HomeMy Public PortalAboutTBP 2013-02-06 C OIL OR ADO
Town Board Briefing
February 6, 2013
Please note that the Town Board may dine together at 5:30pm.
We will have a workshop discussion starting at 6:OOpm regarding the Snowball Music
Festival. This will be an opportunity for staff to update the Board on operational plans for the
event.
The regular meeting will begin at 7:OOpm, and the meeting will consist primarily of two
matters and the associated public hearings.
Note that Ordinance 403 amends the Fraser Town Code in accordance with Amendment 64.
The Special Event Liquor License for the Snowball Music Festival is outlined in the materials
enclosed in the packet.
The second hearing covers several matters related the annexation of Byers Peak Ranch.
Relevant materials are enclosed in the packet.
As always, feel free to contact me if you have any questions or need any additional
information.
Jeff Durbin
PO Box 770.1 Fraser, CO 80442 oFfice 970 726 5491 laix 970 726 7718
FRASER BOARD OF TRUSTEES
MINUTES
DATE: Wednesday, January 30, 2013
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; Public Works Director
Allen Nordin; Town Planner, Catherine Trotter; Town Attorney Rod
McGowan; Special Counsel Boots Ferguson
Others: See attached list
Mayor Smith called the meeting to order at 6:07 p.m.
1. Workshop:
2. Regular Meeting: Roll Call
3. Approval of Agenda:
Trustee Naill moved, and Trustee Waldow seconded the motion to approve the Agenda.
Motion carried: 7-0.
4. Consent Agenda:
a) Minutes —January 23, 2013
Trustee Waldow moved, and Trustee Naill seconded the motion to approve the consent
agenda. Motion carried: 7-0.
5. Open Forum:
6. 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 a proposed annexation agreement and to include Town
Manager Jeff Durbin; Town Clerk, Lu Berger; Public Works Director Allen Nordin; Town
Planner, Catherine Trotter; Special Counsel Boots Ferguson.
Open: 6:10 p.m.
Page 2 of 2
Trustee Naill moved, and Trustee Sumrall seconded the motion to enter into executive
session. Motion carried: 7-0.
Exit: 9:40 p.m.
Trustee Cwiklin moved, and Trustee Shapiro seconded the motion to exit executive
session. Motion carried: 7-0.
At
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.
Boots Ferguson, Special Counsel
7. Other Business:
Trustee Cwiklin moved, and Trustee Sanders seconded the motion to adjourn. Motion
carried: 7-0. Meeting adjourned at 9:42 p.m.
Lu Berger, Town Clerk
TOWN OF FRASER
ORDINANCE NO. 403
Series 2013
AN ORDINANCE AMENDING CHAPTER 10 ARTICLE 3 OF THE FRASER TOWN CODE,
REGARDING POSSESSION OF MARIJUANA, AND THE POSSESSION OF
DRUG PARAPHERNALIA
WHEREAS, Colorado voters recently passed Amendment 64, which amended Article
XVIII of the Colorado Constitution by the addition of a new section 16 regarding the personal
use and regulation of marijuana;
WHEREAS, Amendment 64 permits the possession, use, display, purchase or
transportation of marijuana accessories and one ounce or less of marijuana by persons twenty-
one (21) years of age and older;
WHEREAS, Amendment 64 allows possessing, growing, processing, or transporting no
more than six (6) marijuana plants, with three (3) or fewer being mature, flowering plants, and
possession of the marijuana produced by the plants on the premises where the plants were
grown, provided that the growing takes place in an enclosed, locked space, is not conducted
openly or publicly, and is not made available for sale;
WHEREAS, Amendment 64 allows local governments to prohibit the possession of
marijuana and marijuana accessories by persons under the age of twenty-one (21) years and to
prohibit the open and public consumption of marijuana by persons of any age; and
WHEREAS, it is the desire of the Fraser Town Board to pass legislation reconciling the Fraser
Municipal Code to the new state law. (Note: additions are shown in bold and Underlined print;
deletions are shown as strikethrough print.
NOW, THEREFORE, THE TOWN BOARD OF THE TOWN OF FRASER, COLORADO,
ORDAINS:
Chapter 10 Article 3 of the Fraser Municipal Code is hereby amended to read as follows:
Sec. 10-3-10.Definitions.
---;;ke ORGapable Of geRniRatiE)R, of theSe OtRMS Paxi-st apa. -..y other de-fined- _as,
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(a) MARIJUANA: All parts of the plant of the genus cannabis whether growing or not,
the seeds thereof, the resin extracted from any part of the plant, and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin,
including marijuana concentrate, but the term does not include industrial hemp, nor does
it include fiber produced from the stalks, oil, or cake made from the seeds of the plant,
sterilized seed of the plant which is incapable of germination, or the weight of any other
ingredient combined with marijuana to prepare topical or oral administrations, food,
drink, or other product.
(b) MARIJUANA PRODUCTS: Concentrated marijuana products and marijuana
products that are comprised of marijuana and other ingredients and are intended for use
or consumption, such as, but not limited to, edible products, ointments, and tinctures.
(c) MARIJUANA ACCESSORIES: Equipment, products, or materials of any kind
which are used, intended for use or designed for use in planting, propagating,
cultivating, growing, harvesting, composting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging, repackaging, storing,
vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing
marijuana into the human body.
(d) OPENLY OR PUBLICLY: The consumption or growing of marijuana in a place
commonly or usually open to or accessible by the general public, or to which members
of the general public may resort, including without limitation public ways, streets,
sidewalks, alleys, bicycle paths, trails, golf courses, public buildings, parks, open
spaces, parking lots, shopping centers, places of business usually open to the general
public, and automobiles or other vehicles in or upon any such place or places, but
excluding the interior or enclosed yard area of private homes, residences, condominiums
or apartments. For purposes of this Section, 'openly or publicly" expressly includes the
consumption or growing of marijuana in any place not used for residential purposes
where individuals gather to consume or grow marijuana, regardless of whether such
place calls itself private or public or charges an admission or membership fee.
(e) As used in this Article, unless the context otherwise requires, drug paraphernalia means
all equipment, products and materials of any kind which are used, intended for use or designed
for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing, packaging, repackaging,
storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the
human body a controlled substance in violation of the laws of the State. Drug paraphernalia
includes, but is not limited to:
(1) Testing equipment used or intended for use or designed for use in identifying or in
analyzing the strength, effectiveness or purity of controlled substances under circumstances
in violation of the laws of the State.
(2) Scales and balances used, intended for use or designed for use in weighing or
measuring controlled substances.
(3) Separation gins and sifters used, intended for use or designed for use in removing
twigs and seeds from or in otherwise cleaning or refining marijuana.
(4) Blenders, bowls, containers, spoons and mixing devices used, intended for use or
designed for use in compounding controlled substances.
(5) Capsules, balloons, envelopes and other containers used, intended for use or
designed for use in packaging small quantities of controlled substances.
(6) Containers and other objects used, intended for use or designed for use in storing or
concealing controlled substances.
(7) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise
introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:
a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without
screens, permanent screens, hashish heads, or punctured metal bowls;
b. Water pipes;
c. Carburetion tubes and devices;
d. Roach clips, meaning objects used to hold burning material, such as a marijuana
cigarette that has become too small or too short to be held in the hand;
e. Miniature cocaine spoons and cocaine vials;
f. Chamber pipes;
g. Carburetor pipes;
h. Electric pipes;
i. Air-driven pipes;
j. Chillums;
k. Bongs; or
I. Ice pipes or chillers. acrd. 307 Part 1, `�0
Sec. 10-3-20.Determ i nation; considerations.
(a) In determining whether an object is drug paraphernalia, a court, in its discretion, may
consider, in addition to all other relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object concerning its use;
(2) The proximity of the object to controlled substances;
(3) The existence of any residue of controlled substances on the object;
(4) Direct or circumstantial evidence of the knowledge of an owner or of anyone in control
of the object, or evidence that such person reasonably should know that the object could be
used to facilitate the use of a controlled substance in violation of state statutes;
(5) Instructions, oral or written, provided with the object concerning its use;
(6) Descriptive materials accompanying the object which explain or depict its use;
(7) The existence and scope of legal uses for the object in the community; and
(8) Expert testimony concerning its use.
(b) In addition to any other competent evidence identifying a substance as marijuana:
(1) Results of the field test known as the "duquenois-Ievine reagent system" shall be
admissible in evidence and shall be prima facie evidence of whether or not the substance
tested was marijuana.
(2) The qualitative result of a marijuana test performed by a Drug Recognition Expert
(DRE), certified as such, or by persons otherwise certified under a "drugs that impair"
certification, shall be admissible at the trial of any person charged with a violation of
Subsection 10-3-30(b) below, and shall be prima facie evidence of whether the person
charged has consumed, ingested or used marijuana.
(3) Laboratory tests of marijuana shall be admitted in evidence pursuant to Section 16-3-
309, C.R.S.
Sec. 10-3-30.Unlawful possession or use of marijuana; penalties.
(a) It shall be unlawful for any person to P^°°°°° OF GpeRl y di6pla y ^R° (1` ^llp^° ^" '°°° of
aRyWheFe ,^,i+h P- TOY use, display, purchase, transport, possess or transfer
more than one ounce of marijuana.
(b) ,
aRheFe TeI.YR It is unlawful for any person to possess, prow, process or
transport more than six (6) marijuana plants, with three (3) or fewer being mature,
flowering plants. A person may possess the marijuana produced by these plants,
provided that such possession is limited to the premises where the plants were grown
and further provided that the growing takes place in an enclosed locked space and is not
conducted openly or publicly or made available for sale.
(c)
Est-ied as-piceved f4gr OP SHIP-sestiOR ( ') bek�lt is unlawful for any person under the age
of twenty-one (21) to use, display, purchase, transport, possess or transfer marijuana,
marijuana products or marijuana accessories anywhere within the Town.
(d) It is unlawful for a person twenty-one (21) years of age or older to use, display,
purchase, transport, possess or transfer marijuana, marijuana products or marijuana
accessories for any reason other than personal use.
(e) It is unlawful for any person twenty-one (21) years of age or older to purchase on
behalf of, transfer to, or otherwise assist a person under the age of twenty-one (21) in
obtaining marijuana, marijuana products or marijuana accessories.
(f) It is unlawful for any person to openly or publicly consume or grow marijuana or
to consume marijuana in a manner that endangers others.
(g) Any person found guilty of a violation of this Section shall be punished as follows:
) For a neecin essieeA of ern+ mere +h-ei GRe 0) e6 1RGe of mar006 iar1+
and ieee� nne„iin+ine� +hereof shell he fie�erl ter, emn�ie�+ ec rle+ermie�erl h,i the [\��ie�inie�l I irlee'
Ant tA excseed PAR h..A(drerl rlellars ($100.0g)-. Any person found guilty of a violation of
this section shall be punished, upon conviction, by fine in the amount of one hundred
dollars ($100.00).
(2) For a yon-la+ieen neepnere�ie�e nne�s ime+ine� ie�ees+ine� er use of aRy amen Rt of marii� a44a
Sze cn�n-r�i--wrr�am�pnvrr�n�ic�vrrvrcr�c
and 1eee� n........... +hereef, shell he fi ped- 7e emeu At ec r-le+ermi,�erJ by the M „Rinie�l I �rve'
Ant to Rxr_2edv PAR .iAdrRd dnnll;;
($100.00). /(lrrl 307 Der+ 1 20
Sec. 10-3-40.Unlawful possession of drug paraphernalia; penalties.
(a) 4 eerseR nemmi+s eessessieR of drug paraphe Malia if he ex she eessesses dF ie
It is
unlawful for a person to possess drug paraphernalia if he or she knows or
reasonably should know that the drug paraphernalia could be used to facilitate the
use of a controlled substance in violation of state statute. Notwithstanding the
foregoing, it shall not be a violation of this section for a person twenty-one (21)
years of age or older to possess, use, display, purchase or transport marijuana
accessories, as that term is defined in Code & 10-3-10.
(b) For a yiele+ion ner,n ip� a
f" ��e�� r, of r,erer,he li�� rl ir,er, eer,.,ie+ier,
thereef, the viel-atel: -;hall be fined-all. " ,
to exseed—;e-kund-red dollars ($100.00). (Ord. 207 Der+ 1 2005) The penalty for a
violation of this section, shall be a fine in an amount not to exceed one hundred
dollars ($100.00).
Sec. 10-3-50.Affirmative defense.
It shall be an affirmative defense to a prosecution under this Article that a person is in
possession of a valid registry identification card authorizing the medicinal use of marijuana
issued by the State Health Agency, so long as the possession or use does not occur in a public
place. (Ord. 307 Der+ 1 2005)
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.
EFFECTIVE DATE. This Ordinance shall take effect thirty (30) days after passage, adoption
and publication thereof as provided by law.
PUBLICATION. This Ordinance shall be published by title only.
READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES
AND SIGNED THIS 6th DAY of FEBRUARY, 2013.
Votes in favor: BOARD OF TRUSTEES OF THE
Votes opposed: TOWN OF FRASER, COLORADO
Votes abstained:
BY:
Peggy Smith, Mayor
ATTEST:
( SEAL )
Lu Berger, Town Clerk
Published in the Middle Park Times on February 14, 2013.
OFFICE OF THE SECRETARY OF STATE
OF THE STATE OF COLORADO
CERTIFICATE
I, Scott Gessler, as the Secretary of State of the State of Colorado, hereby certify that, according to the
records of this office,
WINTER PARK CHAMBER OF COMMERCE
is a Nonprofit Corporation formed or registered on 12/10/1973 under the law of Colorado, has complied
with all applicable requirements of this office, and is in good standing with this office. This entity has
been assigned entity identification number 19871266281.
This certificate reflects facts established or disclosed by documents delivered to this office on paper
through 01/30/2013 that have been posted, and by documents delivered to this office electronically
through 01/31/2013 @ 13:15:22.
I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated,
issued, delivered and communicated this official certificate at Denver, Colorado on 01/31/2013 @
13:15:22 pursuant to and in accordance with applicable law. This certificate is assigned Confirmation
Number 8449305.
u,
g�lll�I fp I
Ali
Secretary of State of the State of Colorado
End of Certificate
Notice:A certificate issued electronically from the Colorado Secretary ofState's Web site is fully and immediately valid and effective. However,
as an option, the issuance and validity of a certificate obtained electronically may be established by visiting the Certificate Confirmation Page of
the Secretary of State's Web site, http://w-,nv.sos.state.co.us/biz/Cer•tificateSecmchCriter•ia.do entering the certificate's confirmation number
displayed on the certificate, and following the instructions displayed. Confirming the issuance of a certificate is merely optional and is not
necessary to the valid and effective issuance of a certificate. For more information,visit our YVeb site, http:// nv.sos.state.co.us/click Business
Center and select"Frequently Asked Questions."
CERT GSD Revised 08/20/2008
Print Form
Special Event Permit Application
Please complete each section,additional sheets may be used if necessary.
C C1LOl-lAbK1
Name of Applicant: Winter Park&the Fraser Valley Chamber of Commerce
Mailing Address of Applicant: PO Box 3236 Winter Park,CO 80482
Contact Name: Kristyna Nedele Contact Phone Number: 970.726.4221 ext 205
Contact Email: knedele @playwinterpark.com
Type of Special Event(i.e.fundraiser,concert): SnowBall Music Festival
Address of Special Event:[46 Market St Fraser CO 80482
Do you have written permission to use the premises? (6-Yes ("No
List the exact dates and times of the event: March 8-10,2013
Number of expected attendees: 10,000
Describe the premises where the event will take place:(Attach site plan)
Meadow at Grand Park
What type of security will be provided? Hired security by SnowBall Ventures/Local Police
Number of security personnel: 70 How will they be identified? Uniforms or ID Tags and credentials
If the event is being held outdoors,how will the exterior boundaries of the premises be marked?(i.e.fencing,ropes,barriers).
perimeter of venue will be fenced
What type of entertainment will be provided at the event?
Live Music
How and where will attendees 21 years of age and older be identified(Le at the event entrance,at the alcohol service areas)?How will
attendees under the age of 21 be identified(i.e.wristbands)?
IDs will be checked at ID tent in the venue
How will the conduct of attendees be monitored and by whom?
Security personnel,Local Law Enforcement,Staff
Have alcohol servers been trained in the sale/service of alcoholic beverages?If yes,please list type of training.(Servers are required to
have attended an alcohol server training program prior to the evend.
Yes,TIPS Certified
What type of beverages,food and snacks will be available at the event?
Food Vendors/Trucks,Beer/Liquor will be present at the event
knede|e@p|aywinterpark.com
Applicant Email Address
78841 US Hwy 4U Winter Park,[08O4O2
Applicant Physical Address
970.7I6/221ext 205
Applicant Phone Number
|he,e6y certify,under penalty ofperjury,that the information provided to the Town of Fraser contained in this application is true
and accurate tuthe best ofn`Vknowledge.
Applicant Siqrfature Date
DR 8439(06/28/06) �' Department Use Only
COLORADO DEPARTMENT OF REVENUE
LIQUOR ENFORCEMENT DIVISION
1375 SHERMAN STREET \® ®i° �A
DENVER CO 80261 EVENTS PERMIT
(303)205-2300
IN ORDER TO QUALIFY FOR A SPECIAL EVENTS PERMIT,YOU MUST BE NONPROFIT
AND ONE OF THE FOLLOWING (See back for details.)
✓❑ SOCIAL ❑ ATHLETIC ❑ PHILANTHROPIC INSTITUTION
❑ FRATERNAL ❑ CHARTERED BRANCH,LODGE OR CHAPTER ❑ POLITICAL CANDIDATE
❑ PATRIOTIC ❑ OF A NATIONAL ORGANIZATION OR SOCIETY ❑ MUNICIPALITY OWNING ARTS
❑ POLITICAL ❑ RELIGIOUS INSTITUTION FACILITIES
LIAR TYPE OF SPECIAL EVENT APPLICANT IS APPLYING FOR: DO NOT WHITE IN THIS SPACE
2110[j MALT,VINOUS AND SPIRITUOUS LIQUOR $25.00 PER DAY LIQUOR PERMIT NUMBER
2170[:] FERMENTED MALT BEVERAGE(3.2 Beer) $10.00 PER DAY
1. NAME OF APPLICANT ORGANIZATION OR POLITICAL CANDIDATE 71aa Tax Num ber(Required)
Winter Park&the Fraser Valley Chamber of Commerce 5
2. MAILING ADDRESS OF ORGANIZATION OR POLITICAL CANDIDATE 3. ADDRESS OF PLACE TO HAVE SPECIAL EVENT
(include street,city/town and ZIP) (include street,city/town and ZIP)
P.O. Box 3236 46 Market St
Winter Park, CO 80482 Fraser, CO 80442
NAME DATE OF BIRTH HOME ADDRESS(Street,City,State,ZIP) PHONE NUMBER
4. PRES./SEC'Y OF ORG.or POLITICAL CANDIDATE
Catherine Ross P.O. Box 3236 Winter Park CO 80482 970.726.4221
5. EVENT MANAGER
Kristyna Nedele P.O. Box 3236 Winter Park CO 80482 970.726.4221
6. HAS APPLICANT ORGANIZATION OR POLITICAL CANDIDATE BEEN 7. IS PREMISES NOW LICENSED UNDERSTATE LIQUOR OR BEER CODE?
ISSUED A SPECIAL EVENT PERMIT THIS CALENDAR YEAR?
NO -]YES HOW MANY DAYS? ®NO YES TO WHOM?
8. DOES THE APPLICANT HAVE POSSESSION OR WRITTEN PERMISSION FOR THE USE OF THE PREMISES TO BE LICENSED? ❑Yes ❑No
LIST BELOW THE EXACT DATE(S)FOR WHICH APPLICATION IS BEING MADE FOR PERMIT
Date March 8 Date March 9 Date March 10 Date Date
Hours From 1 prn m. Hours From 1 pim m. Hours From 1 pim m. Hours From m. Hours From m.
To 11:30 .m. To 11:30 m. To 11:30 m. To m. To m.
OATH OF APPLICANT
l declare under penalty of perjury in the second degree that l have read the foregoing application and all attachments thereto,and
that all information therein is true,correct, and complete to the best of my knowledge.
� 4•,� ,,, � .. �` TITLE DATE
AT
..
S G URE r.„., .,' (
REPORT AND APPROVAL OF LOCAL LICE SING AUTHORITY(CITY OR COUNTY)
The foregoing application has been examined and the premises, business conducted and character of the applicant is satisfactory,
and we do report that such permit, if granted, will comply with the provisions of Title 12, Article 48, C.R.S., as amended.
THEREFORE,THIS APPLICATION IS APPROVED.
LOCAL LICENSING AUTHORITY (CITY OR COUNTY) ❑ CITY TELEPHONE NUMBER OF CITY/COUNTY CLERK
❑ COUNTY
SIGNATURE TITLE DATE
DO NOT WRITE IN THIS SPACE- FOR DEPARTMENT OF REVENUE USE ONLY
LIABILITY INFORMATION
License Account Number Liability Bate State TOTAL.
-750(999)
(Instructions on Reverse Size)
APPLICATION INFORMATION AND CHECKLIST
THE FOLLOWING SUPPORTING DOCUMENTS MUST BE ATTACHED TO THIS APPLICATION FOR A PERMIT TO BE ISSUED:
F-] Appropriate fee.
F-1 Diagram of the area to be licensed(not larger that 8 1/2"X 11"reflecting bars,walls,partitions, ingress,egress and dimensions.
Note: If the event is to be held outside, please submit evidence of intended control, i.e.,fencing,ropes,barriers,etc.
F-1 Copy of deed,lease,or written permission of owner for use of the premises.
❑ Certificate of good corporate standing(NONPROFIT)issued by Secretary of State within last two years; or
F-1 if not incorporated,a NONPROFIT charter;or
F-1 If a political Candidate, attach copies of reports and statements that were filed with the Secretary of State.
❑ APPLICATION MUST FIRST BE SUBMITTED TO THE LOCAL LICENSING AUTHORITY(CITY OR COUNTY)AT LEAST THIRTY(30)DAYS
PRIOR TO THE EVENT.
F-1 THE PREMISES TO BE LICENSED MUST BE POSTED AT LEAST TEN(10)DAYS BEFORE A HEARING CAN BE HELD.(12-48-106 C.R.S.)
F-] AN APPROVED APPLICATION MUST BE RECEIVED BYTHE LIQUOR ENFORCEMENT DIVISION ATLEASTTEN(10)DA YSPRIORTOTHE EVENT.
F-] CHECK PAYABLE TO THE COLORADO DEPARTMENT OF REVENUE
(12-48-102 C.R.S.)
A Special Event Permit issued under this article may be issued to an organization,whether or not presently licensed under
Articles 46 and 47 of this title,which has been incorporated under the laws of this state for the purpose of a social,fraternal,
patriotic, political or athletic nature, and not for pecuniary gain or which is a regularly chartered branch, lodge or chapter
of a national organization or society organized for such purposes and being non profit in nature, or which is a regularly
established religious or philanthropic institution, and to any political candidate who has filed the necessary reports and
statements with the Secretary of State pursuant to Article 45 of Title 1, C.R.S. A Special Event permit may be issued to
any municipality owning arts facilities at which productions or performances of an artistic or cultural nature are presented
for use at such facilities.
If an event is cancelled, the application fees and the day(s) are forfeited.
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January 31, 2013
�I
Lu Berger,Town Clerk
Town of Fraser
153 Fraser Ave
PO Box 370
Fraser, CO 80442
i
Re: Permission for Special Event to be held at The Village at Grand Park
i
Dear Lu:
I
Grand Park Development, LLC grants permission for the special event to be held on
March 8-10, 2013 (Snowball Music Festival) in The Village at Grand Park (46 Market
Street, Fraser, CO 80442) and surrounding grounds.
I
Please contact us at 970-726-8600 with any questions.
Sincerely,
GRAND PARK DEVELOPMENT, LLC
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(G-Cflark Lipscomb
President
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OFFICE OF THE SECRETARY OF STATE
OF THE STATE OF COLORADO
CERTIFICATE
I, Scott Gessler, as the Secretary of State of the State of Colorado, hereby certify that, according to the
records of this office,
WINTER PARK CHAMBER OF COMMERCE
is a Nonprofit Corporation formed or registered on 12/10/1973 under the law of Colorado, has complied
with all applicable requirements of this office, and is in good standing with this office. This entity has
been assigned entity identification number 19871266281.
This certificate reflects facts established or disclosed by documents delivered to this office on paper
through 01/30/2013 that have been posted, and by documents delivered to this office electronically
through 01/31/2013 @ 13:15:22.
I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated,
issued, delivered and communicated this official certificate at Denver, Colorado on 01/31/2013 @
13:15:22 pursuant to and in accordance with applicable law. This certificate is assigned Confirmation
Number 8449305.
u,
g�lll�I fp I
Ali
Secretary of State of the State of Colorado
End of Certificate
Notice:A certificate issued electronically from the Colorado Secretary ofState's Web site is fully and immediately valid and effective. However,
as an option, the issuance and validity of a certificate obtained electronically may be established by visiting the Certificate Confirmation Page of
the Secretary of State's Web site, http://w-,nv.sos.state.co.us/biz/Cer•tificateSecmchCriter•ia.do entering the certificate's confirmation number
displayed on the certificate, and following the instructions displayed. Confirming the issuance of a certificate is merely optional and is not
necessary to the valid and effective issuance of a certificate. For more information,visit our YVeb site, http:// nv.sos.state.co.us/click Business
Center and select"Frequently Asked Questions."
CERT GSD Revised 08/20/2008
Clerks Update
February 6, 2013
The Board packet contained the Winter Park & the Fraser Valley Chamber of Commerce
Snowball Music Festival Special Event permit applications for the State and the Town of Fraser
along with supporting documentation. All the documents are in order; I would recommend
approval of Resolution 2013-02-01 approving the Special Event permit.
The Chamber has asked for a fee waiver of the $100.00 per day fee.
As you may recall these types of permits are generally done at the administrative level but due
to the size and length of the event we chose to bring it to the local Licensing authority. If you
have any questions on the application or the process, feel free to give me a call.
Lu
Print Form
Special Event Permit Application
Please complete each section,additional sheets may be used if necessary.
C C1LOl-lAbK1
Name of Applicant: Winter Park&the Fraser Valley Chamber of Commerce
Mailing Address of Applicant: PO Box 3236 Winter Park,CO 80482
Contact Name: Kristyna Nedele Contact Phone Number: 970.726.4221 ext 205
Contact Email: knedele @playwinterpark.com
Type of Special Event(i.e.fundraiser,concert): SnowBall Music Festival
Address of Special Event:[46 Market St Fraser CO 80482
Do you have written permission to use the premises? (6-Yes ("No
List the exact dates and times of the event: March 8-10,2013
Number of expected attendees: 10,000
Describe the premises where the event will take place:(Attach site plan)
Meadow at Grand Park
What type of security will be provided? Hired security by SnowBall Ventures/Local Police
Number of security personnel: 70 How will they be identified? Uniforms or ID Tags and credentials
If the event is being held outdoors,how will the exterior boundaries of the premises be marked?(i.e.fencing,ropes,barriers).
perimeter of venue will be fenced
What type of entertainment will be provided at the event?
Live Music
How and where will attendees 21 years of age and older be identified(Le at the event entrance,at the alcohol service areas)?How will
attendees under the age of 21 be identified(i.e.wristbands)?
IDs will be checked at ID tent in the venue
How will the conduct of attendees be monitored and by whom?
Security personnel,Local Law Enforcement,Staff
Have alcohol servers been trained in the sale/service of alcoholic beverages?If yes,please list type of training.(Servers are required to
have attended an alcohol server training program prior to the evend.
Yes,TIPS Certified
What type of beverages,food and snacks will be available at the event?
Food Vendors/Trucks,Beer/Liquor will be present at the event
knede|e@p|aywinterpark.com
Applicant Email Address
78841 US Hwy 4U Winter Park,[08O4O2
Applicant Physical Address
970.7I6/221ext 205
Applicant Phone Number
|he,e6y certify,under penalty ofperjury,that the information provided to the Town of Fraser contained in this application is true
and accurate tuthe best ofn`Vknowledge.
Applicant Siqrfature Date
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January 31, 2013
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Lu Berger,Town Clerk
Town of Fraser
153 Fraser Ave
PO Box 370
Fraser, CO 80442
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Re: Permission for Special Event to be held at The Village at Grand Park
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Dear Lu:
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Grand Park Development, LLC grants permission for the special event to be held on
March 8-10, 2013 (Snowball Music Festival) in The Village at Grand Park (46 Market
Street, Fraser, CO 80442) and surrounding grounds.
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Please contact us at 970-726-8600 with any questions.
Sincerely,
GRAND PARK DEVELOPMENT, LLC
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(G-Cflark Lipscomb
President
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TOWN OF FRASER
RESOLUTION NO. 2013-02-01
A RESOLUTION OF THE FRASER BOARD OF TRUSTEES, ACTING AS THE LOCAL
LIQUOR LICENSING AUTHORITY FOR THE TOWN OF FRASER, APPROVING THE
APPLICATION OF WINTER PARK& THE FRASER VALLEY CHAMBER OF COMMERCE
FOR A SPECIAL EVENTS LIQUOR LICENSE FOR THE PREMISES AT 46 MARKET
STREET, FRASER, COLORADO.
WHEREAS, Winter Park & The Fraser Valley Chamber Of Commerce (the "Applicant")
filed an application with the Town of Fraser for a Special Events Liquor License for the premises
located at 46 Market Street, Fraser, Colorado; and
WHEREAS, the Board of Trustees, as the Local Liquor Licensing Authority, has carefully
considered said application and the evidence presented, and hereby enters the following
decision regarding the application.
THE BOARD OF TRUSTEES MAKES THE FOLLOWING FINDINGS:
1. Application was submitted to the local authority at least 30 days prior to the event.
2. Appropriate fees have been paid.
3. A diagram of the area to be licensed reflecting intended control, fencing ropes and
barriers was submitted.
4. The Applicant has submitted evidence that it is or will be entitled to possession of the
premises where the license is proposed to be exercised.
5. Certificate of good standing (NONPROFIT) or NONPROFIT charter was attached.
6. Property was posted at least 10 days prior to the public hearing date.
BASED UPON THESE FINDINGS, THE BOARD OF TRUSTEES, AS THE LOCAL LICENSING
AUTHORITY, HEREBY ORDERS that the application of Winter Park & The Fraser Valley
Chamber Of Commerce, for a Special Events Liquor License for the premises at 46 Market
Street, Fraser, Colorado be and is hereby APPROVED.
DULY MOVED, SECONDED, AND ADOPTED THIS 6th DAY OF FEBRUARY, 2013.
TOWN OF FRASER BOARD OF TRUSTEES
AND LIQUOR LICENSING AUTHORITY
BY:
Peggy Smith, Mayor
ATTEST:
Lu Berger, Town Clerk
CERTIFICATE OF SERVICE
I hereby certify that I served the above and foregoing Resolution and decision of the
Local Licensing Authority upon the Applicant named therein by mailing the same by certified
mail, postage prepaid, this 7th day of February, 2013, addressed as follows:
Winter Park & The Fraser Valley Chamber Of Commerce
P.O. Box 3236
Winter Park, CO 80482
Lu Berger, Town Clerk and Secretary to the Local
Liquor Licensing Authority
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DR 8439(06/28/06) �' Department Use Only
COLORADO DEPARTMENT OF REVENUE
LIQUOR ENFORCEMENT DIVISION
1375 SHERMAN STREET \® ®i° �A
DENVER CO 80261 EVENTS PERMIT
(303)205-2300
IN ORDER TO QUALIFY FOR A SPECIAL EVENTS PERMIT,YOU MUST BE NONPROFIT
AND ONE OF THE FOLLOWING (See back for details.)
✓❑ SOCIAL ❑ ATHLETIC ❑ PHILANTHROPIC INSTITUTION
❑ FRATERNAL ❑ CHARTERED BRANCH,LODGE OR CHAPTER ❑ POLITICAL CANDIDATE
❑ PATRIOTIC ❑ OF A NATIONAL ORGANIZATION OR SOCIETY ❑ MUNICIPALITY OWNING ARTS
❑ POLITICAL ❑ RELIGIOUS INSTITUTION FACILITIES
LIAR TYPE OF SPECIAL EVENT APPLICANT IS APPLYING FOR: DO NOT WHITE IN THIS SPACE
2110[j MALT,VINOUS AND SPIRITUOUS LIQUOR $25.00 PER DAY LIQUOR PERMIT NUMBER
2170[:] FERMENTED MALT BEVERAGE(3.2 Beer) $10.00 PER DAY
1. NAME OF APPLICANT ORGANIZATION OR POLITICAL CANDIDATE 71aa Tax Num ber(Required)
Winter Park&the Fraser Valley Chamber of Commerce 5
2. MAILING ADDRESS OF ORGANIZATION OR POLITICAL CANDIDATE 3. ADDRESS OF PLACE TO HAVE SPECIAL EVENT
(include street,city/town and ZIP) (include street,city/town and ZIP)
P.O. Box 3236 46 Market St
Winter Park, CO 80482 Fraser, CO 80442
NAME DATE OF BIRTH HOME ADDRESS(Street,City,State,ZIP) PHONE NUMBER
4. PRES./SEC'Y OF ORG.or POLITICAL CANDIDATE
Catherine Ross P.O. Box 3236 Winter Park CO 80482 970.726.4221
5. EVENT MANAGER
Kristyna Nedele P.O. Box 3236 Winter Park CO 80482 970.726.4221
6. HAS APPLICANT ORGANIZATION OR POLITICAL CANDIDATE BEEN 7. IS PREMISES NOW LICENSED UNDERSTATE LIQUOR OR BEER CODE?
ISSUED A SPECIAL EVENT PERMIT THIS CALENDAR YEAR?
NO -]YES HOW MANY DAYS? ®NO YES TO WHOM?
8. DOES THE APPLICANT HAVE POSSESSION OR WRITTEN PERMISSION FOR THE USE OF THE PREMISES TO BE LICENSED? ❑Yes ❑No
LIST BELOW THE EXACT DATE(S)FOR WHICH APPLICATION IS BEING MADE FOR PERMIT
Date March 8 Date March 9 Date March 10 Date Date
Hours From 1 prn m. Hours From 1 pim m. Hours From 1 pim m. Hours From m. Hours From m.
To 11:30 .m. To 11:30 m. To 11:30 m. To m. To m.
OATH OF APPLICANT
l declare under penalty of perjury in the second degree that l have read the foregoing application and all attachments thereto,and
that all information therein is true,correct, and complete to the best of my knowledge.
� 4•,� ,,, � .. �` TITLE DATE
AT
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S G URE r.„., .,' (
REPORT AND APPROVAL OF LOCAL LICE SING AUTHORITY(CITY OR COUNTY)
The foregoing application has been examined and the premises, business conducted and character of the applicant is satisfactory,
and we do report that such permit, if granted, will comply with the provisions of Title 12, Article 48, C.R.S., as amended.
THEREFORE,THIS APPLICATION IS APPROVED.
LOCAL LICENSING AUTHORITY (CITY OR COUNTY) ❑ CITY TELEPHONE NUMBER OF CITY/COUNTY CLERK
❑ COUNTY
SIGNATURE TITLE DATE
DO NOT WRITE IN THIS SPACE- FOR DEPARTMENT OF REVENUE USE ONLY
LIABILITY INFORMATION
License Account Number Liability Bate State TOTAL.
-750(999)
(Instructions on Reverse Size)
APPLICATION INFORMATION AND CHECKLIST
THE FOLLOWING SUPPORTING DOCUMENTS MUST BE ATTACHED TO THIS APPLICATION FOR A PERMIT TO BE ISSUED:
F-] Appropriate fee.
F-1 Diagram of the area to be licensed(not larger that 8 1/2"X 11"reflecting bars,walls,partitions, ingress,egress and dimensions.
Note: If the event is to be held outside, please submit evidence of intended control, i.e.,fencing,ropes,barriers,etc.
F-1 Copy of deed,lease,or written permission of owner for use of the premises.
❑ Certificate of good corporate standing(NONPROFIT)issued by Secretary of State within last two years; or
F-1 if not incorporated,a NONPROFIT charter;or
F-1 If a political Candidate, attach copies of reports and statements that were filed with the Secretary of State.
❑ APPLICATION MUST FIRST BE SUBMITTED TO THE LOCAL LICENSING AUTHORITY(CITY OR COUNTY)AT LEAST THIRTY(30)DAYS
PRIOR TO THE EVENT.
F-1 THE PREMISES TO BE LICENSED MUST BE POSTED AT LEAST TEN(10)DAYS BEFORE A HEARING CAN BE HELD.(12-48-106 C.R.S.)
F-] AN APPROVED APPLICATION MUST BE RECEIVED BYTHE LIQUOR ENFORCEMENT DIVISION ATLEASTTEN(10)DA YSPRIORTOTHE EVENT.
F-] CHECK PAYABLE TO THE COLORADO DEPARTMENT OF REVENUE
(12-48-102 C.R.S.)
A Special Event Permit issued under this article may be issued to an organization,whether or not presently licensed under
Articles 46 and 47 of this title,which has been incorporated under the laws of this state for the purpose of a social,fraternal,
patriotic, political or athletic nature, and not for pecuniary gain or which is a regularly chartered branch, lodge or chapter
of a national organization or society organized for such purposes and being non profit in nature, or which is a regularly
established religious or philanthropic institution, and to any political candidate who has filed the necessary reports and
statements with the Secretary of State pursuant to Article 45 of Title 1, C.R.S. A Special Event permit may be issued to
any municipality owning arts facilities at which productions or performances of an artistic or cultural nature are presented
for use at such facilities.
If an event is cancelled, the application fees and the day(s) are forfeited.
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MEMORANDUM
February 1, 2013
TO: Mayor and Town Board
CC: Jeff Durbin, Catherine Trotter, Allen Nordin
FROM: Boots Ferguson and Kylie Crandall
RE: Staff Report on Annexation Agreement
This memorandum shall serve as a brief staff report that summarizes the provisions of the
Annexation Agreement for Byers Peak Ranch that have been negotiated with the owners of the
property and presented to the Board for review and consideration.
The Annexation Agreement sets forth the various rights and obligations of the parties in
connection with the Byers Peak Ranch annexation and development. The annexation is to annex
295 acres comprising the Byers Peak Ranch that is adjacent to the Town. The Agreement is
separate from the PDD Plan that establishes the concepts for the development and some
parameters. The PDD Plan includes preliminary reports and plans. The Agreement confirms the
right of the Developer to develop up to 1435 dwelling units of various types and mixes, 550
hotel/motel/lodging units that would include RV sites, and 270,000 square feet of commercial
space to be developed over a 35 year period. The Developer is granted vested rights in these
densities and in the zoning under the Planned Development District zoning for the property.
Much of the Agreement provides for application of the requirements and provisions of the
Municipal Code to the project. By way of brief summary, the Agreement provides as follows:
1. Article 1: The annexation and zoning of the property and the right of Developer not to
develop it so long as several of its obligations, including the provision of water storage to the
Town, are fulfilled are confirmed.
2. Article 3: a. The Town will provide water service to the project for up
to 1897 SFEs upon connection by Developer to the Town's municipal water system.
b. The Developer will design, construct, convey and dedicate
to the Town 60 acre feet of storage; 25 acre feet will be at the Forest Meadows property site and
35 acre feet will be on Byers Peak Ranch, together with easements for the filling of the ponds
and release of water to the Fraser River or its tributaries.
C. The Forest Meadows pond will be constructed and
conveyed within seven years and the Byers Peak Ranch pond will be constructed and conveyed
within 18 years or sooner. An operating agreement that addresses the operation of the ponds if
Developer builds them with excess capacity to store its water rights too and allocation of costs.
Developer will operate the ditches and the Town will operate the Ponds. The Developer has the
right to use Byers Peak Ranch pond water for snowmaking to the extent the Town does not use
its water in any given year.
d. Water service infrastructure design and construction will
comply with the Municipal Code requirements.
e. The existing well on the property may be used in the future
for non-potable purposes once the potable system is connected to the municipal system; it may
continue to be used for potable purposes until such time as the connection is made.
f. Any excess capacity in the water system constructed by
Developer at the Town's request will be paid by the Town or other developers.
g. Water Plant Investment Fees are split between the Town
and Developer based on the needs of the Town to serve the project and the desire of Developer to
recoup some of the costs of building the storage and water service infrastructure.
3. Article 4: Town will provide sewer service and will retain all plant investment
fees.
4. Article 5: This provision requires compliance with the Municipal Code for all
utilities.
5. Article 6: This provision requires compliance with the Municipal Code for
managing drainage.
6. Article 7: This provision requires
a. updating traffic impact analysis as the project is phased in;
b. Town will maintain all public streets;
C. the Municipal Code will apply to all public street construction and
dedication;
d. rights of way for the existing streets will be confirmed;
e. improvement to the regional roadways is desired and Developer
will be responsible for percentage costs of improvements and will provide base work
for improvements to Fraser Valley Parkway;
f. any private streets will comply with any emergency vehicle
standards;
g. a pathway along Fraser Valley Parkway will be constructed.
7. Article 8:
a. Town will provide normal municipal services to project;
b. open space will dedicated to project consistent with PDD Plan;
C. a pocket park of 1.5 acres shall be constructed along the Fraser
Valley Parkway and dedicated to the Town;
d. school impact fee Municipal Code requirements will be met;
e. a 6 acre parcel south of old town and west of the railroad tracks
will be dedicated to the Town for municipal use.
8. Article 9:
a. the PDD Plan sets forth densities and allocation of the same and
general land uses for the various planning areas and density transfers;
b all pond grading and excavation shall be performed consistent with
the Grading and Excavation Plan that also regulates the transport of excess gravel off
site for sale;
C. a phasing plan will be provided consistent with the Municipal
Code;
d. the property will be included in the West Mountain Metropolitan
District and a cap of 35 mils will be imposed on the property;
e. general Town development requirements will be met.
9. Article 10: Agreement provides Developer with PDD Plan approval subject to
compliance with Municipal Code requirements for Final PDP.
10. Article 11: Vested rights are created for the densities, zoning and general land
use plan of the project for 35 years, the projected buildout of the project.
11. Article 12: Standard additional agreement provisions are set forth include
default and remedies provisions.
January 23, 2013
DRAFT
BYERS PEAK RANCH
ANNEXATION AND DEVELOPMENT AGREEMENT
Town of Fraser, Colorado
---------------- 2013
This Agreement creates a Vested Property
Right Pursuant to C.R.S. Section 24-68-103, as amended and
Pursuant to the Terms Hereof
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TABLE OF CONTENTS
ANNEXATION AGREEMENT
Article 1 ANNEXATION AND ZONING OF THE PROPERTY..................................................2
Section1.1 Ordinances........................................................................................................3
Section 1.2 Effective Date of Agreement............................................................................3
Section1.3 Annexation ............ ..........................................................................................3
Section1.4 Zoning ..............................................................................................................3
Section1.5 Acknowledgements ..........................................................................................3
Section 1.6 No Obligation to Develop ................................................................................3
Article2 DEFINITIONS..................................................................................................................3
Section2.1 Definitions........................................................................................................4
Article3 WATER............................................................................................................................5
Section3.1 Water Service...................................................................................................5
Section 3.2 Dedication of Water Storage Facilities ............................................................6
Section 3.3 Water Service Infrastructure and its Approval and Construction ..................10
Section3.4 On-site Wells..................................................................................................11
Section 3.5 Water Plant Investment Fees..........................................................................12
Section3.6 Excess Capacity..............................................................................................12
Section 3.7 Water Plant Investment Fee Accounting and Credit......................................12
Article4 SEWER...........................................................................................................................13
Section4.1 Sewer Service.................................................................................................13
Section 4.2 Individual Sewage Disposal Systems.............................................................14
Article 5 OTHER UTILITIES .......................................................................................................14
Section 5.1 Other Utilities.................................................................................................14
Article6 DRAINAGE....................................................................................................................14
Section6.1 Drainage .........................................................................................................14
Article 7 STREETS AND TRAFFIC ............................................................................................14
Section 7.1 Grading & Roadway Plan...............................................................................14
Section 7.2 Traffic Impact Analysis..................................................................................14
Section 7.3 Street Designations.........................................................................................15
Section 7.4 Street Maintenance.........................................................................................15
Section 7.5 Street Rights of Way ......................................................................................15
Section 7.6 Regional Roadways........................................................................................16
Section 7.7 Street Standards, Construction, Inspection, and Acceptance.........................16
Section7.8 Pathways.........................................................................................................16
Article 8 SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION.......................17
Section 8.1 Additional Municipal Services.......................................................................17
Section 8.2 Project Open Space ........................................................................................17
Section8.3 Public Open Space..........................................................................................17
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Section 8.4 School Impact Fees ........................................................................................17
Section 8.5 Municipal Parcel Dedication..........................................................................17
Section 8.6 Colorado Adventure Park Facilities and Operations......................................18
Article 9 GENERAL DEVELOPMENT OF THE PROPERTY...................................................18
Section 9.1 Development and Control of Development....................................................18
Section9.2 Densities.........................................................................................................18
Section 9.3 Transfer of Water and Sewer SFEs................................................................19
Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations
ofFraser..........................................................................................................20
Section 9.5 Grading and Excavation Operations...............................................................20
Section 9.6 Transfer of Planning Area..............................................................................21
Section9.7 Phasing Plan.......... ........................................................................................21
Section 9.8 Metropolitan District. .....................................................................................21
Section 9.9 Financing of Public Improvements ................................................................22
Section 9.10 Maintenance Cost Offsets ..............................................................................22
Section 9.11 Hospital/Health Services District. ..................................................................22
Section 9.12 Owner's Associations.....................................................................................22
Section 9.13 Rules, Regulations and Official Policies........................................................23
Article 10 COOPER & IMPLEMENTATION..............................................................................23
Section 10.1 Statement of Intent.........................................................................................23
Section 10.2 Scope of this Agreement. ...............................................................................23
Article 11 VESTED RIGHTS........................................................................................................24
Section 11.1 Vesting of Certain Property Rights ................................................................24
Section 11.2 Rights Which Are Vested...............................................................................24
Section 11.3 Term for Vested Rights..................................................................................25
Section 11.4 Compliance with General Regulations and Limitations on
TownActions .................................................................................................25
Article 12 MISCELLANEOUS.....................................................................................................26
Section 12.1 Time is of the Essence....................................................................................26
Section12.2 Covenants.......................................................................................................26
Section 12.3 Contractual Obligations..................................................................................27
Section12.4 Term ................. ............................................................................................27
Section 12.5 Amendment of Agreement.............................................................................27
Section 12.6 Default and Remedies ....................................................................................27
Section 12.7 No Joint Venture or Partner shib.....................................................................28
Section 12.8 No Third Party Beneficiaries..........................................................................28
Section12.9 Notices............................................................................................................28
Section 12.10 Assignment ................................................................................................29
Section 12.11 Agricultural Use.........................................................................................30
Section 12.12 Grant or Conveyance. Whenever a............................................................30
Section12.13 Recording...................................................................................................30
Section 12.14 Authorization .............................................................................................30
Section 12.15 Governing Law..........................................................................................30
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Section12.16 Severability................................................................................................30
Section 12.17 Waiver of Breach.......................................................................................30
Section 12.18 Entire Agreement.......................................................................................30
Section 12.19 No Additional Annexation Conditions Imposed........................................31
Section 12.20 Drafting of Agreement...............................................................................31
Section 12.21 Execution of Other Documents..................................................................31
Section 12.22 Counterparts; Facsimile.............................................................................31
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BYERS PEAK RANCH
ANNEXATION AGREEMENT
The parties to this Annexation Agreement (this "Agreement") are the TOWN OF
FRASER, COLORADO, a municipal corporation of the State of Colorado ("Fraser"),
and BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company and
BYERS PEAK DOWNHILL ADVENTURES, LLC, a Colorado limited liability
company (collectively "Developer").
RECITALS
A. Fraser is a municipal corporation existing under the laws of the State of
Colorado. Developer is comprised of two limited liability companies organized and
existing under the laws of the State of Colorado;
B. In 2007, Developer filed a Petition for Annexation (the
"Annexation Petition") with Fraser to annex into Fraser approximately 295 acres of
land south of Fraser in Grand County commonly known as the Byers Peak Ranch; this
property is legally described in Exhibit A to this Agreement (the "Property") and is the
subject of the Annexation Resolution and Annexation Ordinance defined below;
C. Developer owns 100% of the Property;
D. On , 200, the Town Clerk referred the Annexation
Petition to Fraser's Board of Trustees (the "Board");
E. On ___, 200, the Board conducted a public hearing at
which it adopted Resolution No. , wherein it determined that the Annexation
Petition complies with C.R.S. Section 31-12-107, and the Property is eligible for
annexation to Fraser;
F. Fraser and Developer desire to enter into this Agreement setting forth
more fully the terms of the annexation and development of the Property;
G. In connection with the annexation of the Property to Fraser, Developer
filed its application in February 2011 with Fraser for approval of the Byers Peak Ranch
Planned Development District Plan ("PDD Application") for the Property pursuant to
Ordinance No. 131, Series of 1985, set forth in Chapter 16, Article 5 of Fraser Municipal
Code, as adopted and as amended from time to time by Fraser Board of Trustees ("Fraser
Code"), Sections 16-5-10 through Section 16-5-720 (the "PDD Ordinance");
contemporaneously herewith Fraser approves the Byers Peak Ranch Planned
Development District Plan with conditions (the "PDD Plan"), which allows a mixture
of up to 1,435 dwelling units, 550 hotel/motel/lodging units and 270,000 square feet of
commercial space, recreation facilities, and support activities on the Property, a copy of
which is attached hereto as Exhibit B and incorporated herein by this reference
provided that any amendments thereto may be made without amending this Agreement;
{Client/1 3 23 6/1 16/024 14663.DOC/161
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the Property will be served with municipal water and sewer service by Fraser consistent
with the provisions of this Agreement;
H. It is the understanding and intent of Developer and Fraser that the PDD
Plan is preliminary in nature, as provided in the Fraser Code, and the final approval of
the development of the Property, or any portions thereof, is subject to compliance by
Developer with conditions set forth in the PDD Plan, applicable provisions of Fraser
Code and other applicable regulations, rules and policies and this Agreement;
L For the reasons recited herein, Developer and Fraser have determined that
the PDD Plan is a development for which this Agreement is appropriate;
J. The PDD Plan may contribute substantially to the economic growth of
Fraser and, consequently, may increase tax revenues to Fraser;
K. Fraser desires to annex the Property in order to provide for orderly growth
in and around Fraser;
L. Developer desires to receive the assurance that it may proceed with
development of the Property pursuant to the terms and conditions contained in this
Agreement and in the PDD Plan, consistent with the Fraser Code;
M. Development of the Property in accordance with this Agreement will
provide for orderly growth in accordance with the policies and goals set forth in
Fraser's Master Plan, ensure reasonable certainty, stability and fairness in the land use
planning process, stimulate economic growth, provide water storage to Fraser, and
foster cooperation between the public and private sectors in the area of land use
planning;
N. Fraser and Developer mutually agree that the provisions hereinafter set
forth are reasonable conditions and requirements in connection with the approval of the
Annexation Petition; Fraser recognizing and reciting that such provisions are necessary
to protect, promote and enhance the public welfare; and
O. The Board approved the Annexation Petition and annexed the Property to
Fraser under Resolution No. -- — Series 2013 ("Annexation Resolution") and Ordinance
--- ("Annexation Ordinance").
AGREEMENT
In consideration of the foregoing recitals, Ten Dollars, the mutual promises
contained herein, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
ANNEXATION AND ZONING OF THE PROPERTY
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Section 1.1 Ordinances. For purposes of this Agreement, "Ordinances" shall
mean collectively the following: (a) the Annexation Ordinance; (b) an ordinance
approved by Fraser adopting and approving this Agreement; and (c) an ordinance
approved by Fraser adopting and approving the PDD Plan.
Section 1.2 Effective Date of Agreement. This Agreement shall become effective
as of the date upon which the last of the parties to sign have executed this Agreement
after the effective date of the approving ordinance as provided in Fraser Code (the
"Effective Date"). This Agreement and such ordinances and other actions taken
pursuant hereto may be cancelled and rescinded, at Fraser's option, if Developer fails to
sign this Agreement not later than 5 days after the effective date of the ordinance
approving this Agreement.
Section 1.3 Annexation. Annexation of the Property shall be in accordance with
this Agreement and the Colorado Municipal Annexation Act of 1965, as amended
(C.R.S. §§ 31-12-101, et seq.). As provided herein, the Property shall be subject to all
Fraser ordinances, the Fraser Code, and applicable rules, regulations and policies.
Section 1.4 Zoning. Consistent with the requirements of the Act, Fraser
contemporaneously herewith zones the Property a PD District and is amending the
Official Zoning Map of Fraser accordingly.
Section 1.5 Acknowledgements. The parties acknowledge the following:
a. Development of the Property pursuant to the PDD Plan is estimated
by Developer to have a 35 year build-out period.
b. A material consideration for Developer's annexation of the
Property and development of the Property consistent with the PDD Plan is Fraser's
agreement to permit development of the Property in accordance with (i) the terms and
conditions of this Agreement and (ii) the conditions of approval of the PDD Plan,
provided that there is subsequent Fraser approval of an FPDP or subdivision within the
PDD Plan pursuant to the Fraser Code.
Section 1.6 No Obligation to Develop. Developer shall have no obligation under this
Agreement to develop all or any portion of the PDD Plan and shall have no liability under this
Agreement to Fraser or any other party for its failure to develop all or any part of the PDD Plan,
unless otherwise expressly set forth in this Agreement. Nothing in this Agreement shall be
construed as a waiver or release by Fraser of its rights to enforce the Fraser Code as provided
herein. Developer shall have no liability to Fraser or any other party for not developing all or any
part of the Property provided that Fraser and Developer are in full compliance with the terms and
conditions of any subdivision improvements agreement(s) and this Agreement. Notwithstanding
the foregoing and Developer's decision to delay or not develop the Property, Developer and
Fraser agree to perform those specific obligations to be fulfilled that are expressly required and
provided for in this Agreement.
ARTICLE 2
DEFINITIONS
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Section 2.1 Definitions. As used in this Agreement, unless specifically stated otherwise,
the words and phrases used shall have the meaning as defined in the Fraser Code, Zoning
Regulations, PDD Ordinance and Fraser Subdivision Regulations. For the purpose of this
Agreement specific words and phrases in this Agreement shall have the definitions set forth
elsewhere in this Agreement and below:
a. Density. References to "Density" in the PDD Plan and Agreement
are to Parcel Density as defined in the PDD Ordinance.
b. Developer. The term "Developer" as defined above shall also
include any person or entity who subsequently acquires a fee simple interest of record
in any portion of the Property as a transferee, grantee, assignee or successor, but only
with respect to the parcel transferred; except that the purchasers of subdivided
residential units, lodging/hotel units, or commercial space in an approved FPDP or
subdivision shall not be deemed to be a Developer for purposes of this Agreement and
the PDD Plan, but shall take their property interests subject to the provisions hereof.
C. Drainage Plan. The Conceptual Drainage Plan prepared by Top
Knot Engineering, Inc. dated August 2011, and approved by Fraser as part of the PDD
Plan.
d. FPDP. The Final Planned Development Plan of the Property
approved by the Board of Trustees of Fraser in accordance with the requirements of the
PDD Ordinance and Fraser Code.
e. Improvements Agreement. An agreement or agreements required
by the Subdivision and Zoning Regulations of the Fraser Code to provide for the
construction of required improvements pursuant to the requirements set forth in the
Fraser Code.
f. Master Plan. A plan for guiding and controlling the physical
development of land use and circulation in Fraser of Fraser and beyond to a limit of
three miles, as adopted pursuant to Part 2 of Article 23, Title 31, Colorado Revised
Statutes, and any amendment or extension of such a plan. The Master Plan is also
known as the "Comprehensive Plan."
g. Planning Area. An area specifically identified on the PDD Plan.
h. Regional Roadways. This term shall mean the following existing
regional roadways, which are located on the Property: (a) the roadway designated on
the PDD Plan as Fraser Valley Parkway (the "Parkway"); (b) County Road 72 ("CR
72"); and (c) County Road 73, also known as Mill Avenue ("CR 73").
i. Residential Unit. A residential unit is a "dwelling unit" as defined
in the Fraser Code.
j. Roadway Plan. The Conceptual Roadway Plan dated August 2011
prepared by Top Knot Engineering, Inc., as approved by Fraser as part of the PDD Plan.
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k. Sanitary Sewer Investment Fee. A fee collected by Fraser pursuant to the Fraser Code, Section 13-4-50.
1. Sewer Plan. The Conceptual Sewer Plan prepared by Top Knot
Engineering, Inc., dated February 2011, as approved by Fraser as part of the PDD Plan.
m. SFE. A "single family equivalent" defined in Section 13-2-10 of
the Fraser Code.
n. Water Facilities. The Water Facilities include the central potable
water supply diversion structures, well pumps and appurtenances, treatment facilities,
transmission lines to storage and treatment, raw water storage facilities, potable water
storage tanks, and distribution lines, related PRV/booster stations connecting the water
source facilities, raw water supplies, and all other physical infrastructure of the Fraser
municipal water supply system that Fraser utilizes to provide water service to Fraser,
together with the Water Rights, augmentation plans, groundwater wells supplying the
central potable water system, raw water diversions and reservoirs including without
limitation the Dedicated Storage; Water Facilities do not include individual service
lines from a water main to a structure, which facilities shall be owned and maintained
by the property owner on which the service line is located.
o. Water Infrastructure Plan. The conceptual Water Infrastructure
Plan prepared by Top Knot Engineering, Inc., dated March 2011, which describes the
water infrastructure serving the Property, as approved by Fraser as part of the PDD
Plan.
p. Water Plant Investment Fee. A fee collected by Fraser pursuant to
Fraser Code.
q. Water Rights. The water rights decreed by Fraser for its water
supply, including without limitation, the 60 acre feet of storage decreed by Developer
for dedication to Fraser pursuant to this Agreement.
ARTICLE 3
WATER
Section 3.1 Water Service. Upon approval of this Agreement, Fraser will provide
municipal potable water service to the Property for up to 1897 SFEs to serve the PDD Plan
subject to the terms and conditions set forth herein and the applicable provisions contained in
Fraser Code.
Fraser's Water Rights are adequate to support the potable municipal water
service for up to 1897 SFEs on the Property as described in the PDD Plan, subject to the
construction and dedication of the Dedicated Storage to Fraser, the issuance of a decree
from the Water Court confirming the as-built locations of the same, and other terms and
conditions set forth herein. Fraser shall be responsible for all applicable
implementation, operation and accounting requirements necessary to serve the Property
pursuant to the PDD Plan.
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a. Infrastructure Connections. The water infrastructure connections to
the existing Fraser municipal system infrastructure to serve the Property may be made
through the infrastructure that serves the "old town" portion of Fraser or the
infrastructure associated with the neighboring project known as the Grand Park project.
The determination of which point of connection will be made will be based upon the
location and phasing of the PDD Plan as set forth in applicable FPDP or subdivision
approvals. The Developer will design and construct all required infrastructure to serve
the Property as required by the Fraser Code and at its sole cost. The provision of water
service is subject to the Developer's obligations to construct or pay for the construction
of the necessary Water Facilities to connect to Fraser's municipal water system and to
serve the PDD Plan or portions thereof as provided for herein, in applicable
Improvements Agreement, and the Fraser Code. Reimbursement or credit to Developer
for the costs of infrastructure constructed pursuant to this Section shall be as described
in Section 3.6 and Section 3.7 below.
b. The Developer agrees to pay Fraser $60,614 for Water Facilities
needs in order to provide water service for the initial 711 SFEs of the total 1897 SFE
approved herein. By this payment, Developer has no further obligation to reimburse
Fraser for legal fees for water court processes as may be required by Fraser regarding
the Dedicated Water Rights once they are conveyed to Fraser. Such amount shall be
paid upon the Effective Date.
C. The costs for water treatment plant improvements and other
infrastructure, engineering and legal work that will have to be made from time to time
to serve the PDD Plan, or portions thereof, shall be paid through the Water Plant
Investment Fees payable to the Town. All Water Plant Investment Fees shall be
allocated between the Developer and Fraser as specified in Section 3.7 below.
Section 3.2 Dedication of Water Storage Facilities. In satisfaction of Fraser's water
dedication requirements in connection with the provision of municipal water service for the PDD
Plan, the Developer, at its sole cost, agrees to design and construct water storage facilities
(ponds) (the"Dedicated Storage") and the ditches to fill the Dedicated Storage and to release
water therefrom into the Fraser River or its tributaries upstream of the confluence of St. Louis
Creek and the Fraser River to be located on the Property and/or on adjacent property owned by
Cornerstone Winter Park Holdings, LLC, Grand Park Development LLC or affiliates as provided
herein. Developer shall dedicate or cause to be dedicated to Fraser decreed water rights for the
filling and storage of 60 acre feet of operational storage water in the Dedicated Storage (the
"Dedicated Water Rights"). Developer shall also dedicate or cause to be dedicated to Fraser the
legal rights to fill and store the Dedicated Water Rights in the Dedicated Storage together with
all appropriate easements for such storage space and the operation,repair,replacement,
improvement and maintenance thereof, the access rights necessary for the diversion and
transportation of water for the filling of such storage and for the release of such stored water and
its delivery to the Fraser River, and the rights of access to all facilities and infrastructure
necessary and convenient for the full utilization of the Dedicated Water Rights by Fraser as a
part of its municipal water system in accordance with the applicable procedures set forth in the
Fraser Code and any applicable augmentation plan.
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The Dedicated Water Rights shall be conveyed by special warranty deeds and shall be
free and clear of all liens and encumbrances. The easement rights for the Dedicated Storage and
storage of the Dedicated Water Rights shall include without limitation rights for(a) the diversion
and transportation of the same across any portion of the Property for the purposes set forth herein
in a location agreed upon by the parties and the filling and storage of water, (b) the access thereto
and to all associated facilities and infrastructure, (c) the rights for the operation, maintenance,
repair, replacement and improvement thereof, and(d)releases and associated access therefrom to
the Fraser River tributaries. The Developer is only required to grant easement rights across the
Property. The Town recognizes that Developer is unable to grant or change ditch easements that
may currently exist on adjacent property not owned by Developer and can only convey the same
interest in easement rights it may have in connection with the water rights to be used for filling
the Dedicated Storage. The easement rights shall be free of liens and encumbrances and shall be
executed and delivered to Fraser by the owners of the respective properties on which the
Dedicated Storage facilities are located concurrent with the dedication and conveyance of the
Dedicated Water Rights by the Developer to Fraser, as provided herein. The easement
documents for the Byers Peak Ranch Augmentation Pond system described herein shall be
substantially in the form attached hereto as Exhibit C. The easement documents for the Forest
Meadows Augmentation Plan Pond are attached hereto as Exhibit D.
The water rights decreed in Case No. 05CW287 shall be conveyed to the Town by the
applicants and owners thereof upon the Effective Date in satisfaction of the obligation to convey
the Dedicated Water Rights associated with the Forest Meadows Augmentation Plan Pond.
Developer will cause the grant of easement documents for the Forest Meadows Augmentation
Plan Pond to be executed and delivered to Fraser by the owners of the Dedicated Water Rights
and the property underlying the Dedicated Storage and associated facilities and all related
facilities upon the Effective Date.
Developer will cause the special warranty deed and grant of easement documents for the
Byers Peak Ranch Augmentation Pond to be executed and delivered to Fraser by the owners of
such Dedicated Water Rights and the property underlying such Dedicated Storage and associated
facilities and all related facilities. Such special warranty deed and grant of easement shall be
conveyed and delivered to Fraser immediately upon completion, approval and acceptance by
Fraser of the Byers Peak Ranch Augmentation Pond as set forth in the Fraser Code. Such
conveyances shall fulfill Fraser's water dedication requirements for the PDD Plan.
The obligations set forth in this Section shall be fulfilled irrespective of whether
Developer chooses not to develop all or portions of the Property under Section 1.7 hereof.
Adequate security for the construction of the Dedicated Storage and associated facilities shall
consist of alternative storage that is free and clear of encumbrances. On the Effective Date,
Developer will grant an access easements and right of first use agreements to Fraser for up to 60
acre-feet of storage in existing ponds at Grand Park or in a satisfactory alternate facility, which
easement shall be effective only in the event the above deadlines are not met and shall only apply
to that amount of Dedicated Storage that has not been constructed and operational at the time it
becomes effective; this right of first use shall terminate with respect to the amount of Dedicated
Storage that has been constructed and operational. It is anticipated that such alternate storage,
only to the extent as may be required, shall be in the existing pond commonly known as the
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"Wishbone Pond." and associated ponds. A map of the Grand Park Ponds is attached as Exhibit
E and the form of easement and use agreement is attached as Exhibit F.
The two planned facilities for Dedicated Storage are the Byers Peak Ranch Augmentation
Pond and the Forest Meadows Augmentation Plan Pond. The Dedicated Storage may be
constructed in multiple ponds so long as the aggregate operational water stored equals 60 acre
feet. The Forest Meadows Augmentation Plan Pond will be constructed to have the capacity to
store 25 acre feet of the Dedicated Water Rights. It will be designed and located by Developer,
subject to Fraser approval, no later than five years after the Effective Date. The location will be
consistent with the decree entered in Case No. 83CW362. It will be constructed and all
associated rights as provided herein conveyed to Fraser no later than seven years after the
Effective Date. The Byers Peak Ranch Augmentation Pond will be constructed to have the
capacity to store 35 acre feet of the Dedicated Water Rights. It will be designed, located, and
constructed on the Property by Developer, subject to Fraser approval, and conveyed to Fraser no
later than the earlier of the following: (a) the discontinuance of gravel and excavation operations
consistent with the provisions of Section 9.5.e. or(b) 18 years from the Effective Date. The
Developer shall comply with all applicable local, state and federal laws, including securing any
required permits, for constructing the Dedicated Storage. Fraser agrees to waive all permit and
review fees associated with the permitting for the grading and excavation and construction of the
PDD Plan. The Dedicated Storage shall be constructed and operated and all releases of the
Dedicated Water Rights made in compliance with the decrees (or pending decree)in Case Nos.
83CW362, 05CW287 or lOCW309, which include provisions to address groundwater that may
be intercepted, and applicable augmentation plans. The Dedicated Water Rights to be used to fill
the Byers Peak Ranch Augmentation Pond shall be the first rights diverted under Case No.
lOCW309.
All operations, maintenance, repairs and replacements, and water court or agency filings
or activities for such ponds shall be Developer's responsibility at its sole cost until such time as
the rights in the Dedicated Storage and the Dedicated Water Rights are conveyed to Fraser. Upon
conveyance of the Dedicated Water Rights, Fraser shall be responsible for all operations,
maintenance, repairs, and replacements, water court or agency filings or activities of the
Dedicated Storage and Dedicated Water Rights stored therein, unless otherwise agreed upon by
the parties in writing. The pond(s) may be designed to include the storage of additional water
rights, and may include storm water detention capacity or any such other water uses that
Developer may require. In such event, the parties shall be responsible for the costs of all
operations, maintenance, repairs, and replacements, water court and agency filings or activities in
proportion to the amount Developer stores in the subject pond relative to the amount of
Dedicated Water Rights stored therein. With respect to any pond that will constitute all or a
portion of the Dedicated Storage that also will store Developer storage rights, the first water
stored in the same shall be the Dedicated Water Rights and Fraser shall have the priority of right
to use the Dedicated Water Rights over any other water stored in the Dedicated Storage. Upon
the Effective Date, the parties agree to execute an operating agreement for the Dedicated Storage
pond(s) that will provide for Developer's ongoing use of the Byers Peak Ranch Augmentation
Pond for snowmaking uses subject to all prior uses of Fraser of the same and that will address the
issues associated with either pond being larger than the amount of Dedicated Water Rights to be
stored therein to accommodate Developer storage water; it is understood that any such agreement
shall provide that Fraser shall have the right to use the Dedicated Water Rights stored in any
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such Dedicated Storage ponds with priority over any other water stored in the Dedicated Storage
by and for Developer's use. Developer shall pay Fraser $5.00 an acre foot for such snowmaking
use on an annual basis. Such fee shall increase by $5.00 an acre foot on each tenth anniversary
hereof. If the Byers Peak Ranch pond system is larger than 35 acre feet, then all capacity in
excess of 35 operational acre feet shall be retained solely for use by Developer and no fee is
required for Developer's use of such excess acre feet and the operation of the same will be as
provided herein. A copy of the agreement is attached as Exhibit G. The pond excavation
operations for the Property shall be consistent with the recorded PDD maps and approval,
Grading and Excavation Operations Plan provided for herein, and the provisions of this
Agreement.
a. Byers Peak Ranch Augmentation Pond(s). The Byers Peak Ranch
Augmentation Pond(s) shall be designed, located, and constructed by the Developer, as
provided herein for not less than 35 acre feet, on the Property. The water to fill such
pond shall be diverted from St. Louis Creek and shall be capable of being delivered
therefrom by gravity to the pond. The water stored therein shall be capable of being
released to the Fraser River via its tributaries: Elk Creek or St. Louis Creek consistent
with the provisions set forth in Case No. lOCW309, WD 5. The operating agreement
attached as Exhibit G provides that Developer may have a right of use to use the
Dedicated Water Rights in the Byers Peak Ranch Augmentation Pond for snowmaking
purposes on an annual basis subject to the first right of Fraser to meet its needs to use
such water for augmentation and other municipal purposes, in Fraser's sole discretion;
Developer shall be responsible for all costs associated with its use of such portion of
the Dedicated Water Rights.
b. Forest Meadows Augmentation Plan Pond(s). The Forest Meadows
Augmentation Plan Pond(s) shall be constructed by Developer, as provided herein and
consistent with the decreed location described in Case No. 83CW362 as approved by
Fraser, on property that is owned by Cornerstone Winter Park Holdings, LLC and
included within the Grand Park Planned Development District Plan recorded on
November 8, 2005 in the real property records of the Clerk and Recorder of Grand
County as Reception No. 2005-012709, as amended from time to time (the "Grand Park
PDD Plan"). The water used to fill such shall be diverted and conveyed to such pond
through the Elk Creek No. 2 Ditch and Developer shall make such improvements as
necessary to implement this diversion and conveyance in connection with the
construction of the Forest Meadows Augmentation Plan Pond(s). The water stored
therein shall be capable of being released to the Fraser River via its tributary Elk Creek
or as consistent with the decrees in Case Nos. 83CW362 and 05CW287, WD 5. Upon
Developer's conveyance of the water rights for the 25 acre feet decreed in Case No.
05CW287 to the Town as provided herein, Fraser agrees it will be solely responsible for
any and all further water court proceedings and costs related to such water rights, based
upon Developer's payment made pursuant to Section 3.1.2. above. Developer agrees it
will not oppose any such water court proceedings that may be filed related to such
water rights. Developer shall cause Cornerstone Winter Park Holdings, LLC to assist it
in fulfilling its obligations hereunder for the Forest Meadows Augmentation Plan
Pond(s). To the extent Cornerstone Winter Park Holdings, LLC and Grand Park
Development, LLC fail to agree to these requirements as provided herein, the Byers
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Peak Ranch Augmentation Pond(s) shall be constructed to an active capacity of 60 acre
feet within the time frame required for the Forest Meadows Augmentation Plan Pond.
C. Future Water Right Cases. The Developer agrees not to oppose any
water rights application filed by Fraser for the purpose of findings of reasonable
diligence, making absolute or otherwise utilizing the Dedicated Water Rights and/or
utilizing them as a part of its water rights inventory in connection with any plan for
augmentation or other water rights that are a part of its municipal water system. In
addition, Fraser agrees that it will not file opposition to future diligence cases related to
the water rights that serve the Property, including but not limited to Case Nos.
IOCW309. The parties agree to discuss whether it is appropriate to file joint
applications for diligence and for making the conditional Dedicated Water Rights
absolute in the event they both have interests in the same pond(s). The owners of the
Grand Park pond facilities may also be included as appropriate in the event they have
storage rights decreed to the Forest Meadows Augmentation Pond or any alternative
storage that is provided to Fraser if the Forest Meadows Augmentation Pond is not
constructed and conveyed to Fraser as provided herein.
Section 3.3 Water Service Infrastructure and its Approval and Construction. The
infrastructure necessary to enable Fraser to provide municipal water service to the PDD Plan as
provided herein includes without limitation the infrastructure described in the Water
Infrastructure Plan. The Water Infrastructure Plan is conceptual and will be modified from time
to time based on Developer's further engineering as approved by Fraser consistent with the
Fraser Code. Within such Water Infrastructure Plan, the parties anticipate construction of the
appropriate Water Facilities.
In connection with any application for approval of an FPDP or subdivision for all or
portions of the PDD Plan under the Fraser Code or with the any separate application for approval
for the construction of any Water Facilities or Dedicated Storage, the applicable provisions of
Articles 6 and 7 of the Subdivision Regulations, Article 2 of Chapter 13 and Article 3 of Chapter
18 of the Fraser Code and other applicable provisions of the Fraser Code and this Agreement
shall apply to the identification, design, approval, construction, inspection, dedication,
acceptance, cetera of the Water Facilities or Dedicated Storage that are necessary and convenient
to enable Fraser to provide municipal water service to the portions of the PDD Plan that are the
subject of such applications.
Upon review of such applications and the identification of the Water Facilities submitted
by Developer therein, Fraser may determine and require any new Water Facilities, or
improvements or additions to existing Water Facilities, in order to provide the municipal water
service to such portions of the PDD Plan that are the subject of the applications for approval;
provided that Developer shall not be required to construct any Water Facilities unrelated to the
PDD Plan except as provided herein or secure any water rights other than the Dedicated Water
Rights and associated Dedicated Storage which are to be conveyed and constructed as provided
herein. In making such determination, Fraser will also take into account the integration of the
Water Facilities with its existing and planned facilities. As a condition of such FPDP or
subdivision approval, Developer agrees to construct, at its sole cost and expense, the identified
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Water Facilities that are reasonably required to service the property subject to the FPDP or
subdivision and as may be identified in any applicable Improvements Agreement.
It is important to Fraser to utilize its water rights in St. Louis Creek for their decreed
beneficial uses and Developer agrees to assist in enabling Fraser to be able to divert and use the
same given that the delivery of water under such rights may need to cross the Property once
diverted as further provided in this paragraph. As a part of the construction of the diversion and
transmission facilities from St. Louis Creek to the Byers Peak Augmentation Pond and of the
construction of sewer lines from such pond site to the east portion of the property as identified on
the Sewer Plan or such other alignment that is cost effective for the installation of the St. Louis
Creek transmission line as determined by Fraser and Developer, Developer agrees to cooperate
with Fraser to include the installation of a raw water transmission line in the trenches for such
facilities in order for Fraser to divert its municipal water rights out of St. Louis Creek and convey
them to the Municipal Parcel described below or its water treatment facility. Any additional
costs incurred by Developer in fulfilling this responsibility will be paid by Fraser at the time that
they are incurred. Until such time that Fraser diverts and applies its St. Louis Creek water rights
to beneficial use, Fraser agrees that, on an annual basis, Developer may use those portions of its
St. Louis Creek water rights not otherwise committed to other uses or parties for decreed
purposes on the Property in order to keep such lands properly irrigated and to reduce dust within
Fraser pending the development of the PDD Plan as provided herein. Such use is an important
municipal use for Fraser to promote the irrigation of fields within the municipality and adjacent
to the other residential components of Fraser for aesthetic and dust control purposes, among
other municipal purposes. Fraser will notify Developer of the availability of such water and the
parties shall discuss its uses each year, as may be appropriate, on or before May 1 of each year.
Fraser may notify Developer at any time that such water will no longer be available for use.
Section 3.4 On-site Wells. Section 13-2-20 of Fraser Code provides that on-site wells
are not permitted on the Property except as approved by Fraser. Fraser acknowledges the
Dedicated Storage ponds that are considered to intercept groundwater will require well permits
from the State Engineer. While such ponds are technically wells if they intercept groundwater
and therefore are subject to the provisions of Section 13-2-20 of the Fraser Code, the Town
hereby determines that such "wells" are not within the contemplation of such Section, that a
franchise under the laws of the State is not necessary if the ponds are deemed to be"wells," and
that the same, if deemed to be "wells"by the State Engineer, are hereby approved as exceptions
to the requirements of such Section.
Fraser also acknowledges that the Colorado Adventure Park's water supply is provided
through a permitted well. The water service for the Adventure Park shall be provided by Fraser
upon the earlier of the following events occurring: (a) the installation of water service
infrastructure in connection with the development of Planning Area 10 or Planning Area 11; (b)
the installation of a municipal water service line within 200 feet of the well; or(c)upon
connection to Fraser's municipal water system at any time agreed upon by Developer and Fraser.
Until such connection is made as provided herein, the current permitted well is approved as a
limited and temporary water source of supply for the Colorado Adventure Park and a franchise is
not necessary to be obtained under Section 13-2-20 of the Fraser Code for the same. At the time
that such water service connection is made, Fraser and Developer agree Developer may continue
the use of such well for equestrian, snowmaking, and other non-potable uses within the Project
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as may be appropriate, subject to the final approval of Fraser. There shall be a presumption that
the well will be continued for such permitted non-potable uses on the Property and any well
permits shall be changed as needed by the Developer, depending upon the ultimate water uses of
the same. Under no circumstances shall the well be used for potable purposes after the Colorado
Adventure Park is connect to Fraser's municipal water system and there shall be no cross
connections. All potable uses of the well shall terminate upon the connection of the Adventure
Park potable system to the Fraser municipal water system.
Section 3.5 Water Plant Investment Fees. Water Plant Investment Fees associated with
the water service to the project shall be due and payable as provided in Section 13-2-210 of
Fraser Code.
Section 3.6 Excess Capacity. Developer is only responsible for costs associated with
Water Facilities that are reasonably required to service the Property. To the extent the costs of
any excess capacity of any Water Facilities constructed by Developer at the request of
Fraser are the subject of reimbursement agreement with other parties using such excess
capacity, Developer shall be entitled to receive all reimbursements received and/or
plant investment fees paid in proportion to the excess capacity utilized, but not to
exceed such proportionate costs. To the extent Water Facilities constructed by Developer for
the Property are utilized to the benefit of other property not within the PDD Plan, Fraser agrees
to reimburse Developer for the proportionate cost of such Water Facilities in proportion to the
use by such other property based on the cost to Developer of such facilities and limited by the
actual reimbursement or plant investment fees paid to Fraser by the owners of such other
property. The payment of such reimbursable amounts shall be due to Developer quarterly based
on the funds received from other properties beginning with the first quarter after the subject
Water Facilities are accepted by Fraser. To the extent that Fraser requests that the Water
Facilities be constructed with excess capacity that are not the subject of reimbursement and
Fraser, in its discretion, desires to have such excess capacity created, it shall pay the costs of the
same at the time that they are incurred.
Section 3.7 Water Plant Investment Fee Accounting and Credit. Fraser shall establish a
separate water account for Developer and provide a specific accounting for Developer to track all
Water Plant Investment Fees paid in connection with the Property and all certified costs incurred
by Developer in the construction of Water Facilities and the Dedicated Storage. All reasonable
Dedicated Storage construction costs and all reasonable Water Facilities construction costs
incurred by Developer in connection with the development of an approved FPDP or subdivision
shall be documented and certified by Developer and provided to Fraser for review and approval.
The amount of such approved costs shall be credited to the Developer in Developer's water
account. The amount of any Water Plant Investment Fees prepaid by Developer shall also be
separately credited in the Developer's water account. Any Water Plant Investment Fees in
Developer's water account shall not expire.
Fraser will collect the Water Plant Investment Fees for residential and commercial water
users within the Property as paid in accordance with the Fraser Code. The amounts collected
shall be accounted for in Developer's water account.
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Developer shall be credited in Developer's water account the Water Plant Investment
Fees both prepaid and paid in the amounts paid. Subject to the limitations set forth herein,
Developer shall be reimbursed for construction costs of(a) all Water Facilities which are
reasonably required to service the FPDP or subdivision and(b) Dedicated Storage. The payment
of such reimbursable amounts shall be due to Developer quarterly based on the fees received
beginning with the first quarter after the Water Facilities are accepted by Fraser and based upon
the certified costs of Developer. Water Plant Investment Fees collected by Fraser for all
connections at the Property and due to Developer hereunder shall be paid by Fraser to West
Mountain Metropolitan District and the Developer's water account shall reflect the same.
The amount of Water Plant Investment Fees to be reimbursed to Developer shall be as
follows:
a. BPR is reimbursed for all water plant investment fees generated by the BPR
project paid from 41 SFE to 4711 SFE;
b. BPR and the Town split equally the water plant investment fees generated by the
BPR project paid from 4712 SFE to 41,331 SFE;
C. BPR is reimbursed for all water plant investment fees generated by the BPR
project paid from 41331 SFE to 41,520 to bring to a total of 900 fully reimbursed SFE fees to
BPR;
d. BPR and the Town split equally the water plant investment fees generated by the
BPR project paid from 41,520 to 41,897.
In the event all of Developer's certified costs are fully paid, Fraser shall thereafter be entitled to
retain all Water Plant Investment Fees paid in connection with the Property. The reimbursement
provided for herein shall not exceed the amount of the certified costs of Developer paid in
connection with the construction of the Water Facilities and Dedicated Storage.
If Fraser hereafter amends its Fraser Code to allocate its Water Plant Investment Fee
between a system development fee and a water resource fee, neither Developer nor any other
owner within the Property shall be obligated to pay a water resource fee except as otherwise
identified by separate agreement between Developer and Fraser. All other hook-up and service
fees customarily charged by Fraser to its water customers under the Fraser Code may be charged
and collected to water customers within the Property.
ARTICLE 4
SEWER
Section 4.1 Sewer Service. Upon approval of this Agreement, Fraser will provide
municipal sanitary sewer service to the Property to serve the PDD Plan subject to the terms and
conditions set forth herein and the applicable provisions of the Fraser Code.
To the extent that Fraser requests that the sewer facilities to be constructed to serve the
PDD Plan be constructed with excess capacity that are not the subject of reimbursement and
Fraser, in its discretion, desires to have such excess capacity created, it shall pay the costs of the
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same at the time that they are incurred. To the extent that another property owner requests that
the PDD Plan's sewer facilities be constructed with excess capacity to serve such other property,
such other property owner shall pay the costs of the same at the time that they are incurred. To
the extent that properties outside of the Property utilize any sewer facilities constructed by
Developer, the users thereof shall reimburse Developer for the costs of such sewer facilities in
proportion to the uses by properties outside the Property and those within.
Section 4.2 Individual Sewage Systems.Disposal SyDisposal Systems. Fraser acknowledges and approves
the existing Individual Sewage Disposal System as defined by and regulated by Colorado law
("ISDS") that serves the Colorado Adventure Park. Such ISDS may continue in operation until
the sooner of the following events occurs: (a) the installation of sanitary sewer service
infrastructure in connection with the development of Planning Area 10 or Planning Area 11; (b)
the installation of a public main within 200 feet of the ISDS; or(c) at such time that the Colorado
Adventure Park facilities are connected to the municipal water system of Fraser. After any one
of the above events occurs, the parties agree that the Colorado Adventure Park shall connect to
Fraser's municipal sanitary sewer system and the ISDS shall be abandoned.
ARTICLE 5
OTHER UTILITIES
Section 5.1 Other Utilities. Developer shall comply with the Subdivision Regulations,
Chapter 13 of Fraser Code, and other applicable provisions of the Fraser Code regarding the
development and extension of utility service to the PDD Plan or portions thereof, as applicable.
ARTICLE 6
DRAINAGE
Section 6.1 Drainage. Developer has submitted a Conceptual Drainage Plan prepared by
Top Knot Engineering, Inc. dated August 2011 and a Preliminary Drainage Plan prepared by Top
Knot Engineering, Inc. dated August 1, 2011. The applicable requirements of the Subdivision
Regulations and of Section 16-5-440(8) of the Zoning Regulations and other provisions of the
Fraser Code pertaining to drainage shall be complied with at the time of the submission of an
application for an FPDP or subdivision for all or portions of the PDD Plan. As provided in the
PDD Plan, a master drainage study will be submitted with the first application for an FPDP or
subdivision
ARTICLE 7
STREETS AND TRAFFIC
Section 7.1 Grading & Roadway Plan. Developer has submitted a Preliminary Grading
& Roadway Plan dated August 1, 2011,prepared by Top Knot Engineering, Inc., as a part of its
submission of the PDD Plan ("Roadway Plan"), which has been approved by Fraser Board as
part of the PDD Plan, which plan was amended on January 17, 2013.
Section 7.2 Traffic Impact Analysis. Developer has provided a Traffic Impact Analysis
dated February 2011 prepared by Felsburg Holt and Uhlevig (the "Traffic Impact Analysis"),
which has been approved by Fraser's traffic consultants and approved by Fraser Board as a part
of the PDD Plan. The Traffic Impact Analysis may be amended and updated from time to time,
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including at the time of the filing of an application for an FPDP or a subdivision, as appropriate,
in order to update the same as the PDD Plan is implemented over time and to reflect material
changes in assumptions (such as the assumption that Fraser Valley Parkway will be completed to
the north of the Property past County Road 73) and results of the same and material changes in
impacts and conditions of traffic on Fraser. Fraser shall review and approve all such
amendments, in its sole discretion, to insure that the traffic impacts of the development of Fraser
and the traffic impacts of the implementation of the PDD Plan are identified and appropriately
addressed. At the time of an application, the Developer shall provide the engineering and
associated information required in Sections 16-5-430(12) and 16-5-440(l 1) of the Zoning
Regulations and the information required in the Subdivision Regulations. A memorandum of
construction traffic management procedures to address the ongoing impacts of the construction
and phasing in of the PDD Plan shall be submitted at the time that an application for a grading
and excavation permit is submitted and shall be amended from time as appropriate with the filing
of any of the above referenced applications.
Section 7.3 Street Designations. Streets within the Property shall be constructed in
accordance with Fraser's design and construction standards as provided in Fraser Code and shall
be public except as otherwise provided herein. Streets solely serving condominium or townhome
projects will be private. There may be other private streets designated by mutual agreement
between Fraser and Developer that would be owned by an association or by Developer in
connection with the approval of an FPDP or a subdivision.
Section 7.4 Street Maintenance. Public streets shall be maintained, repaired and
replaced by Fraser. Streets and drives not dedicated to Fraser will be maintained, repaired and
replaced by Developer, an applicable association, by Grand County, or by a metropolitan or
other special district with the authority to do the same. All private streets and drives shall be
maintained as required in Section 17-6-10(g) of the Fraser Code. Fraser shall have no obligation
to maintain any non-dedicated streets on the Property unless otherwise agreed to by the parties.
An easement shall be dedicated on each final subdivision plat to Fraser over, under, and across
all roads not dedicated to Fraser for access to utility infrastructure and facilities, for emergency
services, and for Fraser employees, agents, representatives to fulfill normal and ordinary Fraser
responsibilities in connection with the construction, inspection, operation, and maintenance of
any and all improvements within the PDD Plan, and for any access that is determined to be
provided to the public in the course of the approval of an FPDP or subdivision.
Section 7.5 Street Rights of Way. Streets to be dedicated to Fraser as public rights of
way shall be dedicated in accordance with the provisions of the Fraser Code at the time of an
FPDP or subdivision approval. The right of way for the roadway designated as Fraser Valley
Parkway was previously dedicated to Fraser. The rights of way for County Road 72 and County
Road 73 are owned by Grand County (that portion of County Road 73 within Fraser is
commonly known as "Mill Avenue"). The rights of way for these roadways shall be confirmed
on each FPDP or subdivision plat that includes the same within its boundaries. The designation
of the alignment, location, and widths of all other primary and internal streets and roadways shall
be consistent with the planned, designed, engineered and approved standards based on
anticipated uses of such streets in connection with the PDD Plan and Fraser traffic needs as
identified in the then current Traffic Impact Analysis and Traffic Impact Study.
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Section 7.6 Regional Roadways. The improvement of the Regional Roadways is the
responsibility of Grand County and Fraser based on intergovernmental agreements and
memoranda of agreement or understanding that may exist between them from time to time.
Fraser and Grand County shall work together to establish the level of improvements desired for
the Regional Roadways and the proportional responsibilities and timing associated with any
improvements. Fraser shall reassess the necessity of such improvements at the time Developer
submits its application for FPDP or a subdivision under the PDD Plan based on the then current
Traffic Impact Analysis and Traffic Impact Study.
Improvement to the Regional Roadways may be required by Fraser and Grand County or
the Fraser Code or applicable regulations as a result of increases in traffic resulting from regional
use or use in connection with the development of the Property. The design, engineering and
construction of any required improvements will be the responsibility of Fraser and Grand
County. The parties agree that Developer shall only be responsible for costs to improve Regional
Roadways based on the percentage of total trips from the development under the PDD Plan to the
total trips on the subject Regional Roadway. Such percentage of use is anticipated to increase as
the development phases are implemented and shall be considered in connection with the
appropriate improvements and allocation of total trips from the Property. It is understood that
Developer has equipment and will contribute its portion of the improvements in kind through the
use of its equipment to provide the base grading and excavation that may be necessary for such
road improvements.
No later than upon completion of the pond grading and excavation on the Property, the
parties agree Fraser Valley Parkway should be improved by chip and seal, at a minimum. The
Town shall provide for the development of the design and engineering of the improvements of
such parkway. Developer, at its cost, agrees it will provide the initial grading and roadbase
construction and materials necessary to enable chip and seal or paving improvements to be made.
A timeline will be developed for Developer's work once the Town has secured appropriate
funding for the surfacing improvements and can provide for the same.
Section 7.7 Street Standards, Construction, Inspection, and Acceptance. Except as
otherwise provided in this Agreement, the design, construction, inspection and acceptance of all
public roads shall be consistent with the PDD Plan, approved FPDP or subdivision, and the road
standards set forth in the Fraser Code. Developer shall be responsible for the costs of the same
as provided in the Fraser Code. The primary access roads serving the Property shall be paved in
accordance with applicable Fraser Code standards. The Developer may request alternate road
surface designs on local roads and within low-density Planning Areas, in accordance with
applicable standards for such surfacing. All private streets shall comply with those standards
pertaining to emergency vehicle access and use as determined by the Fire District and consistent
with Fraser Code requirements, if any. If any private streets are dedicated to the public, they
shall meet all standards applicable to public streets as provided in the Fraser Code.
Section 7.8 Pathways. Fraser and Developer agree that a path shall be designed and
constructed by Developer along the Fraser Valley Parkway through the Property. It shall be
designed in such a manner to have a separated path of sufficient width to reasonably
accommodate bicycles and pedestrians. In the event the path is not constructed in connection
with the grading and excavation operations for the ponds as set forth in the Grading and
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Excavation Operations Plan referred to in Section 9.5, it shall be constructing as public
infrastructure under the FPDP or subdivision approval for the first phase of the development.
ARTICLE 8
SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION
Section 8.1 Additional Municipal Services. After the Effective Date and subject to the
provisions hereof, Fraser agrees to provide the Property such additional municipal services
currently provided within Fraser on terms and conditions by which such services are so provided,
subject to applicable terms and conditions of any approval of an FPDP or subdivision.
Section 8.2 Project Open Space. Developer has submitted and Fraser has approved as a
part of the PDD Plan a general open space plan consistent with the requirements of the Fraser
Code. Developer agrees to further submit with each application for an FPDP or subdivision
refined and detailed provisions of the open space plan for the property that is the subject of such
application and an updated open space plan for the PDD Plan consistent with the requirements of
the Subdivision Regulations and of the Zoning Regulations.
Section 8.3 Public Open Space. During the implementation of that portion of the PDD
Plan that includes development adjacent to the Fraser Valley Parkway from the old town south
and on the east side and after the improvements to the Fraser Valley Parkway have been made
and basic infrastructure installed in either Planning Area 2, 3, or 8 whichever is first, Developer
shall create and develop (sod/grass and irrigation infrastructure to be installed) a"pocket"park at
the south end of the viewplane shown on the PDD Plan adjacent to the Fraser Valley Parkway
for public open space use and shall dedicate the same to the Town. Such park shall be 1.5 acres
in size, shall, at a minimum, be in the configuration of a football field. Any other improvements
to be made to the park shall be made by the Town at its expense. Any such land so dedicated
shall be credited to Developer's park, open space, and other dedication requirements for the
Property, as applicable and consistent with Developer's open space plan, in accordance with
Fraser Code, including without limitation, Section 17-7-370. The Town shall be responsible for
maintaining the same upon its dedication to the Town.
Section 8.4 School Impact Fees. At Developer's request and subject to the provisions of
Sections 17-7-340 and 17-7-350 of the Fraser Code, Developer may dedicate land for public
schools or pay a fee in lieu based upon the calculation of those fees as set forth in Section 17-7-
350 of the Subdivision Regulations. Such fees shall be calculated and due and payable as
provided in Section 17-7-350(4) of the Fraser Code or at such other time as agreed upon by the
parties.
Section 8.5 Municipal Parcel Dedication. On the Effective Date, the Developer agrees to
dedicate, or to cause to be dedicated, 6 acres in the PA-1 Planning Area of the PDD Plan
("Municipal Parcel") to Fraser be used for municipal purposes. The Municipal Parcel shall be
configured to exclude the detention pond from its boundaries, which detention pond is shown on
the PDD Plan Preliminary Drainage Plan The Municipal Parcel is more specifically described in
Exhibit H. The dedication will be made by special warranty deed free and clear of liens and
encumbrances. A title insurance commitment has been provided to Fraser in connection with the
application for subdivision exemption for the Municipal Parcel to be approved by Fraser as of
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the Effective Date. It is understood that as of the Effective Date, only very preliminary
assessment of drainage and other issues has been conducted. The parties agree that at the time
that the land immediately to the west in Planning Area 1 is the subject of an FPDP or subdivision
plat, the Municipal Parcel will be included in the analysis and proposed mitigation of such
issues.
Section 8.6 Colorado Adventure Park Facilities and Operations. The parties
acknowledge the facilities and operations of the Colorado Adventure Park("Park")located in
Planning Area 8 of the PDD Plan. The Park is an existing business that was the subject of the
public review process in Grand County in connection with the issuance of a special use permit
therefor. The Park has operated in accordance with the special use permit. The special use
permit will terminate upon the Effective Date and Fraser shall approve by resolution, concurrent
with the approval of this Agreement, a development permit for the continued operation of the
Park consistent with the provisions of the special use permit pending the review and approval of
an FPDP that includes the Park
ARTICLE 9
GENERAL DEVELOPMENT OF THE PROPERTY
Section 9.1 Development and Control of Development. Developer has the right to
develop the PDD Plan on the Property subject to the terms and conditions of this Agreement, the
land use approvals and the completion of the land use process consistent with the provisions of
Fraser Code. This Agreement and the other provisions incorporated as a part of the PDD Plan
are intended to prescribe a general plan for the use and development of the Property. Except as
expressly provided herein and the other provisions of the PDD Plan, whenever any action is
required to be taken by Developer hereunder at the time of or in conjunction with FPDP or
subdivision review or approval, and the FPDP and subdivision do not occur concurrently, then
the action shall be required at the time of the first approval for FPDP or subdivision for the
subject property.
Section 9.2 Densities. This Agreement and the approved PDD Plan set forth the number
of Residential Units at a maximum of 1,435 dwelling units (as defined in Fraser Code), 550
hotel/motel/lodging house units (as defined in Fraser Code and including without limitation
recreational vehicle parking spaces and campsites that are intended for tourist and visitor use
only) and 270,000 square feet of commercial space, recreational facilities and appropriate
support facilities which Fraser agrees is appropriate for development on the Property subject to
the completion of the land use approval process under Fraser Code. The location of such units,
the sizes of the various building envelopes, and other pertinent land use requirements shall be
determined in the land use approval process as required by Fraser Code and reflected in an
approved FPDP, subject to the provisions of the approved PDD Plan, the Fraser Code, and any
density transfers properly identified in accordance with the Fraser Code. The PDD Plan is
approved concurrently herewith and generally includes without limitation the following:
a. a property description;
i. land use and development notes referring to matters to be done
relating to open space, accessory dwelling units, density transfer, water supply and system,
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wastewater collection, grading and drainage, geologic features, development standards, sign
guidelines,parking and planning area descriptions;
ii. fourteen Planning Areas that are designated areas of land within
the project and identified in the PDD Plan and that include residential use with detached,
attached and stacked Residential Units (Planning Areas 2, 3, 4, 5, 6, 7, 8, 12, 13, 14); a mix of
uses of commercial retail, office, industrial, warehousing, residential, lodging, and institutional
uses and municipal purposes and facility uses (Planning Area 1), open space,park, trails and
recreational uses (Planning Area 9), lodging, RV, camping, retail, commercial recreation,
restaurant uses (Planning Area 10); detached, attached, stacked, RV, camping and cabin units
(Planning Area 11); and excavation and grading operations and ponds and gravel operations
associated with the pond and Project development (Planning Areas 4, 5, 6, 7, 8, 9, 10, 11) and
other limited pond development (Planning Areas 2 and 3);
iii. general site analysis;
iv. land use plan that is a general map showing the Planning Areas
with acres for the same and land use site data chart and two streets;
V. preliminary sewer plan showing conceptual main sewer line
locations and a reference that a master sewer study will be prepared at platting;
vi. preliminary water plan showing conceptual water main locations
and a reference that a master water study will be prepared at platting;
vii. preliminary grading and roadway plan showing Road A with cross
section, CR72, CR73 and Fraser Valley Parkway;
viii. Preliminary drainage plan showing general flow directions and
outfall points from the Property and proposed water features/detention ponds and a reference that
a master drainage study will be prepared at a later date.
Section 9.3 Transfer of Water and Sewer SFEs. In addition to the rights to transfer
density set forth in Sec. 16-5-630 of the Fraser Code, Developer shall have the right to transfer
water and sewer SFEs from the Property to an adjacent property subject to the following
conditions:
i. The property receiving the transferred SFEs must be within the
boundaries of Fraser.
ii. The transferred water SFEs shall remain subject to the Water Plant
Investment Fee payment structure for the water SFEs set forth in Section 3.6 irrespective of the
payment structure for SFEs associated with the receiving property. The transferred sewer SFEs
shall remain subject to the payment structure for the sewer SFEs set forth in the Fraser Code
irrespective of the payment structure for SFEs associated with the receiving property.
iii. The receiving property shall remain subject to all other provisions
of the Fraser Code.
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iv. Any transfer proposed must be approved by Fraser, which approval
shall be based upon confirmation and satisfaction of these conditions.
Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations of Fraser.
Subject to the provisions of Article 11 hereof, development within the Property shall conform to
the development standards approved as part of the PDD Plan and to the applicable provisions of
Fraser Code. Prior to Fraser considering and approving an FPDP or subdivision for the Property,
Developer shall satisfy all applicable rules and regulations of Fraser, submit all required plans
and information,pay all standard fees, and shall satisfy all applicable conditions of approval of
the PDD Plan, the requirements set forth herein, and all applicable requirements of the Fraser
Code consistent with the provisions hereof.
Section 9.5 Grading and Excavation Operations. In connection with any FPDP or
subdivision application or other activity associated with the development of the PDD Plan,
Developer shall obtain a grading and excavation permit in accordance with the requirements of
Article 3 of Chapter 18, Building Regulations, of the Fraser Code. Due to the extent of the
grading and excavation activities anticipated on the Property as a result of the development of
water storage facilities for Fraser and Developer and roads and other components of the PDD
Plan, any permit for the grading, excavation, and stockpiling on the Property or export of
excavated material from the Property shall be subject to review and approval by Fraser for
compliance with the provisions of the applicable Fraser Grading and Excavation Operations
Plan, as it may be amended from time to time, and the requirements and conditions set forth in
any applicable permit issued for such activities by State of Colorado Office of Economic
Development, Colorado Department of Natural Resources, Division of Mining Reclamation and
Safety ("DMRS").
The Grading and Excavation Operations Plan will be used to regulate grading and
excavation operations for pond excavation for sale of gravel offsite within Fraser in addition to
any DMRS permit that may be required and issued and the provisions hereof. Prior to
commencement of any grading and excavation activities on the Property, Developer, its lessee or
its operator, as appropriate (references to "Developer" shall include its lessee or operator), shall
comply with the following, subject to Developer remaining responsible for insuring that such
compliance occurs:
i. DMRS Permit. Developer shall submit any required DMRS permit
application and permit, if applicable.
ii. Fraser Grading and Excavation Permit. Developer shall submit an
application for and shall obtain a grading and excavation permit from Fraser in accordance with
the requirements of Article 3 of Chapter 18, Building Regulations, of the Fraser Code. Such
application shall include, without limitation, a copy of any DMRS permit application. A copy of
the DMRS permit shall be filed with Fraser when issued. The grading and excavation permit
issued by Fraser shall include a condition that it is subject to the Grading and Excavation
Operations Plan.
iii. Compliance with Laws. Developer shall comply with all
applicable Fraser, state and federal rules, regulations and statutes, including, without limitation,
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those enforced by the Colorado Department of Natural Resources, the Colorado Division of
Reclamation, and the Colorado Division of Public Health and Environment. The Developer will
apply for any other required permits and shall provide such permits to Fraser as a part of its
application for or implementation of its grading and excavation permit.
iv. Best Management Practices. Best management practices will be
employed with regard to soil erosion, drainage, and other impacts on the site and mitigation of
the impacts shall be included as a part of such practices; a summary of best management
practices will be provided to Fraser with the grading and excavation permit application.
V. Duration of Operation. Operations shall commence within six
months of obtaining any required permit from the State and a grading and excavation permit
from Fraser together with the required surety for Developer's performance, to the extent not
previously provided. Developer agrees that any such permits shall be used for not longer than 10
years per permit, and all permitted gravel and excavation operations shall discontinue entirely
after the 15 year anniversary of the issuance of the first grading and excavation permit. It is
understood that additional grading and excavation activities may occur thereafter in connection
with the phasing in of the PDD Plan after the pond(s) construction has been completed.
Developer shall apply for and obtain appropriate grading and excavation permits in accordance
with the Fraser Code for such activities. During periods of inactivity (six months or more),
equipment associated with the grading and excavation operation must be moved off-site.
Section 9.6 Transfer of Planning Area. Developer shall have the right to create a
separate legal parcel of a Planning Area or portion thereof under the Subdivision
Regulations. In the event the subject parcel satisfies the subdivision exemption criteria
set forth in Section 17-3-10(a) of the Subdivision Regulations, the plat creating the
same shall include a notation that approvals of the plat by Fraser do not indicate an
approval of any access rights, availability of utilities or the ability of the parcel or
parcels to be served by utilities and that such parcel or parcels are subject to the terms
and conditions of this Agreement and the Fraser Code. In the event such parcel or
parcels are transferred to a third party, any proposed changes to the PDD Plan by
Developer with respect to the remainder of the Property or by the transferee with
respect to the transferred parcel or parcels shall require the confirmation of the other
party that such changes do not affect their respective property
Section 9.7 Phasing Plan. Consistent with the requirements of Section 16-5-430 of the
Zoning Regulations, a development schedule indicating an approximate date when construction
of the planned development or phases of said development may begin shall be submitted with
each application for an FPDP or subdivision, together with proposed amendments to the PDD
Plan general phasing plan, as appropriate.
Section 9.8 Metropolitan District. Developer has previously organized the West
Mountain Metropolitan District (the "District"). The purpose of the District is to provide a
means of financing various infrastructure improvements or operating infrastructure for the
development within its boundaries but not to compete or conflict with the services and
responsibilities of Fraser. Fraser has received a request from the District to include the Property
within its service area. Contemporaneously herewith and pursuant to the provisions of C.R.S.
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Title 32 Article 1, Special District Act, Fraser has approved by resolution the petition to include
the Property in the West Mountain Metropolitan District service area under C.R.S. Section 32-1-
401 and approved by resolution an amendment to the service plan consistent with the
requirements of C.R.S. Section 32-1-204.5. It is understood that such service plan amendment
includes without limitation an increase of the debt authorization, subject to District voter
approval, to be equal to the application of a maximum District tax rate of 35 mills for the
Property based upon the financial information provided under C.R.S. Sections 32-1-202(2)(b)
and (f) and 32-1-203(3)(4). No more than 35 mills shall be imposed on the Property and this
restriction shall run with the land the District shall include this Property with this restriction.
Developer shall not be relieved of any of its obligations hereunder or under any land use
approvals granted with regard to the Property and hereby guarantees and will execute any
additional appropriate documents guaranteeing any financial obligation undertaken by the
District in connection with any responsibility agreed to herein or under the Fraser Code, any
conditions of approval of any approved FPDP or subdivision, or any conditions of approval of
the amendment to the District's service plan. In connection with the approval of an FPDP or
subdivision and the negotiations of a subdivision improvements agreement, development
improvements agreement or Improvements Agreement, Fraser shall review the financing
mechanisms and security proposed by Developer and the District for the financing of the
infrastructure required by such agreement and may approve the same if consistent with the
requirements and intent of the Fraser Code and this Agreement
Section 9.9 Financing of Public Improvements. As requested by Developer from time to
time, Fraser, in its discretion, agrees to consider public infrastructure financing techniques to
assist in the costs of improvement that are of a regional nature.
Section 9.10 Maintenance Cost Offsets. Developer and Fraser recognize and agree that
the development contemplated by the PDD Plan may entail significant increased road
maintenance and capital expenditures to be the responsibility of Fraser. Fraser may, as a
condition of approval of any FPDP or subdivision require that the applicable Improvements
Agreement provide for the Developer to provide a means of road maintenance necessary to serve
the FPDP or subdivision or utilize other means of addressing the maintenance needs for such
roadways other than the Regional Roadways, for a reasonable period of time not to exceed two
(2)years.
Section 9.11 Hospital/Health Services District. Developer may wish to form a
Hospital/Health Services District and currently intends to include the Property within its service
area. Fraser agrees to review any service plan prepared for such a special district at the time that
it is submitted to Fraser for review and approval in connection with the inclusion of the Property
within the district. A condition of approval of the creation of such a district is that the district
and Fraser enter into an intergovernmental agreement that restricts the district from entering into
any other contracts or assessing any property or sales taxes without subsequent Fraser approval.
The district's service plan shall also contain such a restriction.
Section 9.12 Owner's Associations. Developer reserves the right to impose covenants
upon any portion of the Property and to form one or more owner's associations for all or any
portions of the Property which shall assume responsibilities for collecting common expenses and
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enforcing restrictive covenants. All such covenants and declarations must be provided as
required by the Fraser Code.
Section 9.13 Rules, Regulations and Official Policies.
i. Fees, Conditions and Dedications. Developer shall make only
those dedications and pay only those fees expressly described in this Agreement and the PDD
Plan and those otherwise set forth in the Fraser Code, including without limitation the
reimbursement of Fraser's expenses incurred in connection with Fraser's review of this
Agreement and of any zoning and subdivision applications filed by Developer. Notwithstanding
the foregoing, Developer, as appropriate and consistent with the provisions hereof, will be
subject to such other normal fees, such as service fees, that all developers and citizens are
required to pay for municipal services.
ii. Land Use Approvals. Developer agrees to fulfill the provisions,
terms and conditions of the PDD Plan as provided therein and as conditioned by Fraser.
ARTICLE 10
COOPER & IMPLEMENTATION
Section 10.1 Statement of Intent. It is the express intent of Developer and Fraser to
cooperate, and work diligently to implement any approved preliminary subdivision plats and
final subdivision plats, FPDP and/or other land use approvals, building permits or approvals in
compliance with this Agreement and Fraser Code and in substantial conformance with the PDD
Plan as such may be amended from time to time.
Section 10.2 Scope of this Agreement.
i. This Agreement is intended to set forth the parties' understanding
and agreements regarding the annexation of the Property pursuant to the Municipal Annexation
Act of 1965, as amended, the procedures, limitations and standards applicable to the construction
of future improvements that may be installed to serve the Property, the responsibilities of the
parties for various costs, fees and charges, and such other matters the parties believe can be
addressed at this time.
ii. Except as otherwise provided in this Agreement, this Agreement is
not intended to address those additional matters which are properly considered at the time
Developer submits to Fraser for its review and approval an FPDP, subdivision applications for
each development phase of the Property, or both. Contemporaneously herewith, Fraser has
approved the PDD Plan. Except as otherwise set forth in this Agreement, Fraser reserves all
rights to review, approve or deny any future zoning application, FPDP application, or future
subdivision application on any portion of the Property, in accordance with state law and
applicable provisions of the Fraser Code, ordinances, rules, regulations, standards, and policies.
iii. It is not the intention of the parties in any way to diminish or limit
Fraser's legislative,judicial, quasi-judicial or other non-delegable discretionary powers except as
to the matters specifically set forth in this Agreement. Except as otherwise provided in this
Agreement, it is not the intention of the parties to impose on Fraser any duty, beyond the Fraser
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 23
Code and regulations as they may from time to time exist, nor to impose any special obligation
on Fraser to approve or accept any items submitted by Developer or its successors and assigns
including, but not limited to,plans, drawings, engineering, reports, security documents,
improvements, agreements, and conveyances.
ARTICLE 11
VESTED RIGHTS
Section 11.1 Vesting of Certain Property Rights. The parties hereby agree
i. that this Agreement shall constitute a development agreement as
defined in C.R.S. 24-68-104(2) and shall constitute a site specific development plan under
C.R.S. 24-68-102(4)(a);
ii. that certain rights under this Agreement shall be vested property
rights to the extent permitted by Colorado law as provided in this Agreement; and
iii. because the development of the Property under this Agreement is
sizable and requires phasing over 35 years according to the Developer and because of evolving
market conditions, a vested property right is hereby established with respect to the Property in
connection with the approval of this Agreement to undertake and complete development and use
of the Property under the terms and conditions of this Agreement.
Section 11.2 Rights Which Are Vested. Having provided notice and conducted a
hearing in accordance with the requirements of C.R.S. Sec. 24-68-103(b), only the specific
rights which are identified herein and in the PDD Plan attached hereto shall constitute the vested
property rights established under this Agreement for the Property. Subject to the terms and
conditions set forth in this Agreement and in the approval of the PDD Plan, these rights include
the following:
a. No Downzoning. Fraser shall not initiate any zoning action to
reduce the maximum number and location of residential dwelling units, lodging units or
allowable commercial space, to limit the free market nature of the various properties or
interests therein offered, to impose any affordable housing fees or housing
requirements, to limit sales, or to change or limit the permitted commercial activities as
set forth in the PDD Plan.
b. Residential Dwelling Units, Lodging and Acreage. The right to
develop up to the total number and type of residential dwelling and hotel/motel/lodging
units set forth on the PDD Plan and the right to utilize substantially the total gross acres
for residential and hotel/motel/lodging use as set forth herein and in the PDD Plan.
C. Commercial Acres and Density. The right to utilize substantially
the total gross acres for commercial use as set forth on the PDD Plan and the right to
develop up to the gross floor area for commercial use as set forth herein and in the PDD
Plan.
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 24
d. Land Uses. The right to develop land and engage in land uses in
the manner and to the extent set forth in the PDD Plan.
e. Timing and Development. In recognition of the size of the
development contemplated under the PDD Plan, the time required to complete
development, the need for development to proceed in phases, and the possible impact of
economic conditions and economic cycles and varying market conditions during the
course of development, the right to develop the Property in such order and at such time
as the market dictates within the structure of this Agreement and the PDD Plan.
f. Moratoria. Fraser will not impose a moratorium except Fraser may
impose a temporary moratorium if, (i) the moratorium is non-discriminatory, (ii) the
moratorium is based upon a set of circumstances or a situation that has created a serious
and documented issue that threatens public health and safety and (iii) the moratorium is
only so long as required to correct or remedy the situation. In no other event shall any
type of general growth moratorium, product type, or building permit limitation of any
kind enacted in any manner by Fraser be applicable to the Property.
Section 11.3 Term for Vested Rights. In recognition of the size of the development
contemplated under the PDD Plan, the time required to undertake and complete development, the
need for development to proceed in phases, and the possible impact of economic cycles and
varying market conditions during the course of development, Fraser agrees that the rights
identified in Section 11.1 and Section 11.2 of this Agreement, as vested property rights, shall
continue and have a duration of thirty-five(35) years beginning on the Effective Date. In the
event the Developer or its successor(s) in interest does any of the following, the vested rights
created herein shall terminate:
1. filing of voluntary petition in bankruptcy or for reorganization or for the adoption
of an arrangement under the Bankruptcy Code (as it may be amended from time to time) or an
admission of seeking the relief therein provided;
2. making a general assignment for the benefit of its creditors;
3. consenting to the appointment of a receiver for all or a substantial portion of the
Property;
4. in the case of the filing of an involuntary petition in bankruptcy, the failure to
have such petition stayed or dismissed within 60 days of filing;
5. the entry of a court order appointing a receiver or trustee for all or a substantial
part of the Property; or
6. the assumption of custody or sequestration a court of competent jurisdiction of all
or substantially all of the Property.
Section 11.4 Compliance with General Regulations and Limitations on Town Actions.
The Town shall not take any zoning, subdivision or other land use action that would alter,
impair,prevent, diminish, impose a moratorium on development, or otherwise delay
development or use of the Property in accordance with this Agreement. Except as otherwise
provided herein, the Fraser Code, ordinances,policies,procedures, regulations, standards, and
requirements in effect as of the Effective Date shall be applicable to the use and development of
the Property.
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 25
i. The establishment of the rights vested under this Agreement shall
not preclude the application of Fraser ordinances,regulations. standards, or requirements which
are general in nature and applicable to all properties within Fraser including, but not limited to,
public works and sign regulations, impact fees, rate, toll, charge, tax, service fees, user fees, local
improvement districts rules and regulations, building permit application requirements, building,
fire,plumbing, engineering, electrical and mechanical codes, as such exist on the Effective Date
or may be enacted or amended after the Effective Date.
ii. In addition, the provisions of the Fraser Code, ordinances,policies,
procedures, regulations, standards, and requirements may be amended from time to time and will
be applicable to the development of the Property as provided herein if such amendments (i) are
consented to by Developer or(ii) are general in nature and applicable to all properties in Fraser
and do not have the effect of denying, altering, impairing,preventing, diminishing, imposing a
moratorium on development, or otherwise delaying development or use of the Property in
accordance with the PDD Plan and this Agreement.
The parties understand and agree that the Business District development standards shall
be applicable to all mixed use, accommodation, lodging and commercial zoned planning areas in
the PDD Plan and shall be incorporated into the FPDP for such areas. Accordingly, the review
procedures of the Fraser Code for the PD District shall apply to the approval of any FPDP or
subdivision plats for the Property.
Within 14 days after Fraser has approved the ordinance approving this Agreement and in
accordance with C.R.S. Sec. 24-68-103(1)(c), Fraser shall cause to be published a notice in a
newspaper of general circulation advising the general public of the site specific development
plan approval and creation of a vested property right pursuant C.R.S. Sec. 24-68-101 through
106.
Nothing contained in this Agreement shall constitute or be interpreted as a repeal of
existing codes or ordinances or as a waiver or abnegation of Fraser's legislative, governmental or
police powers to promote and protect the health, safety, or general welfare of Fraser or its
inhabitants.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Time is of the Essence. Time is of the essence with respect to the
performance of each party's obligations hereunder. However, neither party shall be
liable for delays or failures to perform due to acts of God, strikes, civil commotions,
epidemics, quarantines, freight embargoes, or other cause of similar nature not
reasonably within such party's control
Section 12.2 Covenants. The provisions of this Agreement shall constitute covenants
and servitudes which shall burden and run with the land comprising the Property and the burdens
and benefits hereof shall bind and inure to the benefit of all estates and interests in the Property
and all assigns and successors in interest to the parties hereto.
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 26
Section 12.3 Contractual Obligations. Fraser and Developer agree that the agreements
contained herein, are imposed by contract as terms and conditions of Fraser's annexation of the
Property, independent of the continued validity or invalidity of any of the provisions of Fraser
Code. Each of the Developer entities agrees to be jointly and severally obligated under this
Agreement to fulfill the responsibilities, obligations and provisions agreed upon by Developer,
including without limitation those provisions relating to default and the remedies and cures
associated with the same. Notwithstanding the foregoing, Fraser shall have the right to look to
only one Developer entity for compliance herewith, as appropriate, and to seek remedies in the
event of a default against only one of the Developer entities and shall not be obligated to include
both in any effort,proceeding or action to secure the same.
Section 12.4 Term. The term of this Agreement shall commence upon the Effective
Date and shall extend until all of the commitments hereunder are satisfied. After the expiration
of the term, this Agreement shall be deemed terminated and of no further force or effect;
provided however, that such termination shall not affect(a) the annexation of the Property to
Fraser or(b) any right arising from Fraser permits, approvals or other entitlements for the
Property or the PDD Plan which were granted or approved prior to, concurrently with, or
subsequent to the approval of this Agreement.
Section 12.5 Amendment of Agreement. Except as otherwise provided herein, this
Agreement may be amended from time to time or revoked only by mutual agreement of the
parties in writing following the applicable public notice and public hearing procedures required
in the Fraser Code for approval of this Agreement by Fraser. Neither any amendment of the
PDD Plan nor any approval of an FPDP, subdivision or resubdivision of the Property (or any part
thereof) shall require an amendment to this Agreement.
Section 12.6 Default and Remedies.
i. Default by Fraser. A "breach" or"default"by Fraser under this
Agreement shall be defined as (a)pursuant to Section 24-68-105, C.R.S., in effect as of the
Effective Date, any zoning or land use action by Fraser or pursuant to an initiated measure that
alters, impairs,prevents, diminishes, imposes a moratorium on development, or otherwise
delays the development or use of the Property as set forth in the PDD Plan, subject to the
exceptions set forth in said statute, or(b) Fraser's failure to fulfill or perform any material
obligation of Fraser contained in this Agreement.
ii. Default by Developer. A "breach" or"default"by Developer shall
be defined as Developer's failure to fulfill or perform any obligation of Developer contained in
this Agreement.
iii. Notice of Default and Opportunity to Cure. In the event of default
by one party in the performance of its obligations under this Agreement, written notice of such
default shall be given to the defaulting party by the non-defaulting party. If the default is a
failure to pay any amount of money due pursuant to the terms of this Agreement or to post a
letter of credit as provided herein, then such default shall be cured within 10 days after notice of
default is given to the defaulting party. If such default constitutes a breach or violation of any
term or provision of this Agreement other than the payment of a monetary amount or the posting
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 27
of a letter of credit, the defaulting party shall have 15 days within which to institute corrective
action and shall proceed diligently thereafter to cure the default within no more than 90 days
from the date of the notice of default.
iv. Remedies. Default by Fraser. In the event of a default by Fraser
that is not timely cured as provided herein, the Developer shall be entitled to specific
performance and mandatory prohibitory injunction and the remedies set forth in C.R.S. Sec. 24-
68-105, except Fraser shall not be liable for any compensation, if such default pertains to the
vested rights established herein.
V. Default by Developer. In the event of a default by Developer that
is not timely cured as provided herein, Fraser shall be entitled to specific performance, and
mandatory prohibitory injunction. Fraser shall also have the right to stop the processing of any
application of any type or nature filed or pending before it with regard to the Property. Fraser
shall also have the right to pursue any remedies set forth in applicable development or
subdivision improvement agreements as provided therein.
Section 12.7 No Joint Venture or Partnership. Fraser and Developer hereby agree that
nothing contained herein or in any document executed in connection herewith shall be construed
as making Fraser and Developer part of a joint venture or partners.
Section 12.8 No Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon, or to give to, any legal
person other than the Parties, any right, remedy, or claim under or by reason of this
Agreement or any covenants, terms, conditions or provisions hereof, and all of the
covenants, terms, conditions and provisions in this Agreement by and on behalf of the
Parties shall be for the sole and exclusive benefit of the Parties. Nothing in this
Agreement is intended to interfere with the agreements of the Parties with third parties
Section 12.9 Notices. Any notice or communication required hereunder between Fraser
and Developer must be in writing, and may be given either personally, overnight by UPS or
FedEx, or by registered or certified mail, return receipt requested. If given by registered or
certified mail, the same shall be deemed to have been given and received on the first to occur of
(i) actual receipt by any of the addressees designated below as the party to whom notices are to
be sent, or(ii) five (5) days after a registered or certified letter containing such notice,properly
addressed, with postage prepaid, is deposited in the United States mail. If personally or
overnight delivered, a notice shall be deemed to have been given when delivered to the party to
whom it is addressed. Any party hereto may at any time, by giving written notice to the other
party hereto as provided herein, designate any other address in substitution of the address to
which such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to Fraser: Town of Fraser
153 Fraser Avenue
P.O. Box 370
Fraser, CO 80442
Attention: Manager
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 28
with a copy to: Rodney R. McGowan, Esq.
Cazier, McGowan & Walker
P.O. Box 500
Granby, CO 80446
Arthur B. Ferguson, Jr., Esq.
Kylie J. Crandall, Esq.
Holland & Hart LLP
600 East Main Street, Ste 104
Aspen, CO 81611
If to Developer: Byers Peak Properties, LLC
Byers Peak Downhill Adventures,
LLC
P.O. Box 30
Winter Park, CO 80482
Attention: C. Clark Lipscomb
with a copy to: Lee F. Sachnoff, Esq
Krendl Krendl Sachnoff& Way, P.C.
370 Seventeenth Street, Suite 5350
Denver, CO 80202
And
Ramsey L. Kropf, Esq.
Patrick, Miller, Kropf& Noto, P.C.
229 Midland Avenue
Basalt, CO 81621
Section 12.10 Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors in interest, assigns, transferees or the legal representatives of the parties
hereto. Developer shall have the right to assign or transfer any portion of its interests, rights or
obligations under this Agreement to third parties acquiring an interest or estate in the Property,
including but not limited to purchasers or long-term ground lessees of individual lots,parcels, or
of any improvements now or hereafter located within the Property. In connection with any such
assignment, the express assumption of any of Developer's obligations under this Agreement and
the PDD Plan personally by its assignee or transferee may thereby relieve Developer of any
further obligations under this Agreement with respect to the matter so assumed,provided that
such assignee or transferee shall have sufficient financial capability and resources to fulfill such
obligations as determined by Fraser and confirmed by the Developer. In such event, Fraser
agrees to execute a written release of such obligations upon receipt of a written confirmation to
undertake such obligations by the assignee thereof. Any approved assignment shall not be
effective on Fraser for the transfer of the rights of Developer to such assignee until written notice
of the same is delivered to Fraser executed by both the assignor and assignee.
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 29
Section 12.11 Agricultural Use. The Property is currently being used in part for
agricultural, farm and ranch purposes. Normal non-building agricultural activities
historically associated with the use of the land, such as plowing, irrigating, or planting,
shall be exempt from Fraser permitting requirements to the extent any may be
applicable. Developer may continue such uses during the phasing of the development
notwithstanding the zoning of the Property under the PDD Plan.
Section 12.12 Grant or Conveyance. Whenever a grant, dedication or conveyance is
required in this Agreement free and clear of encumbrances and liens, Developer may make such
conveyance subject to encumbrances or liens that Developer is contesting in good faith provided
that adequate assurances acceptable to Fraser are given to provide that the lien or encumbrance
will be satisfied and released in the event Developer is not ultimately successful in its contest of
the lien or encumbrance. Fraser in its sole discretion shall determine whether such assurances
are acceptable and accordingly whether the grant, dedication or conveyance will be accepted by
Fraser.
Section 12.13 Recording. This Agreement shall be recorded with the Clerk and
Recorder in Grand County, Colorado.
Section 12.14 Authorization. The signatories to this Agreement affirm that they
are fully authorized to enter into and execute this Agreement, and all necessary actions,
notices, meetings and/or hearings pursuant to any law required to authorize their
execution of this Agreement have been made.
Section 12.15 Governing g Law. This Agreement shall be construLaw. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado. Venue for any judicial action filed in
connection with this Agreement shall be in the District Court in and for Grand County, Colorado.
Section 12.16 Severability. If any term,provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of this Agreement shall continue in full force and effect so long as
enforcement of the remaining provisions would not be inequitable to the party against whom
they are being enforced under the facts and circumstances then pertaining and the parties shall
use good faith efforts to modify such term,provision, covenant or condition to the minimum
extent necessary to be enforceable.
Section 12.17 Waiver of Breach. The waiver by any party to this Agreement of a breach
of any term or provision of this Agreement shall not operate or be construed as a waiver of any
other term or provision or of any subsequent breach by any party.
Section 12.18 Entire Agreement. This Agreement represents the entire agreement
between the parties and incorporates or supersedes any previous oral, written, or collateral
agreements, communications, representations or understandings between the parties with respect
to the matters set forth in this Agreement excepting those agreements pertaining to the funding of
Fraser's cost of review of this Agreement and the PDD Plan. Except as otherwise provided
herein, this Agreement does not abrogate or modify any existing improvements agreement,
subdivision improvements agreement, development improvements agreement, or other
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 30
annexation agreement among the parties pertaining to properties other than the Property. In case
of any conflict or inconsistency between the provisions of this Agreement and the provisions of
such other graphic and written documents approved as part of the PDD Plan, the provisions of
this Agreement shall control.
Section 12.19 No Additional Annexation Conditions Imposed. Fraser and Developer
acknowledge and affirm that this Agreement does not impose additional terms and
conditions within the meaning of Section 31-12-107(1)(g), C.R.S. To the extent that
Section 31-12-107(1)(g), C.R.S. might be construed as being ambiguous as to what
might be considered additional terms and conditions, Developer, as the owner of 100%
of the Property, hereby declares that it has voluntarily entered into this Agreement and
states that if an election were held, Developer would approve the terms and conditions
of this Agreement at such election.
Section 12.20 Draftin _g of Agof Agreement. This Agreement is the product of a
cooperative drafting and negotiating effort by Fraser and Developer and shall not be
construed or interpreted against either party solely on the basis that one party or its
attorney drafted the Agreement or any portion thereof.
Section 12.21 Execution of Other Documents. The parties agree to execute any
additional documents and to take any additional actions necessary to carry out this Agreement.
Section 12.22 Counterparts; Facsimile. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. This Agreement may be executed by copies of
signature pages sent by email or facsimile.
[Signature Pages Follow]
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 31
IN WITNESS WHEREOF, Fraser and Developer have executed this Agreement
effective as of
TOWN OF FRASER:
By:
Mayor
ATTESTED BY:
Town Clerk
APPROVED, as to legal form by:
Town Attorney
DEVELOPER:
BYERS PEAK PROPERTIES, LLC
By:
C. Clark Lipscomb, President
BYERS PEAK DOWNHILL
ADVENTURES, LLC
By:
C. Clark Lipscomb, President
For good and valuable consideration, Cornerstone Winter Park Holdings, LLC, hereby
agrees to be responsible for and fulfill the obligations specifically relating to the
conveyance of Forest Meadows Augmentation Plan Pond(s), associated easements, the
Dedicated Water Rights that are the subject of Case No. 05CW287, the easements and
rights of use in the Grand Park pond system, and related obligations specifically set
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 32
forth herein. Its obligations shall be limited to those specifically relating to its
properties and water rights and shall not extend to any other of those obligations of
Developer set forth in this Agreement.
Cornerstone Winter Park Holdings, LLC
By:
C. Clark Lipscomb, President
STATE OF COLORADO )
) SS
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this day of
2013, by as Mayor, and __, as
Town Clerk, of Town of Fraser, 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 this day of
2013, by C. Clark Lipscomb, as President of BYERS PEAK
PROPERTIES, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 33
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of BYERS PEAK
DOWNHILL ADVENTURES, LLC, a Colorado limited liability company.
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 this day of
2013, by C. Clark Lipscomb, as President of CORNERSTONE
WINTER PARK HOLDINGS, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 34
BYERS PEAK RANCH ANNEXATION AGREEMENT
LIST OF EXHIBITS
EXHIBIT A — Legal Description of Property
EXHIBIT B —
EXHIBIT C — Form of Reservoir Easements
EXHIBIT D —Municipal Parcel
EXHIBIT E —
EXHBIT F — Grading and Excavation Operations Plan
5991316_3
{Client/1 3 23 6/1 16/024 1 4663.DOC/161 35
C OIL OR ADO
Planner Briefing for TB February 6th, 2013
Public Hearing and Action:
Byers Peak Ranch
Planned Development District Plan
Parts of Sections 19 and 20
Township 1 South, Range 75 West of the 6t" PM
County of Grand, State of Colorado
Applicant = Byers Peak Properties, LLC.
Byers Peak Downhill Adventures, LLC
Background information:
In the fall of 2007, the Town of Fraser received an Amended Petition for Annexation for
Byers Peak Ranch. The Town Board adopted a resolution finding that the Petition was
substantially complete. In early 2008, the Town Board held an annexation hearing and
adopted a resolution finding that the property is eligible for annexation. In October 2010,
the Town and BPR entered into a Pre-annexation Agreement. On February 23, 2011,
the Town received a submittal for a Planned Development District Plan for Byers Peak
Ranch.
The following is a brief project description submitted by the applicant:
"Byers Peak Ranch is a 295 acre ranch that is designed to be developed as a
neighborhood project located south of Mill Ave. and west of the railroad tracks.
Fraser Valley Parkway bisects the site. The existing neighborhood to the north of
the property includes single family, attached residences and apartments;
community meeting facilities, Town Hall, Town maintenance facilities, the Fraser
Valley Elementary School and Library.
The PDD for Byers Peak Ranch contemplates 530 detached and 905 attached
residential units, 550 lodging units, RV sites and 270,000 SF of mixed
use/commercial/industrial units. The residential product types will vary
throughout the community and include single family lots, attached units, and
lodging integrated into a cohesive community linked by open space corridors.
The community will include a central open space and park with recreational uses
and ponds.
The mixed use/commercial/industrial and municipal uses are located along the
railroad tracks and will serve as a transition from the railroad tracks to the
residential neighborhoods. There will also be some commercial uses along the
Fraser Valley Parkway to serve the residents and visitors."
TOW11 Offrs ser
PO Box 770.1 Fraser, CO 80442 oFfice 970 726 7491 faix 970 726 7718
Planned Development District (PDD) zoning is proposed for the property (rather than
one of the conventional zoning districts). The PDD zoning allows for greater flexibility
than in a traditional zoning district. The PDD regulations are located in Chapter 16,
Article 5 of the Town Code.
The PDD plan application is intended to generate enough site plan information in the
form of written statements and schematic plans in order to provide adequate information
for review by decision-making bodies and the general public in regard to the proposed
PDD zoning. Furthermore, the standards and procedures are intended to ensure
integrated planning goals and objectives of the Comprehensive Plan while allowing
greater flexibility and innovations in development and site designs than is typically
possible under conventional zone district regulations.
The Planning Commission reviewed the proposed PDD zoning at three meetings in
2011. In addition to the zoning component, the Planning Commission considered the
Town of Fraser Three Mile Plan (a component of the 2010 Comprehensive Plan). The
Three Mile Plan states that development proposals for areas surrounding the Town of
Fraser should be considered for incorporation within the municipality before
development in unincorporated areas. Higher density residential, mixed use,
commercial and light industrial should be directed towards municipal areas because
public utilities and services can be provided more efficiently. Similar language is
highlighted in the Grand County Master Plan.
The PDD regulations state the following: The Planning Commission shall consider the
application at a public hearing and after weighing all evidence presented to it, shall
recommend to the Town Board either approval of said application as presented,
approval subject to specified conditions, or disapproval.
At the May 25th, 2011 Planning Commission (PC) meeting, the PC recommended
approval of the Planned Development District subject to specified conditions. To
date all the conditions have been met except one. The Planning Commission had
recommended that the building heights along Mill Ave. in Planning Area #1, at a
horizontal distance of 160', can't exceed 45 . The applicant is requesting a not to
exceed height of 55' instead of 45 .
TOW11 OUrs ser
PO Box 770.1 Fraser, CO 80442 oFfice 970 726 5491 faix 970 726 7718
t5C 4 L 4 'R A 13 0
DEVELOPMENT PERMIT
Name of Applicant: Byers Peak Properties LLC.
Byers Peak Downhill Properties LLC.
P.O. Box 30, Winter Park, CO. 80482
970-726-8600
PROJECT PROPOSAL: Development Permit to permit the operation of an
Outdoor Adventure Park and Recreation Area located in the SE % of
Section 19 and the NE % of Section 30, Township 1 South, Range 75 West
of the 6m P.M., County of Grand, State of Colorado to be permitted in the
Town of Fraser subsequent to this parcel being annexed into Town with the
following findings and conditions:
FINDINGS:
1. Fraser acknowledges that the Colorado Adventure Park is an existing permitted
use in Grand County granted via a Special Use Permit, permitting the operation
of an outdoor adventure park and recreation area located on a 35 acre parcel
more legally described above.
2. It is the intent of Fraser to annex Byers Peak Ranch into the Town. This 35 acre
parcel described herein, which contains the Colorado Adventure Park, is a part of
the 295 acre ranch proposed to be annexed into Fraser.
3. The proposed project does not propose any prohibited use.
4. Fraser acknowledges that the existing Colorado Adventure Park can continue
operating in the Town of Fraser with the following conditions:
CONDITIONS:
1. This permit is effective upon annexation of this parcel to the Town of Fraser.
2. This development permit does not become effective unless and until the
applicant accepts the preceding findings and following conditions in writing and
transmits the acceptance to the Town of Fraser.
3. If the terms and conditions of the approval are violated, the Town, in addition to
criminal and civil judicial proceedings, may, if appropriate, issue a stop order
requiring the cessation of work, revoke this permit, require removal of any
improvements made in reliance upon this permit with costs to constitute a lien on
the property and/or restoration of the property.
4. Uses permitted are as follows:
• Temporary building to be used for ticket sales and warming facility with
restrooms.
• Temporary storage facility for tubes and equipment— no additional
storage facilities shall be allowed beyond the two (2) that are already on
site.
• Construction of a permanent"barn lodge" to be used for concessions,
ticket sales, rentals, retail sales, storage of adventure park equipment.
• Horseback riding, mountain biking, ice skating, cross country skiing,
snowshoeing, snow-scoots, tubing, Nordic ski jumps, sledding hill,
concessions, retail sales and equipment rentals, snowmaking, paintball,
terrain park, zip line (under 35' in height), summer slope and associated
uses/activities.
5. Days and hours of operation:
• Monday through Sunday 10:00 A.M. — 10:00 P.M.
• Snow Scoots— Monday through Sunday 10:00 AM —6:00 P.M. (to cease
no later than 6:00 P.M.)
• No hours of operation on snowmaking, although compliance with noise
statute is mandatory.
6. This permit is valid only for the uses proposed in the application. Any expansion
of uses or changes in hours of operation etc. will require an amendment to this
Development Permit, including a public hearing before the Fraser Planning
Commission.
7. If noise becomes a nuisance to adjoining properties, Fraser reserves the right to
require the Applicant to install sound mitigation, restrict the use to certain hours
or cease use all together. Maximum permissible noise levels shall fall within the
C.R.S. Section 25-12-103 for commercial use:
• 60 decibels from 7:00 A.M. to 7:00 P.M.
• 55 decibels from 7:00 P.M. to 7:00 A.M.
• Sound levels of noise radiating from a property line at a distance of
twenty-five feet or more there from in excess of the decibel established
for the above time periods shall constitute prima facie evidence that such
noise is a public nuisance.
• In the hours between 7:00 A.M and 7:00 P.M., the noise levels permitted
may be increased by ten decibels for a period of not to exceed fifteen
minutes in any one-hour period.
• Unannounced noise monitoring may be conducted by Fraser.
8. The Applicant shall be required to contribute their summer proportionate share to
the cost of magnesium chloride on County Road 721 (aka Fraser Valley
Parkway), if applied, each year as determined by the Director of Public Works.
9. Obstacles used in the paintball field shall be earthen tone. Eco-friendly, filed only
paint balls of muted colors are permitted and must be sold on-site. No off-site
paint balls shall be allowed. Netting shall be removed at the end of each season.
10. The "barn lodge" shall be constructed to compliment the natural surroundings
and have a ranch-like agricultural character with log or other rustic exterior with
harmoniously colored or natural wood finish and non-reflective surfaces.
11. If the septic flow reaches 2000 gallons per day or more, a State Permit shall be
obtained and a copy shall be forwarded to the Town of Fraser. Fraser may
request a copy of the flow meter reports annually.
12. The Applicant shall be responsible for insuring compliance with all applicable
Town, State and Federal Rules, Regulations and Statutes. Any violation of
Federal, State or Local rules, regulations or statutes shall be grounds for
immediate termination of this Permit
13. The Applicant shall control and mitigate noise, dust, glare and odor on the site
and shall not allow noise, dust, glare or odor to create a nuisance to adjoining
properties. All lighting shall be downward facing and hooded to minimize impacts
to surrounding properties.
14. The Applicant shall use Best Management Practices for erosion and sediment
control on all disturbed areas of the site.
15. Fraser by the issuance of this Development Permit assumes no responsibility for
the operation of the site, and the Applicant hereby covenants and agrees to hold
the Town of Fraser harmless for any jury or damage which may occur, of
whatever type or nature, as the result of the operation contemplated by this
permit. The Applicant warrants that he will obtain appropriate liability and hazard
insurance to compensate any individual who may be injured or damaged in any
manner by the conduct of this use. The Applicant further warrants and agrees to
compensate Fraser for any expense incurred in the defense of any lawsuit or
other type of action which may be brought against Fraser as a result of said
Applicant's operation of this use.
16. The terms and conditions of this permit cannot be altered without proper notice
and review by Fraser
17. Neither the Applicant nor its licensees shall be allowed, under any
circumstances, to use the permit area for purposes of storing junk materials,
such as abandoned cars or trucks or other equipment which is not capable of
operation or any other equipment or materials which are not used in the
operation contemplated by this permit within a period of six (6) months. The
Applicant is specifically prohibited from using the permit area as a storage yard
for junked equipment or materials. The Applicant shall be responsible for
maintaining the site in an attractive condition at all times.
18. This Development Permit shall become a binding contract between the parties
hereto upon the execution hereof as provided for below. Said contract shall be
binding upon and inure to the benefit of the successors, heirs, assigns and
personal representatives of the parties.
19. The Applicant, by accepting this permit, concurs and agrees that Fraser has the
authority and mandate to require a cease and desist of operations for non-
compliance with any permit conditions substantiated by Fraser. The Applicant
irrevocably consents to Fraser's right to enter the property to check for
compliance with permit conditions at any time.
20. In the event of violation of any of the restrictions or conditions on the use of this
permit, or in the event of the Applicant's failure to fulfill any of the conditions
required by this permit, Fraser may, upon not less than ten (10) days notice in
writing to the Applicant at the address below, hold a Public Hearing to consider
the revocation of this Permit or to take such other action as Fraser in its sole
discretion deems appropriate. Notice to the Applicant shall be complete upon
mailing at the following address:
Byers Peak Properties LLC/Byers Peak Downhill Properties LLC
Attn: Clark Lipscomb
P.O. Box 30
Winter Park, CO. 80482
21. No termination of this permit shall be made without determination of good cause
shown.
22. All signage must comply with the Town of Fraser Sign Code.
23. The Town of Fraser reserves the right to revisit this application if they feel that
these conditions are not properly addressed.
APPLICANT:
Date:
Byers Peak Properties LLC
Byers Peak Downhill Properties LLC.
TOWN OF FRASER:
Catherine E. Trotter: Date:
Town Planner
Byers Peak Ranch
Grading and Excavation Operations Plan —2-1-13
This Grading and Excavation Operations Plan (the "Plan") regulates grading and excavation for the
specific Planning Areas defined in the Byers Peak Ranch Planned Development District Plan ("Byers
Peak Ranch PDD Plan") in addition to those provision set forth in the Byers Peak Ranch Annexation
and Development Agreement between the Town of Fraser(the "Town"), Byers Peak Properties, LLC
and Byers Peak Downhill Adventures, LLC (collectively, the "Developer") dated and
recorded at in the public records of Grand County, Colorado (the "Annexation
Agreement"). The term Developer as used herein shall include any party, including without limitation
contractors, subcontractors, and lessees, conducting grading and excavating operations within the
specific Planning Areas within the Byers Peak Ranch PDD Plan.
Compliance Requirements:
1. The Developer shall be responsible for insuring compliance with all applicable Fraser,
state and federal rules, regulations and statutes, including,without limitation, those
enforced by the Colorado Department of Natural Resources,the Colorado Division of
Reclamation, and the Colorado Department of Health and Environment. The Developer
shall obtain any required permits and shall provide such permits to the Town of Fraser.
Best management practices will be employed with regard to soil erosion and prevention
at all times.
2. Water Used in Grading and Excavation Operations.
If ground water is exposed or required for grading and excavation operations, Developer
shall obtain well permits issued by the State Engineer,and shall provide such permits to
the Town. The Developer shall comply with all applicable provisions in the decree
entered in Case No, 10CW309, Water Div 5, and any other applicable water court
decrees. If necessary,the Developer shall apply to the Water Court, Division 5 for a
water court decree granting underground or surface water rights for use in grading and
excavation operations.
3. Duration of Grading and Excavation Operations.
The Developer shall commence grading and excavation operations within six months of
obtaining any required permit from the State and a Grading Permit from the Town
together with the providing to the Town the required surety for the Developer's
performance. The Developer shall only use each such permit for 10 years and shall
discontinue any and all grading, gravel and excavations operations after the 15 year
anniversary of the issuance of the first Grading Permit. During periods of inactivity (six
months or more), the Developer shall move all equipment associated with grading and
excavation operations off site.
4. Hours of Operation.
Monday through Saturday, 7:00 AM to 7:00 PM. There shall be no truck traffic on Fraser
Valley Parkway on Saturdays unless and until the path for bicycles and pedestrians
provided for in Section 7.8 of the Annexation Agreement is constructed and approved by
the Town.
5. Management of Grading and Excavation Operations.
a. The Developer shall identify the land on which it will carry out grading and
excavations operations in the Grading Permit application. Such land shall be
limited to an area of disturbance of 10 acres for each water storage facility,
with no more than 5 separate acres of grading and excavation at any one
1
time. To the extent a water storage facility requires more than 10 acres of
disturbance, any one area of disturbance may be greater than 10 acres as
identified in the application; provided than no more than a total of 50 acres is
being disturbed at any one time.
b. The location of any stockpiling of material on the Property shall be identified
on the Grading Permit. The total amount of stockpiled material will be kept to
a minimum and each pile may be no more than 40 feet high and have a life of
no more than 24 months.
C. The developer shall limit the amount of equipment on the property and
minimize any potential impact on views.
6. Distance from Residential Use.
Grading and excavation operations shall be at least 1000 feet from any existing
residential use(s)within the Town boundary or at least 1000 feet from any residential
use(s) approved as a part of an FPDP or a final subdivision plat at the time the
Grading Permit Application is submitted.
7. Inspection.
Town staff may inspect the grading and excavation operations during normal
business hours to ensure that the Developer is complying with these requirements
and any other conditions imposed by the Town.
8. Truck Traffic.
Truck traffic to and from the grading and excavation operations(s) shall not create
hazards in Town. It is contemplated that the Developer shall use County Road 72,
73 and 721 to transport materials. No transport of material will be allowed on Mill
Avenue-east of Carriage Rd.; Carriage Rd. — north of Mill Avenue; Norgren Road —
north of Mill Avenue, Leonard Lane—north of Mill Avenue; and Eisenhower Drive
unless there is a delivery in Town or extenuating circumstances relating to road
closures. 18 wheel trucks (i.e. belly trucks) shall not exceed 80,000 Ibs GVW, 3 or
more axle single unit vehicles(i.e. dump trucks) shall not exceed 54,000 Ibs GVW
and 2 axle single unit vehicles (smaller dump trucks) shall not exceed 36,000 Ibs
GVW. Any load in excess of these`requirements shall require the appropriate permit
from Town of Fraser Public Works.
9. Public Street Damage.
Traffic from grading and excavation operations shall not damage public streets.
Developer shall be responsible for the costs incurred by the Town in repairing
damage to the public roadways beyond the ordinary wear and tear along the
designated route(s) resulting from truck traffic associated with the grading and
excavation operations, as determined by the Town. Town staff will conduct annual
assessments of the designated roadways. To the extent that there is identifiable
damage from the grading and excavation operations that the Town determines needs
to be repaired in order to prevent further damage, the Town shall document the
damage and repair the same. The costs of all repairs shall be billed to and paid by
the Developer.
10. Signage.
2
Developer will provide necessary signage and barricades approved by the Town
along designated route(s)for safety and traffic control to insure that truck traffic does
not create a hazard.
11. Impacts.
Developer shall control and mitigate noise, dust, glare, odor and noxious weeds on
the site and shall not allow noise, dust, glare, odor and noxious weeds to create a
nuisance to adjoining properties. Developer shall provide adequate screening of the
grading and excavation operations by means of berming and existing vegetation,
such that the use is not objectionable to adjacent properties or the traveling public.
12. Grading and excavation operations are limited to the specific Planning Areas as
defined in the Byers Peak Ranch PDD Plan.
3
DRAFT
2/1/2013 4:54 PM
H LL ND & -,
CONFIDENTIAL
ATTORNEY WORK PRODUCT
MEMORANDUM
December 7, 2012
TO: Fraser Byers Peak Ranch Subcommittee
FROM: Boots Ferguson
RE: Proposed SFE water plant investment fee split structure
This memorandum describes (1) the timing of the needs for capital improvements to Fraser's
water diversion and treatment infrastructure in the context of the demand by the Town and by
Byers Peak Ranch ("BPR"); (2) the total costs and pro rata share of costs between the Town and
BPR for such improvements and infrastructure; and(3) the structure for BPR receiving
reimbursement of water plant investment fees ("fees") and the splitting of the fees between BPR
and the Town.
The fees currently are $7000/SFE. A split of the SFEs would result in each party receiving
$3500/SFE. BPR has proposed that it receive reimbursement of the fees paid for the first 900
SFEs in the BPR project and thereafter BPR and the Town would split the fees.
The existing well infrastructure of the Town, with minimal investment, can produce a sustained
pumping rate of 505 gallons per minute ("gpm"). The existing water treatment plant can produce
a sustained 600 gpm. At buildout of the Town and BPR, the total average day demand will be
729 gpm, which amount exceeds the existing capacity of the wells and water treatment plant.
Accordingly, the Town has done the following in anticipation of fulfilling its commitment to
serve the Town and BPR as they phase towards buildout:
a. indentify the improvements and replacements of well and plant infrastructure to
serve the demand("improvements");
Holland&Hart LLP Attorneys at Law
Mho e(303)295-8000 II""ax(303)295-8261 www.hollandhart.com
555 17th Street Suite 3200 Denver,Colorado 80202-3979 Ildaiillil ing Address P.O.Box 8749 Denver,Colorado 80201-8749
Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center 3ackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington,D.C.
December 7,2012
% Page 2
b. indentify the costs of such improvements and the appropriate allocation of the
same between the parties;
C. indentify the timing of the need for the improvements;
d. identify the timing of the need for the funds to pay for the improvements; and
e. identify the appropriate structure for splitting the fees in order for the
improvements to be made when needed and for them to be paid for.
While it is understood that this effort is not an exact science, the goal is to have a clear structure
for the fee split between the parties going forward that will provide for immediate reimbursement
to BPR for infrastructure costs and for the appropriate securing of funds for the Town to pay for
improvements when needed.
Existing Demand and Immediate Needs
The Town currently serves 889 Town SFEs and 0 BPR SFEs. Total average day demand is 200
gpm.
To serve the next 160 Town SFEs and first 379 BPR SFEs,pumping water level investigation,
videoing well investigation, and making minor equipment improvements to Wells 1, 2, 3b, 5R, 7
and 9 need to occur. The estimated cost is $40,000. Since the end result will be to serve 1049
Town SFEs and 379 BPR SFEs for a total of 1428 SFEs, BPR represents 25% of the demand.
Accordingly, BPR should be responsible for 25% of the cost or $10,000. This amount should be
paid up front.
In addition, it is estimated that the preparing, filing and prosecuting of the application to confirm
the location of the Forest Meadows water storage right at the original plan for augmentation site
and making the same absolute upon the filling of the same will cost $50,000.00. This should be
BPR's responsibility to confirm the dedication of water rights to the Town. This will be done
upon completion of the Forest Meadows pond.
Conclusion A: BPR pays $60,000 upfront($10,000 for well improvements and
X50,000 for water rights application).
Future Demand and Well and Water Treatment Plant Needs
The next two critical improvement points occur when
(1) the demand of the Town and BPR exceeds the 505 gpm well capacity and
—Confidential Privileged—Attorney-Client Communication—Attorney Work Product
December 7,2012
% Page 3
(2) the demand of the Town and BPR exceeds the 600 gpm treatment plant capacity.
The well improvements associated estimated costs to expand the well capacity to 680 gpm are
(1) rehabilitate well 8 at $147,000 and
(2) redrill well 2 and rehabilitate well 9 at $123,000.
Since these costs do not occur for some time, they can be paid out of collected fees. The needs
for the Town to pay for its share of the costs come from fees collected from Town users. The
needs for the Town to pay for the BPR responsible percentage need to be collected from fees
generated by BPR; assuming a split of fees, the Town collects $3500/SFE in fees. The next step
is to calculate how many SFEs must pay fees at $3500/SFE to collect the required amount; the
conclusions in bold show this result.
The rehabilitation of well 8 needs to occur when there are 1345 Town SFEs and 972 BPR SFEs
(total demand is at 500 gpm). BPR is 41% of the total demand. It is responsible for 41% of the
$147,000 cost, or $60,270.
Conclusion B: BPR responsible for$60,270 of well 8 cost; this equals 17 split SFE
fees.
The redrilling of well 2 and rehabilitation of well 9 need to occur when there are 1370 Town
SFEs and 1137 BPR SFEs (total demand is at 539 gpm). BPR is 45.3% of the total demand. It is
responsible for 45.3% of the $123,000 cost, or $55,719.
Conclusion C. BPR responsible for$55,719 of wells 2 and 9 costs; this equals 16 split
SFE fees.
The expansion/replacement of the water treatment plant needs to occur when there are 1467
Town SFEs and 1331 BPR SFEs (total demand is at 600 gpm). In this instance, since the
expansion/replacement is to provide service at buildout of the Town and BPR of 729 gpm of
average day demand, the percentage of responsibility for costs is properly based on full buildout.
At full buildout, there are 1530 Town SFEs and 1897 BPR SFEs. BPR is 55.3% of the total
SFEs at buildout. The projected costs of the water treatment plant expansion/replacement and
attendant infrastructure is $3,500,000. BPR is responsible for 55.3% of this amount or
$1,935,500.
Conclusion D: BPR responsible for$1,935,500 of water treatmentplant costs; this
equals 553 split SFE fees.
—Confidential Privileged—Attorney-Client Communication—Attorney Work Product
December 7,2012
% Page 4
As a result, at the time the demand is 600 gpm, wells 2, 8, and 9 will have to be upgraded and the
water treatment plant expanded/replaced. This is at the projected level of service of 1467 Town
SFEs and 1331 BPR SFEs.
Conclusion E: At the time the demand is 600 gpm and the well and water plant
improvements must be made,BPR's share of the costs are$2,051,489. It will take 586 split
SFE fees to generate this amount.
Therefore, the improvements described above have to be in place at the time of need. The Town
needs to collect the funds in advance to pay for the improvements. It can finance them and then
pay them off when the fees are collected and the improvements are on line.
The last cost that BPR will share in that is projected during the buildout of the Town and BPR
are the engineering and legal fees associated with the Town preparing, filing, and prosecuting the
plan for augmentation for the Town that will include the Byers Peak Ranch Augmentation Pond
and Forest Meadows pond. The estimated costs are $200,000. Since this benefits the Town and
BPR at full buildout, the percentage of responsibility is 55.3% figure noted above. Therefore,
the BPR percentage responsibility for the $200,000 is $110,600. Of course if there are additional
costs above this estimate, the Town bears the risk and responsibility for them.
Conclusion F. BPR is responsible for$110,600 of water right costs; this equals 32
split SFE fees. This amount coupled with the 586 split SFE fees noted above totals 618 split
SFE fees.
As a result, there will be 1331 BPR SFEs on line with the improvements are made. The 618 split
SFE fee SFEs should be subtracted from the 1331 BPR SFEs so the Town can begin to collect
the fees to pay for the needed improvements. This collection must therefore start at the 713 BPR
SFE point.
Conclusion: The BPR fee reimbursement/split fee structure is as follows:
1. BPR pays $60,000 to Town at execution of annexation agreement(Conclusion
A);
2. BPR is reimbursed for all water plant investment fees generated by the BPR
project paid from#1 SFE to #713 SFE (Conclusion F);
3. BPR and the Town split the water plant investment fees generated by the BPR
project paid from#714 SFE to #1331 SFE (Conclusion F);
—Confidential Privileged—Attorney-Client Communication—Attorney Work Product
December 7,2012
% Page 5
4. BPR is reimbursed for all water plant investment fees generated by the BPR
project paid from#1331 SFE to #1518 to bring to a total of 900 fully reimbursed SFE fees to
BPR;
5. BPR and the Town split the water plant investment fees generated by the BPR
project paid from#1518 to #1897; Town to pay for all additional improvements to wells and
other needed imporvments from these fees;
As a result,BPR collects $7000/SFE for 900 SFEs equaling$6,300,000 ($4,991,000 upfront
from the first 713 SFEs) and$3500/SFE for 997 SFEs (1897-900) equaling$3,489,500 for a
total reimbursement amount at full buildout of the BPR project of$9,789,500.
—Confidential Privileged—Attorney-Client Communication—Attorney Work Product
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