persons on the Premises or the Building and Landlord shall not be required to insure
against any such losses or injuries.
(c) Limitations: Subject to the provisions of Section 5.06 below, Landlord shall operate,
maintain, repair and replace the systems, facilities and equipment directly necessary for the
provision of Landlord's Services under this Section 4.02 (except as such may be installed by or be
the property of Tenant), and shall be responsible for and shall ex tiously maintain and repair the
foundations, structure and roof of the Building provided that:
(I) If all or any part of such system, facilities, and equipment are destroyed, damaged or
impaired, Landlord shall have a reasonable time in which to complete the necessary
repair or replacement, and during that time shall be required only to maintain such
services as are reasonably possible under the circumstances;
Alterations by Landlord. Landlord may from time to time:
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Landlord may temporarily discontinue such services or any of them at such times as
may be necessary due to causes (except lack of funds) beyond the reasonable control of
Landlord or for purposes of maintenance, repair, replacement, testing or examination;
(III) Landlord shall use reasonable diligence in carrying out its obligations under this
Section 4.02 but shall not be liable under any circumstances for any consequential
damage to any person or property for any failure to do so; and
(IV) No reduction or discontinuance of such services under this Section 4.02 shall be
construed as an eviction of Tenant or (except as specifically provided in this Lease)
release Tenant from any of its obligations under this Lease.
(a) Make repairs, replacements, changes or additions to the structure, systems, facilities and
equipment in the Premises where necessary to service the Premises or other parts of the Building;
(b) Make changes in or additions to any part of the Building not in or forming part of the
Premises; and
(c) Change or alter the location of any areas of the Building which may, from time to time, be
designated by Landlord for use during normal business hours by Tenant in common to all tenants
and other persons in the Building but under the exclusive control of Landlord.
(d) In connection therewith, Landlord and/or its representatives may enter on or about the
Premises and other areas of the Building with such material as Landlord may deem necessary, and
may erect scaffolding and all other necessary structures on or about the Premises or the Building.
Tenant waives and releases any claims for damage including loss of business resulting therefrom;
provided, however, that in the exercise of its rights hereunder, Landlord shall use reasonable e i orts
to avoid unreasonable interference with the conduct of Tenant's business.
Entry by Landlord. Landlord and Landlord's agents and representatives shall have the right to
enter into and upon the Premises, or any part thereof, at all reasonable times for purposes of
examination of the Premises; making such repairs or alterations therein as may be necessary in
Landlord's sole judgment for the safety and preservation thereof; erecting, maintaining, repairing or
replacing wires, cables, conduits, vents, HVAC equipment, plumbing equipment, or any other
equipment or facilities running in, to, or through the Premises; showing the Premises to prospective
tenants; showing the Premises to prospective purchasers or mortgagees; and posting notices of non-
responsibility. Landlord may enter the Premises at any time in case of emergency without prior notice
to Tenant.
Any entry to the Premises obtained by Landlord by any reasonable means, shall under no
circumstances be construed or deemed to be forcible or unlawful entry into or a detainer of the
Premises, or an eviction, partial eviction or constructive eviction of Tenant from the Premises or any
portion thereof, or disturbance of Tenant's use or possession of the Premises, and shall not relieve
Tenant of its obligations hereunder.
ARTICLE 5
General Provisions
Parking. Tenant shall have the right to use the parking spaces in the parking facility from time
to time associated with the uilding. All parking spaces in the parking facility associated with the
Building shall be and remain available for the use of all tenants of the shopping center of which the
uilding is a part, and no tenant shall be entitled to designate or reserve parking s ces for its
customers' use. Tenant shall at no time interfere with the rights of Landlord or others entitled to
similar use of said parking areas. An excessive use of parking areas by another tenant shall not be a
default or breach of this Lease, and shall in no way suspend or terminate any of Tenant's obligations
under this Lease. All parking areas furnished by Landlord shall be subject to the reasonable control
and management of the Landlord, who shall have the right, but not the obligation, from time to time to
establish, modify and enforce reasonable rules and regulations with respect thereto. Landlord further
reserves the right to change, reconfigure, or rearrange the area, and to restrict or eliminate the use of
any parking areas and do such other acts in and to said areas as Landlord shall determine to be
necessary or desirable. All such actions, including any action or inaction as to rules and re ations for
the parking areas, shall not be deemed an eviction of Tenant nor a disturbance of Tenant's use of the
Premises.
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(a) Parking spaces will be unassigned, provided that Landlord may at any time assign parking
spaces, and Tenant shall thereafter be responsible to insure that its employees park in the designated
areas. Tenant shall, if requested by Landlord, furnish to Landlord a complete fist of the license plate
numbers of all vehicles operated by Tenant, Tenant's employees and agents. Landlord shall not be
liable for any damage of any nature whatsoever to, or any theft of, vehicles, or contents erein, in
or about such parking facility.
Assignment and Subletting. Tenant expressly covenants that it shall not, by operation of law
or otherwise, assign, sublet, encumber or mortgage this Lease, or any part thereof, or permit the
Premises to be used by others without the prior written consent of Landlord in each instance, which
consent shall not be unreasonable withheld. Any attempt by Tenant to assign, sublet, encumber or
mort ge this Lease without the prior written consent of Laiu ord shall be null and void and no
acceptance of any rent from such attempted assi ee or sublessee shall constitute a waiver of the
provisions of this Section 5.02. The consent by Landlord to any assignment, mortgage, encumbrance,
subletting or use of the Premises by others shall not constitute a waiver of landlord's right to withhold
its consent to any other assigmnent, mortgage, encumbrance or use by others of the Premises. The
absolute and unconditional prohibitions in this Section 5.02 and Tenant's agreement thereto are
material inducements to Landlord to enter into this Lease with Tenant, and any breach or attempted
breach thereof shall constitute an Event of Default hereunder permitting Landlord to exercise all
remedies provided for herein or by law or in equity on a default by Tenant.
(a) If Landlord shall consent to a sublease or an assignment pursuant to a request from Tenant,
Tenant shall cause to be executed by its assignee or sublessee an agreement to perform faithfully
and to assume and be bound by all of the terms, covenants, conditions, provisions and agreements
of this Lease for the period covered by the assignment or sublease to the extent of the space sublet
or assigned. Further, it shall be the agreement of any sublessee that Landlord may, in its discretion,
pursue all remedies herein provided against sublessee, Tenant or both jointly or severally.
(b) If the rent and other monies payable by the sublessee to Tenant for or in connection with
the use and occupancy of the sublet space shall be in excess of the Minimum Rent, Additional Rent,
and all other rents provided for in this Lease, Tenant shall so notify Lan ord, and Tenant shall pay
to Landlord fifty percent (50%) of the excess as received by Tenant.
Eminent Domain. If, during the Term, all of the Premises shall be taken for any public or
quasi-public use under any statute or by right of eminent domain, or purchased under threat of such
taking, this Lease shall automatically terminate on the date on which the condemning authority takes
possession of the Premises ("Date of Such Taking").
If during the Term only part of the Building is taken or purchased as set out in this Section 5.03,
and if in the reasonable opinion of Landlord substantial alteration or reconstruction of the
Building is necessary or desirable as a result thereof, whether or not the Premises are or may be
affected, or if in Landlord's reasonable judgment the condemnation award to Landlord (less the
costs and expenses incurred by Landlord in connection with the condemnation) wilt be
insufficient to cover the cost of restoration of the Building, or if such taking occurs during the
last two (2) years of the Term, Landlord shall have the right to terminate this Lease by giving
Tenant at least thirty (30) days written notice of such termination.
Notwithstanding the foregoing, if more than one-third (1/3) of the number of square feet in the
Premises is included in such taking or purchase, Tenant shall have the right to terminate this
Lease by giving Landlord at least thirty (30) days' written notice thereof; and this Lease shall
terminate upon the Date of Such Taking.
If either party exercises its right of termination hereunder, this Lease shall terminate on the date
stated in the notice; provided, however, that no termination pursuant to notice hereunder may
occur later than sixty (60) days after the Date of Such Taking
On any such date of termination under this Section 6.03, Tenant shall inunediately surrender to
Landlord the Premises and all interests therein under this Lease. After such termination, and on
notice from Landlord stating the Minimum Rent Additional Rent, and other monies then owing,
Tenant shall forthwith pay Lan ord such amounts.
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If any portion of the Premises (but less than the whole thereof) is so taken, and no rights of
termination herein conferred are timely exercised, the Term of this Lease shall expire with
respect to the portion so taken on the Date of Such Taking. In such event the Minimum Rent,
Additional Rent, and other charges payable hereunder with respect to such portion so taken shall
abate on such date, and the Minimum Rent and other charges thereafter payable with respect to
the remainder not so taken shall be adjusted pro rata by Landlord in order to account for the
resulting reduction in the number of square feet in the Premises. Also in such event Landlord
shall, to the extent Landlord deems feasible and within a reasonable time, restore the Premises to
substantially its former condition, but Landlord shall not in any event be required to spend for
such work an amount in excess of the amount received by Landlord as compensation for such
taking (less the costs and expenses incurred by Landlord in connection with the condemnation
proceedings), and subject to Landlord's obtaining all necessary government approvals and
permits required to make such repairs.
Upon any such taking or purchase, Landlord shall be entitled to receive and retain the entire
award or compensation paid by the condemning authority, and Tenant shall not have nor
advance any claim against Landlord for the value of its property or its leasehold estate or the
unexpired Term of this Lease, or for costs of removal or relocation, or business interruption
expense or any other damages arising out of such taking or purchase. Nothing herein shall give
Landlord any interest in or preclude Tenant from seeking and recovering for its own account
from the condemning authority any reimbursement under current law for Tenant's moving
expenses. If any such award made or compensation paid to either party specifically includes an
award or amount for the other, the party first receiving the same shall promptly account therefore
to the other.
Events of Default. Each of the following acts, omissions or oc
"Event of Default" and a material breach of this Lease:
(a) Failure by Tenant to pay any installment of Minimum Rent, Additional Rent, or other sums
payable by Tenant under this Lease (or cure any other default which is curable by the payment of
money) as and when the same shall become due and payable such failure to pay shall continue for a
period of five (5) days after written notice thereof from Landlord to Tenant; or
(b) Failure by Tenant to perform or observe any of the other covenants, agreements, teams or
conditions of this Lease to be performed by Tenant (other than any default curable by payment of
money), and such default shall continue for a period of fifteen (15) days after written notice thereof
from Landlord to Tenant, or, in the case of a default which cannot with due diligence be cured
within fifteen (15) days, Tenant fails to proceed promptly after the giving of such notice and with all
due diligence cure such default; or
(c) Failure by Landlord to perform or observe any of the other covenants, agreements, terms or
conditions of this Lease to be performed by Landlord (other than any default curable by payment of
money), and such default shall continue for a period of fifteen (15) days after written notice thereof
from Tenant to Landlord, or, in the case of a default which cannot with due diligence be cured
within fifteen (15) days, Landlord fails to proceed promptly after the giving of such notice and with
all due diligence cure such default; or
(d) Tenant or any Guarantor shall become insolvent or unable to pay its debts as they become
due, or Tenant or Guarantor notifies Landlord that it anticipates either condition; Tenant or
Guarantor takes any action to file a petition under any section or chapter of the United States
Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United
States or any state thereof; or a petition shall be filed against Tenant or any Guarantor under any
such statute, or a receiver or other custodian shall be appointed for Tenant or any Guarantor,
whether or not the same shall relate to their interests in the leasehold; or
(e) If, within sixty (60) days after the filing of petition in bankruptcy against Tenant or any
Guarantor of this Lease or the commencement of any proceeding against Tenant or any Guarantor
of this Lease seeking any reorganization, composition, readjustment or similar relief under any law,
such proceeding shall not have been dismissed; or
(f) Abandonment of the Premises by Tenant, or any portion thereof, as shown by failure to
occupy the Premises, which abandonment shall be conclusively deemed to have occurred if Tenant
fails to occupy the Premises, or any portion thereof, for a period of ten (10) days; or
(g) Failure of Tenant to take possession of the Premises when Landlord notifies Te
same are ready for occupancy; or
(h) If a tax lien or a mechanic's and/or materialmen's lien is filed against any property of
Tenant, or Tenant does or permits to be done anything which creates a lien upon the Premises or the
Building and such lien shall continue without cure for a period of forty five (45) days after written
notice thereof from Landlord to Tenant, or
(i) Default by Tenant or any Guarantor of this Lease or under any other lease or sublease with
Landlord or Landlord's agent; or
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ences shall cons
(j) Tenant makes a bulk sale of its goods, or moves, commences, attempts or threatens to
move its goods, chattels and equipment out of the Premises (other than in the normal course of its
business) or ceases to conduct business from the Premises.
Remedies of Default. Upon the occurrence of any Event of Default specified in Section 5.04
above, Landlord shall have the option to pursue any one or more of the following remedies, without
any notice or demand whatsoever except as specifically provided for in this Lease:
(a) Terminate this Lease fifteen (15) days after written notice to the Tenant, in which event
Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord
may without prejudice to any other remedy which it may have for possession or arrearages in rent,
enter upon and take possession of the Premises and expel or remove Tenant and any other person
occupying the Premises, or any part thereof. Tenant agrees to pay to Landlord, on demand,
damages in an anima equal to the present value (calculated at a discount rate equal to the Prime
Rate of interest as published by the Wall Street Journal effective as of the date of termination) of the
amount of Minimum Rent, Additional Rent and other payments provided for in this Lease for the
remainder of the Term to be paid by Tenant, less the fair rental value of the Premises for the
remainder of the Term, plus all expenses incurred by Landlord in retaking possession (including all
court costs and reasonable attorneys' fees) and plus all Minimum Rent, Additional Rent and other
indebtedness owed by Tenant to the date of termination.
(b) Enter upon the Premises fifteen (15) days after written notice to the Tenant, without
terminating this Lease, by master key or other peaceful means or by other means available under the
law, if necessary, without being liable for prosecution or any claim for wrongful ejectment or for
damages of any kind, and Landlord may take such action and do whatever Tenant is obligated to do
but has failed to do, under the terms of this Lease; and Tenant agrees to pay Landlord on demand as
Additional Rent, an amount equal to all expenses which Landlord may have incurred in thus
affecting compliance with Tenant's obligations under this Lease.
(c) Enter upon the Premises fifteen (15) days after written notice to the Tenant by use of a
master key or other peaceable means and change, alter, and/or modify the door locks on all entry
doors of the Premises, thereby excluding Tenant, and its agents, employees, representatives and
invitees therefrom without being liable for prosecution or any claim of wrongful ejectment or for
damages of any kind and such re-entry shall not release Tenant, in whole or in part, from Tenant's
obligations under this Lease. In the event that Landlord has either terminated Tenant's right of
possession or terminated this Lease by reason of Tenants default, Landlord shall not thereafter be
obligated to provide Tenant with a key to the Premises at any time, regardless of any amounts
subsequently paid by Tenant, provided, however, at Landlord's option during Landlord's normal
business hours and at the convenience of Landlord, and upon receipt of written request from Tenant
accompanied by such written waivers and releases for damage to Tenant's property and business as
Landlord may require, Landlord may either (i) escort Tenant to the Premises to retrieve any
personal property and inventory or other property of Tenant or its employees not subject to
Landlord's liens described in Section 5.07 below, or (ii) obtain a list from Tenant of its personal
property and inventory which are not covered by said Landlord's liens, whereupon Landlord shall
remove such property and inventory and make the sarne available to Tenant at a time and place
desiLl ted by Landlord; however, no such property shall be removed from the Premises until such
time as Tenant furnishes to Landlord documentary evidence satisfactory to Landlord that such
property is not subject to said Landlord's liens. Also, Tenant shall pay to Landlord upon demand all
moving and storage charges theretofore incurred by Landlord with respect to such property. If
Landlord elects to exclude Tenant from the Premises without permanently repossessing the
Premises or terminating this Lease, then Landlord shall not be obligated to provide Tenant a key to
re-enter the Premises until such time as all delinquent Minimum Rent, Additional Rent and other
amounts due under this Lease have been paid in full and all other defaults, if any, have been
completely cured to Landlord's satisfaction and Landlord has been given assurance reasonably
satisfactory to Landlord evidencing Tenant's ability to satisfy its remaining obligations under this
Lease.
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(d) Upon occurrence of default by Landiord, Tenant shall have all remedies available to it by
the laws in the State of Colorado.
(e) Should Landlord exercise its remedies under either Section 5.05(A) or 5.05(B) above and
Landlord permanently retakes possession of the Premises, Landlord shall make every reasonable
effort to relet the Premises, or any part thereof, to such parties, upon such conditions, for such
reasonable rent, and for a reasonable term, as Lai- idlord, in its sole discretion, may find acceptable.
If the amounts collected by Landlord from such reletting are insufficient to pay all amounts owed by
Tenant under this Lease, then Tenant shall be liable for, as damages the amount of any such
deficiency. The loss or damage that Landlord may suffer by reason of termination of this Lease
and/or by reason of termination of Tenants possession of the Premises as provided for above shall
include all court costs, the expenses of repossession, moving costs, storage costs, costs to restore the
Premises to their condition at the inception of the lease, and any repairs to the Premises and, in the
event Landlord relets the Premises all reasonable expenses in reletting including, without limitation,
leasing commissions, advertising costs, rental inducements, and attorneys' fees. In any event, if an
Event of Default occurs and Landlord takes possession of the Premises, Landlord may immediately
remove all property from the Premises and store same or dispose of such property in such a manner
as Landlord deems appropriate without notice to and without any liability whatsoever to Tenant, or
to any lienholders or lessors having an interest in same, and Tenant hereby indemnifies Landlord
against any and all claims, losses, damages, costs and expenses of any kind or nature arising out of
Landlord's removal of and/or disposition of such.
(f) The provisions of this Section 5.05 shall control over any conflicting provisions of the
Colorado Revised Statutes or any subsequently enacted statutes governing the right of landlords to
change the door locks of commercial tenants and the right of landlords to remove, store andVor
dispose of property of tenants.
(g) No re-entry or taking possession of the Premises by Landlord, no reletting of the Premises,
in whole or in part, and no remodeling or alterations of any kind to the Premises by Landlord shall
be construed as an election on its part to terminate this Lease, unless an express written notice of
such termination be given to Tenant. Also, no act or thing done by Landlord or its agents shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless the same be made in writing and signed by Landlord.
Damage by Fire or Other Casualty. If the Premises shall be damaged by fire or other casualty
not arising from the fault or negligence of Tenant or its servants, agents, employees, invitees or
licensees, except as otherwise provided in this Section 5.06, the damages shall be repaired by and at the
expense of Landlord with reasonable promptness; provided always, however, and upon the express
condition that there are funds available to Landlord from casualty insurance policy proceeds actually
paid to and received by Landlord for such repair work; and provided further that such duty to repair by
Landlord shall at all limes be subject to obtaining all necessary government approvals and subject to
the approval and consent of the then mortgagee and the willingness of such mortgagee to make the
proceeds of casualty insurance policies payable to such mort gee available to Landlord for such
purposes. Landlord shall carry adequate insurance to insure the restoration of the premises. The
Minimum Rent and the other charges shall be equitably abated until such repairs shall be made
according to the part of the Premises, which is usable, by Tenant Tenant shall repair or replace its own
improvements, furniture, furnishings, trade fixtures and equipment and any nonbuilding standard
improvements. Landlord shall only be liable for repairing and replacing the Premises to the extent of
the original building standard improvements and Landlord shall not be liable for any delay caused by
an excusable delay.
(a) If the Premises or other portion of the Building is totally da.maged or is rendered wholly
untenantable by fire or other casualty, or if Landlord's architect certifies that such damage cannot be
repaired within one hundred eighty (180) days of the casualty, or if such damage due to fire or other
casualty is such that, in Landlord's judgment, repair is not economically feasible and Landlord shall
decide not to repair the same, or shall decide to demolish the Building or such other improvements
or not to rebuild them, then Landlord may elect to terminate this Lease, in which event Landlord
17
shall within sixty (60) days after such fire or other casualty, give Tenant notice of such decision,
and thereupon the Term shall expire ten (10) days after such notice is given, and Tenant shall vacate
the Premises and surrender the same to Landlord.
(b) If Landlord elects not to terminate the Lease and does not substantially complete the repair
and restoration of the Premises within twelve (12) months from the date of the casualty (subject to
excusable delays), Tenant shall have the right to cancel and terminate this Lease upon delivery of
notice to Landlord delivered not less than ten (10) days after the expiration of the aforesaid twelve
(12) month period.
Anything contained in this Lease to the contrary notwithstanding, Landlord shall not be
obligated to expend any funds in connection with any repair or restoration work in excess of the
proceeds of insurance policy payments which are made available to Landlord by insurance carriers
and by any mortgagee of the Building or Premises. Landlord's obligations in connection with such
repair and/or restoration work shall and are hereby strictly limited to the replacement and repair of
the Premises to building standard condition as demised by Landlord to Tenant as of the
Commencement Date of the term hereof and in no event shall Landlord be obligated to replace,
repair or restore any improvements in excess of building standard to the Premises or alterations
thereof installed therein by or on behalf of Tenant, nor shall Landlord be obligated in any event
whatsoever to replace, repair, or restore Tenant's leasehold improvements, personal property,
furniture, fixtures, equipment or the like, all of which shall be promptly replaced by Tenant.
(d) Tenant shall give immediate written notice to Landlord of any damage caused to the
Premises by fire or other casualty.
Landlord's Lien and Security Interest. Landlord shall have at all times, a valid security interest
to secure payment of all rentals and other sums of money becoming due hereunder from Tenant and to
secure payment of any damages or loss which Landlord may suffer by reason of the breach by Tenant
of any term, covenant, or condition contained herein, upon all property of Tenant presently, or which
may hereafter be situated on the Premises, and all proceeds therefrom, and such property shall not be
removed therefrom without the consent of Landlord until all anvarages in rent as well as any and all
other sums of money then due to Landlord hereunder shall first have been paid and discharged and all
the terms, covenants, and conditions hereof have been fully complied with and performed by Tenant.
Property for purposes of this paragraph shall not include any inventory described in the Colorado State
Liquor Code. Landlord expressly will not have a lien on Tenant's Inventory.
(a) Upon the occurrence of an Event of Default by Tenant, Landlord may, in addition to any
other remedies provided herein, enter upon the Premises and take possession of any and all,
equipment, fixtures, furniture, or other personal property situated on or about the Premises, and sell
the same at public sale, with or without having such property at the sale, giving Tenant reasonable
notice of the time and place of any public sale.
(b) The provisions of this Section 5.07 relating to said lien and security interest shall constitute
a security agreement under the Uniform Commercial Code, and Tenant agrees to execute as debtor
such financing statement or statements as Landlord may now or hereafter reasonably request in
order that such security interest or interest may be protected pursuant to said Code. Landlord may,
at its election at any time, file a copy of this Lease as a financing statement. Landlord, as secured
party, shall be entitled to all the rights and remedies afforded a secured party under said Code in
addition to and cumulative of Landlord's liens and rights provided by law or by the other terms and
provisions of this Lease.
Subrogation. Notwithstanding anything to the contrary contained herein, Landlord and Tenant
hereby mutually waive and release their respective rights of recovery against one another and their
officers, agents and employees for any damage to real or personal property, including resulting loss of
use, interruption of business, and other expenses occurring as a result of the use or occupancy of the
Premises or the Building to the extent of insurance coverage which would be included in a standard
"all-risk" or special form policy of property insurance. Landlord and Tenant agree that all policies of
18
insurance obtained by them pursuant to the terms of this Lease shall contain provisions or
endorsements thereto waiving the insurer's rights of subrogation with respect to claims against the
other, and, unless the policies permit waiver of subrogation without notice to the insurer, each shall
notify its insurance companies of the existence of the waiver and indemnity provisions set forth in this
Lease.
ARTICLE 6
Miscellaneous Provisions
Administrative Service Charges and Late Charges. Tenant recognizes that its failure to timely
pay all of its obligations set forth in this Lease will result in and cause monetary losses to Landlord
above and beyond the amount unpaid by Tenant Therefore, in addition to all other remedies provided
Landlord, any and all payments, whether for rentals due or other charges, adjustments or assessments,
which remain unpaid by the tenth (10) of the month in which such payments shall be due, will be
subject to an administrative service charge of ten percent (10%) of the total amount then due. In
addition to all other remedies provided Landlord, and in addition to the administrative service charge
herein described, all amounts which shall remain unpaid ten (10) days after their due dates shall bear
interest at the lesser of fifteen percent (15%) per annum or the maximum legal rate of interest allowed
by Colorado law.
Holding Over. without Landlord's written consent, Tenant remains in possession of the
Premises after the expiration or other termination of the Term, Tenant shall be deemed to be occupying
the Premises upon a tenancy at will only, at a monthly rental equal to the last Minimum Rent plus other
charges payable hereunder. Such tenancy at will may be terminated by Landlord or Tenant on the last
day of any calendar month by delivery to the other of at least ten (10) days' advance notice of
termination.
Failure of Landlord to demand or collect any increased rental amounts provided for herein
during any period of holding over by Tenant shall not constitute a waiver of any rights of
Landlord hereunder nor evidence of any agreement to treat such holding over by Tenant as
anything other than a month-to-month tenancy or tenancy at will, whichever is applicable under
the terms of this Section 6.02.
Measurement and Square Footage. Landlord and Tenant hereby agree that the Building
contains approximately 25,298 rentable square feet of space and that the Premises contains the rentable
square footage of space set forth in Section 8 of the Basic Lease Terms Sheet. Both Landlord and
Tenant have been given the opportunity to inspect and measure both the Building and the Premises;
accordingly, both Landlord and Tenant waive and release any right to assert claims, and are hereby
estopped from asserting such claims, based on the exact size, configuration and/or location of the
Premises and Building. Notwithstanding the foregoing to the contrary, Tenant acknowledges and
agrees that Landlord, at its sole cost and discretion, shall have the right to remeasure the Building
and/or Premises at any time. Landlord has the sole right and discretion to implement such
remeasurement and revise the rentable area of either the Building or Premises upon thirty (30) days'
notice to Tenant Should the calculation of the rentable square footage of the Premises change due to
such remeasurement, this Lease shall be amended prospectively (but not retroactively) to reflect a
revision to Tenant's Pro Rata Share of the Operating Expenses. Minimum Rent is independent of the
number of rentable square feet in the Premises and shall not change due to any such remeasurement.
Unless otherwise specifically indicated herein, all measurements refer to rentable square feet (as
opposed to useable square feet) and all applicable calculations are based on rentable square feet (as
opposed to useable square feet).
Tenant's Due Diligence. As a material inducement to the execution of this Lease by Landlord
and the performance by Landlord of its obligations hereunder, Tenant does hereby acknowledge that
(I) Tenant is leasing the Premises subject to any and all facts, circumstances, conditions and defects
known to or discoverable by Tenant; (ii) Landlord has no obligation to repair or correct any such facts,
circumstances, conditions or defects or compensate Tenant for same unless specifically provided for
19
herein; (iii) Tenant will undertake all due diligence inquiries it deems appropriate, including such
inspections of the Building and review of documents as Tenant deems necessary or appropriate under
the circumstances and that Tenant is and will be relying strictly and solely upon such inspections and
examinations and the advice and counsel of its awn agents and officers in leasing the Premises; and
(iv) neither Landlord nor its agents or representatives are making or have made any warranty or
representation (to induce the Tenant to enter into this Lease to lease the Premises or for any other
purpose) with respect to the following matters: the physical condition of all or any part of the Building,
the status of the title to the Building, the possibility that some or all of the Building may be (or
alternatively, that the Building will not be) affected by the exercise of eminent domain, the current or
future tax liabilities, assessments or valuation of the uilding, the future costs of insurance on the
Building, current compliance with building, zoning, environmental and land use regulations, soils,
geological and environmental conditions affecting the inkling, and any other matter relating to the
value, title, or physical condition of the Building.
Notices. Any notices and demands required or permitted to be given by either party to the
other pursuant to this Lease shall be in writing and shall be deemed delivered (whether or not actually
received) upon the earlier to occur of (i) actual receipt by the addressee, or (ii) upon deposit in the
United States Mail, with proper postage prepaid, certified mail, return receipt requested, addressed to
the parties at the respective addresses for notices set forth in the Basic Lease Terms Sheet, or (iii) when
delivered in person to same. Either party hereto may change its payment and notice addresses at any
time by giving notice thereof to the other party in accordance with this Section 6.05.
(a) The foregoing notice provisions shall in no way prohibit notice from being given as
provided in the Rules of Civil Procedure of the state in which the Building is located, as the same
may be amended from time to time.
Authority of Tenant. Any individual executing this Lease on behalf of Tenant represents that
he/she is duly authorized to execute and deliver this Lease and that this Lease is binding in accordance
with its terms.
Venue. All monetary obligations of Landlord and Tenant (including, without limitation, any
monetary obligation of Landlord or Tenant for any breach of the respective covenants, duties, or
obligations of Landlord or Tenant hereunder) are performable exclusively in the county in which the
Building is located, and Landlord and Tenant agree that the venue for all actions or causes of actions
relating to this Lease shaR be in such county. Each party waives all rights to claim that venue for any
such action or cause of action lies in any place other than the county in which the Building is located.
Authorities for Action. Landlord may act in any matter provided for herein by and through its
Property Manager or any other person who shall from time to time be designated by Landlord in
writing. Tenant shall designate in writing one or more persons to act on its behalf in any matter
provided for herein and may from time to time change such designation by written notice to Landlord.
In the absence of any such designation, the person or persons executing this Lease for Tenant shall be
deemed to be authorized to act on behalf of Tenant in any matter provided for herein.
Brokerage. Tenant represents and warrants that it has dealt only with the Broker listed herein
and/or with Landlord and its direct employees, and no other broker or agent, in connection with the
negotiation or execution of this Lease. Tenant agrees to indemnify and hold Landlord harmless from
and against any and all damages, losses, costs or expenses including, without limitation, all attorneys'
fees and disbursements incurred by reason of any claim of or liability to any breach of said
representation and warranty. Landlord will pay Broker a commission in connection with this Lease
pursuant to separate agreement between Landlord and Broker.
Definition of Landlord. The term "Landlord" as used in this Lease means only the owner of
the uilding, or the owner of a lease of the entire Building, at the time in question. In the event of any
transfer of title to or lease of the Building, Landlord shall be and hereby is entirely freed and relieved of
all covenants and obligations of Landlord hereunder except with regard to the damage deposit, and this
20
Lease shall be deemed and construed as a covenant running with the Building without further
agreement between the parties or their successors in interest,
Entire Agreement. Tenant acknowledges and agrees that it has not relied upon any statements,
representations, agreements or warranties except those expressed in this Lease, and that this Lease
contains the entire agreement of the parties. No amendment or modification of the Lease shall be
binding and valid unless expressed in writing and executed by Landlord and Tenant in the same manner
as the execution of this Lease.
(a) The submission of this document for examination and review does not constitute an option,
an offer to lease space, or an agreement to lease space. This document shall have no binding effect
on the Parties unless and until executed by both Landlord and Tenant and will be effective only
upon Landlord's execution of same.
Jury Trial Waiver. Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brou it by either of the parties hereto against the other on any matter
whatsoever arising out of or many connection with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, and/or any claim for injury or damage, or any emergency or
statutory remedy.
Force Majeure. Any obligation of Landlord which is delayed or not performed due to acts of
God, strike, riot, shortages of labor or materials, war (whether declared or undeclared), governmental
laws, regulations or restrictions, governmental action, or lack thereof, or any other causes of any kind
whatsoever which are beyond Landlord's reasonable control, shall not constitute a default hereunder
and shall be performed within a reasonable time after the end of such cause for delay or
nonperformance.
Severability. If any term or provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be illegal, invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or circumstances other than those to which it is
held invalid or unenforceable, shall not be affected thereby, and all other terms and provisions of this
Lease shall be valid and enforced to the fullest extent permitted by law.
No Set-Off This Lease shall be construed as though the covenants herein between Landlord
and Tenant are independent, and not dependent, and Tenant shall not be entitled to any set-off of rent or
other amounts owing hereunder against Landlord except in the event Landlord fails to perform its
obligations set forth herein.
Relationship of Parties. Nothing contained in this Lease shall create any relationship between
the parties hereto other than that of Landlord and Tenant, and it is acknowledged and agreed that
Landlord in no way, or for any purpose, becomes a partner of Tenant in the conduct of its business, or a
joint venturer or a member of a joint or common enterprise with Tenant.
Name of Building. Upon thirty (30) days' notice to Tenant, Landlord shall have the right to
designate, or to change, the name or numbers of the Building without liability to Tenant.
Successors Bound. Except as specifically provided herein, the covenants, terms, and
conditions contained in this Lease shall apply to and bind the heirs, successors, executors,
administrators and assigns of the Parties.
Interpretation.
(a) Whenever in this Lease any words of obligation or duty are used, such words or
expressions shall have the same force and effect as though made in the form of covenants.
(b) Words of any gender used in this Lease shall be held to include any other gender, and
words in the singular number shall be held to include the plural, when the sense requires.
21
(c) All pronouns and any variances thereof shall be deemed to refer to the neuter, masuIine,
feminine, singular or plural as the identity of Tenant requires.
22
(d) This Lease shall be strictly construed neither against Landlord nor Tenant. No remedy or
election given by any provision in this Lease shall be deemed exclusive unless so indicated, but
each shall, wherever possible, be cumulative with all other remedies in law or equity as otherwise
specifically provided. Each provision hereof shall be deemed both a covenant and a condition and
shall run with the land.
(e) lf, and to the extent that, any of the provisions of any amendment, modification or rider to
this Lease conflict or are otherwise inconsistent with any of the preceding provisions of this Lease,
or of the Rules and Regulations appended to this Lease, whether or not such inconsistency is
expressly noted in such amendment, modification or rider, the provisions of such amendment,
modification or rider shall prevail, or in case of inconsistency with said Rules and Regulations, shall
be deemed a waiver of such Rules and Regulations with respect to Tenant to the extent of such
inconsistency.
(f) Tenant agrees that all of Tenant's covenants and agreements herein contained providing for
the payment of money and Tenant's covenants to remove mechanics' liens shall be deemed
conditions as well as covenants and that if default be made in any such covenants, Landlord shall
have all of the rights provided for herein.
(g) The Parties mutually agree that the headings and captions contained in this Lease are
inserted for convenience of reference only, and are not to be deemed part of or to be used in
construing this Lease.
(h) This Lease has been executed and delivered in the State in which the Building is located
and shall be construed in accordance with the laws of such State.
(i) Landlord has made no representations or promises with respect to the Premises or the
Building except as expressly contained herein. Tenant has inspected the Premises and agrees to
take the same in an "as-is" condition, except as otherwise expressly set forth. Landlord shall have
no obligation, except as herein set forth, to do any work in and to the Premises to render them ready
for occupancy and use by Tenant.
Joint and Several Obligation. If this Lease is executed by more than one tenant, Tenant's
ob ligations hereunder shall be the joint and several obligations of such executing tenants.
Time of the Essence. Time is of the essence hereof, and each party shall perform its
obligations and covenants hereunder within the time hereby required.
Easements. Landlord shall have the right to grant any easements on, over, under and above
the Premises for such purposes as Landlord determines, provided that such easements will not
materially interfere with Tenant's business.
Changing Use and Enlarging the Building. Landlord hereby reserves the right from time to
time to convert any part or all of the Building to office or other uses and to enlarge the Building by
constructing additions to the improvements or other buildings on poitions of the Property with or
without any new parking or common areas, and by including within the Property other properties now
or hereafter owned by Landlord adjacent to the Property and constructing on such additional property
buildings, parking areas, and common areas. In this event, such new buildings, properties, common
areas and parking areas shall be treated as though they were originally a part of the Property and, at the
election of Landlord, all common area expenses, utility costs, real property taxes and other pro rata
payments herein required of Tenant shall be applicable to such enlarged area and all improvements now
or hereafter thereon provided that in such event Tenant's Pro Rata Share shall be appropriately
adjusted to include any additional square footage contained in such new additions or buildings or
comprising additional properties added to the Property. Until Landlord makes such election, Tenant's
Pro Rata Share shall continue as though such enlargement had not occurred.
(a) Limitation of Landlord Liability. In no event shall Landlord be liable to Tenant for any
failure of other tenants in the Building to operate their businesses, nor for any loss or damage that
may be occasioned by or through the acts or omissions of other tenants or of any other persons or
entities whomsoever, excepting only duly authorized employees and agents of Landlord.
Notwithstanding anything to the contrary provided in this Lease.
(b) Short Form Lease. Tenant shall not record thisLease or a memorandum hereof without
the prior written consent of Landlord, which may be given or withheld by Landlord in its sole
discretion.
Assignment of Rents, Leases. Tenant agrees to an assignment by Landlord of rents and of
Landlord's interest in this Lease to a mortgagee, if the same be made by Landlord.
Tenant further agrees that, in the event of such assignment, Tenant shall give to said
mort gee_a copy of any request for performance by Landlord or notice of default by Landlord;
and, in the event Landlord fails to cure such default, Tenant shall give such mortgagee a
reasonable period, commencing on the last day on which Landlord could cure such default, in
which to cure same.
Intent of the Parties Net Lease. It is the intent of the parties hereto that this Lease be a Net
Lease with Landlord incurring no obligation, monetary or otherwise, which is not specifically and
expressly provided for herein.
Environmental Provisions.
(a) Covenants and Agreements. Tenant covenants and agrees from the date hereof and so long
as this Lease shall remain in effect not to cause or permit the presence, use, generation, release,
discharge, storage, disposal, or transportation of any Hazardous Materials (as hereinafter defined)
on, under, in, about, to, or from the Premises by Tenant, Tenants agents, representatives,
employees, contractors, guests or invitees. Notwithstanding the foregoing, Tenant hereby
covenants and agrees to promptly remove from the Building and/or the Premises, any Hazardous
Materials discovered thereon which have been used, discharged, disposed of or stored thereon by
Tenant or Tenant's agents, representatives, employees, contractors, guests, licensees or invitees, and
to comply in all respects with any and all federal, state, and local governmental laws, codes,
ordinances and regulations governing such removal and disposal, whether now in effect or hereafter
enacted, with title to all such Hazardous Materials to remain, and be stored or disposed of, in
Tenant's name.
As used herein, the term "Hazardous Materials" shall include, without limitation, asbestos or any
substance containing asbestos and deemed hazardous under any Hazardous Material Law (defined
below), petroleum, petroleum products or derivatives, the group of organic compounds known as
polychlorinated biphenyls, flammable explosives, radioactive materials, chemicals known to cause
cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions or related materials
and any items included in the definition of hazardous or toxic waste, materials or substances under
any law relating to environmental conditions and industrial hygiene, whether now in effect or
hereafter enacted, including, without limitation, the Resource Conservation and Recovery Act of
1976 ("RCRA"), 42 U.S.C. 0901 et mi., the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§9601-9657, as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous Materials
Transportation Act, 49 U.S.C. §6901, et seq., the Federal Water Pollution Act, 33 U.S.C. §7401, et
q., the Toxic Substances Control Act, 15 U.S.C. §§2601-2629, the Safe Drinking Water Act,
42 U.S.C. §§300f-300j, and all similar federal, state and local environmental statutes, ordinances,
and the regulations, orders, decrees now or hereafter promulgated thereunder (collectively, the
"Hazardous Material Law").
23
(b) Environmental Inderrmification. Tenant agrees to indemnify, pay and protect, defend (with
counsel approved by Landlord), and hold harmless Landlord and its members, managers,
employees, agents, assigns and mortgagee(s) from and against any claims (including, without
limitation, third-party claims for personal injury or real or personal property damage or damage to
the enviromrient), actions, administrative proceedings (including informal proceedings), judgments,
damages (including, without limitation, a decrease in value of the Premises or the Building,
damages caused by loss or restriction of rentable or usable space, or any damages caused by adverse
impact on marketing of the Premises or the Building), punitive damages, penalties, fines, costs,
liabilities (including sums paid in settlement of claims), interest, or losses, including reasonable
attorneys' fees and expenses (irtcluding, without limitation, any such fees and expenses incurred in
enforcing this Lease or collecting any stuns due hereunder), consultant fees, and expert fees,
together with all other costs and expenses of any kind or nature (collectively, the "Costs") incurred
during or after the Term that arise directly or indirectly from or m connection with the presence,
suspected presence, release, or suspected release of any Hazardous Material in or into the air, soil,
groundwater, or surface water at, on, about, under, or within the Building and the Premises or any
portion thereof, or elsewhere by Tenant or Tenant's agents, representatives, employees, contractors,
guests, licensees or invitees. The indemnification provided in this subparagraph 6.26(B) shall
specifically apply to and include claims or actions brought by or on behalf of employees, guests,
contractors, agents, licensees and/or invitees of Tenant. In the event Landlord shall suffer or incur
any such Costs, Tenant shall pay to Landlord the total of all such Costs suffered or incurred by
Landlord upon demand by Landlord. Without limiting the generality of the foregoing, the
indemnification provided in this subparagraph 6.26(B) shall specifically cover Costs, including
capital, operating and maintenance costs incurred in connection with any investigation or
monitoring of site conditions, any clean-up, containment, remedial, removal, or restoration work
required or performed by any federal, state or local governmental agency or political subdivision or
performed by any nongovernmental entity or person because of the presence, suspected presence,
release, or suspected release of any Hazardous Material in or into the air, soil, groundwater, or
surface water at, on, about, under, or within the Building or the Premises (or any portion thereof),
by Tenant or Tenant's agents, representatives, employees, guests, contractors, licensees or invitees
and any claims of third parties for loss or damage due to such Hazardous Material.
(c) Notice of Claim Tenant shall give notice to Landlord of any claim, action, administrative
proceeding (including, without limitation, informal proceedings), or other demand by any
governmental agency or other third party involving Hazardous Materials, Costs and/or Remedial
Work at the time such claim or other demand first becomes known to Tenant. Receipt of any such
notice shall not be deemed to create any obligation on Landlord to defend or otherwise respond to
any claim or demand.
(d) Survival. The provisions of this Section 6.26 shall be in addition to any other obligations
and liabilities Tenant may have to Landlord at law or equity and shall expressly survive the
expiration of the Term or other termination of this Lease.
Rules and Regulations. The Rules and Regulations in Exhibit F, attached hereto and made a
part hereof by this reference, have been adopted by Landlord for the safety, benefit, and convenience of
all tenants and other persons in the Building. Tenant shall at all times comply with, and shall cause its
employees, agents, licensees and invitees to comply with, the Rules and Regulations from time to time
in effect. Landlord may, from time to time, as Landlord deems appropriate in connection with the
operation of the Building, amend, delete from, or add to the Rules and Regulations (including the
amendment, deletion, or addition of such appropriate fines, penalties and other remedies as Landlord
deems reasonable), provided that any such modification:
(a) Shall not be repugnant to any other provision of this Lease;
(b) Shall be reasonable and have general application to all tenants in the Building; and
(c) Shall be effective only upon delivery of a copy thereof to Tenant at the Premises or posting
the same in a conspicuous place within the Building.
24
Landlord shall use reasonable efforts to secure compliance by all tenants and other persons with
the Rules and Regulations from time to time in effect, but shall not be responsible to Tenant for failure of
any person to comply with such Rules and Regulations.
Status Statement. Upon written request by Landlord, Tenant hereby agrees to deliver within
five (5) days after such request, a certificate to Landlord or to any proposed mortgagee or purchaser as
designated by Landlord, in the form supplied, stating (if such be the case) that:
Exhibit A-1: Legal. Description
Exhibit A-2: Site Plan
Exhibit A-3: Floor Plan
Exhibit 13: Drawings
Exhibit C; Tenant Acceptance Letter
Exhibit D: Landlord's Specifications
Exhibit E: Work Letter
Exhibit F: Rules and Regulations
Exhibit G: Special Provisions
Exhibit H: Tenant Options
Exhibit I: Personal Guaranty
(a) This Lease is unmodified and in full force and effect, or if there have been any
modifications, that this Lease is in full force and effect as modified and identify the modification
agreements, or if this Lease is not in full force and effect, the certificate shall so state;
(b) The Commencement Date of the Term and the Expiration Date and the terms of any
extension options Tenant has, if any;
(c) The date to which the rent has been paid under this Lease;
(d) The amount of the Security Deposit, if any, being held by Landlord;
(e) Whether or not there exists any default by Tenant in payment of any rent or other SUM of
money under this Lease;
(f) Whether or not there exists any default by Landlord or Tenant under this Lease with
respect to which a notice of default has been served, and if there is any such default, specifying the
nature and extent thereof; and
(g) Any other information reasonably requested by Landlord or its mortgagee or purchaser.
In the event that Tenant should fail or refuse to sign a certificate in accordance herewith
within ten (10) days following written request by Landlord, Landlord shall have the authority to sign
such a certificate as Tenant's attorney-in-fact for such limited purpose, it being stipulated that such
power of attorney is coupled with an interest in Landlord and is irrevocable. Further, such failure or
refusal shall be conclusive evidence, upon which Landlord, its mortgagee(s) or prospective
purchaser(s) may rely, of the matters described therein. Moreover, Landlord shall be entitled to collect
from Tenant upon demand, as liquidated damages occasioned by the delay and not as a penalty, a sum
equal to one-fifteenth (1115th) of the Minimum Rent, for each day, up to fifteen (15) days, after the
expiration of the ten (10) day period that Tenant fails or refuses to deliver such certificate. If such
refusal or failure persists beyond such fifteen (15) day period, Landlord shall be entitled to pursue any
and all remedies it may have with respect to a default under this Lease.
Definition of Lease. "Lease" or "this Lease" shall me
the following Exhibits:
25
and consist of this Retail
TENANT: LANDLORD:
By: By:
Name: Name: Wes Becker
Tide: Title Manager
26
Fraser Marketplace, LLC,
A Colorado limited Liability Company
ANDREW J. GIBBS
CHRISTOPHER A. YOUNG
Also admitted in California and
North Carolina
GIBBSYOUNG, LLC
1760 Gaylord Street Denver Colorado 80206
P: 303 -333 -12521 F: 303- 399 -3963
www.GibbsYoung.com
April 18, 2012
VIA ELECTRONIC MAIL and FACSIMILE at: Iherger {crown. fraser. co. us; (970) 726 -5518
Town of Fraser
PO Box 370
153 Fraser Avenue
Fraser, Colorado 80442
Re: Bottle Pass Liquors Change of Location Application
Our File No: G102 -003
To Whom It May Concern:
writers e -mail address:
cyoung@gibbsyoung.com
This law firm is counsel for Winter Boat, LLC "Winter Boat the owner of the
shopping center located at 523 Zerex Street, Fraser, Colorado 80442 (the "Fraser Valley
Shopping Center Winter Boat has asked me to provide the Town of Fraser Liquor Licensing
Authority (the "Licensing Board with a formal objection to the Change of Location
Application submitted by Bottle Pass Liquors, Inc. ("Bottle Pass in which Bottle Pass seeks to
move from the Fraser Valley Shopping Center to the Fraser Marketplace located across the
street.
Bottle Pass is currently a tenant of Winter Boat in the Fraser Valley Shopping Center
pursuant to a Shopping Center Lease dated September 1, 2002 and amended March 1, 2007 and
as further amended on August 25, 2010 (the "Existing Lease The term of the Existing Lease
runs through August 2015. As of the date of this correspondence, Winter Boat has not been
asked to release Bottle Pass from its lease obligations and Winter Boat has no such plan.
Bottle Pass plays an important role in the Fraser Valley Shopping Center. Not only is it a
valuable tenant to Winter Boat from the perspective of long operating and income generating
tenant in this shopping center, but Bottle Pass generates a significant amount of traffic at the
Fraser Valley Shopping Center that is beneficial to all of Winter Boat's tenants there. If the
transfer of the liquor license is granted and Bottle Pass leaves the Fraser Valley Shopping Center
without Winter Boat's agreement to release Bottle Pass from the Existing Lease, the move would
not only negatively impact Winter Boat, but the other tenants in the Fraser Valley Shopping
Center.
The new location that is being pursued by Bottle Pass is across the street from the Fraser
Valley Shopping Center. Accordingly, the community immediately surrounding the requested
new location is already being served by this liquor license in its current location. In addition,
GIBBSYOUNG
LIMITED LIABILITY COMPANY
Town of Fraser
April 18, 2012
Page 2
allowing the liquor license to transfer and effectively causing Bottle Pass to breach its lease with
Winter Boat will have an obvious negative impact to the already existing businesses that have
come to rely on the traffic generated by the Bottle Pass liquor store.
In addition to this negative impact, Winter Boat understands that Bottle Pass is unable to
show that it has, or will have, obtained legal possession of the unit for which it is seeking the
license to transfer. The last section of Exhibit G (page 42) to the proposed lease submitted by
Bottle Pass in relation to this application, provides:
Landlord agrees that in the event of the occurrence of any of the
following, the terms and provisions of this lease will become null
and void [emphasis added]:
The inability of the Tenant [Bottle Pass] to teiininate its existing
lease in the Fraser Valley Shopping Center at 535 Zerex Street,
unit C -201, Fraser, Colorado on or before March 1 2012 without
penalty, cost, or liability of any kind to Bottle Pass Liquors, Inc. or
its owners.
A copy of Exhibit G to the Proposed Lease is attached hereto for your convenience.
Again, as of the date of this correspondence, Bottle Pass continues to operate out of the
Fraser Valley Shopping Center and has not been released from its obligations under the Existing
Lease. Accordingly, Exhibit G provides that the terms and provisions of the proposed lease are
null and void.
For the foregoing reasons, we request that the Bottle Pass Liquor Application be denied.
At the very least, Winter Boat requests that the Licensing Authority delay its ruling on this
application until such time as Bottle Pass and Winter Boat may discuss if an early termination of
Bottle Pass's obligations at the Fraser Valley Shopping Center is possible.
If you have any questions, please do not hesitate to contact me. I may be reached at (303)
333 -1252
CAY /es
cc: Winter Boat, LLC
W104 004 LTR TOWN OF FRASER 041812FINAL
1. Prohibited Uses
2. Exclusive Use
EXHIBIT G
SPECIAL PROVISIONS
No part of the shopping center shall be devoted to the use or operation of any entertainment or recreational
facility. "Entertainment or recreational facility" includes, without limitation, a theater, carnival, bowling
alley, skating rink, amusement center, electronic or mechanical games arcade, pool or billiard hall, betting
parlor, bingo parlor, massage parlor, pornographic shop, adult book store, nightclub, dance hall, tavern,
cocktail lounge, any facility for the on- premises consumption of alcoholic beverages except as an incidental
part of the operation of a Liquor Store, No part of the shopping center within three hundred feet (300') of any
exterior building wall of any Lot 2 (Safeway parcel) building shall be devoted to the use or operation of any
restaurant (take -out, fast -food or sit down).
No part of the shopping center shall be devoted to the use or operation of any training or educational facility.
"Training or educational facility' includes, without limitation, a beauty school, barber college, place of
instruction, or any other operation catering primarily to students or trainees rather than to customers, but
excludes employee training by owners or owner's tenants incidental to the conduct of their businesses within
the shopping center.
Except as provided in the Declaration of Easements, the store on Lot 2 (Safeway parcel) shall have the sole
and exclusive right to: (i) sell food for off premises consumption; (ii) sell merchandise which, under the laws
of the State of Colorado, is required to be dispensed by or under the supervision of a registered or licensed
pharmacist "prescription pharmacy merchandise and (iii) sell pet foods. Stores in the shopping center
other than the store on Lot 2 may devote up to, but not more than, the lesser of (a) one thousand Eve hundred
(1,500) square feet of sales area (including aisle space adjacent thereto), or (b) sales area (including aisle
space adjacent thereto) of up to ten percent (10 of the total square footage of the store, to the sale of food
for off premises consumption. However, the terms of the Declaration of Easements shall not be deemed to
prohibit a restaurant from selling food prepared on- premises for off- premises consumption, subject, however,
to the provisions of the Declaration of Easements. Spirits, wine, cigars, miscellaneous liquor related food
items, and beer are not defined as food for the purposes of these special provisions.
The restriction against the sale of food for off premises consumption and pet foods shall terminate and be of
no further force or effect if a grocery supermarket of at least 45,000 square feet in size is not operated on Lot
2 for a continuous period of six (6) months or more, for any reason other than (1) a strike, lockout or other
labor difficulty, fire or other casualty, condemnation, war, riot, insurrection, act of God, the requirements of
any local, state or federal law, rule, regulation, or any other reason beyond the reasonable control of the owner
or occupant of Lot 2 (other than financial) or (ii) temporary closure due to the restoration, reconstruction,
expansion, alternation or remodeling of any buildings or improvements located in the shopping center.
Furthermore, the restriction against the sale of prescription pharmacy merchandise shall terminate and be of
no further force or effect if prescription pharmacy merchandise is not sold from Lot 2 for any reason other
than those set forth in (i) and (ii) of the previous sentence, or if, at any time after prescription pharmacy
merchandise is not sold from Lot 2 for a continuous period of six (6) months or more for any reasons other
than those set forth in (i) and (ii) of the previous sentence. The provisions are for the benefit of Lot 2 and
exclusive use may be enforced pursuant to the provisions of Article 15 of the Declaration of Easements only
by the owner of Lot 2.
41
Lease Termination by Tenant
If Colorado State Liquor Laws change during the teen of this lease in such a fashion as to permit
Safeway or any other grocery or convenience store within two (2) miles of the premises to sell packaged
alcoholic beverages other than 12 beer, Tenant shalt have the right to terminate this Lease without
damages ninety (90) days after notifying the Landlord in writing of its intent to terrnirtate.
If the Safeway store ceases to operate in the shopping center, Tenant shall have the right to terminate this
Lease without damages ninety (90) days after notifying the landlord in writing of its intent to terminate.
Exclusive product distribution.
Landlord agrees that Tenant shall have the exclusive right to sell packaged alcoholic beverages within the
shopping center with the exception of sales of 3.2 beers by Safeway.
Signage exceptions
Tenant shall be entitled to post temporary sale banners from time to time without prior consent of Landlord.
In addition, Tenant shall be entitled to display customary Liquor Store signage either lighted or not inside the
Premises and inside the Premises windows as long as the signage is in compliance with the Town of Fraser
sign code.
Conditions negating the terms of this lease.
Landlord agrees that in the event of the occurrence of any of the following, the terms and provisions of this
lease will become null and void:
Inability of the Tenant to secure the appropriate approvals from State and or local governments for the
relocation of their existing liquor license to the Premises.
The inability of the Tenant to terminate its existing lease in the Fraser Valley Shopping Center at 535 Zerex
Street, unit C- 20I,_F.raser, Colorado on or before March ls`, 2012 without penalty, cost, or liability of any kind
to Bottle Pass Liquors, Inc or its owners.
42
ae
b
(the
application located
at
dueet seq.;
and
enters
1. There not been an
2.evidence that it is or will be entitled to possession of the
is proposed to be exercised.
3.the Town
4.
th
AND
Peggy Smith, Mayor
ATTEST:
CERTIFICATE OF SERVICE
postage
April 11, 2012
MEMORANDUM
To: Mr. Clark Lipscomb
Grand Park
P.O. Box 30
Winter Park, Colorado 80482
From: Lyle E. DeVries, PE, PTOE
5H 7UDIILF$QDO\VLV8SGDWH±&RORUDGR$GYHQWXUH3DUN
FHU Reference No. 07-345
3HU\RXUUHTXHVWZH¶YHFRPSOHWHGDQXSGDWHGWUDIILFDQDO\VLVRIWKH&RORUDGR$GYHQWXUH3DUN
(also referred to as the park) in Fraser, Colorado. This analysis is a follow-up to the Ellie and
'DLV\¶V$GYHQWXUH3DUN7UDIILF,PSDFW6WXG\, completed in October 2008 and the Felsburg Holt &
Ullevig traffic analysis memorandum dated April 13, 2009. The Adventure Park has been open for
four winter seasons, and Grand County Staff has requested that a follow-up analysis be performed
in support of the Year 2012 renewal of the Special Use Permit. The County requires an updated
Traffic Impact Analysis Study that is taken during the winter months while the park is operating. If
the counted traffic volume along Fraser Valley Parkway (FVP) adjacent to the Adventure Park
exceeds 1,000 vehicles per day (vpd), improvements to the FVP may be required.
7RDGGUHVVWKH&RXQW\¶VUHTXHVWZHKDYHGHYHORSHG<HDUHVWLPDWHVRIWKHWUDIILFYROXPH
along Fraser Valley Parkway. This memo summarizes updated FVP traffic information.
Update Methodology
In 2009, FVP traffic counts were conducted in mid-late March. To provide for an appropriate
comparison, the updated counts would need to be conducted in mid-late March of 2012, during
Spring Break weeks. However, the Park was closed for the season in late March due to lower than
average snow levels. Therefore, 2011-2012 Winter season traffic counts are not available.
In lieu of providing Year 2011-2012 traffic counts along FVP, we have developed traffic estimates
based on historic tubing visitor levels provided by Adventure Park Staff. Visitor levels in March of
2009 were compared with subsequent years to identify an appropriate adjustment to the Year 2009
data to estimate traffic volumes in March of 2012.
FVP Traffic Composition
Traffic along FVP east and west of the park access is comprised of two components: background
traffic and park traffic. Background traffic consists of vehicle-trips on FVP not related to the park.
Year 2009 background traffic prior to park opening was estimated at 610 vpd east and west of the
park access. In March of the Year 2009, 760 vehicles per day (vpd) were recorded east of the Park
April 11, 2012
Memorandum to Clark Lipscomb
Page 2
access, which indicates that the park contributed 150 vpd to FVP. The Traffic Impact Analysis was
referenced to identify the amount of park traffic west of the park access, estimated at 35 vpd in the
Year 2009.
Growth Assumptions
As documented in the Traffic Impact Analysis, background (non-park) traffic along FVP is
anticipated to grow at approximately 1.5 percent per year.
The following steps were taken to estimate park-generated traffic volumes in March of 2012.
1. The traffic counts conducted in March of 2009 were established as a baseline for the estimates.
Based on visitor records provided by park staff, there were a total of 4191 visitors to the park
during that month, when the park contributed 35 vpd (west of access) to 150 vpd (east of
access) to FVP.
2. As previously discussed, the park typically remains open into April, and March of 2012 visitor
records are incomplete due to an early closure of the park. However, March 2012 visitor totals
may be estimated using a comparison with March 2011 visitations, which totaled 10,192.
3. Comparing the total number of visitors in the 2010/2011 season with visitor totals in 2011/2012
indicates that 2011/2012 visits were down approximately 2.4%from the prior season. Applying
this adjustment to March results in an estimated 9947 visitors to the park in March of 2012.
4. The estimated percentage increase in visitors between March of 2009 (4191 visitors) and
March of 2012 (9947 visitors) is 137 percent. Applying this increase to park-generated traffic
UHVXOWVLQ±SDUNJHQHUDWHGWULSVDORQJ)93LQ0DUFKRI
Current Traffic Estimates
Year 2012 March traffic volumes along FVP were estimated based on the traffic composition and
growth assumptions outlined earlier. Table 2 summarizes the calculations.
Table 2.<HDU±0DUFK)937UDIILF(VWLPDWHVLQ9HKLFOHVSHU'D\
West of Park Access East of Park Access
Traffic Component
2009 2012 2009 2012
Background (non-park) Trips 415 435 610 640
Colorado Adventure Park Trips 35 85 150 355
Total Daily Traffic 450 520 760 995
As shown, it is estimated that FVP carried slightly less than 1,000 vpd east of the park access, and
520 vpd west of the park in March of 2012. The estimated level of traffic west of the park access is
slightly below the improvement threshold of 1,000 vpd. However, estimated traffic levels east of
FVP are nearing the threshold. Because these levels are estimated and not actual counts, it is
recommended that actual traffic counts be conducted along FVP in the Winter of 2012/2013 to
better understand whether levels are exceeding 1,000 vpd and, if so, identify appropriate
improvements. It is recommended that the time at which traffic counts are to be conducted be
established in cooperation with Grand County Staff.
Please feel free to call me at (303)721-1440 if you have any additional needs or questions.
lEl 7" 'f•
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April 9, 2012
Mr. Clark Lipscomb
Byers Peak Properties, LLC
Cornerstone Winter Park Holdings, LLC
P. O. Box 30
Winter Park, CO 80482
via email to cark@cstoneholdings.com
RE: Byers Peak Properties, LLC Legal Water Supply for Snowmaking (our file
#744F4A)
Dear Clark:
This letter outlines the legal snowmaking water supply for Grand County's review
of Byers Peak Properties, LLC's ( "Byers Peak ") and Cornerstone Winter Park
Holdings, LLC's ( "Cornerstone ") Colorado Adventure Park located on property in
Grand County south of the Town of Fraser. As discussed below, Byers Peak owns
two water rights for snowmaking use currently being adjudicated in water court.
Snowmaking Water Supply.
1. Gaskill Ditch, Byers Peak Enlargement. As applied for in Case No. 10CW309,
Byers Peak Properties has appropriated 6.0 c.f.s. from St. Lewis Creek in three
locations for snowmaking use.
2. Byers Peak Properties Pond System. As applied for in Case No. 10CW309,
Byers Peak Properties has appropriated a 232 acre -foot, reservoir system for
snowmaking use. The Byers Peak Properties Pond System may be filled and
02 refilled via the Gaskill Ditch, Byers Peak Enlargement when water is legally
and physically available.
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These water rights have not yet been used for snowmaking, but have been
appropriately applied for in Colorado water court. Upon entry of decree in Case
No. 10CW309, the relative priority of the water rights will be preserved and the
water rights may be developed for snowmaking in the future. The application in
Case No. 10CW309 is currently pending before the Division 5 water court. Byers
Peak has received settlement offers from several parties to the case and we
anticipate favorable resolution of the case prior to the 2012/2013 snowmaking
season. However, if we do not have the case fully resolved by mid - summer 2012,
we recommend filing an application for a temporary substitute supply with the
Division Engineer to secure short term approvals. The water rights application in
Case No. 10CW309 is attached and includes mapping showing the location of the
r pox' e ' ra! r,wp,oraCryyr'�
triton wp Cornerstone Winter Park Holdings \744 F4A Byers Peak Letters Lipscomb re Snowmaking Legal Water Supply 4.6.12.docx
Mr. Clark Lipscomb
Page 2
April 9, 2012
water rights and land upon which they may be used. We also attach a map filed with the
water court which depicts the general proposed area of snowmaking.
We trust the information provided sufficiently details the legal water supplies for Grand
County's review of snowmaking water rights on the property owned by Byers Peak. Please
feel free to call with any questions or concerns.
Very truly yours,
PATRICK, MILLER & KROPF, P.C.
A Professional Corporation
By:
Ramsey L. Kropf
kropfW,waterlaw. com
Laura C. Makar
makarOwaterlaw. com
RLK /lcm
encl.
cc: Eric Mangeot, P.E.
triton wp Cornerstone Winter Park Holdings \744 F4A Byers Peak Letters Lipscomb re Snowmaking Legal Water Supply 4.6.12.docx
District Court, Water Division 5, Colorado
Garfield County Courthouse
109 8th Street, Suite 104
Glenwood Springs, CO 81601
(970) 945 -5075
ACOURT USE ONLYA
CONCERNING THE APPLICATION FOR WATER RIGHTS
OF BYERS PEAK PROPERTIES, LLC AND C. CLARK LIPSCOMB
& MEREDITH C. LIPSCOMB IN GRAND COUNTY
Attorneys: Ramsey L. Kropf, #21528
Laura C. Makar, #41385
Patrick, Miller & Kropf, P.C.
730 E. Durant, Suite 200
Aspen, CO 81611
Phone Number: 970/920-1028 E- Mail: kropf @waterlaw.com
FAX Number: 970/925-6847 makar@waterlaw.com
Case Number:
10CW309
This case is NOT
subject to the
simplified procedures
for court actions under
Rule 16.1 because:
This is a water law
proceeding [See
C.R.C.P. 16.1(b)(1)].
Division Courtroom
FIRST AMENDED APPLICATION FOR SURFACE WATER RIGHT AND STORAGE
WATER RIGHTS
'1. Name, address and telephone number of applicants:
Byers Peak Properties, LLC
46 Market Street
Fraser, CO 80442
(970) 726 -8600
with copies of pleadings to:
Patrick, Miller & Kropf, P.C.
730 East Durant St., Suite 200
Aspen, CO 81611
(970) 920 -1028
C. Clark Lipscomb & Meredith C. Lipscomb
46 Market Street
Fraser, CO 80442
(970) 726 -8600
District Court, Water Division 5
Page 2
Case No. 10CW309
First Amended Application for Surface Water Right & Storage Water Rights
First Claim: Surface Water Right
2. Name of Structure: Gaskill Ditch, Byers Peak Enlargement.
3. Legal description of location of point of diversion: This application requests three
alternate points of diversion for the claimed water right. The first point of diversion is at
the Gaskill Ditch. The decreed point of diversion of the Gaskill Ditch is on the East bank
of St. Louis Creek at a point whence the Southwest Corner of Section 25, Township 1
South, Range 76 West of the 6 "1 P.M.; bears South 27° 19' 30" West 3,896.2 feet.
Alternate Description: Preferred Legal Description (PLSS): In the SE ' /a, NW 1/4 of
Section 25, Township 1 South, Range 76 West of the 6th P.M, 1,825 feet from the North
section line and 1,686 feet from the West section line, in Grand County. A map of the
Gaskill Ditch, Byers Peak Enlargement is attached as Figure 1.
A. Alternate Point of Diversion No. 1 --- Beaver Dam Ditch.
Legal description of location of point of diversion: The decreed point of diversion of
the Beaver Dam Ditch is near the East bank of St. Louis Creek, from which stream
said ditch derives and diverts its water at a point about 30 rods South and about 12 to
14 rods East of the NW corner of the NW quarter of the NE quarter of Section 25,
Township 1 South, Range 76 West.
Alternate Description: Preferred Legal Description (PLSS): In the NE 1/4, NW 1/4 of
Section 25, Township 1 South, Range 76 West of the 6th P.M, 1065 feet from the North
section line and 2134 feet from the West section line, in Grand County. A map of the
location of the Alternate Point of Diversion No. 1 - Beaver Dam Ditch point of diversion
is attached as Figure 1.
B. AIternate Point of Diversion No. 2 — Clark's Ditch No. 1.
Legal description of location of point of diversion: The point of diversion of the
Clark's Ditch No.1 is in the NW1 /4, SW1 /4 of Section 19, Township 1 South, Range 75
West of the 6t'' P.M, 2,430 feet from the South section line and 220 feet from the
West section line, in Grand County. A map of the Clark's Ditch No. 1 is attached as
Figure 1.
4. Source: St. Louis Creek, a tributary of the Fraser River and the Colorado River.
5. A. Date of appropriation: June 14, 2007
B. How appropriation was initiated: Diversion of water through Gaskill Ditch
headgate for irrigation of 235 acres of irrigation on Applicant's property. Intent
to appropriate water rights.
C. Date water applied to beneficial use: June 14, 2007.
District Court, Water Division 5
Page 3
Case No. 10CW309
First Amended Application for Surface Water Right & Storage Water Rights
6. Amount claimed: 3.5 cfs, absolute and 2.5 cfs, conditional for a total of 6.0 cfs
cumulative from any of the three points of diversion. Basis of absolute claim is from the
maximum daily diversion record from Water Year 2007 through 2009. Water diversions
from the Gaskill Ditch averaged 5.0 cfs in June 2008, of which approximately 3.5 cfs was
beneficially used to irrigate Applicants' lands during the 2007 -2009 period. A daily
maximum rate of 5.0 cfs was diverted at the Gaskill Ditch headgate during the 2008 and
2009 summers.
7. Use: Irrigation, snowmaking, to fill and refill the Byers Peak Properties Pond System
(described in Second Claim below) in priority for claimed uses, and to fill and refill the
Ike's Pond No. 1 (described in Third Claim below) in priority for claimed uses.
A. If irrigation, complete the following:
(1) Number of acres historically irrigated: Approximately 235 acres is under
irrigation on the land owned by Byers Peak Properties, LLC and
Lipscombs. See Figure 1.
(2) Total number of acres proposed to be irrigated: Approximately 229.2 acres
on Byers Peak Properties, LLC land; 31.2 acres on Lipscomb land; for a
total of 260.4 acres.
(3)
The legal description of the land irrigated: Lands generally located in
Grand County in the S 1/2 of the Section 19 and the NW 1/4 of the NE 1/4 of
Section 30, Township 1 South, Range 75 West of the 6th P.M. Maps of the
Gaskill Ditch, Byers Peak Enlargement irrigation are attached as Figures
2 and 3.
8. The name and address of the owner of the land upon which any new diversion structure
or storage structure, or modification to any existing or diversion or storage structure is or
will be constructed or upon which water is or will be stored, including any modification
to the existing storage pool: (From Grand County Assessor and GIS databases)
Gaskill Ditch, Byers Peak Enlargement: Daniel D. and Anne O. Berkeley; 5046 W.
Hinsdale Circle, Littleton, CO 80128 (Grand County Parcel No. 158925200014)
Alternate Point of Diversion No. 1 --- Beaver Dam Ditch: Byers Peak Ranch LTD
Partnership; 1148 Drift Drive, Westport, MA 02790 (Grand County Parcel No.
158925100181)
Alternate Point of Diversion No. 2 — Clark's Ditch No. 1: C. Clark & Meredith C.
Lipscomb; P.O. Box 597, Winter Park, CO 80482 (Grand County Parcel No.
158719300009)
District Court, Water Division 5
Page 4
Case No. 10CW309
First Amended Application for Surface Water Right & Storage Water Rights
9. Remarks: Applicants will divert Gaskill Ditch, Byers Peak Enlargement from either the
Gaskill Ditch or through either alternate point of diversion at the Beaver Dam Ditch
and /or Clark's Ditch No. 1. While cumulative diversions in the Gaskill Ditch, Byers
Peak Properties Enlargement shall be for 6.0 efs (3.5 cfs absolute, and 2.5 cfs
conditional), any combination of the diversion may be taken through more than one of
the alternate points.
Second Claim: Storage Water Right
10. Name of reservoir: Byers Peak Properties Pond System.
11. Legal description of location of pond system:
A. One or more ponds located in Grand County, the lower terminus of the pond
system is in the SE 1/4 of the SE %a, Section 19, Township 1 South, Range 75 West
of the 6th P.M., at a distance of 603 feet from the South section line and 898 feet
from the East section line, and the upper terminus of the pond system is in the
NW 1/4 of the SW ' /a, Section 19, Township 1 South, Range 75 West of the 6th
P.M., at a distance of 1,790 feet from the South section line and 1,069 feet from
the West section line. A map of the Byers Peak Properties Pond System is
attached as Figure 2.
B. If off - channel reservoir, name and capacity of ditch or ditches used to fill
reservoir, and legal description of each point of diversion:
The Byers Peak Properties Pond System will fill from the Gaskill Ditch,
Byers Peak Enlargement (described in First Claim above). The combined
capacity of the Gaskill Ditch and alternate points of diversion will be in
excess of 6.0 cfs.
12. Source: Gaskill Ditch, Byers Peak Enlargement, diverting from St. Louis Creek, a
tributary of the Fraser River and the Colorado River.
13. A. Date of Appropriation: February 28, 2007.
B. How appropriation was initiated: By development of Grand Park Coordination
Map by Gage Davis and Associates for Cornerstone Holdings, LLC. Map
included Byers Peak Properties area and a conceptual layout for several ponds
within the legal description described above.
C. Date water applied to beneficial use: N /A.
14. Amount claimed: 232.0 acre -feet, conditional, cumulative for entire Byers Peak
Properties Pond System.
District Court, Water Division 5
Page 5
Case No. 10CW309
First Amended Application for Surface Water Right & Storage Water Rights
If off - channel reservoir, rate of diversion in cfs for filling the reservoir: 6.0 cfs,
conditional.
15. Use: Snowmaking, augmentation, irrigation, piscatorial, recreation, aesthetic and fire
protection.
A. If irrigation, complete the following:
(1) Number of acres historically irrigated: 235.0. See Figure 1.
(2) Total number of acres proposed to be irrigated: Approximately 229.2 acres
on Byers Peak Properties, LLC land; 31.2 acres on Lipscomb land; for a
total of 260.4 acres.
(3)
The legal description of the land irrigated: Lands generally located in
Grand County in the S 1/2 of the Section 19 and the NW 1/4 of the NE 1/4 of
Section 30, Township 1 South, Range 75 West of the 6th P.M. A map of
the Byers Peak Properties Pond System irrigation is attached as Figure 2.
16. Surface area of high water line: 25.50 acres for all ponds in the Byers Peak Properties
Pond System.
A. Maximum height of dams in feet: 10.0. B. Maximum Length of dams in feet:
3,300.
17. Total capacity of reservoir in acre feet:
A. Total active capacity: 232.0 acre -feet.
B. Total dead storage: 0 acre -feet. All
stored water can be released from gravity
and /or pump and pipeline system.
18. Applicant Byers Peak Properties, LLC owns the land under this claim upon which any
new diversion or storage structure, or modification to any existing or diversion or storage
structure is or will be constructed or upon which water is or will be or stored, including
any modification to the existing storage pool.
19. Dams and land within high water line are located on Applicant Byers Peak Properties,
LLC's property
Third Claim: Storage Water Right
20. Name of reservoir: Ike's Pond No. 1.
21. Legal description of location of pond:
District Court, Water Division 5
Page 6
Case No. 10CW309
First Amended Application for Surface Water Right & Storage Water Rights
A. Centerline of the dam located in Grand County, in the NW 1/4 of the SW 1/4,
Section 19 Township 1 South, Range 75 West of the 6th P.M., at a distance of
2,429 feet from the South section line and 784 feet from the West section line. A
map of the Ike's Pond No. 1 is attached as Figure 1.
B. If off - channel reservoir, name and capacity of ditch or ditches used to fill
reservoir, and legal description of each point of diversion:
i. Ike's Pond No. 1 will fill from the Gaskill Ditch, Byers Peak Enlargement
(described in First Claim above). The combined capacity of the Gaskill
Ditch and alternate points of diversion will be in excess of 6.0 cfs.
22. Source: Gaskill Ditch, Byers Peak Enlargement, diverting from St. Louis Creek, a
tributary of the Fraser River and the Colorado River.
23. A. Date of Appropriation: December 30, 2010.
B. How appropriation was initiated: By field inspection, field location, development
of plans for pond construction and formulation of intent to apply water to
beneficial use, and posting in the field.
C. Date water applied to beneficial use: N/A.
24. Amount claimed: 26.0 acre -feet, conditional.
If off - channel reservoir, rate of diversion in cfs for filling the reservoir: 6.0 cfs,
conditional.
25. Use: Irrigation, piscatorial, recreation, augmentation, aesthetic and fire protection.
A. If irrigation, complete the following:
(1) Number of acres historically irrigated: Approximately 5.8 acres.
(2) Total number of acres proposed to be irrigated: 31.2.
(3) The legal description of the land irrigated: Lands located in Grand County
in the NW 1/4 of the SW 1/4, Section 19, Township 1 South, Range 75 West
of the 6th P.M. A map of the approximate area where Ike's Pond No. 1
will provide irrigation is attached as Figure 3.
26. Surface area of high water line: 3.0 acres.
A. Maximum height of dam in feet: 10.0. B. Length of dam in feet: 1,100.
District Court, Water Division 5
Page 7
Case No. 10CW309
First Amended Application for Surface Water Right & Storage Water Rights
27. Total capacity of reservoir in acre feet: 26.0 acre -feet.
A. Active capacity: 26.0 acre -feet.
13. Dead Storage: 0 acre -feet. All stored
water can be released by gravity and/or
pump and pipeline system.
28. Applicants Lipscombs own the land upon which any new diversion or storage structure,
or modification to any existing or diversion or storage structure is or will be constructed
or upon which water is or will be or stored, including any modification to the existing
storage pool.
29. Darns and land within high water line are located on Applicants Lipscombs' property.
Dated this 28th day of February, 2011.
PATRICK, MILLER & KROPF, P.C.
A Professional Corporation
BL
a - . ' opf, I -2 -1"528
Laura C. Makar, No. 41385
730 East Durant St., Suite 200
Aspen, CO 81611
(970) 920 -1028
ATTORNEYS FOR THE APPLICANTS
This Application was filed to the Court through File and Servet electronic filing procedures, under C.R.C. P. § 1 -26.
As required by those rules, the original signed copy of this Application for Surface Water Right and Water Storage Rights is on file with Patrick,
Miller & Kropf, P.C.
District Court, Water Division 5
Page 8
Case No 10CW309
First Amended Application for Surface Water Right & Storage Water Rights
VERIFICATION
STATE OF COLORADO )
) SS.
COUNTY OF GARFIELD )
I, Eric Mangeot, state under oath that I have read this application and verify its content
ric Mangeot, P.E.
Subscribed and sworn to before me this 28 day of February, 2011.
Witness my hand and official seal.
My Commission expires: «1 gJ Iy
p, LiNi v.,
. S. Notary Public
.:
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C04888ioni Iwo; 10'0w
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Ike's Pond No. 1
Byers Peak Properties Pond System (BPPPS)
Gaskill Ditch, Byers Peak Enlargement
APOD No. 2 - Clark's Ditch No. 1
I
24
Historic Irrigated Land - 235.0 Acres
Lipscomb Property
BPPPS Upper Terminus
Gaskill Ditch, Byers Peak Enlargement
APOD No. 1 - Beaver Dam Ditch
Byers Peak Properties, LLC
Gaskill Ditch, Byers Peak Enlargement
y g ent
Figure 1: Water Rights Vicinity Map
Byers Peak Properties / Lipscomb Water Rights Application
File: 788 -20.1
Dote: 02/26/11
0 1,000 2,000 3,000
Scale: 1"=2,000'
MU���IN211� RESOURCE
Ilu�1131ll�11112!�
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909 Colorado Avenue
Glenwood Springs, CO 81601
(970) 945 -6777 Voice 945 -1137 Facsimile
J
Byers Peak Properties Pond System (BPPPS)
iVINNO
BPPPS Upper Terminus
BPPPS Lower Terminus
Proposed Irrigated Area = 229.2 Acres
Byers Peak Properties, LLC
Note:
Land shown for irrigation includes areas
where ponds are to be constructed.
Some areas will be removed from irrigation
once ponds are constructed.
Figure 2: Water Rights Location Map
Byers Peak Properties, LLC
Byers Peak Properties / Lipscomb Water Rights Application
File: 788 -20.1
Date: 12/23/10
0 500 1,000 1,500
Scale: 1".1,000'
MOM
MEMO RESOURCE
1ui1kfl�u"",M1 ENGINEERING, INC.
909 Colorado Avenue
Glenwood Springs, CO 81601
(970) 945 -6777 Voice 945 -1137 Facsimile
J
11
Lipscomb Property
Byers Peak Properties, LLC
General Area of
Proposed Snowmaking
Exhibit C: Proposed Snowmaking
Location Map
Case No. 10CW309, Amended Summary of Consultation
File: 788 -20.1
Date: 06/29/11
0 500 1,000 1,000
Scale: 1"=1,000'
NERMIR
RESOURCE
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(970) 945 -6777 Voice 945 -1137 Facsimile
TOWN OF FRASER
BOARD OF ADJUSTMENT
RULES AND PROCEDURES
A.Purpose. These rules and procedures shall apply to proceedings of the Town of Fraser Board
of Adjustment ("BOA"). These rules and procedures have been adopted by the BOA, with
the approval of the Fraser Board of Trustees. Both the BOA and the Board of Trustees must
approve any amendments, modifications or waivers of these rules and procedures before such
amendments, modifications or waivers become effective.
B.Powers and Authority. The BOA shall have and may exercise only those powers and
authority specifically provided by the laws of the State of Colorado and the Fraser Municipal
Code. The BOA is constituted as provided in Chapter 2, Article 7 of the Municipal Code and
is invested with the powers and duties provided in that Article and elsewhere in the Code. In
particular, the BOA has the authority to hear appeals and to consider requests for variances
under the Fraser zoning regulations, as provided in Chapter 16, Article 12 of the Municipal
Code. As provided in the Municipal Code, the BOA does not have any authority to grant use
variances or use modifications under the zoning regulations.
C.Membership; Voting. The composition of the BOA and voting requirements are as provided
in Chapter 2, Article 7 of the Municipal Code. As specified therein, the concurring vote of
not less than four (4) members of the BOA is required to overturn or modify any decision of
an administrative official of the Town or to approve any variance or adjustment to the Town's
regulations.
D.General Procedures.
1.Records: The Town Manager shall appoint a member of Town staff to maintain a record
of all meetings of the BOA and to keep such files as may be required. All hearings
conducted by the BOA shall be recorded by electronic, stenographic or other means, to
allow a verbatim record to be prepared in case of an appeal.
2.Absence of Member: Any member of the BOA anticipating an absence from a meeting of
the BOA shall so advise the Chairperson or appropriate Town staff prior to the meeting.
3.Agenda: The agenda for each meeting of the BOA shall be prepared by Town staff and
shall be distributed to each member at least twenty four (24) hours prior to the meeting,
unless unforeseen circumstances prevent such advance distribution.
4.Representatives: Persons appearing before the BOA may appear in person or through a
representative, agent, or attorney. The representative shall provide satisfactory proof of
his or her authority upon the request of the BOA.
E.Meetings Open To Public:
1.All meetings and hearings of the BOA shall be open to the public except as otherwise
provided in this section. Notice of meetings, including agenda information when
available, shall be posted at the Fraser Town Hall at least 24 hours before the meeting.
2.The BOA may at any time go into executive session from which the general public may
be excluded, by a vote of two-thirds of the quorum present at a public meeting. Executive
sessions shall be held only as allowed by the Colorado Open Meetings Law, and
particularly Section 24-6-402, C.R.S., which specify the subjects that may be considered
in executive session and the procedures for the conduct of such sessions.
F.Appeals of Administrative Decisions.
1.Purpose and Scope: Appeals to the BOA from the decisions of the town's administrative
staff relating to enforcement of the zoning regulations are allowed under Chapter 16,
Article 12 of the Municipal Code. It is the intention of such regulations that all questions
arising in connection with the interpretation and enforcement of the zoning regulations
shall be presented first to the appropriate department, that such questions shall be
presented to the BOA only on appeal from the decisions of that department, and that
recourse from the decision of the BOA shall be to the courts.
2.Decisions That May Be Appealed: An asserted error in any order, requirement, permit,
decision, determination, refusal, or interpretation made by any town staff in interpreting
and/or enforcing the provisions of Chapter 16 of the Municipal Code may be appealed to
the BOA, unless otherwise provided in the Municipal Code. In passing upon an appeal,
the BOA may consider a request for a variance from the provisions of the regulations, but
only those requests meeting the specific requirements and criteria set forth in Chapter 16,
Article 12, may be granted by the BOA.
3.Filing of Appeal; Time for Filing:
a.An appeal to the BOA may be brought by any person aggrieved by the order,
requirement, permit, decision, or determination that is the subject of the appeal, or by
appropriate Town staff on behalf of the Town.
b.A written notice of appeal shall be filed with the Town officer or official whose
action or decision is being appealed, and shall be in such form as may be prescribed
by the Town, if applicable. Such notice of appeal shall be filed no later than fifteen
(15) days after the date of the contested action or decision. If not filed within that
time, the right to appeal shall be deemed to have been waived.
c.As provided in the Municipal Code, the filing of an appeal shall stay all proceedings
in furtherance of the contested action, unless a certification of imminent peril is filed
by the Town officer responsible for the action.
4.Action By The Board Of Adjustment:
- 2 -
a.Upon receiving the notice of appeal and related materials from the officer or official
with whom the appeal was filed, the BOA shall schedule a public hearing on the
appeal.
b.The BOA shall cause written notice of the hearing to be given to the appellant and the
respondent officer or official, by delivering or mailing such notice to their last known
address not less than seven (7) days prior to the date of the hearing. Public notice of
the meeting shall be posted as provide in Section E.1 above.
c.At the hearing, the BOA shall consider all relevant evidence submitted by the
appellant and the respondent officer or official. Upon conclusion of the hearing, or
within thirty-five (35) days thereafter, the BOA shall adopt a resolution reversing,
affirming, or modifying the contested action. In reversing, affirming, or modifying
the contested action, the BOA shall have all relevant powers of the town staff from
whom the appeal is taken, provided, however, that any action by the BOA must
comply with the following criteria:
(i)In order to reverse of modify any action or decision of an administrative official
of the Town, the BOA must specifically find that such action or decision was in
error and did not conform to specified provisions of the zoning regulations
contained in Chapter 16 of the Municipal Code, or that a variance or adjustment
of such regulations is justified under the criteria provided in said Chapter 16 and
after compliance with the procedures provided in said Chapter 16 and these Rules;
and
(ii) Any such reversal or modification of any action or decision of an administrative
official, including any variance or adjustment under the zoning regulations, must
be approved by the affirmative vote of not less than four (4) members of the
BOA, as referred to in Section C above.
5.Effect Of Reversal Or Modification: In the event that the BOA reverses or modifies the
contested action, all subsequent actions taken by town staff with regard to the subject
matter shall be in accordance with the reversal or modification granted by the BOA,
unless such decision of the BOA is subsequently reversed or modified upon appeal to the
District Court.
G.Variance Applications.
1.Purpose and Scope: Applications for variances from the provisions of the zoning
regulations are allowed under Chapter 16, Article 12 of the Municipal Code. The
requirements and criteria for the review of such applications are set forth in Section 16-
12-30 of the Code.
2.Filing of Application:
- 3 -
a.An application for a variance may be filed by any property owner whose property is
affected by the regulations for which a variance is requested.
b.A written variance application shall be filed with the BOA and shall be in such form
as may be prescribed by the BOA, if applicable. Such application must identify the
provision(s) of the regulations involved, the particular relief sought by the applicant,
and the grounds for such requested relief.
3.Action By The Board Of Adjustment:
a.Upon receipt a variance application and determination by Town staff that the
application is in proper form and complete, the BOA shall schedule a public hearing
on the application.
b.As provided in the Code, notice of the hearing is to be published and copies of the
notice are to be mailed to owners of property within 100 feet of the property in
question at least 14 days in advance of the hearing, with the applicant being
responsible for preparation and payment of the costs of such notice.
c.At the hearing, the BOA shall consider all relevant evidence submitted by the
applicant, town staff and the public. Upon conclusion of the hearing, or within thirty-
five (35) days thereafter, the BOA shall adopt a resolution either granting the
requested variance, with or without conditions, or denying the application. The BOA
may grant a variance, with or without conditions, only in accordance with the voting
requirements referred to in Section C above and the other requirements of the
Municipal Code and these rules.
4.Recording of Resolution: As provided in Section 16-12-30 of the Code, the grant of a
variance is only effective upon adoption of written resolution by the BOA, which
resolution must contain specific findings and a copy of which shall be recorded in the
office of the Grand County Clerk and Recorder.
- 4 -
ARTICLE 7
Board of Adjustment
Sec. 2-7-10. Creation; Membership
(a) There is hereby created a Board of Adjustment, which shall consist of five (5)
voting members and two (2) alternates. Members of the Planning Commission shall
serve as ex officio members of the Board of Adjustment, with the Mayor and four (4)
non-Trustee Planning Commission members serving as regular voting members of the
Board of Adjustment and the two (2) Planning Commission members who also serve as
Trustees on the Board of Trustees serving as alternate members of the Board of
Adjustment. The Chairperson of the Planning Commission shall also serve as
Chairperson of the Board of Adjustment.
(b) In the event that any regular member is temporarily unable to act, owing to
absence from the town, illness, interest in a case before the board or any other cause,
his place may be taken during such temporary disability by an alternate member who
shall then enjoy full voting privileges.If only one regular member is absent, the
Chairperson shall designate the alternate member who shall act in place of the absent
member, or in the absence of the Chairperson, the acting alternate member shall be
chosen by vote of the remaining Board members.
Sec. 2-7-20. Powers and Duties.
(a) The Board of Adjustment shall have all of the powers provided by Sections 31-
23-301 and 31-23-307, Colorado Revised Statutes, except as limited or modified by the
provisions of this Code.
(b) Notwithstanding any other provision of this Code, the Board of Adjustment shall
have no authority to grant use variances of use modifications under the zoning
regulations or other regulations of the Town.
(c) The Board of Adjustment shall have the following duties:
(1) To meet at the call of the Chairperson or by his/her request or by the request
of the building official, town planner, or other town official or member of town staff,
or upon the request by any party wishing to appeal the decision of the same, as
provided by this Code and state statutes.
(2) To adopt any rules necessary to transact the Board of Adjustment's business
or to expedite its functions or powers so long as they are not inconsistent with the
provisions of the applicable state statutes and the Municipal Code.
(3) To hear and decide upon appeals of decisions of town officials or staff
relating to the zoning regulations and upon applications for variances or adjustments
to requirements of such zoning regulations pursuant to the provision of this Code,
(4) To keep minutes and records of the proceedings of each meeting which shall
be filed in the office of the Town Clerk or other official designated by the Town Clerk,
which shall be of public record.
(5) To permit the public to attend and be heard at all of its meetings.
(6) To perform such other duties as may be delegated to it by the provisions of
this Code.
(d) Matters coming before the Board of Adjustment may be considered on the same
date as any regular, special or adjourned meeting of the Planning Commission.
Sec. 2-7-30. Quorum; Voting Requirements.
(a) At all meetings of the Board of Adjustment, the presence of four (4) members
shall constitute a quorum of the transaction of business.
(b) The concurring vote of four (4) members of the Board of Adjustment shall be
required to overturn or modify decisions made by the building official, town planner or
other town official or staff upon appeal to the Board, or to grant an application for a
variance or adjustment to the requirements of the zoning regulations or any other
application within the jurisdiction of the Board. Any other matters shall require a majority
vote of the members present at a meeting at which a quorum is in attendance.
ARTICLE 16
Board of Adjustment
Sec. 16-12-10. Jurisdiction
.
(a) The Board of Adjustment is constituted as provided in Chapter 2, Article 7 of this
Code and its jurisdiction includes authority for hearing appeals and granting of
variances under the provisions of the zoning regulations contained in this Chapter.
(b) As provided in Chapter 2, Article 7, the Board of Adjustment has no authority to
grant use variances or use modifications from the regulations contained in this Chapter.
Sec. 16-12-20. Appeals
.
(a) The Board of Adjustment shallhear and decide appeals from and review any
order, requirement, decision, or determination made by any administrative official
charged with the enforcement of any provision of this Chapter.
(b) Notice of such appeal shall be in writing, specifying the grounds thereof, which
shall filed with the administrative officer or official from whom the appeal is taken within
the time prescribed by the rules adopted by the Board. Failure to file a notice of appeal
within the prescribed time shall constitute a waiver of the right to appeal.
(c) Upon receipt of the notice of appeal, the officer or official from whom the appeal
is taken shall transmit to the Town Clerk all documents constituting the record upon
which the action appealed from was taken, and the Clerk shall provide the same to the
Board.
(d) The Board or its designee shall fix a reasonable time for the hearing of the
appeal and give due notice thereof to the parties. Upon hearing, any party may appear
in person or by agent or attorney. The board of adjustment may reverse or affirm, wholly
or partly, or may modify the order, requirement, decision, or determination appealed
from and shall make such order, requirement, decision, or determination as in its
opinion ought to be made in the premises and to that end has all the powers of the
officer or official from whom the appeal is taken, subject, however, to the vote
requirements specified in Section 16-12-40 hereof.
(e) Where there are practical difficulties or unnecessary hardships in the way of
carrying out the strict letter of the regulations contained in this Chapter, the Board of
Adjustment has the power, in passing upon an appeal, to vary or modify the application
of such regulations relating to the construction or alteration of buildings or structures, so
that the spirit of the ordinance is observed, public safety and welfare secured, and
substantial justice done; provided, however, that the grant of such a variance will only
be considered if the request therefor is included in the notice of appeal and the notice
requirements and other criteria specified in Section 16-12-30 of this Code are satisfied.
(f) An appeal stays all proceedings in furtherance of the action appealed from,
unless the officer or official from whom the appeal is taken certifies to the Board, after
the notice of appeal is filed with him, that by reason of facts stated in the certificate a
stay would, in his or her opinion, cause imminent peril to life and property. In such case
proceedings shall not be stayed other than by a restraining order which may be granted
by the Board of Adjustment or by the district court on application, on notice to the
enforcement officer or official from whom the appeal is taken and on due cause shown.
(g) The Board of Adjustment shall render its decision on an appeal within a
reasonable time, which decision shall be made or confirmed in writing and delivered or
mailed to each party to the appeal.
Sec. 16-12-30. Variances
.
(a) The Board of Adjustment shall have the power to grant variances from the
provisions of this Chapter, subject to the voting requirements specified in Section 16-12-
40 hereof. Further, the Board may grant a variance only if it finds that all of the
following conditions are present:
(1) There are unique physical circumstances or other conditions peculiar to the
affected property, such as exceptional topography or irregularity, narrowness or
shallowness of lot;
(2) The unique physical circumstances or other conditions do not exist
throughout the neighborhood or district in which the property is located;
(3) The unique physical circumstances or other conditions, or any other hardship
complained of, have not been created by the applicant;
(4) Because of the unique physical circumstances or other conditions, the
property cannot be reasonably developed in conformity with the provisions of this
Chapter;
(5) The variance, if granted, will not alter the essential character of the
neighborhood or district in which the property is located, or substantially or
permanently impair the appropriate use of adjacent conforming property;
(6) The variance, if granted, is the minimum variance that will afford relief and is
not detrimental to the public good or to the purpose, intent and spirit of this Chapter
or the Town comprehensive plan.
(b) In granting any variance, the Board of Adjustment has the authority to attach
such reasonable conditions as it deems necessary to protect the general welfare and
implement the purposes of this title.
(c) The following procedures shall apply to the Board's consideration of variance
requests:
(1) All variance requests shall be submitted to the Board of Adjustment in
writing.
(2) Every variance application shall indicate what provisions of this Chapter are
involved and what relief is sought by the applicant.
(3) The applicant shall set forth the grounds upon which the variance is being
sought.
(4) The Board or its designee shall fix a reasonable time for a public hearing on
the variance application.
(5) Notice of said hearing shall be published once in a newspaper of general
circulation within that part of the County where the property is located at least
fourteen (14) days prior to the hearing date.
(6) Written notice of said hearing shall be mailed by certified mail, return receipt
requested, at least fourteen (14) days prior to the hearing date to the owners of the
property within one hundred (100) feet of the property in question.
(7) Preparation of and payment of all notices shall be the responsibility of the
applicant.
(d) No grant of a variance shall be complete or effective unless and until the Board
of Adjustment has adopted a written resolution approving the variance, which resolution
shall identify the property for which the variance is granted, specify the terms of the
variance and any conditions approved by the Board, and state specifically the
exceptional conditions, practical difficulties or unnecessary hardships involved or other
grounds for granting the variance. A copy of such resolution, certified by the
Chairperson or other Town staff, shall be recorded in the office of the Grand County
Clerk and Recorder to provide notice to persons subsequently acquiring any interest in
the property.
Sec. 16-12-40. Voting Requirements
The concurring vote of four (4) members of the Board of Adjustment shall be
required to overturn or modify decisions made by the building official, town planner or
other town official or staff upon appeal to the Board, or to grant an application for a
variance or adjustment to the requirements of the zoning regulations contained in this
Chapter.
Sec. 16-12-50. Appeals from the Board of Adjustment
Every decision of the Board of Adjustment shall be subject to review by certiorari
by the District Court, and as provided by law. Such appeal shall be filed not later than
thirty (30) days from the final action taken by the Board of Adjustment. Such appeal
may be taken by any person aggrieved or by an officer, department, board or bureau of
the Town.
Sec. 16-12-60. Fees
All appeals or applications to the Board of Adjustment shall be accompanied by
payment of a fee as set forth in Appendix A to this Code for each separate appeal or
variance application submitted. Said fee shall not be refunded, notwithstanding that the
applicant has withdrawn such appeal or application or that the same is denied by the
Board of Adjustment.
MISCELLANEOUS AMENDMENTS:
Sec. 2-6-40. Residency.
All members of the Planning Commission shall be bona fide residents of the Town, and
if any member ceases to reside in the Town, his or her membership on the Planning
Commission shall immediately terminate.All members of the Planning Commission
shall serve as such without compensation.The members appointed by the Mayor shall
hold no other municipal office except that such members shall be ex-officio members of
the Board of Adjustment, as provided by this Code.
Sec. 16-1-70. Enforcement.
This Chapter shall be enforced by the Town Manager or his or her designee, Building
Inspector or other designee as appointed by the Board of Trustees, by the Board of
Trustees or by any resident or property owner of the Town. No oversight or dereliction
on the part of the Town Manager or on the part of any official or employee of the Town
shall legalize, authorize or excuse the violation of any of the provisions of this Chapter.
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Possible Medical Marijuana License Criteria:
A. Fraser business license and State sales tax license required.
B. Permit application.
C. A signed statement that the applicant understands that the applicant and the
employees of the medical marijuana dispensary may be subject to prosecution under
federal marijuana laws.
D. A signed statement that the applicant understands that the Town accepts no
legal liability in connection with the approval and subsequent operation of the medical
marijuana dispensary.
E. The applicable fee as established by the Board of Trustees.
F. Location Requirements:
Any distances described below shall be computed by direct measurement from the
nearest property line of the land used for the above purposes to the nearest portion of
the building housing the medical marijuana dispensary using a straight line.
1. Must be located in the Business District.
2. No medical marijuana dispensary shall be located within 200 feet of any
licensed child care facility at the time of establishment of the dispensary.
2. No medical marijuana dispensary shall be located within 1000 feet of any
educational institution or school, either public or private, at the time of
establishment of the dispensary.
3. No medical marijuana dispensary shall be in a building containing residential
units at the time of establishment of the dispensary.
4. No medical marijuana dispensary shall be permitted to operate from a
moveable, mobile or transitory location.
5. No medical marijuana dispensary shall be located with 1000 feet of another
medical marijuana dispensary.
G. Potential Additional Limitations.
1. Hours of operation.
2. Signage.
1
FIRST AMENDMENT TO EASEMENT AGREEMENT
THIS FIRST AMENDMENT TO EASEMENT AGREEMENT is entered into effective
____________, 20___, by and between THE TOWN OF FRASER, COLORADO, a municipal
corporation of the State of Colorado ("Fraser"), and WINTER PARK RANCH WATER AND
WEST
(IPIXIH
SANITATION DISTRICT, a special district of the State of Colorado ("District"), whose address
is P.O. Box 1390, Fraser, CO 80442.
WHEREAS, Fraser and District previously entered into an Easement Agreement, dated
September 23, 2003 and recorded October 13, 2003 at Reception No. 2003-013288 of the
records in the office of the Clerk and Recorder of Grand County, Colorado ("the Easement
Agreement"); and
WHEREAS, said Easement Agreement provides for certain easements upon the
following real property owned by Fraser located in the Town of Fraser, County of Grand,
Colorado, to-wit:
Lot 5, Safeway-Fraser Marketplace, according to the recorded plat thereof;
(the "Burdened Property"); and
WHEREAS, Fraser and District desire to amend said Easement Agreement, by changing
the location of one of the easements described therein; and
WHEREAS, the parties further desire to correct certain errors made in the Exhibits
attached to the recorded Easement Agreement.
NOW THEREFORE, in consideration of the premises and the mutual promises and
covenants set forth herein, the parties agree as follows:
1.0RELOCATED EASEMENT
1.1The Ditch Easement described in Subsection 2.1.4 and on Exhibit "F" of the
Easement Agreement (the "Terminated Ditch Easement") shall be replaced with a new Water
Line Easement, as described on Exhibit "A" attached hereto and incorporated herein by this
reference, which may be used by District for the installation of a ditch pipeline (not a well supply
water
(IPIXIH
pipeline)in accordance with the provisions of Subsection 2.2.2 of the Easement Agreement.
1
(IPIXIH
1.2 District shall complete the installation of the water pipeline on said new Water
Line Easement within one calendar year from the start of construction and shall abandon use of
on or before ________________, 2012
(IPIXIH
the Terminated Ditch Easement on or before that date. Said Terminated Ditch Easement shall be
deemed to be vacated and terminated as of that date. The District shall be required to restore the
[
(IPIXIH
surface of the land traversed by such Terminated Ditch Easement [on or before such termination
] [shall not]
(IPIXIH
date].
1.3The District may relocate the ditch pipeline at its cost. The District shall consult
¶
(IPIXIH
with Fraser and obtain its input before proceeding.
1.4 The relative locations of said Terminated Ditch Easement and the new Water Line
Easement are depicted on Exhibit "B" attached hereto.
2.0CORRECTION OF EXHIBIT REFERENCES
2.1The legal descriptions set forth on Exhibit "A" at page 7 of the recorded Easement
Agreement, and on Exhibit "D" at page 11 of the recorded Easement Agreement, were
erroneously attached to the Easement Agreement and said Exhibits are hereby deleted in their
entirety.
2.2The reference to "Exhibit A" in Section 2.1 on page 2 of the Easement Agreement
was intended to refer to the map attached at page 16 of said recorded Easement Agreement, and
said map is hereby designated as such Exhibit "A", notwithstanding the pagination of the
recorded document.
3.0ADDITIONAL PROVISIONS
3.1Except as expressly amended and modified herein, all terms and conditions of the
Easement Agreement shall remain in full force and effect and the parties hereby ratify and affirm
the same.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives.
DISTRICT FRASER
DISTRICT¶
(IPIXIH
¶
WINTER PARK WEST WATER AND
WINTER PARK RANCH WATER AND THE TOWN OF FRASER, COLORADO, a
SANITATION DISTRICT, a special district of the
State of Colorado¶
SANITATION DISTRICT, a special district municipal corporation of the State of Colorado
of the State of Colorado
BY:________________________________ BY:________________________________
President Fran Cook, Mayor
ATTEST: ATTEST:
____________________________________ ____________________________________
SecretaryLu Berger, Town Clerk
- 2 -
STATE OF COLORADO )
) SS
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me on ____________________,
20___, by Fran Cook, as Mayor, and Lu Berger, as Town Clerk, of The Town of Fraser,
Colorado, a municipal corporation of the State of Colorado.
Witness my hand and official seal.
My Commission expires:
_____________________________
( S E A L ) Notary Public
STATE OF COLORADO )
) SS
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me on ______________________,
20___, by _________________, as President, and _____________, as Secretary, of Winter Park
Ranch Water and Sanitation District, a special district of the State of Colorado.
West
(IPIXIH
Witness my hand and official seal.
My Commission expires:
_____________________________
( S E A L ) Notary Public
- 3 -
Clerks Update
May 2, 2012
th
You still have time to register for the upcoming CML workshop held in Breckenridge June 19 –
nd
22. Please let me know if you’d like to attend as soon as possible so I can book lodging and
the conference.
The Trade Name change request for the Grand Park Bowl and Cinema, to be changed to The
Foundry Cinema and Bowl has been forwarded to the State.
th
We have a continuation of the Public Hearing from April 18 regarding Bottle Pass Change of
Location liquor application. Any documentation received from Bottle Pass will be in your packet.
If you have any questions feel free to give me a call.
Lu
Finance Update: 05/16/2012
Prepared: 05/09/2012
Transmitted with your packet this week is your March 2012 Sales Tax Report. Even though the
percentage numbers for March don’t look so good, when you do the year-to-date (YTD)
comparisons things are going along just fine. Current receipts YTD are down $2,337 dollars or
1% down from the same period last year. I’m thinking receipts to date this year have been very
good considering the horror stories I was hearing from the lodging industry! We will see how April
goes – April is a month of midline revenue, meaning higher than our true shoulder months of May
and October, and lower than our peak earning months of December thru March and July and
August. Looking back at this “ski season” our biggest hits to revenue happened in November and
December of last year with the remainder of the “ski season” remaining relatively flat.
We are still awaiting the arrival of a few bank statements before I can get the month of March
closed for the Town and the Joint Facility, but if they arrive and I can get the financials turned
around and into the packet I will.
I know the audit can be a daunting proposition, and for the newest members of the Board, I’m not
sure if you got what you needed out of the presentation. If anyone has any questions relating to
the audit report, the audit itself, or any other questions that might have arisen for you during the
presentation, please let me know and we can find some time to meet and get your questions
answered. As I have stated before you are certainly welcome to contact Paul Backes yourselves
with any questions or concerns at any time. Paul can be reached at 970-845-8800 or via e-mail:
paul.backes@mcmahancpa.com
th
I am in the early stages of preparing for the Budget Committee’s kick off meeting on June 5
which will be the introduction to Fund Accounting; the Fund’s themselves, their associated
revenue streams, and the reports available from the finance system. I am dusting off the Ten
Year Budget, and preparing to review all of the Capital Improvement Project spreadsheets with
their rightful owners. Now that the audit report is being finalized, I will be able to complete the last
“system” changes for the New Year – the booking of the carry forward balances and this year’s
transfers. I am looking forward to the “new budget committee” and the early start – hoping that
we can have a firm grasp on next year’s budget early this year, so the end of the year is not so
hectic during the budget adoption process.
As always please contact me with any questions or concerns you might have: 726-5491 X206 or
atnhavens@town.fraser.co.us.
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
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0$
0$
0$
0$
0$
0$
0$
0$
1o$
$429, 329
$1,550,000
LL9'0Z1' L$
OE ZL
EEL'6E 1$
E61'ZE1$
017[691$
Z86'011$
$77,649
$114,268
$142,320
08£'161$
17170'801$
£1717'06$
888'901$
Z81'1L1$
I08E'161$
$1,544,822
$1,550,000
$5,178
EC 0
$1,544,822
$1,550,000
$5,178
ICE •O
2010 2011 Amt
IZ9•E
I08zL
19L 0
I08OL
1817E
169
I9b•L
1199E
189
ILL 0
1E9 6E
I00 L
I01 •Z
IEZ•
IE•E-
1117•E-
Z17•9-
I17L6'17
1 1Z6'91
I9LZ'L
1166'11
O
I91Z'17
090'Z
68,156
19L6'E
69
42,359
1066'11.
299'6
IL9L'8L
000'09-
I0Z9'0L
1889'E
EEL'6E 1$
E61'ZE1$
017[691$
$110,982
$77,649
$114,268
$142,320
08E' 161$
17170'801$
£1717'06$
888'901$
$171,182
681'001$
$1,544,822
$1,550,000
$5,178
EC 0
$134,819
$149,114
17Z9'891$
066'86$
$83,459
$110,052
09Z'0171$
17ZZ'EZ 1$
690'1701$
9E1'1,6$
$149,247
$183,171
$157,146
$1,526,065
000'009'1.$
9E6'EL$
Z9 b
09[0Z1.$
ZEL'111$
$95,341
809'17E1.$
$178,147
$1,526,065
000'009'1.$
9E6'EL$
Z9 17
2009 2010 Amt
1 1E
1176'0
ILL:b-
ILL 91
188'9
1809
169
191. E1
1 1ZZZ-
I8b•9Z-
I9L0L
199
9E•01
IEZ.L-
00
16917
11 7 6 9
I96Z'61
16017'1
1119'9
1969'91
1906'17
1 L89'9-
9ZZ'Z
ZZZ'91
23,117
ZZZ'EZ-
990' 91
15,845
1760'£
118,970
O
IL16'Z1
1 z i L'17
$134,819
$149,114
17Z9'891$
066'86$
$83,459
Z90'01 1$
09Z'0171$
17ZZ'EZ 1$
690'1701$
$91,135
$149,247
$183,171
$1,526,065
000'009'1.$
9E6'EL$
Z9 17
$154,114
EZ9'091$
9E1'991$
$115,587
99£'88$
$115,639
$142,486
$139,446
$127,186
$114,357
181'EE 1$
910'661$
19E6'EL$
$1,645,035
000'009'1.$
$45,035
18Z
IE90'0Z1$
991'901$
$88,594
$116,422
$145,896
$155,951
1199'911$
0917'801$
E9Z'68$
8L17'EEZ$
$1,645,035
1000'009'1$
$45,035
18Z
L
n i O) Q a--� 0
(6 Q (6
���Q���QcnOzo
0_
c 3
t
O E O
Hco<c
Town of Fraser Sales Tax Report Adjusted Collections
Town of Fraser Sales Tax Report Actual Collections
2011 2011 Amt
1917 101
10Z
100
IOZ•11-
10 /AIO#
10 /AIO#
10 /AIO#
10 /AIO#
10 /AIO#
10 /AIO#
10 /AIO#
10 /AIO#
10 /AIO#
1 1ZZL-
00
86Z'01
1026
ZEZ'17
16,548
681'001
1 L96'EL
109, 386
IOZE'Z171-
191,380
108,044
90,443
I888'901
171,182
1,115,493
O
091'01$
I919'0E1$
$140,883
$147,781
1o$
1o$
1o$
1o$
1o$
1o$
1o$
1o$
1o$
$429, 329
$1,550,000
1L9'OZ1'1$-
OE ZL-
$20,448
$129,595
$136,651
$164,329
1681'001$
IL96'EL$
I98E'601$
$142,320
I08E'161$
117170'801$
E1717'06$
888'901$
IZ81'LL1$
$1,544,822
$1,550,000
$5,178
ICE •O
2010 2011 Amt
116817
1 991-
ILE 17
9Z•0
90•E 1
I01 •Z
1E8 0
106 9E
1117•E-
Z17•9-
1E6 9Z
1L017
IEZ1
IE•E-
100'01
17Z6'6
L817'17-
IE81'L
1179
299'6
ZZ9'Z
IE81'1
I0Z9'0L
1889'E
868'17
0ZL'LZ-
1996'9
IL9L'81
000'09-
$20,448
$129,595
$136,651
$164,329
681'001$
L96'EL$
98£'601$
$142,320
08E' 161$
17170'801$
£1717'06$
888'901$
$171,182
$1,544,822
$1,550,000
$5,178
EC 0
$10,447
$139,519
$141,138
$157,146
E917'001.$
$83,629
800'Z11$
LEL'1171$
09[0Z1.$
ZEL'111$
$95,341
809'17E1.$
$178,147
$1,526,065
000'009'1.$
9E6'EL$
Z9 17
2009 2010 Amt
19 6Z
9E•01
10 6
IzZ8
16917
11 7 6 9
I176•E
ILE.E-
11716Z
IE•17-
I9L
169 EC
I90•1E
IE.L-
00
1760'£
14,451
1 1EL'Z1
IL16'Z1
1 z i L'17
996'17
117117'17-
69L'17
1161'9E
16Z817
1601 1.
45,345
1 1EE'99-
118, 970
O
$10,447
$139,519
$141,138
$157,146
£917'001$
$83,629
$112,008
$141,137
I09L'0Z1$
IZEL'111$
$95,341
1809'17E1$
$178,147
$1,526,065
1000'009'1$
19E6'EL$
IZ9•17
IE9E'L$
I0L6'E91$
$153,869
IE90'0Z1$
991'901$
$88,594
$116,422
$145,896
$155,951
1199'911$
0917'801$
E9Z'68$
8L17'EEZ$
$1,645,035
1000'009'1$
$45,035
18Z
L
n i O) Q a--� 0
(6 Q (6
���Q���QcnOzo
0_
c 3
t
O E O
Hco<c
Town of Fraser Sales Tax Report Adjusted Collections
Town of Fraser Sales Tax Report Actual Collections
Planner Update for TB May 16, 2012
Ordinance # 395:
This ordinance is really just a clean-up job. We recently incorporated the
Construction Standards into Chapter 14 of the Fraser Municipal Code. Section
14-6-20 of the code discusses the variance (from construction standards)
process. This fee was previously associated with Section 17-7-20 (subdivision
$250.00, but the correct section of the code is now referenced in the Fee
Schedule, which is Appendix A to the Code.
water meter, because this size of
water meter does not meet the standards in the International Plumbing Code.
Accessory Dwelling Unit (ADU) Cleanup Program Update:
On March 21, 2012, the TB adopted ordinance # 394, which amends the Fraser
Zoning Regulations to implement a temporary amnesty program for
nonconforming accessory dwelling units. To date, we have approved two
applications.
Planning Commission:
Next meeting is scheduled for May 23, 2012.
Business Enhancement Grant:
No new applications.
Please contact me with questions and/or comments. ctrotter@town.fraser.co.us.
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
FRASER/WINTER PARK
POLICE DEPARTMENT
Memo
To:
Winter Park Town Council & Fraser Town Board
From:
Glen Trainor, Chief of Police
Date:
May 8, 2012
Re:
April, 2012 Monthly Report
During the month of April, our call load dropped significantly. We responded to a total of 100 calls for
service, with 53 occurring in the Town of Winter Park, and 36 in Fraser. We also issued 11 citations in
Winter Park and 4in the Town of Fraser.
th
On April 28, our police department partnered with the Grand County Sheriffs Office, Granby Police
Department, and Kremmling Police Department to participate in the National Drug Take-Back Day.
We set up a booth at the Alco Store in Fraser, and citizens were able to bring in their old and unused
prescription drugs for safe disposal. County-wide, we collected over 80 pounds of unused
medications! We anticipate participating in a similar disposal program this fall.
th
The week of May 13 has been designated as National Police Week, with National Police
th
Memorial Day being May 15. National Police Week, which occurs each year during the week in
which May 15 falls, recognizes the service and sacrifice of U.S. law enforcement. Established by
a joint resolution of Congress in 1962, National Police Week pays special recognition to those law
enforcement officers who have lost their lives in the line of duty for the safety and protection of
others.
As such, I would respectfully request that if you happen to see any of our countys law
enforcement officers while you are out and about next week, please take the time to stop and
thank them for their service and sacrifice to our community.
PUBLIC WORKS BRIEFING
(As of 5/10/12 for 5/16 meeting)
WATER~
The totalizer water meter at the Blue Zone WTP was rebuilt and calibrated. We
are monitoring it for accuracy.
If the CD with photos of the Fraser River bank stabilization work arrives in time
we can have a slide show during dinner.
SANITARY SEWER~
STREETS~
2012 Streets and Drainage Improvements Projects- see attached supplemental
regarding the extension of the 2011 Chip Seal contract to include the 2012 street
quantities.
Crack sealing all streets throughout town. If the weather cooperates crews
th
should be finished by the 18 of May
Street sweeping operations continue
Staff is working around town cleaning drainage ways
Bid packets for the Wapiti Drainage Improvements and the Mill Ave. Flow Control
th
Structures are available May 10 at the Town Hall.
GARDENER~
Preparing annual planting/tree orders.
Ramping up our noxious weed management program to include rights-of-ways
throughout town.
subdivision to a local licensed applicator, SSR Vegetation Management.
Updating our noxious weed management equipment
OTHER~
Working in PW staff time off while attending to our many spring projects.
Preparing preliminary CIPs for Water, Sewer and Streets for the June budget
discussions.
Questions? anordin@town.fraser.co.us or 970-531-1844.
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
/GOQTCPFWO
TO: Mayor Smith and Board of Trustees
FROM: Allen Nordin, Director of Public Works
DATE: May 10, 2012
SUBJECT: Supplement to Public Works Briefing: 2011-12 GMCO Chip Seal
Contract Extension
The 2012 pavement maintenance program will be treating approximately 61,000 square
yards of asphalt streets using a 3/8 inch chip seal and fog treatment. The majority of the
streets receiving treatment this year will be in the Rendezvous subdivision, Cozens
Meadow subdivision and the remainder of the streets in the original part of Downtown.
temperature constraints with the ½ inch chip application and all of the 2012 streets will
be done using the 3/8 inch chip. This smaller chip size will provide for a tighter
application while providing a smoother ride.
Public Works staff will once again provide assistance with tasks as pre-washing of the
streets prior to the application, traffic control, sweeping of the loose chips, and assisting
the contractor with notifications.
Extending the current 2011 GMCO, LLC contract to include the additional 2012 street
quantities in the form of a Change Order benefits the Town by allowing us to retain last
base pricing with a slight increase in unit cost for the asphalt emulsion product of
$.15/square yard, mainly due to the fluctuating crude oil markets. This approach
provides cost savings in several areas such as document preparation and production,
loss of time due to bidding and allows the Town to get the work underway and
completed much earlier in the summer avoiding the potential for cooler temperatures to
interfere with the completion of the project. GMCO is scheduled to begin the work in July
and will take approximately one week to complete.
Please feel free to contact me should you have any questions.
Allen
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
/GOQTCPFWO
TO: Mayor Smith and Board of Trustees
FROM: Allen Nordin, Director of Public Works
DATE: May 10, 2012
SUBJECT: Supplement to Public Works Briefing: 2011-12 GMCO Chip Seal
Contract Extension
The 2012 pavement maintenance program will be treating approximately 61,000 square
yards of asphalt streets using a 3/8 inch chip seal and fog treatment. The majority of the
streets receiving treatment this year will be in the Rendezvous subdivision, Cozens
Meadow subdivision and the remainder of the streets in the original part of Downtown.
temperature constraints with the ½ inch chip application and all of the 2012 streets will
be done using the 3/8 inch chip. This smaller chip size will provide for a tighter
application while providing a smoother ride.
Public Works staff will once again provide assistance with tasks as pre-washing of the
streets prior to the application, traffic control, sweeping of the loose chips, and assisting
the contractor with notifications.
Extending the current 2011 GMCO, LLC contract to include the additional 2012 street
quantities in the form of a Change Order benefits the Town by allowing us to retain last
base pricing with a slight increase in unit cost for the asphalt emulsion product of
$.15/square yard, mainly due to the fluctuating crude oil markets. This approach
provides cost savings in several areas such as document preparation and production,
loss of time due to bidding and allows the Town to get the work underway and
completed much earlier in the summer avoiding the potential for cooler temperatures to
interfere with the completion of the project. GMCO is scheduled to begin the work in July
and will take approximately one week to complete.
Please feel free to contact me should you have any questions.
Allen
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
COMBINED CASH ACCOUNTS
01 -10200 GENERAL CHECKING #878 000884
01 -10220 GENERAL CO -01- 0160 -8001
TOTAL COMBINED CASH
01 -10100 CASH ALLOCATED TO OTHER FUNDS
CASH ALLOCATION RECONCILIATION
10 ALLOCATION TO GENERAL FUND
20 ALLOCATION TO CONSERVATION TRUST FUND
30 ALLOCATION TO CAPITAL EQUIP REPLACEMENT FUND
32 ALLOCATION TO CAPITAL ASSET FUND
40 ALLOCATION TO DEBT SERVICE FUND
50 ALLOCATION TO WATER FUND
55 ALLOCATION TO WASTEWATER FUND
70 ALLOCATION TO PETERSEN TRUST
TOTAL ALLOCATIONS TO OTHER FUNDS
ALLOCATION FROM COMBINED CASH FUND 01 -10100
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
COMBINED CASH INVESTMENT
APRIL 30, 2012
226,570.66
6,840,627.90
7,067,198.56
7,067,198.56)
TOTAL UNALLOCATED CASH .00
3,026,805.01
26,483.72
422,677.70
59,337.89
739,047.47
613,066.36
2,168,226.64
11,553.77
7,067,198.56
7,067,198.56)
ZERO PROOF IF ALLOCATIONS BALANCE .00
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 1
ASSETS
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
GENERAL FUND
10 -10100 CASH COMBINED FUND 3,026,805.01
10 -11100 PROPERTY TAXES RECEIVABLE 216,520.00
10 -11550 ACCTS REC BILLINGS 64,853.40
10 -12000 ALLOWANCE FOR DOUBTFUL ACCTS. 20,409.55)
10 -12500 FORFETURES DUE TOF FROM CCOERA 2,675.59)
TOTAL ASSETS 3,285,093.27
LIABILITIES AND EQUITY
LIABILITIES
10 -21000 ACCRUED WAGES 24,939.39
10 -21710 FWT /FICA PAYABLE 8,280.40
10 -21730 STATE WITHHOLDING PAYABLE 3,502.00
10 -21740 UNEMPLOYMENT TAXES PAYABLE 249.93
10 -21750 RETIREMENT PLAN PAYABLE 2,623.24
10 -21755 457 DEFERRED COMP PAYABLE 1,999.60
10 -21760 HEALTH INSURANCE PAYABLE 19,140.46
10 -21773 DEPENDENT CARE PAYABLE 1,127.35)
10 -21775 FLEX HEALTH PLAN PAYABLE 10,434.03
10 -22210 DEFERRED TAXES 216,520.35
10 -22920 SUBDIVISION IMP SECURITY DEP 74,262.00
10 -22930 DRIVEWAY PERMIT SURETY 4,500.00
10 -22940 PRE ANNEXATION DEPOSIT BPR 10,000.00
10 -22950 RENTAL PROPERTY DEPOSITS HELD 750.00
TOTAL LIABILITIES 376,074.05
FUND EQUITY
10 -27000 RESFUND BAL SAVINGS 750,000.00
10 -27100 RESTRICTED FUND BALANCE 223,805.00
UNAPPROPRIATED FUND BALANCE:
10 -29800 FUND BALANCE BEGINNING OF YR
REVENUE OVER EXPENDITURES -YTD
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
2,139,298.83
204,084.61)
1,935,214.22
2,909,019.22
3,285,093.27
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 2
TAXES
TOTAL TAXES
LICENSES PERMITS
10 -32 -100 BUSINESS LICENSE FEES
10 -32 -110 LIQUOR LICENSE FEES
TOTAL LICENSES PERMITS
CHARGES FOR SERVICES
MISCELLANEOUS REVENUE
OTHER SOURCES TRANSFERS
TOTAL FUND REVENUE
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
GENERAL FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
10 -31 -100 GENERAL FUND PROPERTY TAX 8,373.00 79,407.10 216,500.00 137,092.90 36.7
10 -31 -200 SPECIFIC OWNERSHIP TAX 629.38 2,041.25 8,000.00 5,958.75 25.5
10 -31 -300 MOTOR VEHICLE TAX 229.00 891.00 4,000.00 3,109.00 22.3
10 -31 -400 TOWN SALES TAX 144,032.49 279,056.52 1,550,000.00 1,270,943.48 18.0
10 -31 -410 USE TAX BUILDING MATERIALS 1,639.47) 1,475.51) 30,000.00 31,475.51 4.9)
10 -31 -420 USE TAX MOTOR VEHICLE SALES .00 7,256.16 25,000.00 17,743.84 29.0
10 -31 -430 STATE CIGARETTE TAX 392.09 844.55 5,000.00 4,155.45 16.9
10 -31 -800 FRANCHISE FEES 9,756.14 13,748.20 40,000.00 26,251.80 34.4
161,772.63 381,769.27 1,878,500.00 1,496,730.73 20.3
1,800.00)
750.00
1,050.00)
1,500.00)
1,151.25
190,330.89 439,176.44
9,000.00
1,500.00
348.75) 10,500.00
10,500.00 16.7)
348.75 76.8
10,848.75 3.3)
10 -34 -100 ANNEXATION FEES .00 .00 1,000.00 1,000.00 .0
10 -34 -110 ZONING FEES 700.00 700.00 1,500.00 800.00 46.7
10 -34 -120 SUBDIVISION FEES .00 50.00 1,500.00 1,450.00 3.3
10 -34 -130 MISCELLANEOUS PLANNING FEES .00 160.00 1,000.00 840.00 16.0
TOTAL CHARGES FOR SERVICES 700.00 910.00 5,000.00 4,090.00 18.2
10 -36 -100 INTEREST EARNINGS 499.81 1,868.46 4,000.00 2,131.54 46.7
10 -36 -300 RENTAL INCOME 1,175.00 3,420.00 9,000.00 5,580.00 38.0
10 -36 -610 REIMBURSABLE PROF SERVICES 27,482.40 34,188.96 55,000.00 20,811.04 62.2
10 -36 -900 MISCELLANEOUS REVENUE 248.95) 17,368.50 35,000.00 17,631.50 49.6
TOTAL MISCELLANEOUS REVENUE 28,908.26 56,845.92 103,000.00 46,154.08 55.2
10 -39 -999 CARRYOVER BALANCE .00 .00 2,055,383.00 2,055,383.00 .0
TOTAL OTHER SOURCES TRANSFERS .00 .00 2,055,383.00 2,055,383.00 .0
4,052,383.00 3,613,206.56 10.8
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 3
TOWN BOARD
TOTAL TOWN BOARD
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
GENERAL FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
10 -41 -110 SALARIES 320.00 4,140.00 26,000.00 21,860.00 15.9
10 -41 -220 FICA TAX 24.48 316.71 1,989.00 1,672.29 15.9
10 -41 -280 TRAINING PROGRAMS 172.29 224.79 2,000.00 1,775.21 11.2
10 -41 -290 TRAVEL, MEALS AND LODGING 70.00 70.00 3,000.00 2,930.00 2.3
10 -41 -295 MEALS AND ENTERTAINMENT 683.12 1,101.31 6,000.00 4,898.69 18.4
10 -41 -690 MISCELLANEOUS EXPENSE 53.95 469.95 2,500.00 2,030.05 18.8
10 -41 -860 GRANTS AND AID TO AGENCIES .00 .00 2,500.00 2,500.00 .0
10 -41 -861 INTERGOVERNMENTAL AGREEMENTS .00 .00 25,000.00 25,000.00 .0
10 -41 -862 FRASER/WINTER PARK POLICE DEPT 31,005.00 124,020.00 395,000.00 270,980.00 31.4
10 -41 -863 STREET LIGHTING AND SIGNALS 1,084.49 3,655.03 18,000.00 14,344.97 20.3
10 -41 -864 SPECIAL EVENTS .00 .00 10,000.00 10,000.00 .0
10 -41 -866 WOOD STOVE REBATES .00 .00 1,000.00 1,000.00 .0
10 -41 -867 CHAMBER OF COMMERCE -IGA .00 .00 111,615.00 111,615.00 .0
10 -41 -868 WINTER SHUTTLE IGA .00 30,000.00 52,000.00 22,000.00 57.7
10 -41 -870 BUSINESS DIST STREETSCAPE .00 769.00 .00 769.00) .0
10 -41 -871 BUSINESS ENHANCEMENT PROGRAMS 2,700.00) .00 15,000.00 15,000.00 .0
30,713.33 164,766.79 671,604.00 506,837.21 24.5
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 4
ADMINISTRATION
TOTAL ADMINISTRATION
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
GENERAL FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
10 -45 -110 SALARIES 16,996.05 76,482.17 215,250.00 138,767.83 35.5
10 -45 -210 HEALTH INSURANCE 3,171.93 15,859.65 45,340.00 29,480.35 35.0
10 -45 -220 FICA TAX 1,211.89 5,453.53 16,467.00 11,013.47 33.1
10 -45 -230 RETIREMENT 666.92 3,001.14 8,610.00 5,608.86 34.9
10 -45 -250 UNEMPLOYMENT TAX 51.00 229.50 646.00 416.50 35.5
10 -45 -280 TRAINING PROGRAMS .00 151.00 4,000.00 3,849.00 3.8
10 -45 -290 TRAVEL, MEALS AND LODGING 414.98 591.64 4,000.00 3,408.36 14.8
10 -45 -295 MEALS AND ENTERTAINMENT 98.63 476.40 3,000.00 2,523.60 15.9
10 -45 -310 LEGAL FEES 14,473.90 22,010.34 50,000.00 27,989.66 44.0
10 -45 -320 AUDIT FEES .00 13,500.00 18,720.00 5,220.00 72.1
10 -45 -330 ENGINEERING FEES 720.00 3,557.01 5,000.00 1,442.99 71.1
10 -45 -360 COMPUTERS NETWORKS AND SUPPORT 1,612.78 6,602.82 35,000.00 28,397.18 18.9
10 -45 -370 OTHER PROFESSIONAL SERVICES 7,887.75 11,115.99 40,000.00 28,884.01 27.8
10 -45 -375 REIMBURSABLE PROF SERVICES 2,057.28 5,484.79 55,000.00 49,515.21 10.0
10 -45 -380 JANITORIAL SERVICES 620.00 2,149.61 15,000.00 12,850.39 14.3
10 -45 -385 TREASURERS FEES 167.46 1,588.14 6,495.00 4,906.86 24.5
10 -45 -395 RECORDING FEES .00 .00 1,000.00 1,000.00 .0
10 -45 -410 BANK CHARGES 36.30 268.10 800.00 531.90 33.5
10 -45 -420 ELECTIONS 291.78 1,076.74 2,500.00 1,423.26 43.1
10 -45 -430 INSURANCE ALL DEPARTMENTS 20,247.00 42,474.85 56,000.00 13,525.15 75.9
10 -45 -440 ADVERTISING 39.51 277.70 1,500.00 1,222.30 18.5
10 -45 -490 PROFESSIONAL MEMBERSHIPS .00 5,481.31 7,000.00 1,518.69 78.3
10 -45 -500 OPERATING SUPPLIES 905.43 2,262.02 16,000.00 13,737.98 14.1
10 -45 -510 EQUIPMENT PURCHASE AND REPAIR .00 .00 20,000.00 20,000.00 .0
10 -45 -550 POSTAGE 122.38 363.38 3,000.00 2,636.62 12.1
10 -45 -560 UTILITIES TELEPHONE 444.05 1,780.39 8,000.00 6,219.61 22.3
10 -45 -561 UTILITIES NATURAL GAS 302.93 1,840.70 6,000.00 4,159.30 30.7
10 -45 -562 UTILITIES ELECTRICITY 528.50 1,680.54 7,000.00 5,319.46 24.0
10 -45 -569 UTILITIES TRASH REMOVAL 80.00 360.00 2,000.00 1,640.00 18.0
10 -45 -670 PROP MGMT 117 EISENHOWER DR 806.43 3,671.14 20,000.00 16,328.86 18.4
10 -45 -671 PROP MGMT 105 FRASER AVE .00 .00 1,000.00 1,000.00 .0
10 -45 -673 PROP MGMT 153 FRASER AVE .00 645.58 12,000.00 11,354.42 5.4
10 -45 -674 PROP MGMT 200 EISENHOWER DR .00 .00 2,000.00 2,000.00 .0
10 -45 -676 PROP MGMT 400 DOC SUSIE AVE 173.14 716.92 1,000.00 283.08 71.7
10 -45 -690 MISCELLANEOUS EXPENSE .00 1,000.00 8,000.00 7,000.00 12.5
10 -45 -810 LEASE /PURCHASE PRINCIPAL .00 8,631.96 17,476.00 8,844.04 49.4
10 -45 -820 LEASE /PURCHASE INTEREST .00 10,554.92 20,899.00 10,344.08 50.5
74,128.02 251,339.98 735,703.00 484,363.02 34.2
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 5
PUBLIC WORKS
TOTAL PUBLIC WORKS
WALK THROUGH HISTORY PARK
TOTAL WALK THROUGH HISTORY PARK
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
GENERAL FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
10 -60 -110 SALARIES 25,006.58 110,877.91 410,000.00 299,122.09 27.0
10 -60 -210 HEALTH INSURANCE 5,598.72 25,562.57 63,000.00 37,437.43 40.6
10 -60 -220 FICA TAX 1,790.27 7,911.25 31,365.00 23,453.75 25.2
10 -60 -230 RETIREMENT 789.58 3,819.31 16,400.00 12,580.69 23.3
10 -60 -250 UNEMPLOYMENT TAX 75.03 332.64 1,230.00 897.36 27.0
10 -60 -280 TRAINING PROGRAMS 305.00 885.73 2,000.00 1,114.27 44.3
10 -60 -290 TRAVEL, MEALS AND LODGING 84.00 84.00 2,000.00 1,916.00 4.2
10 -60 -295 MEALS AND ENTERTAINMENT .00 81.75 500.00 418.25 16.4
10 -60 -330 ENGINEERING FEES 6,128.00 12,949.25 20,000.00 7,050.75 64.8
10 -60 -360 COMPUTER NETWORK SUPPORT .00 634.13 .00 634.13) .0
10 -60 -370 OTHER PROFESSIONAL SERVICES 150.39 11,813.39 2,500.00 9,313.39) 472.5
10 -60 -480 EQUIPMENT RENTAL 35.00 35.00 5,000.00 4,965.00 .7
10 -60 -490 PROFESSIONAL MEMBERSHIPS .00 100.00 500.00 400.00 20.0
10 -60 -500 OPERATING SUPPLIES 1,010.79 19,929.69 65,000.00 45,070.31 30.7
10 -60 -506 PLANTS /PLANTER SUPPLIES 506.08 737.68 10,000.00 9,262.32 7.4
10 -60 -510 EQUIPMENT PURCHASE AND REPAIR 1,114.20 4,214.85 40,000.00 35,785.15 10.5
10 -60 -560 UTILITIES TELEPHONE 130.22 574.77 3,000.00 2,425.23 19.2
10 -60 -561 UTILITIES NATURAL GAS 325.63 2,337.27 7,000.00 4,662.73 33.4
10 -60 -562 UTILITIES ELECTRICITY 151.72 533.37 3,500.00 2,966.63 15.2
10 -60 -569 UTILITIES TRASH REMOVAL 72.99 249.63 2,500.00 2,250.37 10.0
10 -60 -670 PROP MGMT 125 FRASER AVE .00 587.67 5,000.00 4,412.33 11.8
10 -60 -673 PROP MGMT FRASER RIVER TRAIL 9,010.00 9,010.00 35,000.00 25,990.00 25.7
10 -60 -674 PROP MGMT HWY 40 PEDESTRIAN .00 .00 5,000.00 5,000.00 .0
10 -60 -676 PROP MGMT OLD SCHLHOUSE PK .00 .00 500.00 500.00 .0
10 -60 -679 PROP MGMT SCHOOL BUS GARAGE 295.96 1,511.08 8,000.00 6,488.92 18.9
10 -60 -681 PROP MGMT COZENS RANCH PARK .00 .00 10,000.00 10,000.00 .0
10 -60 -682 PROP MGMT AMTRAK STATION .00 12.59 1,500.00 1,487.41 .8
10 -60 -683 PROP MGMT PTARMIGAN OS .00 .00 1,500.00 1,500.00 .0
10 -60 -684 PROP MGMT FRODO .00 .00 3,500.00 3,500.00 .0
10 -60 -685 MOUNTAIN MAN PARK .00 .00 1,000.00 1,000.00 .0
10 -60 -690 MISCELLANEOUS EXPENSE 52.20 82.20 5,000.00 4,917.80 1.6
10 -60 -725 STREET IMPROVEMENTS 671.44 671.44 150,000.00 149,328.56 .5
53,303.80 215,539.17 911,495.00 695,955.83 23.7
10 -65 -370 OTHER PROFESSIONAL SERVICES .00 .00 1,500.00 1,500.00 .0
10 -65 -380 JANITORIAL SERVICES 450.00 1,300.00 5,000.00 3,700.00 26.0
10 -65 -500 OPERATING SUPPLIES .00 .00 1,000.00 1,000.00 .0
10 -65 -510 EQUIPMENT PURCHASE AND REPAIR .00 .00 5,000.00 5,000.00 .0
10 -65 -560 UTILITIES TELEPHONE 40.54 161.99 1,000.00 838.01 16.2
10 -65 -561 UTILITIES NATURAL GAS 89.56 558.97 1,200.00 641.03 46.6
10 -65 -562 UTILITIES ELECTRICITY 76.18 225.97 1,000.00 774.03 22.6
10 -65 -665 WTHP EXPENSES .00 .00 1,000.00 1,000.00 .0
10 -65 -670 PROP MGMT 120 ZEREX .00 49.98 2,000.00 1,950.02 2.5
10 -65 -690 MISCELLANEOUS EXPENSE .00 25.00 5,000.00 4,975.00 .5
656.28 2,321.91 23,700.00 21,378.09 9.8
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 6
TRANSFERS
GENERAL FUND
FISCAL AGENT
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
10 -90 -920 TRANSFER TO CERF POLICE DEPT .00 .00 45,000.00 45,000.00 .0
10 -90 -930 TRANSFER TO CERF PUBLICWORKS .00 .00 50,000.00 50,000.00 .0
10 -90 -935 TRANSFER TO CAF .00 .00 75,000.00 75,000.00 .0
10 -90 -940 TRANSFER TO DEBT SERVICE FUND .00 .00 247,250.00 247,250.00 .0
TOTAL TRANSFERS .00 .00 417,250.00 417,250.00 .0
10 -95 -110 SALARIES 57.50) 6,154.54 .00 6,154.54) .0
10 -95 -210 HEALTH INSURANCE 19.57) 2,483.91 .00 2,483.91) .0
10 -95 -220 FICA TAX 4.32) 450.91 .00 450.91) .0
10 -95 -230 RETIREMENT 1.50) 185.38 .00 185.38) .0
10 -95 -250 UNEMPLOYMENT TAX .18) 18.46 .00 18.46) .0
TOTAL FISCAL AGENT 83.07) 9,293.20 .00 9,293.20) .0
TOTAL FUND EXPENDITURES 158,718.36 643,261.05 2,759,752.00 2,116,490.95 23.3
NET REVENUE OVER EXPENDITURES 31,612.53 204,084.61) 1,292,631.00 1,496,715.61 15.8)
FOR ADMINISTRATION USE ONLY
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 7
ASSETS
20 -10100 CASH COMBINED FUND 26,483.72
TOTAL ASSETS 26,483.72
LIABILITIES AND EQUITY
FUND EQUITY
UNAPPROPRIATED FUND BALANCE:
20 -29800 FUND BALANCE BEGINNING OF YR
REVENUE OVER EXPENDITURES -YTD
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
CONSERVATION TRUST FUND
25,045.95
1,437.77
26,483.72
26,483.72
26,483.72
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 8
REVENUE
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
CONSERVATION TRUST FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
20 -30 -100 CONS TRUST (LOTTERY) PROCEEDS .00 1,420.76 5,900.00 4,479.24 24.1
20 -30 -800 INTEREST EARNINGS 4.52 17.01 60.00 42.99 28.4
20 -30 -999 CARRYOVER BALANCE .00 .00 26,723.00 26,723.00 .0
TOTAL REVENUE 4.52 1,437.77 32,683.00 31,245.23 4.4
TOTAL FUND REVENUE 4.52 1,437.77 32,683.00 31,245.23 4.4
NET REVENUE OVER EXPENDITURES 4.52 1,437.77 32,683.00 31,245.23 4.4
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 9
ASSETS
30 -10100 CASH COMBINED FUND 422,677.70
TOTAL ASSETS 422,677.70
LIABILITIES AND EQUITY
FUND EQUITY
UNAPPROPRIATED FUND BALANCE:
30 -29800 FUND BALANCE BEGINNING OF YR
REVENUE OVER EXPENDITURES -YTD
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
CAPITAL EQUIP REPLACEMENT FUND
411,752.31
10,925.39
422,677.70
422,677.70
422,677.70
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 10
REVENUE
TOTAL FUND REVENUE
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
CAPITAL EQUIP REPLACEMENT FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
30 -30 -100 HWY USE TAX PROCEEDS 3,375.29 10,669.31 42,844.00 32,174.69 24.9
30 -30 -800 INTEREST EARNINGS 67.84 256.08 300.00 43.92 85.4
30 -30 -900 TRANSFER FROM G/F POLICEDEPT .00 .00 45,000.00 45,000.00 .0
30 -30 -910 TRANSFER FROM G/F PUBLICWORK .00 .00 50,000.00 50,000.00 .0
30 -30 -920 TRANSFER FROM UTILITY FUNDS .00 .00 20,000.00 20,000.00 .0
30 -30 -999 CARRYOVER BALANCE .00 .00 408,619.00 408,619.00 .0
TOTAL REVENUE 3,443.13 10,925.39 566,763.00 555,837.61 1.9
3,443.13 10,925.39 566,763.00 555,837.61 1.9
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 11
EXPENDITURES
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
CAPITAL EQUIP REPLACEMENT FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
30 -40 -745 PUBLIC SAFETY FLEET PURCHASE .00 .00 45,000.00 45,000.00 .0
30 -40 -755 HEAVY EQUIPMENT PURCHASE .00 .00 200,000.00 200,000.00 .0
TOTAL EXPENDITURES .00 .00 245,000.00 245,000.00 .0
TOTAL FUND EXPENDITURES .00 .00 245,000.00 245,000.00 .0
NET REVENUE OVER EXPENDITURES 3,443.13 10,925.39 321,763.00 310,837.61 3.4
FOR ADMINISTRATION USE ONLY
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 12
ASSETS
32 -10100 CASH COMBINED FUND 59,337.89
TOTAL ASSETS 59,337.89
LIABILITIES AND EQUITY
FUND EQUITY
UNAPPROPRIATED FUND BALANCE:
32 -29800 FUND BALANCE BEGINNING OF YR
REVENUE OVER EXPENDITURES -YTD
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
CAPITAL ASSET FUND
59,299.59
38.30
59,337.89
59,337.89
59,337.89
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 13
CAPITAL ASSET REVENUE
TOTAL CAPITAL ASSET REVENUE
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
CAPITAL ASSET FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
32 -30 -800 INTEREST EARNINGS 10.18 38.30 50.00 11.70 76.6
32 -30 -910 TRANSFER IN FROM GENERAL FUND .00 .00 75,000.00 75,000.00 .0
32 -30 -940 TRANSFER IN FROM DSF .00 .00 175,000.00 175,000.00 .0
32 -30 -999 CARRYOVER FUND BALANCE .00 .00 61,761.00 61,761.00 .0
TOTAL FUND REVENUE 10.18
10.18 38.30 311,811.00 311,772.70 .0
38.30 311,811.00 311,772.70 .0
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 14
CAPITAL ASSET EXPENDITURES
32 -40 -810 CAPITAL PROJ- STREETS EXISTING
TOTAL CAPITAL ASSET EXPENDITURES
TOTAL FUND EXPENDITURES
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
CAPITAL ASSET FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
.00
.00
NET REVENUE OVER EXPENDITURES 10.18
.00 250,000.00 250,000.00 .0
.00 250,000.00 250,000.00 .0
.00 .00 250,000.00 250,000.00 .0
38.30 61,811.00 61,772.70 .1
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 15
ASSETS
40 -10100 CASH COMBINED FUND 739,047.47
40 -11100 PROPERTY TAXES RECEIVABLE 80,000.00
TOTAL ASSETS 819,047.47
LIABILITIES AND EQUITY
LIABILITIES
40 -22210 DEFERRED PROPERTY TAXES
TOTAL LIABILITIES
FUND EQUITY
40 -27000 RESFUND BAL -1 YEARS PAYMENT 300,000.00
40 -27100 RESTRICTED FUND BALANCE 379,358.00
UNAPPROPRIATED FUND BALANCE:
40 -29800 FUND BALANCE BEGINNING OF YR
REVENUE OVER EXPENDITURES -YTD
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
DEBT SERVICE FUND
29,779.88
29,909.59
80,000.00
59,689.47
80,000.00
739,047.47
819,047.47
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 16
REVENUE
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
DEBT SERVICE FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
40 -30 -100 PROPERTY TAX 3,088.85 29,294.20 80,000.00 50,705.80 36.6
40 -30 -200 SPECIFIC OWNERSHIP TAX 232.18 753.04 3,000.00 2,246.96 25.1
40 -30 -800 INTEREST EARNINGS 122.12 448.23 400.00 48.23) 112.1
40 -30 -910 TRANSFER IN FROM GENERAL FUND .00 .00 247,250.00 247,250.00 .0
TOTAL REVENUE
TOTAL FUND REVENUE 3,443.15
FOR ADMINISTRATION USE ONLY
3,443.15 30,495.47 330,650.00 300,154.53 9.2
30,495.47 330,650.00
300,154.53 9.2
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 17
EXPENDITURES
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
DEBT SERVICE FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
40 -40 -385 TREASURERS FEES GO BOND 61.77 585.88 2,000.00 1,414.12 29.3
40 -40 -810 BOND PRINCIPAL 02 S &U ISSUE .00 .00 20,000.00 20,000.00 .0
40 -40 -811 BOND PRINCIPAL 98 GO ISSUE .00 .00 40,000.00 40,000.00 .0
40 -40 -812 BOND PRINCIPAL 98 S &U ISSUE .00 .00 155,000.00 155,000.00 .0
40 -40 -820 BOND INTEREST 02 S &U ISSUE .00 .00 9,476.00 9,476.00 .0
40 -40 -821 BOND INTEREST 98 GO ISSUE .00 .00 13,976.00 13,976.00 .0
40 -40 -822 BOND INTEREST 98 S &U ISSUE .00 .00 62,775.00 62,775.00 .0
40 -40 -850 BOND AGENT FEES .00 .00 2,500.00 2,500.00 .0
40 -40 -910 TRANSFER TO DSF RESERVES .00 .00 24,923.00 24,923.00 .0
TOTAL EXPENDITURES 61.77 585.88 330,650.00 330,064.12 .2
TOTAL FUND EXPENDITURES 61.77 585.88 330,650.00 330,064.12 .2
NET REVENUE OVER EXPENDITURES 3,381.38 29,909.59 .00 29,909.59) .0
FOR ADMINISTRATION USE ONLY
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 18
ASSETS
LIABILITIES AND EQUITY
LIABILITIES
FUND EQUITY
UNAPPROPRIATED FUND BALANCE:
50 -29800 RETAINED EARNINGS
REVENUE OVER EXPENDITURES -YTD
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
WATER FUND
50 -10100 CASH COMBINED FUND 613,066.36
50 -11500 NR CUSTOMER SERVICE CHARGES 32,370.74
50 -11550 NR BILLINGS 21,200.00
50 -16100 LAND 100,000.00
50 -16200 BUILDINGS 2,915,858.49
50 -16203 WELLS SYSTEM 768,371.74
50 -16212 WATER DISTRIBUTION /STORAGE 9,845,211.82
50 -16213 WELLS 1,063,119.43
50 -16400 EQUIPMENT 239,923.02
50 -16500 WATER RIGHTS 19,775.86
50 -17900 ACCUMULATED DEPRECIATION 3,120,670.67)
TOTAL ASSETS 12,498,226.79
50 -20775 DUE TO RENDEZVOUS TAPS 220.00
50 -21100 ACCRUED PTO AND BENEFITS 7,820.91
TOTAL LIABILITIES 8,040.91
50 -27000 RESFUND BAL 0 M 200,000.00
12,246,833.40
43,352.48
12,290,185.88
12,490,185.88
12,498,226.79
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 19
LICENSES PERMITS
50 -32 -100 EXCAVATION PERMIT FEES .00 .00 200.00 200.00 .0
TOTAL LICENSES PERMITS .00 .00 200.00 200.00 .0
CHARGES FOR SERVICES
50 -34 -100 CUSTOMER SERVICE CHARGES .00 152,111.50 605,000.00 452,888.50 25.1
50 -34 -150 PENALTIES INTEREST 1,094.97 2,802.83 1,000.00 1,802.83) 280.3
50 -34 -200 PLANT INVESTMENT FEES .00 .00 8,000.00 8,000.00 .0
50 -34 -300 WATER METER SALES 260.00 260.00 1,000.00 740.00 26.0
TOTAL CHARGES FOR SERVICES 1,354.97 155,174.33 615,000.00 459,825.67 25.2
MISCELLANEOUS REVENUE
50 -36 -100 INTEREST EARNINGS
50 -36 -900 MISCELLANEOUS REVENUE
TOTAL MISCELLANEOUS REVENUE 233.68
OTHER SOURCES TRANSFERS
50 -39 -999 CARRYOVER BALANCE .00 .00 393,020.00 393,020.00 .0
TOTAL OTHER SOURCES TRANSFERS .00 .00 393,020.00 393,020.00 .0
TOTAL FUND REVENUE
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
WATER FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
83.68
150.00
322.34
440.00
1,588.65 155,936.67
300.00
5,000.00
762.34 5,300.00
22.34) 107.5
4,560.00 8.8
4,537.66 14.4
1,013,520.00 857,583.33 15.4
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 20
EXPENDITURES
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
WATER FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
50 -40 -110 SALARIES 11,117.12 50,605.04 170,000.00 119,394.96 29.8
50 -40 -210 HEALTH INSURANCE 2,419.15 11,962.93 32,000.00 20,037.07 37.4
50 -40 -220 FICA TAX 769.19 3,506.09 13,005.00 9,498.91 27.0
50 -40 -230 RETIREMENT 433.63 1,966.79 6,800.00 4,833.21 28.9
50 -40 -250 UNEMPLOYMENT TAX 33.40 150.60 510.00 359.40 29.5
50 -40 -280 TRAINING PROGRAMS 150.00 485.96 3,500.00 3,014.04 13.9
50 -40 -290 TRAVEL, MEALS AND LODGING 30.00 30.00 3,500.00 3,470.00 .9
50 -40 -295 MEALS AND ENTERTAINMENT .00 .00 2,000.00 2,000.00 .0
50 -40 -310 LEGAL FEES 2,148.92 23,406.59 35,000.00 11,593.41 66.9
50 -40 -330 ENGINEERING FEES 120.00 120.00 40,000.00 39,880.00 .3
50 -40 -360 COMPUTERS NETWORKS AND SUPPORT 190.78 572.33 10,000.00 9,427.67 5.7
50 -40 -370 OTHER PROFESSIONAL SERVICES 203.22 205.64 15,000.00 14,794.36 1.4
50 -40 -430 INSURANCE .00 .00 20,000.00 20,000.00 .0
50 -40 -440 ADVERTISING .00 .00 500.00 500.00 .0
50 -40 -460 SYSTEM REPAIR AND MAINT PROD .00 804.54 30,000.00 29,195.46 2.7
50 -40 -465 SYSTEM REPAIR AND MAINT DIST 77.60 739.41 30,000.00 29,260.59 2.5
50 -40 -490 PROFESSIONAL MEMBERSHIPS .00 3,997.50 8,000.00 4,002.50 50.0
50 -40 -500 OPERATING SUPPLIES PRODUCTION 2,084.23 3,223.49 30,000.00 26,776.51 10.7
50 -40 -505 OPERATING SUPPLIES DISTRIB .00 10.40 25,000.00 24,989.60 .0
50 -40 -510 EQUIPMENT PURCHASE AND REPAIR .00 .00 5,000.00 5,000.00 .0
50 -40 -520 TESTING 96.00 96.00 5,000.00 4,904.00 1.9
50 -40 -550 POSTAGE BILLING SUPPLIES 330.06 430.06 3,500.00 3,069.94 12.3
50 -40 -560 UTILITIES TELEPHONE 224.12 895.94 5,500.00 4,604.06 16.3
50 -40 -562 UTILITIES ELECTRICITY 2,867.89 9,374.88 45,000.00 35,625.12 20.8
50 -40 -670 PROP MGMT FRASER WTP .00 .00 6,000.00 6,000.00 .0
50 -40 -680 PROP MGMT MARYVALE WTP .00 .00 6,000.00 6,000.00 .0
50 -40 -690 MISCELLANEOUS EXPENSE .00 .00 2,000.00 2,000.00 .0
50 -40 -715 WATER RIGHTS DIVERSION DEV .00 .00 235,000.00 235,000.00 .0
50 -40 -730 CAPITAL PROJECTS .00 .00 150,000.00 150,000.00 .0
50 -40 -930 TRANSFER TO CERF .00 .00 10,000.00 10,000.00 .0
50 -40 -970 TRANSFER TO O &M RESERVES .00 .00 60,000.00 60,000.00 .0
TOTAL EXPENDITURES 23,295.31 112,584.19 1,007,815.00 895,230.81 11.2
TOTAL FUND EXPENDITURES 23,295.31 112,584.19 1,007,815.00 895,230.81 11.2
NET REVENUE OVER EXPENDITURES 21,706.66) 43,352.48 5,705.00 37,647.48) 759.9
FOR ADMINISTRATION USE ONLY
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 21
ASSETS
LIABILITIES AND EQUITY
LIABILITIES
FUND EQUITY
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
WASTEWATER FUND
55 -10100 CASH COMBINED FUND 2,168,226.64
55 -11500 A/R CUSTOMER SERVICE CHARGES 34,214.25
55 -11900 MISCELLANEOUS RECEIVABLES .17)
55 -15950 CAP REPL RES HELD W /JFOC 839,294.00
55 -15955 O &M RESERVE HELD W /JFOC 52,364.00
55 -16100 LAND 144,320.40
55 -16200 SEWER TREATMENT PLANT 3,219,129.79
55 -16210 METER BUILDING IMPROVEMENTS 8,056.39
55 -16220 SEWER COLLECTION SYSTEM 10,768,408.30
55 -16250 CONSOLIDATED COLLECTION SYSTEM 279,069.00
55 -16400 EQUIPMENT 35,489.17
55 -17900 ACCUMULATED DEPRECIATION 637,212.97)
55 -17905 ACCUM DEPR PLANT /JFOC 38,370.80)
55 -17910 ACCUM DEPR SEWER COLLECT -FSD 2,591,354.35)
55 -17915 ACCUM DEPR- EQUIPMENT 35,489.48)
TOTAL ASSETS 14,246,144.17
55 -20210 ACCRUED NP AUDIT 12,600.00
55 -21100 ACCRUED PTO AND BENEFITS 7,689.72
TOTAL LIABILITIES 20,289.72
UNAPPROPRIATED FUND BALANCE:
55 -29800 RETAINED EARNINGS 13,599,201.01
55 -29810 RETAINED EARNINGS UNRESTRICT 53,572.01)
55 -29820 RETAINED EARNINGS RESTRICTED 654,109.00
REVENUE OVER EXPENDITURES -YTD 26,116.45
14,225,854.45
14,225,854.45
14,246,144.17
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 22
CHARGES FOR SERVICES
55 -34 -100 CUSTOMER SERVICE CHARGES .00 151,097.70 604,000.00 452,902.30 25.0
55 -34 -150 PENALTIES INTEREST 1,083.52 1,748.92 1,000.00 748.92) 174.9
55 -34 -200 PLANT INVESTMENT FEES 700.00 700.00 7,500.00 6,800.00 9.3
TOTAL CHARGES FOR SERVICES 1,783.52 153,546.62 612,500.00 458,953.38 25.1
MISCELLANEOUS REVENUE
55 -36 -100 INTEREST EARNINGS
55 -36 -500 JFOC MANAGEMENT FEE
TOTAL MISCELLANEOUS REVENUE
OTHER SOURCES TRANSFERS
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
WASTEWATER FUND
55 -39 -999 CARRYOVER BALANCE .00 .00 2,077,233.00 2,077,233.00 .0
TOTAL OTHER SOURCES TRANSFERS .00 .00 2,077,233.00 2,077,233.00 .0
TOTAL FUND REVENUE 2,130.65
FOR ADMINISTRATION USE ONLY
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
347.13 1,315.73 2,000.00 684.27 65.8
.00 7,105.50 28,420.00 21,314.50 25.0
347.13 8,421.23 30,420.00 21,998.77 27.7
161,967.85 2,720,153.00
2,558,185.15 6.0
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 23
EXPENDITURES
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
WASTEWATER FUND
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
55 -40 -110 SALARIES 9,293.45 42,388.60 180,000.00 137,611.40 23.6
55 -40 -210 HEALTH INSURANCE 1,732.55 8,551.23 30,000.00 21,448.77 28.5
55 -40 -220 FICA TAX 667.71 3,047.07 13,770.00 10,722.93 22.1
55 -40 -230 RETIREMENT 358.55 1,628.51 7,200.00 5,571.49 22.6
55 -40 -250 UNEMPLOYMENT TAX 27.82 125.40 540.00 414.60 23.2
55 -40 -280 TRAINING PROGRAMS .00 .00 2,000.00 2,000.00 .0
55 -40 -290 TRAVEL, MEALS AND LODGING .00 22.32 2,000.00 1,977.68 1.1
55 -40 -295 MEALS AND ENTERTAINMENT 12.79 25.58 500.00 474.42 5.1
55 -40 -310 LEGAL FEES .00 .00 5,000.00 5,000.00 .0
55 -40 -330 ENGINEERING FEES .00 .00 20,000.00 20,000.00 .0
55 -40 -360 COMPUTERS NETWORKS AND SUPPORT 190.77 1,775.38 6,000.00 4,224.62 29.6
55 -40 -370 OTHER PROFESSIONAL SERVICES 512.01 2,414.12 10,000.00 7,585.88 24.1
55 -40 -410 BANK CHARGES .00 .00 100.00 100.00 .0
55 -40 -430 INSURANCE .00 .00 5,500.00 5,500.00 .0
55 -40 -460 SYSTEM REPAIR AND MAINT COLLEC 116.95 116.95 50,000.00 49,883.05 .2
55 -40 -490 PROFESSIONAL MEMBERSHIPS .00 4,737.50 6,000.00 1,262.50 79.0
55 -40 -500 OPERATING SUPPLIES COLLECTIONS 182.95 182.95 5,000.00 4,817.05 3.7
55 -40 -510 EQUIPMENT PURCHASE AND REPAIR .00 .00 5,500.00 5,500.00 .0
55 -40 -520 TESTING 180.00 230.00 1,000.00 770.00 23.0
55 -40 -550 POSTAGE BILLING SUPPLIES 123.50 223.50 2,500.00 2,276.50 8.9
55 -40 -560 UTILITIES TELEPHONE 23.09 90.42 1,500.00 1,409.58 6.0
55 -40 -650 WW TREATMENT CHARGES /JFOC 3,937.87 19,508.87 185,310.00 165,801.13 10.5
55 -40 -660 JFOC CAPREPL RESERVE 50,783.00 50,783.00 .00 50,783.00) .0
55 -40 -690 MISCELLANEOUS EXPENSE .00 .00 3,000.00 3,000.00 .0
55 -40 -730 CAPITAL PROJECTS .00 .00 75,000.00 75,000.00 .0
55 -40 -930 TRANSFER TO CERF .00 .00 10,000.00 10,000.00 .0
TOTAL EXPENDITURES 68,143.01 135,851.40 627,420.00 491,568.60 21.7
TOTAL FUND EXPENDITURES 68,143.01 135,851.40 627,420.00 491,568.60 21.7
NET REVENUE OVER EXPENDITURES 66,012.36) 26,116.45 2,092,733.00 2,066,616.55 1.3
FOR ADMINISTRATION USE ONLY
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 24
ASSETS
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
PETERSEN TRUST
70 -10100 CASH COMBINED FUND 11,553.77
TOTAL ASSETS 11,553.77
LIABILITIES AND EQUITY
FUND EQUITY
UNAPPROPRIATED FUND BALANCE:
70 -29800 FUND BALANCE BEGINNING OF YR 11,582.35
REVENUE OVER EXPENDITURES -YTD 28.58)
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
FOR ADMINISTRATION USE ONLY
11,553.77
11,553.77
11,553.77
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 25
REVENUE
70 -30 -800 INTEREST EARNINGS
70 -30 -999 CARRYOVER BALANCE
TOTAL REVENUE
TOTAL FUND REVENUE
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
REVENUES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
PETERSEN TRUST
PERIOD ACTUAL YTD ACTUAL BUDGET UNEARNED PCNT
2.26 7.42 10.00 2.58 74.2
.00 .00 12,272.00 12,272.00 .0
2.26 7.42 12,282.00 12,274.58 .1
2.26 7.42 12,282.00 12,274.58 .1
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 26
EXPENDITURES
70 -40 -670 PETERSEN TRUST EXP TRAIL
TOTAL EXPENDITURES
TOTAL FUND EXPENDITURES
NET REVENUE OVER EXPENDITURES
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
EXPENDITURES WITH COMPARISON TO BUDGET
FOR THE 4 MONTHS ENDING APRIL 30, 2012
PETERSEN TRUST
PERIOD ACTUAL YTD ACTUAL BUDGET UNEXPENDED PCNT
.00
.00
36.00 12,282.00 12,246.00 .3
36.00 12,282.00 12,246.00 .3
.00 36.00 12,282.00 12,246.00 .3
2.26 28.58) .00 28.58 .0
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 27
ASSETS
LIABILITIES AND EQUITY
FUND EQUITY
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
GENERAL FIXED ASSETS
91 -16100 LAND 730,630.35
91 -16200 ADMINISTRATION BUILDING 208,379.39
91 -16203 MAINTENANCE BUILDING 57,722.51
91 -16208 HOUSE 400 DOC SUSIE AVE 54,839.27
91 -16209 VISITOR CENTER 183,895.00
91 -16211 BUSBARN 105 FRASER AVE HOUSE 100,000.00
91 -16250 CHURCH 267,000.00
91 -16306 PARKS 367,800.08
91 -16311 STREET IMPROVEMENTS 3,439,840.00
91 -16312 HIGHWAY 40 PATH 8,872.00
91 -16490 EQUIPMENT OTHER 872,015.00
91 -16500 OFFICE EQUIPMENT 57,261.75
91 -17900 ACCUMULATED DEPRECIATION 2,260,048.61)
TOTAL ASSETS 4,088,206.74
UNAPPROPRIATED FUND BALANCE:
91 -29800 INVESTMENT IN FIXED ASSETS 4,088,206.74
BALANCE CURRENT DATE
TOTAL FUND EQUITY
TOTAL LIABILITIES AND EQUITY
4,088,206.74
4,088,206.74
4,088,206.74
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:54AM PAGE: 28
ASSETS
LIABILITIES AND EQUITY
LIABILITIES
95 -25050 2002 SERIAL BONDS
95 -25060 1998 REVENUE REFUNDING BONDS
95 -25070 1998 GENERAL OBLIGATION BONDS
95 -25200 ACCRUED COMPENSATED ABSENCES
95 -25500 CAPITAL LEASES KOMATSU LOADER
FOR ADMINISTRATION USE ONLY
TOWN OF FRASER
BALANCE SHEET
APRIL 30, 2012
GENERAL LONG -TERM DEBT
95 -18100 AMOUNT TO BE PROVIDED 3,131,161.31
TOTAL ASSETS 3,131,161.31
360,000.00
2,035,000.00
475,000.00
15,677.17
245,484.14
TOTAL LIABILITIES 3,131,161.31
TOTAL LIABILITIES AND EQUITY 3,131,161.31
33 OF THE FISCAL YEAR HAS ELAPSED 05/10/2012 08:55AM PAGE: 29
,1 5,. 2412 11 4AM GI BBS YOUNG, LLC
To: Town of Fraser
Fax: 9 711 -72 -5518
Phone:
Re:
1760 Gaylord Street Denver Colorado 80206
P: 303 333 -1252 F: 303-399 -3963
m w,GibbsYoung.corn
Bottle Pass Liquors Chr ge of
Location Application
cc::
No r 545
G1BBSYOUNG, LC
From Andrew J. Gibbs, Esq.
Pages: 5 (including Fax Cover Sheet)
Date May 15, 2012
D Urgent D For Review 0 Please Comment D Please Reply in Please Recycle
May 15, 2012 11:34AM GIBBS YOUNG, LLC No .1545
ANDREW J GlElaS
Cl A. YOUNG w
Also. admitted California and
Nortfi. Carollna
To Whom It May Concern:
GIBBSYOUNG,, LLC
1760 Gaylord Street Denver Colorado 80206
P; 303-333-1252 303.
www.GibbsYoung.com
(el
w6ter
agV)
May 15, 2012
VIA ELECTRONIC and FACSIMILE at: ibmetatown.frasercaus; (97N 7264518
Town of Fraser
PO Box 370
153 Fraser Avenue
Fraser, Colorado 80442
Re: Bottle Pass Liquors: Change of Location Application
Our File No: W 104-004
As you may recall from my April 18, 2012 correspondence to thc Town of Fraser, this
law firm. is counsel for Winter Boat, LLC ("Winter Boar), the owner of the shopping center
located at 523 Zerex Street, Fraser, Colorado 80442 (the "Fraser Valley Shopping Center).
Winter Boat has asked. me to object to the Change of Location Application submitted by Bottle
Pass Liquors, Inc. ("Bottle Pass"). It is my understanding that the April 18, 2012 hearing by the
Town of Fraser Liquor Licensing Authority (the "Licensing Board") on this application was
continued until Wednesday, May 16, 2012 It is my further understanding that the owner of the
Fraser Marketplace (the shopping center to where Bottle Pass is requesting its liquor license be
moved) delivered a letter to the Town of Fraser on or about May 5, 2012. This correspondence
is in response to that letter.
In that letter, Mr. Becker states that Bottle Pass and Fraser Marketplace, LLC have
reached an agreement for the occupancy of space in its shopping center "subject to your approval
and the vacancy of the space currently occupied" by Bottle Pass. On the face of the proposed
lease agreement Mr. Becker references, the Licensing Board can see that Mr. Becker misstates
the language of the proposed lease.
As mentioned in my April 18, 2012 correspondence, the proposed lease agreement
between Mr. Becker's company and Bottle Pass is null and void if Bottle Pass is unable to
terminate its existing lease in the Fraser Valley Shopping Center at
535 Zerex Street, unit C-201, Fraser, Colorado an or before March
1 2012 without penalty. cost. or liability of any kind to Bottle
Pass Liquors, Inc, or its owners.
e-m4 addres5;
i [mow ng.com
My 15, 2012 11 34AM GIBBS YOUNG, LLC
GIBBSYOUNG
UMITE LIABILITY COMPANY
Town of Fraser
May 15, 2012
Page 2
A copy of this provision of the proposed lease agreemetit is attaehed hereto for th. „icensing
Board's convenience.
MO/es
cc: Winter Boat, LLC
No.1545
As of the date of this correspondence, Bottle Pass continues: t( operate out of my client's
shopping center and Winter Boat has. no pan to terminate the Bottle Pass Lease Agreement that
runs through August 2015, Accordingly, Bottle Pass has unequivocally failed. to terminate its
existing lease in the Fraser Valley Shopping Center before March 1, 2012 and the proposed lease
with Fraser Marketplace is null and void by its own terms,
To the contrary,: if the Licensing Board grants the. Bottle Pass Application for Change of
Location, there is all absolute certainty that a lawsuit will be initiated by Winter Boat against
Bottle Pass and its owners for their breach of the existing lease and personal guaranties.
Please understand that if the Bottle Pass Application is granted,. the Fraser Valley
Shopping Center and its current Tenams will be irreparably harmed insomuch as. they will lose
the traffic currently generated by Bottle Pass at the shopping center, Furthermore, Winter Boat
will be harmed because of the lost of rental income from Bottle Pass that it relics upon to operate
that shopping center.
For the foregoing reasons, and for those stated in the April. 18, 2012 correspondence., we
again request that the Bottle Pass Liquor Application be denied.
if you have any questions or if 1 may provide any additional inforrnation p do not
hesitate to contact me.
w1p4-oo4 OA TOWN OF FRASR 01512 AJG
5, 2412 11:34AM GIBBS YOUNG, LLC 545
1. Prohibited Uses
No part of the stropping center shall be devoted to the use cir operatioe of any enterta tx nt or recreational
facility. `Entertainment or recreational facility" includes, with limitation, a theater, carnival, bowtirtg
alley, skating rink airmseneent cater, electronic or mechanical games arcade, pool or billiard hall, berg
parlor, bingo on urge parlor pornographic shop, adult book store, nightclub, dance hall, tavern,
coclaail lattge, any facility for the onprertrzses consumption of alcoholic beverages except as an incidental:
part of the operation of a Liquor Store, No part of the dropping center within three hundred feet (3O0') of any
exterior building wall of any Lot 2 (Safeway parcel) building shall be devoted to the use or operation of any
restaurant (take -out, fast food or sit down).
Exclusive use
EXHMJT G
SPECIAL PROVISIONS
No part of the shopping center shall be devoted to the use or operation of any training or a du ttonal facility.
'Training or educational facility" includes, without limitation, a beauty school, barber college, place of
instruction, or any attar operation catering primarily to students or traimes rather than to cuetomers, but
excludes employe training by owners or owner's terlara inCidellW. to the coed ict of their businesses within
the shopping center,
Except as provided in the Declaration of Easements, the store on Lot 2 (Safeway parcel) shall have the sale
and exclusive right to: (i) sell foul fir off premises cons ption; (ii) sell merchanihse which, under the laws
of the State of Colorado, is iequixed to be dispensed by or under the supervisiorn, of a registered or licensed
pharmacist ("prescription pharmacy merchandise); slid (iii) sell pet foods. Stores in the shoppieg center
other than the store on Let 2 may devote up to, but not more that, the lesser of (a) one thousand five )ttmdred
(1,500) square feet of sales area (including aisle space adjacent thereto), or (b) sales area (including aisle
space adjacent thereto) of up to ten peecent (lO%) of the total square footage of the store, to the sale of food
for off-premises consumption. However, the terms of the Declaration of Easements shall not be deemed to
prolu`bit a restaurant from selling food prepared on- premises for off -premises consumption, subject, however,
to the provisions of the Declaration of Easements. Spirits, ovine, cigars, miscellaneous liquor rely} food
itex s, and beer are not defined as food for thc purposes of these special provisions.
The rest ction against the sale of food for off-premises coosumptiiee and pet foods span terrain ite and be tie
no further farce or effect if a: grocery supermarket of at least 45,000 square feet to sire is riot operated on Lot
2 for a continuous period of six (6) months or more, for any reason other than (i) a strike, lockout or other
tabor difficulty, fire or o ther casualty, condemnation, war, riot, insurrection act of God, the requirements of
any local, state or federal law, title, regulation, or any other reason. beyond thc reasonable control of the owner
or occupant of Lot 2 (other than ial) or (ii) temporary closure due to the restoration, reconstruction,
expansion, alternation or remodeling of aey buildings or improvements locateui in the shopping center,
Furthermore, the restriction against the sale of prescription pharmacy merchandise shall terminate and be of
no further force or ether if prescription pharmacy merchandise is not sold :Menlo Lot 2 for arty reason other
than those set forth,. in (i) and (u) of the previous sentence, or if, at any time after prescription pharmacy
Merchandise is not sold from Lot 2 for a continuous period of six (6) months or more for any reasons other
than those s e t f o r t h i n (i) and (ii) o f t h e previous s e n t e n c e e provisions are for the benefit of Lot 2 and
exclusive use mg be =feared purstemt to the provisions of Article 15 of the Declaration of Easements only
by the twiner of Trot 2.
41
,15„ 2412 11 4AM GI BBS YOUNG, LLC
Lease Terx?n natitm by Tenant
I f Colorado State Liquor Laws Ouse during the teat of is lease in. stitch a fashion as to permit
Safentay ar any other grocery or convertienee store with two (2} antler of the premises to sell packaged
atcolaelic beverages other than 3.2 beer., Tenant shall have the right to terminate this Lease without
damages ninety (90) days after notifying the Landlord in writing of its .intent to terminate,
shopping center with the exception of sales
Inability of the. Te nant. to sere the app priate
relocation of their existing liquor license to the Premises.
42
If the Safeway s t o r e ceases to operate in t h e shopping c e n t e r Tenant shall have t h e right to ten to th
Lease without damages ninety (90) days after notifying the landlord in writing of its intent to ter unate,
e product distribution.
Landlord ages that Tenant shall have t; exclusive right to sell packaged aicobolic be verages: within the
2 beers by Safeway.
Signage exceptions
Tenant shall be entitled to post temporary sale banners from time to time without prior consent of Landlord.
In addition, Tenant shall be entitled to display customary Liquor Stare signage either lighted or not inside the
Premises and inside the Premises windows as long as the signage is in compliance with the Town of Fraser
sign► Vie.
Conditions negating the terms of this lease,
Landlord agrees that in the event of the occurrence deny of the following, the terms and provisions of this
leap will become null and void;
1 governments for the
No 1545 a
The inability of the Tenant to terminate its existing lease in the Fri Valley Shopping Center at $35 &rex
Street, unit C -2O1 aser, Colorado on or before March i 2012 without penalty, cost, or liability of any kind
to Bottle Pass Liquors, l(ne or its owners.
Old Victory Rd
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212
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012
902
802
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681
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