HomeMy WebLinkAboutPACKET Town Board 2024-01-23The Mission of the Town of Estes Park is to provide high-quality, reliable services
for the benefit of our citizens, guests, and employees, while being good stewards
of public resources and our natural setting.
BOARD OF TRUSTEES - TOWN OF ESTES PARK
Tuesday, January 23, 2024
7:00 p.m.
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ADVANCED PUBLIC COMMENT
By Public Comment Form: Members of the public may provide written public comment on a specific
agenda item by completing the form found at https://dms.estes.org/forms/TownBoardPublicComment.
The form must be submitted by 12:00 p.m. the day of the meeting in order to be provided to the Town
Board prior to the meeting. All comments will be provided to the Board for consideration during the
agenda item and added to the final packet.
PLEDGE OF ALLEGIANCE.
(Any person desiring to participate, please join the Board in the Pledge of Allegiance).
AGENDA APPROVAL.
PUBLIC COMMENT. (Please state your name and address).
TOWN BOARD COMMENTS / LIAISON REPORTS.
TOWN ADMINISTRATOR REPORT.
1. POLICY GOVERNANCE MONITORING REPORT - POLICY 3.3.
Board Policy 2.3 established reporting requirements for the Town Administrator under
Policy Governance. Policy 3.3 is reported on quarterly (January, April, July, October).
CONSENT AGENDA:
1. Bills.
2. Town Board Meeting and Study Session Minutes dated January 9, 2024.
3. Resolution 02-24 Intergovernmental Agreement with the North Front Range
Transportation and Air Quality Planning Council for Funding of the US 34
Transportation Management Organization (TMO) in Estes Park.
Prepared 2024-01-23
*Revised 2024-01-19
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NOTE: The Town Board reserves the right to consider other appropriate items not available at the time the agenda was
prepared.
4. Revised Policy 306 Leave.
5. Relocation of Whiskey Warm Up from Riverside Plaza to Bond Park in 2024 due to
road construction and public access.
6. Acceptance of Town Administrator Policy Governance Monitoring Report.
REPORTS AND DISCUSSION ITEMS: (Outside Entities).
1. ESTES PARK HOUSING AUTHORITY UPDATE. Manager Bangs and Estes Park
Housing Authority Director Moulton.
PLANNING COMMISSION ITEMS: Items reviewed by Planning Commission or staff for
Town Board Final Action.
1. CONSENT ITEMS:
A. AMENDED PLAT, LOTS 8A, 9A, AND A PORTION OF 10A OF THE FIRST
RESUBDIVISION OF BUENNA VISTA, TODD PHILLIPS, EP REAL ESTATE
LLC OWNER/APPLICANT. Senior Planner Hornbeck.
Request to continue item to February 13, 2024.
2. ACTION ITEMS:
A. RESOLUTION 03-24 COYOTE RUN SUBDIVISION PRELIMINARY PLAT, CMS
PLANNING & DEVELOPMENT, INC., FRANK THEIS. Senior Planner Hornbeck.
To subdivide a 7.62 acre property into a four lot single-family subdivision named
Coyote Run Subdivision.
B. RESOLUTION 04-24 RAVEN SUBDIVISION PRELIMINARY PLAT, HABITAT
FOR HUMANITY OF THE ST. VRAIN VALLEY, INC., OWNER/APPLICANT.
Senior Planner Hornbeck.
To subdivide 0.82 acre property into a five lot single-family residential subdivision
named Raven Subdivision.
ACTION ITEMS:
1. INITIATED ORDINANCE PETITION - TO AMEND THE ESTES PARK
DEVELOPMENT CODE REGARDING DEVELOPMENT APPLICATIONS. Town
Clerk Williamson.
Town Clerk to present the citizen-initiated ordinance petition. Per state statute the
Board must adopt the ordinance as presented or set for an election date.
2. ORDINANCE 02-24 SUBMITTING BALLOT ISSUE 1A TO THE REGISTERED
VOTERS OF THE TOWN OF ESTES PARK ON THE APRIL 2, 2024 BALLOT. Town
Administrator Machalek.
Consideration of submitting the renewal of the 1% sales tax for a period of ten years to
fund specific community priorities.
3. ORDINANCE 03-24 TO GRANT A CABLE FRANCHISE TO TDS BROADBAND
SERVICE, LLC, AND A CABLE FRANCHISE AGREEMENT WITH TDS
BROADCAST SERVICE, LLC. Town Administrator Machalek.
Consider a Cable Franchise Renewal Agreement with TDS Broadband Service, LLC.
4. REVISED POLICY 671 FOR ECONOMIC DEVELOPMENT FUNDING. Town
Administrator Machalek.
To consider revisions to Policy 671 ("Town Funding of Outside Entities") that makes
the Estes Chamber of Commerce Economic Development Department eligible to apply
for Base Funding.
Agenda continues on Page 3.
*
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REQUEST TO ENTER EXECUTIVE SESSION:
To discuss purchase, acquisition, lease, transfer or sale of any real, personal, or other
property of interest – Section 24-6-402(4}(a}, C.R.S., and for a conference with an attorney
for the Board for the purposes of receiving legal advice on specific legal questions - Section
24-6-402(4}(b}, C.R.S, and for the purpose of determining positions relative to matters that
may be subject to negotiations, developing strategy for negotiations, and/or instructing
negotiators - Section 24-6-402(4}(e}, C.R.S. – Discussion of the Real Purchase at Several
Potential Locations for Relocation of the Police Department.
ADJOURN.
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Town Administrator’s Office Memo
To: Honorable Mayor Koenig
Board of Trustees
From: Town Administrator Machalek
Date: January 23, 2024
RE: Policy Governance Monitoring Report – Policy 3.3
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER: Policy
QUASI-JUDICIAL YES NO
Board Policy 2.3 designates specific reporting requirements for the Town Administrator
to provide information on policy compliance to the Board. In October of each year the
Town Administrator is required to report on Policies 3.3 (Financial Planning and
Budgeting).
Policy 3.3 states:
“With respect for strategic planning for projects, services and activities with a
fiscal impact, the Town Administrator may not jeopardize either the operational or
fiscal integrity of Town government.”
This report constitutes my assurance that, as reasonable interpreted, these conditions
have not occurred and further, that the data submitted below are accurate as of this
date.
Travis Machalek
Town Administrator
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Policy 3.3: With respect for strategic planning for projects, services and activities with a
fiscal impact, the Town Administrator may not jeopardize either the operational or fiscal
integrity of Town government. Accordingly, the Town Administrator shall not allow
budgeting which:
3.3.1: Deviates from statutory requirements.
Status: Compliance
Interpretation: I interpret this to mean that our budgeting practices and policies
comply with all requirements contained in the Colorado Revised Statutes that are
applicable to statutory towns.
Compliance with the policy will be achieved when: There are no deviations in
our practices or policies from what is required by State Statute.
Evidence:
1. The annual independent audit
2. Annual Comprehensive Financial Report (ACFR)
3. All policies are reviewed for legal compliance by the Town Attorney
4. No State-issued non-compliance notifications to the Town of Estes Park
regarding our budgetary obligations under State Statute.
Report: I report compliance.
3.3.2: Deviates materially from Board-stated priorities in its allocation among
competing budgetary needs.
Status: Compliance
Interpretation: I interpret this to mean that the annual budget adopted by the
Board of Trustees represents the officially adopted priorities of the Board. This
includes any budget amendments approved by the Town Board throughout the
year and any specific spending authorizations approved by the Town Board. I
interpret “materially deviate” to mean any change in spending priority that results
in a resource diversion away from any Board objective, goal, or outcome that is
substantial enough to hinder the achievement of the objective, goal, or outcome. I
do not interpret minor deviations resulting from changing circumstances,
community demands, and/or unforeseen circumstances outside of the Town’s
control as material deviations.
Compliance with the policy will be achieved when: Budget spending does not
materially deviate from the levels approved in the adopted budget.
Evidence:
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1. The 2024 adopted budget was prepared based on the Board’s Strategic
Plan.
2. Any substantial budget changes have been presented to the Board for
review and approval as budget amendments.
3. HTE budget reports for each department are available on request.
Report: I report compliance
3.3.3: Contains inadequate information to enable credible projection of revenues
and expenses, separation of capital and operational items, cash flow and
subsequent audit trails, and disclosure of planning assumptions.
Status: Compliance
Interpretation: I interpret this to mean that the Town Administrator’s
recommended budget must be based on credible data and the best available
information concerning the local economy and other factors that may impact the
Town’s revenues and expenses. In addition, the budget is to be structured to
separate capital expenditures from operational costs. All revenue projections will
be based on the professional judgement of the Town’s Finance Director.
Compliance with the policy will be achieved when:
•Operational revenue projections are clear and projected and actual
revenues are within a 10% margin of error, barring any catastrophic
events.
•The budget presented to the Board for adoption is in a format that
separates revenues, expenses, and capital expenditures.
•Critical assumptions used in preparing the budget are clearly articulated to
the Board during budget review sessions.
Evidence:
1.Operational revenue projections are currently within a 10% margin of
error.
2. The 2024 adopted budget is presented in a format that separates revenues,
expenditures, and capital.
3. Critical assumptions used in preparing the budget were discussed with the
Board during budget review sessions as well as during budget amendment
discussions.
Report: I report compliance.
3.3.4: Plans the expenditure in any fiscal year of more funds than are
conservatively projected to be received in that period, or which are otherwise
available.
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Status: Compliance
Interpretation: I interpret this to mean that the proposed budget must be
balanced. This includes expenditures for the year not exceeding the revenues
received from all sources. Exceptions are Board-approved use of fund balances,
and use of funds that have been accumulated over a period of time, with the
approval of the Board, with the intent of saving funds to pay for a specific project
or capital expense.
Compliance with the policy will be achieved when: The proposed budget meets
the above criteria, inclusive of any board approved spending of fund balance or
specific reserve funds.
Evidence:
1. The adopted budget demonstrates that I have not allowed budgeting which
plans the expenditure in any fiscal year of more funds than are
conservatively projected to be received in that period, or which are
otherwise available.
Report: I report compliance.
3.3.5: Reduces fund balances or reserves in any fund to a level below that
established by the Board of Town Trustees by adopted policy.
Status: Compliance
Interpretation: I interpret this to mean that fund balance reserves must be
calculated at every budget amendment, and that the General Fund reserve shall
not drop below 25% unless otherwise authorized by the Board. If the Board
approves and adopts a budget that plans for reducing the fund balance below the
25% level, I interpret this as being authorized by the Board.
Compliance with the policy will be achieved when:
• The latest budget amendment shows a General-Fund fund balance of 25%
or greater, unless otherwise approved by the Board.
• The proposed budget anticipates an end-of-year fund balance in the
General Fund of 25% or greater, unless otherwise approved by the Board.
Evidence:
1. 2023 Budget Amendment #6 anticipates a 34.3% General-Fund fund
balance at the end of 2023.
2. The adopted 2024 budget anticipates a 26.4% General-Fund fund balance
at the end of 2024.
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Report: I report compliance.
3.3.6: Fails to maintain a Budget Contingency Plan capable of responding to
significant shortfalls within the Town’s budget.
Status: Compliance
Interpretation: I interpret this to mean that I must prepare a budget that
maintains a fund balance of 25% or more in the General Fund and adequate fund
balances in all enterprise funds, including the required TABOR reserve and the
current cash reserves as defined in Board Policy 670 – Cash and Investment
Reserve and Contingency.
Compliance with the policy will be achieved when:
• The proposed budget anticipates an end-of-year fund balance in the
General Fund of 25% or greater, unless otherwise authorized by the
Board.
• The current cash reserves meet the criteria defined in Board Policy 670 –
Cash and Investment Reserve and Contingency.
Evidence:
1. 2023 Budget Amendment #6 anticipates a 34.3% General-Fund fund
balance at the end of 2023.
2. The adopted 2024 budget anticipates a 26.4% General-Fund fund balance
at the end of 2024.
3. Current cash and investment reserves are reported to the Board on a
monthly basis, as required by Board Policy 670.
4. The Town’s budget contingency plan is established in Policy 670 (Section
3.b).
Report: I report compliance.
3.3.7: Fails to provide for an annual audit.
Status: Compliance
Interpretation: I interpret this to mean that I must ensure that the Town
completes an independent audit annually. Further, that audit report should result
in an unqualified and unmodified opinion from the Board’s auditors.
Compliance with the policy will be achieved when: The annual audit is
complete and presented to the Town Board.
Evidence:
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1. The 2022 Audit has been completed and the ACFR prepared and
submitted to the State of Colorado with an unqualified and unmodified
opinion from the Board’s auditors.
2. The 2022 Audit has been delivered to the Audit Committee and Town
Board.
Report: I report compliance.
3.3.8: Fails to protect, within his or her ability to do so, the integrity of the current
or future bond ratings of the Town.
Status: Compliance
Interpretation: I interpret this to mean that I cannot take any action that will
negatively impact the Town’s bond rating. This includes maintaining adequate
fund balances as required in 3.3.5 and maintaining adequate bond coverage ratios
for all revenue bonds associated with the Town’s enterprise funds.
Compliance with the policy will be achieved when:
• I am in compliance with 3.3.5.
• Required bond coverage ratios are met.
Evidence:
1. 2023 Budget Amendment #6 anticipates a 34.3% General-Fund fund
balance at the end of 2023.
2. The adopted2024 budget anticipates a 26.4% General-Fund fund balance
at the end of 2024.
3. Our current (December 31, 2022) bond-coverage ratio for Power and
Communications (512%) exceeds the required ratio of 125%.
4. Our current (December 31, 2022) bond-coverage ratio for Water (619%)
exceeds the required ratio of 110%.
Report: I report compliance.
3.3.9: Results in new positions to staffing levels without specific approval of the
Board of Town Trustees. The Town Administrator may approve positions
funded by grants, which would not impose additional costs to the Town in
addition to the grant funds and any temporary positions for which existing
budgeted funds are allocated.
Status: Compliance
Interpretation: I interpret this to mean that I cannot allow any new positions or
expansion of any part-time positions to be advertised or filled without prior Board
approval. I may allow new positions or partial positions funded by grants or
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temporary positions for which existing budgeted funds are allocated without prior
approval of the Board. I may also allow reductions in staffing without Board
approval.
Compliance with the policy will be achieved when: No new positions or
expansion of any part-time positions are approved and/or hired without approval
of the Board, with the exceptions noted above.
Evidence:
1. All positions are indicated in the adopted and proposed budgets and no
unapproved positions have been created.
Report: I report compliance.
Policy 3.12: With respect to internal operating procedures, the Town Administrator will
ensure that the Town has internal procedures to promote effective and efficient Town
operations.
Status: Compliance
Interpretation: I interpret this to mean that I maintain up-to-date internal policies
and procedures that control the day-to-day operations of the Town. These policies
are updated when necessary to reflect changing conditions and governing laws.
Compliance with the policy will be achieved when: No issues arise that go
unaddressed by internal policies and procedures and the Town is not put at risk
legally or financially due to the lack of adequate policies or procedures guiding
our actions.
Evidence:
1. Town policies and procedures are up-to-date and available to all
employees on iTown.
2. Policies are reviewed on a regularly scheduled basis to ensure they remain
current and effective.
Report: I report compliance.
Policy 3.13: With respect to internal organizational structure of the Town, the Town
Administrator will maintain a current organizational plan (organizational chart) of the
Town, in a graphical format including through the division level. The Town Administrator
will update the plan annually. The current plan shall be included in the Comprehensive
Annual Financial Report each year, and presented to the Board of Trustees at the first
regular meeting following the certification of the results of each biennial election.
Status: Compliance
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Interpretation: I interpret this to mean that I maintain a current organizational
chart that is included in the ACFR and presented to the Town Board after the
certification of the results of each biennial Town election.
Compliance with the policy will be achieved when:
• The organizational chart is printed in the ACFR.
• The organizational chart is presented to the Town Board at the first regular
meeting following the certification of the results of each biennial Town
election.
Evidence:
1. The organizational chart was published as part of the 2022 ACFR.
2. The organizational chart was presented to the Town Board at the first
regular meeting following the certification of the results of the last
biennial Town election (April 26, 2022).
Report: I report compliance.
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Town of Estes Park, Larimer County, Colorado, January 9, 2024
Minutes of a Regular meeting of the Board of Trustees of the Town of Estes
Park, Larimer County, Colorado. Meeting held in Town Hall in said Town of
Estes Park on the 9th day of January, 2024.
Present: Wendy Koenig, Mayor
Marie Cenac, Mayor Pro Tem
Kirby Hazelton
Trustees Frank Lancaster
Barbara MacAlpine
Patrick Martchink and
Cindy Younglund
Also Present: Travis Machalek, Town Administrator
Jason Damweber, Deputy Town Administrator
Dan Kramer, Town Attorney
Jackie Williamson, Town Clerk
Bunny Victoria Beers, Deputy Town Clerk
Absent: Marie Cenac, Mayor Pro Tem
Mayor Koenig called the meeting to order at 7:00 p.m. and all desiring to do so, recited
the Pledge of Allegiance.
AGENDA APPROVAL.
It was moved and seconded (Younglund/MacAlpine) to approve the Agenda, and it
passed unanimously.
PUBLIC COMMENTS.
Nathan Harger/Town citizen stated concern with the lack of a police chief and encouraged
the Town to consider the internal promotion of Captain Rick Life.
TRUSTEE COMMENTS.
Trustee comments were heard and have been summarized: 2024 Frozen Dead Guy Days
to be held March 15-17, 2024; positive feedback received on the Glow in the Park holiday
festival produced by Visit Estes Park; the Estes Park Housing Authority hired a
Development Manager; Sister Cities Board met and several sub-committees have been
created which focus on public relations and outreach; an Earth Day celebration continues
to be explored by Visit Estes Park; Trustee MacAlpine announced her candidacy for
Mayor;. the inaugural First People’s Festival in January would celebrate indigenous
culture, art music, oral traditions, traditional dancing and shopping; The Larimer County
Regional Opioid Abatement Council would review a summary of fund contributions and
future funding opportunities to include addiction transitional housing;. The Estes Valley
Restorative Justice Better Together dinner fundraiser was held, and, the annual meeting
to discuss the budget, policy, and declarations would be held in January; the EVRJ Board
appointed Melissa Westover, and Restorative Justice Manager Lord was congratulated
on her years of service with the Town and efforts to support the community as she has
accepted a new position with the Boulder District Attorney’s office; the public was
encouraged to attend the January Trustee Talk session to discuss local issues; the Board
commended the Estes Park Police Department and local agencies who responded to the
Estes Park School District during an evacuation due to an explosives threat, and it was
stated the School District should consider opportunities to adjust procedures for future
incidents; and the Larimer County Behavioral Health Policy Council hosted a tour of the
Health Center which has been opened 36 days with 488 urgent care cases of which 373
were walk-ins.
TOWN ADMINISTRATOR REPORT.
Town Administrator Machalek stated gratitude to local and partner agencies for their
support during the school threat. Staff would follow up with the school district for an after-
action report to determine ways to improve response to future threats.
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Board of Trustees – January 9, 2024 – Page 2
He stated Trustee MacAlpine mentioned a concern regarding the purchase power cost
budget allocation. Staff identified an error in the budget entry for 2023 where the purchase
power cost did not include a 5% increase for purchase cost increase projections. Staff
have taken steps to ensure the projection percentage would be included in the future for
known power rate increases.
CONSENT AGENDA:
1. Bills.
2. Town Board Meeting Minutes and Study Session Minutes dated December 12,
2023.
3. Estes Park Planning Commission Minutes dated November 21, 2023
(acknowledgment only).
4. Resolution 01-24 Public Posting Area Designation.
5. Transportation Advisory Board Minutes dated November 15, 2023
(acknowledgment only).
It was moved and seconded (Hazelton/Younglund) to approve the Consent Agenda,
and it passed unanimously.
ACTION ITEMS:
1. RESOLUTION 99-23 LEVYING PROPERTY TAXES FOR 2024 BUDGET YEAR.
Director Creamean stated the 2024 budget was approved on November 14, 2023.
Staff presented Resolution 99-23 which would certify the mill levy for property
taxes receivable in 2024, and approve a temporary mill levy reduction to bring the
mill levy down to the level budgeted for in 2023, based on the State legislature
assessed valuation changes. The amount of money necessary to balance the
budget for general operating purposes from property tax revenues would be
$445,314. The 2023 valuation for assessment for the Town of Estes Park as
certified by Larimer County Assessor would be $332,864,543. Voluntarily lowering
the impact of property reassessments during budget year 2024 would provide a
temporary tax credit/mill levy reduction of 0.444 mills. Staff recommended approval
of Resolution 99-23. The Board and Kent Smith/Town citizen stated gratitude to
staff for bringing the item forward for consideration. It was moved and seconded
(Younglund/Lancaster) to approve Resolution 99-23, and it passed unanimously.
REQUEST TO ENTER EXECUTIVE SESSION:
It was moved and seconded (Younglund/MacAlpine) to enter into executive session
for discussion of a personnel matter - Section 24-6-402(4}(f}, C.R.S. and not
involving: any specific employees who have requested discussion of the matter in
open session; any member of the Town Board; the appointment of any person to
fill an office of the Town Board; or personnel policies that do not require discussion
of matters personal to particular employees – Town Attorney Contract, and it passed
unanimously.
The Board entered into executive session at 7:37 p.m. and concluded the executive
session at 8:18 p.m.
Whereupon Mayor Koenig adjourned the meeting at 8:18 p.m.
Wendy Koenig, Mayor
Bunny Victoria Beers, Deputy Town Clerk
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Town of Estes Park, Larimer County, Colorado January 9, 2024
Minutes of a Study Session meeting of the TOWN BOARD of the Town of
Estes Park, Larimer County, Colorado. Meeting held at Town Hall in the
Board Room in said Town of Estes Park on the 9th day of January, 2024.
Board: Mayor Koenig, Mayor Pro Tem Cenac, Trustees Hazelton,
Lancaster, MacAlpine, Martchink, and Younglund
Attending: Mayor Koenig, Trustees Hazelton, Lancaster, MacAlpine,
Martchink and Younglund
Also Attending: Town Administrator Machalek, Deputy Town Administrator
Damweber, Town Attorney Kramer, and Recording
Secretary Disney
Absent: Mayor Pro Tem Cenac
Mayor Koenig called the meeting to order at 5:00 p.m.
RACIAL COVENANTS RESEARCH AND ORDINANCE.
Town Attorney Kramer presented research on racial covenants within the Town. He
highlighted previous discussions on racially restrictive covenants, the history of
restrictive covenants in Estes Park, and work with title companies in Town to determine
developments and documents which may be racially restrictive. Thus far, two racially
restrictive covenants have been identified, and given the low number of identified
covenants the options for proceeding could include outreach to the homeowners to
address the restrictive covenants, the Board considering an ordinance formally
denouncing the covenants, and continuing research for racially restrictive covenants in
the future. The Board discussed the financial impacts of amending covenants to the
homeowners and the likelihood of more covenants being found. The Board directed
staff to prepare an ordinance formally denouncing racially restrictive covenants.
NOISE ORDINANCE.
Town Administrator Machalek presented a review of the Town’s current noise ordinance
and provided history of previous amendments including the components and reasoning
for the amendments. He highlighted the increase in feedback from members of the
public expressing concerns on the current noise ordinance, other municipalities which
use decibel-based noise standards, enforcement of noise violations, and the impacts of
a decibel-based ordinance including cost, training, and enforcement. The Board
discussed implementing decibel limits for Town owned indoor spaces, the difference of
reasonable and unreasonable decibels, the importance of training on decibel
measurements, state statute limitations, the ability to enforce and prosecute using
decibel-based standards, the number of complaints and citations for noise, how pitches
can affect the comfort level of a complainant, education for short term renters,
expectations of the Board, public outreach to determine the root issues of noise
concerns, who is responsible for noise concerns, responsiveness of the Police
Department to a noise complaint, and the current permit for overnight construction. The
Board directed staff to review the possibilities of a hybrid model utilizing both
unreasonable noise and a decibel-based noise standar ds, and potentially including the
following: increased enforcement capabilities for repeat offenders, maintaining current
exceptions, adjusting the review and issuance of overnight construction permit review to
the Town Administrator.
ECONOMIC DEVELOPMENT FUNDING POLICY 671.
Town Administrator Machalek presented the possibility of amending Policy 671 Town
Funding of Outside Entities to add the Estes Chamber of Commerce (Chamber) as a
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Town Board Study Session – January 9, 2024 – Page 2
Base Funding entity for economic development in lieu of the Estes Park Economic
Development Corporation (EDC). The EDC has received Base Funding since 2013 and
remains eligible for the funding, however the Chamber has not been eligible for Base
Funding. The Chamber and EDC have determined to combine operations and create
the Economic Development Department within the Chamber. To continue funding the
economic development program currently produced by the EDC, the policy would need
to be revised to replace the EDC with the Estes Chamber of Commerce Economic
Development Department.
EDC Interim CEO Schnipkoweit, Chamber Director DePasquale and Larimer County
Economic Development Manager Crowe provided an overview of the EDC including its
services, funding, effects and constraints of economic development, and the benefits
and opportunities of combining the EDC and Chamber. The Board discussed funding
opportunities following the union of the EDC and Chamber, the independent funding of
the Chamber as a whole, ensuring the economic development partnership does not
cause Town oversite of business advocacy, whether the integration of the EDC and
Chamber would create success in economic development, and the fluctuation of Base
Funding.
HR STRATEGIC PLAN AND ORGANIZATIONAL CULTURE UPDATE.
It was determined this item would be moved to February 13, 2024 due to time
constraints.
TRUSTEE & ADMINISTRATOR COMMENTS & QUESTIONS.
Trustee Machalek stated candidate packets were available for both Mayor and Trustee
positions.
FUTURE STUDY SESSION AGENDA ITEMS.
Trustee Lancaster requested, and it was determined to schedule a power outage
overview for a future Study Session. Town Administrator Machalek requested, and it
was determined, to schedule discussions on Encore Arts & Fairground Relocation Costs
for February 13, 2024 and Visit Estes Park Earth Day Planning for February 23, 2024.
There being no further business, Mayor Koenig adjourned the meeting at 6:46 p.m .
Kimberly Disney, Recording Secretary DR
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PUBLIC WORKS Memo
To:
Through:
From:
Date:
RE:
Honorable Mayor Wendy Koenig
Board of Trustees
Town Administrator Machalek
Greg Muhonen, PE, Public Works Director
January 23, 2024
Resolution 02-24 Intergovernmental Agreement with The North Front
Range Transportation & Air Quality Planning Council for Funding of the
US 34 Transportation Management Organization in Estes Park
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER:
QUASI-JUDICIAL YES NO
Objective:
Public Works (PW) staff seek Town Board approval of an intergovernmental agreement
(IGA) with the North Front Range Transportation & Air Quality Planning Council (MPO)
for funding of the US 34 Transportation Management Organization (TMO) in Estes Park.
Present Situation:
On February 14, 2023, representatives from the MPO and Transportation
Commissioner Kathleen Bracke joined PW staff for a Town Board Study Session
(TBSS). The purpose of the TBSS was to gauge the Town Board’s interest in
participating in regional discussions related to transportation demand management
(TDM), specifically the formation of a new US 34 Transportation Management
Organization (TMO). At that time, the Town Board indicated support for modest
investment of PW staff time to support TMO start-up.
Since the February 2023 TBSS:
•PW staff have attended three quarterly US 34 Coalition meetings.
•The MPO’s Transportation Demand Management (TDM) Seed Funding Grant
application (to fund TMO start-up) was successfully and fully funded at $100,000
by the Colorado Department of Transportation (CDOT) Office of Innovative
Mobility (OIM).
•Due to the delay in receiving the grant agreement from CDOT, MPO staff
recommended that the US 34 Coalition hire a consultant (rather than one full-
time staff member) to conduct start-up activities so that the TMO could be
launched quickly and without a lot of time investment from Coalition members.
•A scope of work for the consultant was prepared by the MPO and vetted by US
34 Coalition members and Estes Park.
Page 17
• An RFP for consulting services was issued in November 2023. Three responses
were received and reviewed in December 2023 by MPO staff and
representatives from CDOT, Greeley, Loveland, and Estes Park. Consultant
interviews were also held in December.
Proposal:
The MPO is currently working to enter into IGAs with all of the US 34 Coalition member
communities and Estes Park. The purpose of the IGA is to coordinate funding for the
US 34 TMO project. To date, the Town has only committed to providing modest PW
staff time and one-ninth of the local match needed for the TDM Seed Funding Grant
awarded by CDOT-OIM. To date, no additional financial contribution or commitment of
PW staff time has been requested or committed to the US 34 TMO.
Advantages:
• Participation in the US 34 TMO will demonstrate Estes Park’s commitment to
TDM, which is a major strategy for achieving desired reductions in greenhouse
gas emissions and a priority defined by the Town’s recent Environmental
Sustainability Task Force Report.
• US 34 is a priority as one of the most congested roadways in the region—when
considering Travel Time Index between Greeley and Loveland—and as a key
corridor to Rocky Mountain National Park.
Disadvantages:
• The Town has identified other priorities, such as workforce housing and
childcare, requiring more staff time and resources than regional transportation
development; however, the US 34 TMO is a partnership between a number of
communities/entities, and Estes Park could benefit from participating in the larger
group effort.
Action Recommended:
PW staff recommend Town Board approval of Resolution 02-24.
Finance/Resource Impact:
Current Impact: The MPO identified a set-aside of Multimodal Transportation &
Mitigation Options Fund (MMOF) dollars for development of the US 34 TMO. MMOF
funds require a 50% match, with the remaining US 34 TMO start-up funding coming
from Fort Collins Sales Tax Exchange funds and TDM Seed Funding Grant. Each
existing US 34 Coalition member, along with Estes Park, was asked to contribute to the
TDM Seed Funding Grant local match. The total request of the Town is $2,778.00.
These funds are expected to support the staff of a TMO in the first two years, with a
major aspect of the selected consultant’s first year work plan being identification of
diverse and sustainable TMO funding.
Future Impact: The MPO plans to seek additional grant funding for TMO support,
including Congestion Mitigation and Air Quality Improvements (CMAQ), Carbon
Reduction Program, and MMOF. Many TMOs are also funded through membership
dues, which provide additional funding for programming, staff support, and local match
Page 18
for grants. At this time, the MPO estimates that membership dues would be based on
population; Estes Park’s annual financial commitment could be approximately $5,000
(beginning in 2026). If authorized by the Town Board, funding for future TMO dues
would likely come from the Town’s General Fund. The Town’s Parking Fund (256)
would be another possible funding source.
Level of Public Interest
The level of public interest in the US 34 TMO is likely low at this time. To date, the
Transportation Advisory Board (TAB) has received regular updates on TMO start-up
activities.
Attachments:
1. Resolution 02-24
2. Intergovernmental Agreement for Funding of the US 34 Transportation
Management Organization in Estes Park
Page 19
RESOLUTION 02-24
APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE NORTH FRONT
RANGE TRANSPORTATION & AIR QUALITY PLANNING COUNCIL FOR FUNDING
OF THE US 34 TRANSPORTATION MANAGEMENT ORGANIZATION
IN ESTES PARK
WHEREAS, the Town Board desires to enter the intergovernmental agreement
referenced in the title of this resolution for the purpose of providing funding in support of
the US 34 Transportation Management Organization (TMO) Project; and
WHEREAS, the parties to this Agreement are authorized pursuant to Article XIV,
Section 18 of the Colorado Constitution and Section 29-1-201, et seq., Colorado
Revised Statues, to enter into intergovernmental agreements for the purpose of
providing any service or performing any function which they can perform individually;
and
WHEREAS, both parties agree it is in their best interests to work cooperatively in
the completion of the Project.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Board approves, and authorizes the Mayor to sign the intergovernmental
agreement referenced in the title of this resolution in substantially the form now before
the Board.
DATED this day of , 2024.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
ATTACHMENT 1
Page 20
Page 1 of 4
INTERGOVERNMENTAL AGREEMENT FOR FUNDING OF THE US34
TRANSPORTATION MANAGEMENT ORGANIZATION (TMO) IN ESTES PARK
THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement”) is made and
entered into this 3rd day of January, 2024, by and between THE NORTH FRONT RANGE
TRANSPORTATION & AIR QUALITY PLANNING COUNCIL, (“MPO”) and THE TOWN
OF ESTES PARK, COLORADO (“Community”) for the use and benefit of the NFRMPO.
I. RECITALS
A.The parties to this Agreement, heretofore discussed submitting a coordinated application
for state Office of Innovative Mobility (OIM) Transportation Management Organization
(TMO) Seed Funding Grant administered through the Colorado Department of
Transportation (CDOT) to manage and deliver transportation demand management
(TDM) services along the US34 corridor within the Community (“Project”); and
B.The parties to this Agreement, entered coordinated grant applications for state funding
through CDOT to aid in financing the Project; and
C.The MPO has agreed to be the project applicant and Estes Park has agreed to provide
one-ninth of the local match; and
D.The grant applications were approved with required local match funds of 20%; and
E.The parties wish to enter into an intergovernmental agreement for purposes of
coordinating the funding of the completion of the Project; and
F.The MPO covers urbanized areas in Larimer and Weld counties and the project will cover
areas within the Upper Front Range Transportation Planning Region; and
G.The parties to this Agreement are authorized pursuant to Article XIV, Section 18 of the
Colorado Constitution and Section 29-1-201, et seq., Colorado Revised Statutes, to enter
into intergovernmental agreements for the purpose of providing any service or
performing any function which they can perform individually; and
H.The parties agree it is in their best interests to work cooperatively in the completion of
the Project.
II. CONSIDERATION
NOW, THEREFORE, in consideration of the mutual covenants herein, the parties agree as
follows:
III. TERMS
ATTACHMENT 2
Page 21
Page 2 of 4
1. The Community and MPO have estimated the total Project cost to be $237,500
(Two Hundred Thirty-Seven Thousand and Five Hundred Dollars) attributable to services
within Larimer and Weld counties.
2. The total Project cost of $237,500.00 is allocated as follows: $100,000 in OIM
TMO Seed Grant Funds; $112,500.00 other grant funds; $25,000 local match requirement with
$2,778.00 contributed by each Community, less prior year carryover, and as more particularly
set out in Exhibit “A” all terms of which are attached hereto and incorporated herein.
3. The MPO will invoice the Community for their $2,778.00 share of the local
match within 30 days of execution of the contract and the Community will submit payment
within 60 days of receipt of invoice unless written notice of delay is received and approved by
the MPO. The Community’s obligation to pay to the MPO the Community’s local match is
subject to and contingent on the Community’s appropriation and budget of such funds for the
Project. The Community is only responsible for providing its share of the local match and
failure of another Community to provide its share of the local match will result in that
Community’s exclusion from the activities set out in Exhibit “A” and will reduce the total
Project amount by half.
4. Should the Community request modifications, changes in the scope of service, or
other expenditures that would cause the total Project cost to exceed $237,500.00, the
Community shall be responsible to pay to the MPO such additional amount attributable to the
changes requested by Community.
5. Should there be any unused local match funds at the end of the Project year, the
unused funds shall be returned to the Community or shall be credited against next year’s local
match amount if funds are awarded for the continuation of the Project.
6. Should the MPO request modifications, changes in the scope of service, or other
expenditures that would cause the total Project cost to exceed $237,500.00, the MPO shall be
responsible to pay such additional amount attributable to the changes requested by the MPO.
7. The MPO shall maintain accurate accounts of all Project expenditures and shall
separately account for the Community’s local match funds. The MPO shall provide to the
Community information detailing incremental and total expenditures for the Project and the
remaining balance of funds on at least a quarterly basis.
8. The MPO will assume primary responsibility, with close coordination of the
Community, to determine the scope of work.
9. The Community and MPO shall each designate a representative to assist the
MPO in the oversight of the grant.
10. The Community’s and MPO’s financial obligations under this Agreement are
contingent upon the annual appropriation, budgeting and availability of specific funds to
discharge those obligations. Nothing in this Agreement shall create a payment guaranty by either
Page 22
Page 3 of 4
party or a debt or a multiple-fiscal year financial obligation under the Colorado Constitution or
any similar provisions of the Community’s charter or ordinances.
11. No term or condition of this Agreement shall be construed or interpreted as a
waiver, either express or implied of any of the immunities, rights, benefits or protections
available to either party under the Colorado Governmental Immunity Act as now in effect or
hereafter amended.
12. This Agreement may be amended provided such amendment is in writing and
signed by each party.
13. The Community and MPO intend that this Agreement bind them, their officers,
and employees. Either party shall be permitted to specifically enforce any provision of this
Agreement in a local court of competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
NORTH FRONT RANGE TRANSPORTATION &
AIR QUALITY PLANNING COUNCIL
For the use and benefit of the MPO
By:
Suzette Mallette Executive Director
ATTEST:
Accounting Manager
TOWN OF
ESTES PARK, COLORADO
For the use and benefit of ESTES PARK
By:
Name Title
APPROVED AS TO FORM:
ESTES PARK Attorney
Page 23
EXHIBIT A
SCOPE OF US34 TRANSPORTATION MANAGEMENT ORGANIZATION (TMO)
The following is a more detailed description of the plan:
The Community and the MPO agree that the MPO will manage and administrate the grant to
develop and implement the US34 Transportation Management Organization (TMO).
The Community and MPO agree that the MPO be the local agency that enters into an IGA with
CDOT for the monies awarded to both the Community and MPO for the Project. Additionally,
the Community and MPO agree that the MPO will provide the fiscal management and overall
project management for the entire project without any reimbursement requested for these
services by the MPO to the Community.
The current schedule for the project is as follows:
August 2023 – IGA between CDOT and MPO executed
October 2023 – Release RFP for US34 TMO development and implementation
Quarterly – Check-In on Grant and Project with US34 Coalition
Budget
Grant
2023 Local
Match
Requirement
2023
Local
Match
Total % of total
payment
Larimer County
$212,500
$2,778 $2,778
$237,500
11%
Weld County $2,778 $2,778 11%
Estes Park $2,778 $2,778 11%
Loveland $2,778 $2,778 11%
Johnstown $2,778 $2,778 11%
Windsor $2,778 $2,778 11%
Greeley $2,778 $2,778 11%
Evans $2,778 $2,778 11%
Kersey $2,778 $2,778 11%
Total $212,500 $25,000 $25,000 $237,500 100%
Page 24
Human Resources Memo
To: Honorable Mayor Koenig
Board of Trustees
Through: Town Administrator Machalek
From: Emily Lizotte, HR Manager
Jackie Williamson, HR Director
Date: January 23, 2024
RE: Revised Policy 306 - Leave
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER – Policy Revision
QUASI-JUDICIAL YES NO
Objective:
To amend Policy 306 Leave to remove PD Holiday.
Present Situation:
The Town’s current policy provides sworn police officers and dispatchers 8 hours of
straight time for Town observed holidays and are not used in the calculation of overtime.
All other employees receive 8 hours of regular hours for each holiday and are
considered in the calculation of overtime.
During the 2024 budget process, staff included a proposal to change PD holiday hours
from straight hours to regular hours. This proposal would create overtime hours for
police staff working on a holiday, therefore, additional overtime hours were included in
the proposed budget. With the Town Board approval of the budget, a policy change is
need to reflect the change.
Proposal:
The proposed edits to the policy would grant sworn police personnel and dispatcher 8
regular hours for each Town observed holiday.
Advantages:
•Provides regular hours for all sworn police personnel and dispatchers.
•Increase morale
•Provide overtime for hours above 80 hours in a pay period.
Disadvantages:
•Additional cost for overtime hours.
Page 25
Action Recommended:
Approve the revisions to Policy 306 Leave as outlined.
Budget:
Additional overtime hours were included in the 2024 budget.
Level of Public Interest:
Low
Sample Motion:
I approve/deny revisions to Policy 306 Leave.
Attachments:
1. Revised Policy 306 Leave with redlines.
Page 26
Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 1 of 17
Effective Period: Until superceded
Review Schedule: Annually
Effective Date: 07/1101/23/20232024
References: Governing Policies Manual 3.2, 3.8
HUMAN RESOURCES
306
Leave
1. PURPOSE
The Town recognizes and respects its employees’ need for leave time away from work.
Such leave time is important in allowing employees to renew their physical and mental
capabilities and remain productive. To this end, the Town strives to create and maintain
a balanced work schedule for its employees by promoting quality of life through leave
time.
2. POLICY
In accordance with state and federal laws, the Town provides leave time to eligible
employees as set forth in the following procedure. Leave accountability is the
responsibility of the employee and the supervisor.
3. PROCEDURE
a. Reporting Absences and Tardiness
i. Expectations
Employees are expected to report to their place of work every day as scheduled,
unless on approved leave. Time off of any kind must be taken in accordance with
this policy and other applicable Town policies.
ii. Absent or Tardy Notifications
Employees who will be absent or late to work must notify their immediate
supervisor (or the supervisor’s designee) as soon as they learn of the need to be
absent or late. Failure to provide prompt notice of an absence or tardiness is an
unapproved absence and may result in disciplinary action.
iii. Process for Reporting Absences or Tardiness
Unless otherwise directed in written departmental work rules, employees must
notify their immediate supervisor no later than fifteen (15) minutes after the start of
the employee’s work shift if they will be absent or late. When notifying the
supervisor of the need to be absent or late, the employee must report:
1) The reason for the absence (or tardiness).
2)The date (or time) when the employee expects to return to work.
ATTACHMENT 1
Page 27
Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 2 of 17
iv. Exceptional Circumstances
The Town recognizes that under exceptional circumstances, neither the employee
nor someone on his or her behalf may reasonably be able to call within the time
required. In such a case, the employee or representative must contact the
employee’s supervisor as soon as possible after the beginning of the shift. If the
supervisor, at his or her discretion, believes the employee had a compelling reason
which prevented the employee from obtaining prior approval for the absence, or
from calling in on time, the supervisor may approve pay for the period of absence
or tardiness.
b. Use of Leave
1. The intent of the leave types outlined in this policy are to provide employees
with accrued and other leave to backfill any time away from work and
complete their timecards with their normal work hours for the week, and are
not to be used outside of the employee’s normal work schedule in order to
create overtime.
2. As the Police Department is required to be staffed on a 24/7/365 basis,
Town-observed, sworn officers and dispatchers may be called in for duty
when on leave and may not utilize both leave and work on the same day in
excess hours of a normal work day. In this circumstance the employee’s
leave time would be adjusted to account for the hours worked when called
in by their supervisor. (i.e., if an employee were scheduled to take 10 hours
of vacation leave and got called in to work for 5 hours, their vacation time
would be adjusted to 5 hours)
c. Vacation Leave
i. Eligibility
Vacation leave is accrued by all full-time, part-time employees and eligible contract
employees. Vacation leave is pro-rated for part time employees (50% for 20-29
hour part-time employees, 75% for 30-39 hour part-time employees).
ii. Amount of Hours Earned
Vacation accrual begins upon initial date of hire and hours are earned for the first
two pay periods of each month according to the schedule below. The date of initial
hire does not change with changes in employment within the Town organization
(i.e., promotions and transfers). However, if an employee leaves employment with
the Town, the initial date of hire will change for the purposes of vacation accrual
should the employee return to work for the Town. The amount of hours earned per
pay period is pro-rated for eligible part-time employees. The maximum vacation
leave carry over allowed is equal to double the amount of hours that can be earned
in a year. An employee moves through the “Years of Service” brackets at the
completion of the final year in the bracket. For example, an employee would move
from the “0 through 2” bracket into the “3 through 5” bracket at the completion of
the employee’s second year of service (end of month 25).
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 3 of 17
Years of Service Hours Earned per Month Maximum Carry Over
0 through 2 (0
months – 24
months)
8.00 192 Hours
3 through 5 (25
months through
60 months)
10.00 240 Hours
6 through 12 (61
months through
144 months)
12.00 288 Hours
13 or more (145
months or more)
14.00 336 Hours
iii. Amount of Hours Earned by At-Will Employees
Years of Service Hours Earned per Month Maximum Carry Over
0 through 2(0
months – 24
months)
10.00 240 Hours
2 through 5(25
months through
60 months)
12.00 288 Hours
6 through 12(61
months through
144 months)
14.00 336 Hours
13 or more(145
months or more)
16.00 384 Hours
iv. Authorization of Vacation Leave
1) Vacation leave shall be requested in advance and is granted at the
discretion of each employee’s supervisor.
2) Requests for vacation leave may be deferred based upon workload.
Supervisors and Department Directors shall ensure that every effort is made
for the employee to use vacation leave requests previously cancelled due
to department work load.
v. Forfeiting of Vacation Leave
1) On the employee’s anniversary date (date of hire), they will forfeit any
accrued vacation leave exceeding the maximum carry over articulated in
Section 3.b.ii and 3.b.iii of this policy.
2) An employee may request reinstatement of forfeited accrued vacation leave
of up to 80 hours for up to one (1) year from their anniversary date at the
discretion of the Town Administrator. The request must justify why the
employee was unable to use forfeited accrued vacation leave. All requests
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 4 of 17
must be submitted within 30 days from the date accrued vacation leave was
forfeited. Reinstated hours shall not be subject to payout if the employee
terminates employment prior to their next anniversary date.
vi. Pay Out of Vacation Leave
1) At the sole discretion of the Town Administrator, payout of an employee’s
vacation leave prior to separation of employment may be approved. This is
approved only in extraordinary circumstances. Such payment will be taxed
at the supplemental earnings rate.
vii. Use of Vacation Leave
Vacation leave shall be taken in no less than 30 minute increments. At no time
may an employee have a negative vacation leave balance.
viii. Separation of Employment Payout
Upon separation of employment, an employee receives payment for all accrued
vacation leave. The payment for accrued vacation will be based on the employee’s
pay rate at the time of separation. This payment is taxed at the supplemental
earnings rate
d. Holiday Leave
i. Eligibility
Holiday leave is granted to all full-time, part-time employees and eligible contract
employees. Holiday leave is pro-rated for part time employees (50% for 20-29 hour
part-time employees, 75% for 30-39 hour part-time employees).
ii. Holidays Observed
Holiday leave is observed and granted for the following holidays:
Nominal Date Holiday
January 1st New Year’s Day
January (Third Monday) Martin Luther King Day
May (Last Monday) Memorial Day
June 19th Juneteenth Day
July 4th Independence Day
September (First Monday) Labor Day
November 11th Veterans Day
November (Fourth Thursday) Thanksgiving Day
December 24th Christmas Eve Day
December 25th Christmas Day
Holidays that occur on a Saturday will be observed on the preceding Friday, and
those that occur on a Sunday will be observed on the following Monday.
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 5 of 17
If an employee is not normally scheduled to work on the day that a Town-observed
holiday lands (i.e., a Friday for an employee working a 4/10 schedule), then such
employee shall receive one additional eight (8) hour floating holiday.
If an employee is normally scheduled to work on the day that a Town-observed
holiday lands, and does not work the holiday, such employee receives eight (8)
hours of holiday pay.
iii. Use of Holiday Leave
Holiday leave granted by the Town shall be used in the following manner:
1) Holidays must be taken unless the employee is scheduled to work by the
employee’s supervisor.
2) Holidays which occur during an employee’s absence due to vacation or
sickness shall not be counted as vacation or sick leave.
3) Employees, other than Department Directors and Police Department
personnel, who are required to work on a holiday will receive pay for the
hours worked as well as holiday pay.
iv. Use of Holiday Leave – Police Department
As the Police Department is required to be staffed on a 24/7/365 basis, Town-
observed holidays will be handled by the Police Department as described below:
1) Non-exempt patrol personnel and non-exempt dispatch personnel will
receive eight (8) hours of straight holiday pay for every holiday, regardless
of whether the day is worked or not. These hours will not count towards
overtime.
2) Non-exempt police personnel on an administrative schedule will receive
eight (8) hours of holiday pay for each Town-observed holiday. These hours
will count towards overtime.
v.iv. Floating Holidays
In addition to the Town-observed holidays above, employees are allotted four (4)
floating holidays to be taken at their discretion, with supervisor approval. Floating
holidays must be used during the year accrued or they will be forfeited on
December 31st. Floating holidays are pro-rated for new employees. Floating
holidays are pro-rated for part-time employees (50% for 20-29 hour part-time
employees, 75% for 30-39 hour part-time employees).
Seasonal employees working an average of 20-29 hours or less per week are
allotted 12 hours of Floating Holiday per seasonal contract. Seasonal employees
working an average of 30 – 40 hours per week are allotted 24 Floating Holiday
hours per seasonal contract. Supervisor shall designate average working hours
of each seasonal employee in the initial hiring paperwork. Floating Holiday hours
must be used within the contract time period or they will be forfeited.
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 6 of 17
Floating Holiday hours are not paid out upon employee separation.
e. Sick Leave
i. Eligibility
Sick leave is accrued by all full-time, part-time employees, seasonal employees,
and eligible contract employees. Sick leave is pro-rated for part time employees
(50% for 20-29 hour part-time employees, 75% for 30-39 hour part-time
employees).
Sick leave is pro-rated for seasonal employees based on average working hours
per week (50% for 20-29 hours per week 75% for 30-40 hour per week).
Supervisor shall designate average working hours of each seasonal employee in
the initial hiring paperwork.
Part-time and seasonal employees working fewer than 20 hours per week, earn
(one) 1 hour of sick leave for every 30 hours worked.
ii. Amount of Hours Accrued
Sick leave will be accrued at the rate of four (4) hours for the first two bi-weekly
pay periods of each month (pro-rated for eligible part-time employees). Sick leave
accumulation is capped at 480 hours. When any employee accumulates more than
480 hours of sick leave, all excess sick leave will be converted to vacation leave
(on a two-for-one basis) on that employee’s anniversary date.
Seasonal employees and employees working fewer than 29 hours per week have
a cap on sick leave at 48 hours of sick leave. Seasonal employees working 30-40
per week have a cap of 60 hours of sick leave. When any employee accumulates
more than the cap of sick leave, all excess sick leave will be cleared after each
pay period. If a seasonal employee is re-hired within 6 months of separating
employment with the Town, they shall retain the sick leave bank they had upon
separating employment.
iii. Use of Sick Leave
Sick leave shall be used in the following manner:
1) Sick leave may only be used for:
a. A non-occupational personal illness that renders an employee unable to
perform their job.
b. Non-occupational, necessary medical, optical, and dental health
examinations and treatments, including reasonable travel time, when
such appointments cannot be scheduled outside of regularly scheduled
work hours.
c. When an employee’s family member has a medical appointment or is ill
and requires the care of the employee. For the purposes of this policy,
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 7 of 17
“family member” is defined as an employee’s child, spouse, sibling,
parent, grandparent, or grandchild, including natural, step, in-law, and
foster relatives, regardless of whether or not said relative is living within
the employee’s home.
d. For a Family Medical Leave Act (FMLA) qualifying event as outlined in
Policy 311.
e. For a single day, weather-related closure of Town facilities as
determined by the Town Administrator.
f. For the first 3 days of missed shifts following a qualifying workers
compensation injury.
2) Sick leave may not be used during a scheduled vacation or compensatory
time off.
3) Employees who are eligible for holiday time and who are on sick leave
during a designated holiday must record holiday time for that day and not
sick leave. An employee who is scheduled to work on a holiday and
becomes sick must record holiday time only for the day.
4) During paid sick leave under the terms of this policy, all benefits will
continue as though the employee were at work.
5) Sick leave shall be taken in no less than 30-minute increments.
6) At no time may an employee have a negative sick leave balance.
7) A Department Director may require an employee to take sick leave for any
of the reasons specified in 306.3.d(iii)(1).
8) Employees are prohibited from using sick leave except under the
circumstances described above. Employees who, in the Town’s judgment,
misuse sick leave are subject to disciplinary action. When there appears to
be a possibility that sick leave is being misused, the Department Director or
supervisor may:
a. Make further inquiry of the employee about past or ongoing use of the
leave time.
b. Require the employee to provide the type of information or submit to
medical examinations as provided in the “Medical Certification” section
of this policy (3.c.vi).
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 8 of 17
c. Require the employee to provide written medical verification or be seen
by the Town’s designated physician in order to use any further sick
leave.
iv. Notice of Brief Absence (3 days or less)
This portion of the leave policy applies to non-occupational absences for brief
illnesses, injuries, and minor medical procedures where the employee reasonably
expects to be absent three (3) days or less, even if the absence ends up being
longer.
1) Employees who need to use sick leave for an unexpected, brief illness or
injury must contact their supervisor within 15 minutes after the beginning of
the shift each day of the absence, or within a time frame set by the
employees’ Department Director.
2) Employees who need to be absent for a scheduled medical procedure or
short-term treatment must notify their supervisor as soon as the need for
the absence is scheduled with the health care provider.
v. Notice of Prolonged Absence (More than 4 Days) or Intermittent Leave
This portion of the leave policy applies to employees who need to be absent for
non-occupational illnesses or medical procedures for more than four days, or who
need to use sick leave intermittently. Employees seeking job protection under the
Family and Medical Leave Act (FMLA) should refer to Policy 311.
vi. Medical Certification
1) The Town reserves the right to require employees to substantiate and/or
document their need for sick leave, whether it is based on their own physical
condition or the condition of an immediate family member.
2) The Town reserves the right to evaluate requests for, and extensions of,
sick leave by consulting with the physician of the employee, or with the
Town’s own medical consultants, and retains the right to request that the
employee seek a second opinion of the illness/disability from a physician of
the Town’s choice. Employees who request sick leave, or who have used
sick leave, may be required by their supervisor (in consultation with Human
Resources) to provide written verification of the following from the physician
or other health care provider treating the employee:
a. Date on which the condition commenced;
b. Nature and extent of illness or injury, but only as is necessary to
determine the employee’s ability to perform job functions;
c. Probable duration of illness or injury;
d. Confirmation that the employee is unable to perform essential job
functions;
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 9 of 17
e. Anticipated date on which the employee may return to work; and/or
f. Release stating that the employee is able to return and perform his
or her duties without endangering the health and safety of
himself/herself or others, and describing restrictions on the
employee’s work activities.
3) Any illness or injury of an employee or an employee’s immediate family
member requiring an employee to miss more than four (4) regularly
scheduled work days shall be required to submit a physician’s statement
verifying the condition of the person under the physician’s care.
4) At the end of any sick leave, the Town may require a physician’s statement
verifying the employee’s fitness to return to work.
vii. Payment upon separation
A terminating employee that has completed 20 years of continuous service shall
be compensated for fifty percent (50%) of their accumulated sick leave hours. Said
compensation will be computed at the employee’s rate of pay at time of
termination. This payment is taxed at the supplemental earnings rate.
f. Family and Medical Leave Act
The Town of Estes Park complies with the Family and Medical Leave Act of 1993, as
amended. The Town posts the mandatory FMLA Notice and, upon hire, provides all
new employees with notices required by the United States Department of Labor (DOL)
on Employee Rights and Responsibility under the Family and Medical Leave Act. For
more details on the Town’s compliance with FMLA, please see Policy 311.
g. Jury Duty and Witness Appearance Leave
The Town recognizes jury duty as an important civic obligation. If called to report to
jury duty or required to serve on a jury, an employee will be granted the necessary
time required and will be compensated at his or her regular pay rate.
i. Notification
If an employee is served with a summons to jury duty, the employee must inform
his or her supervisor by the next regular work day and provide a copy of their
summons (in electronic format or otherwise).
ii. Exempt Employee Compensation
Exempt employees will receive their regular wages for regularly scheduled work
hours for jury duty.
iii. Non-Exempt Employee Compensation
Non-exempt employees will receive their regular wages for regularly scheduled
work hours during each of the first three days of jury duty served during regular
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 10 of 17
work hours. Thereafter, any pay they receive for jury duty is paid by the
governmental entity requesting the employee to participate in the jury service.
iv. Compensation Requirements
The Town has no obligation to pay wages for time spent on jury duty until and
unless the employee’s supervisor verifies on the Court website that the employee
was on jury duty during that period.
v. Return to Work
Employees are expected to return to work on any day or portion of a day they are
released from jury duty as reasonable.
vi. Witness Appearance Leave
1) Exempt employees will be paid during time they are subpoenaed or
otherwise required by law to appear as a witness in any personal matter
that overlaps with scheduled work time up to a maximum of two working
days in any 12-month period. To receive this pay, the employee must pay
to the Town any witness pay received by the employee, excluding mileage
reimbursement. Any further time that an employee is required to appear as
a witness is unpaid by the Town unless the employee chooses to use
accrued paid leave time. A matter is considered personal if, in the discretion
of the supervisor, it is not directly related to the employee’s essential job
functions. An employee’s appearance as a witness in non-personal matters
is considered regular working time and will be compensated accordingly.
2) Non-exempt employees will be granted all necessary time off when required
to appear as a witness in personal matters, but such time is unpaid by the
Town unless the employee chooses to use accrued paid leave time. An
employee’s appearance as a witness in non-personal matters is considered
regular working time and will be compensated accordingly.
h. Voting Leave
i. Eligibility
To qualify for voting leave, employees must:
1) Be a registered, eligible elector entitled to vote at an election.
2) Advise their manager of the leave of absence prior to the day of the election.
3) Have less than three (3) hours between the time the polls open and the time
the polls close during which they are not required to be on the job for the Town.
ii. Benefit
Eligible employees shall be entitled to up to two hours off, with pay, for the purpose
of voting on the day of the election during the time the polls are open. The Town
may specify the hours during which the employee may be absent.
Page 36
Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 11 of 17
i. Workers’ Compensation
The Town complies with all applicable federal and state laws pertaining to Workers’
Compensation. Employees who are injured on the job may be eligible for leave time
and other benefits. Any employee who suffers an occupational injury must report the
injury to Human Resources and follow the incident reporting policy. Questions about
workers’ compensation should be directed to Human Resources.
j. Military Leave
i. Eligibility
All Town employees, regardless of employment category, are eligible to take
military leave for active duty or active or inactive duty training if they are members
of the reserves or enlisted in any branch of the United States Armed Forces, or are
members of the National Guard of any state in the United States. Employees must
present official documentation of the military duty prior to the leave and upon
returning from leave.
ii. Length of Paid Military Leave
1) Employees are provided with paid leave for a maximum of 15 working days
(120 hours for full-time employees, pro-rated for less than full-time
employees) per calendar year for active duty or active or inactive duty
training with the National Guard or any branch of the United States Armed
Forces. If the intermittent schedule of a part-time employee makes it difficult
to determine the number of hours the employee would have worked during
the leave period for proration purposes, the number of hours the employee
actually worked during the 21 calendar day immediately preceding the leave
shall be used to calculate the maximum length of the paid military leave.
2) After exhausting the 15 days of paid military leave, an employee may
choose to use accrued vacation time, compensatory time, accrued but
unused holiday time, and/or take leave without pay for active duty or active
or inactive duty training with the National Guard or any branch of the United
States Armed Forces. If an employee chooses to use the above described
accrued paid leave, such use must be at the rate of 40 hours per week
(prorated for part-time employees based on their FTE) and can only be used
during the initial portion of the leave. Once the leave becomes unpaid, and
employee cannot begin using accrued paid leave. An employee may not
use any other type of paid leave during military leave, including, but not
limited to, sick leave or injury leave.
iii. Continuation of Medical, Dental, and Vision Insurance
1) After the first 30 continuous calendar days of unpaid leave for active military
service, the Town-sponsored medical, dental, and vision insurance for the
employee and covered dependents will terminate. After coverage
terminates, the employee may elect to continue coverage at his or her own
expense, and will be provided with detailed notice of the right to continue
coverage.
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 12 of 17
2) Employees who are reinstated after completing active duty or active or
inactive duty training will be eligible for immediate coverage under any
applicable medical insurance plans existing at the time without a waiting
period.
iv. Retirement Plans
Employees who are participants in any Town-sponsored retirement plan will
continue to accrue service credits during military leave, and such leave will not
constitute a break in service, so long as the employee complies with requirements
for reinstatement after completing active duty or active or inactive duty training.
v. Life and Disability Insurance
After the first 30 continuous calendar days of unpaid leave for active military
service, coverage under the life and disability insurance plans sponsored by the
Town will terminate. These plans may contain limitations on coverage for death
and disabilities which occur during a declared or undeclared war. For more
information about the policy provisions of these plans, contact Human Resources
for a copy of the summary plan descriptions or policies.
vi. Reinstatement
When all of the following conditions for reinstatement are met, an employee will be
reinstated to the same position they had at the time the military leave commenced,
or to a position of like status and pay, provided that:
1) The cumulative period of military service was no longer than five years,
unless a longer period is required by federal or state law.
2) The individual employee must return to work, or apply in writing, for
reinstatement in a timely manner as defined by federal and state law. While
these laws contain exceptions, which could extend the time an employee
has to return to work, they generally define timely manner as follows:
a. Military service time of less than 31 days: reporting for work the next
regularly scheduled work day following safe travel time plus eight (8)
hours.
b. Military service time of more than 30 days but less than 181 days:
submitting an application for reinstatement within 14 days after
release from military service.
c. Military service time of more than 180 days: submitting an application
or reinstatement within 90 days after release from military service.
3) The employee must provide documentation from the National Guard or United
States Armed Forces that he or she honorably completed military service or
active or inactive duty training, such as discharge papers.
Page 38
Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 13 of 17
4) An employee has the same right to reinstatement as if he or she had been
continuously employed during the leave period. For example, the employee is
not eligible for reinstatement if the job for which he or she was hired was for a
specific time period which expired, or for a project which was completed during
the absence, or if the position has been eliminated.
5) The employee is qualified to perform the duties of the pre-service position. If
the employee is no longer qualified to perform the job with reasonable
accommodations, he or she will be re-employed in another existing job that he
or she is capable of performing.
k. Administrative Leave
i. Imposition of Administrative Leave
1) All Town employees, regardless of employment category, may be placed
on administrative leave at any time, with or without cause or notice, at the
sole discretion of the Town Administrator. Placement on administrative
leave is not disciplinary in nature. Circumstances under which such a leave
may occur include, but are not limited to, the following:
a. To make inquiries into or investigate a work-related matter;
b. To remove the employee from the workplace pending a
determination of job action;
c. To protect the employee;
d. To protect the public;
e. To protect other employees or property in the workplace; or
f. To further any other work-related or business-related purpose.
2) Unless it would harm an administrative or criminal investigation, and after
consultation with Human Resources, the supervisor or manager shall place an
employee on administrative leave as soon reasonably practical upon
determination that such leave is appropriate under Section 306.j.ii of this policy.
ii. Paid and Unpaid Administrative Leave
1) Administrative leave shall be with pay except under that following
circumstances, in which case administrative leave may be without pay:
a. The employee has been formally charged or indicted for a felony or
misdemeanor and:
i. The employee occupies a position of public trust and public
visibility; or
Page 39
Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 14 of 17
ii. The felony or misdemeanor relates to the performance of the
employee’s official duties
b. The employee has been formally charged or indicted for a crime of
theft, a sex offense, or an offense that involves minors.
2) Before an employee is placed on unpaid administrative leave, the employee
must be provided with a pre-determination hearing pursuant to Policy 308
for the purpose of providing the employee with the opportunity to be heard
and present information concerning whether or not there are reasonable
grounds to support the placement on unpaid administrative leave.
3) During paid administrative leave, an employee will continue to receive their
regular, straight-time wages and benefits based on their position’s
designated FTE. An employee eligible for holiday time and on paid
administrative leave during a designated holiday will receive holiday pay for
that day in lieu of pay for administrative leave.
iii. Employee Required to Remain Available
An employee on paid or unpaid administrative leave must remain available during
their regular working hours, and be available to return to work within one (1) day if
requested to do so. This means that an employee on administrative leave may not
consider the leave time as vacation or personal time. The employee must provide
his or her supervisor with telephone numbers where he or she can be reached
during regular working hours and must promptly return calls from the supervisor or
Human Resources. In addition, the employee must obtain the prior permission of
the supervisor and use accrued vacation time, compensatory time, or other leave
time in order to be out of contact with his or her supervisor for longer than a single
workday.
iv. Employee Restrictions during Administrative Leave
During administrative leave, an employee may not contact other employees or be
at the work site unless directed to do so by their supervisor.
l. Bereavement Leave
i. Eligibility
In the event of a death in an employee’s immediate family (defined in Section iii
below), the Department Director may authorize paid leave of up to 40 hours for
full-time employees to manage family affairs and attend the funeral. Part-time
employees may be authorized paid leave at a prorated rate of 20 hours for an
employee working on average 20 – 29 hours and 30 hours for an employee
working on average 30 – 39 hours by their Department Director.
Page 40
Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 15 of 17
ii. Requesting Bereavement Leave
In order to request bereavement leave, an employee shall submit a written request
to his or her Department Director, who shall approve, deny, or reduce of leave
requested by the employee. In authorizing any requests for bereavement leave,
consideration shall be given to the distance to be travelled and personal demands
placed on the employee.
iii. Immediate Family
For the purposes of bereavement leave, the Town defines “Immediate Family” to
include a spouse, a child, a parent, a parent in-law, a sibling, a brother or sister in-
law, a grandparent, a grandchild, a stepparent, a stepchild, a stepbrother, a
stepsister, a legal guardian, or a person with whom the employee shares a
household with in a personal relationship.
m. Domestic Violence Leave
The Town complies with C.R.S. 24-34-402.7 as it relates to leave for victims of
domestic violence. An employee eligible for leave under C.R.S. 24-34-402.7 will
receive up to three (3) working days of unpaid leave from work in any twelve-month
period.
n. Emergency Volunteer Service Leave
The Town complies with C.R.S. 24-33.5-801 through C.R.S. 24-33.5-828 as it pertains
to emergency volunteer service leave for employees.
o. Volunteer Firefighter Leave
The Town complies with C.R.S. 31-30-1131 as it pertains to the employment of
volunteer firefighters.
p. Volunteer Leave
The purpose is to create community engagement opportunities for Town staff that
support the Estes Valley. In addition, the Town recognizes that participating in
volunteer projects and encouraging philanthropy will also enrich and inspire the lives
of our employees and build strong work teams. Activities performed in the use of
Volunteer Leave are considered personal in nature and not representative of the
Town.
i. Eligibility: Eight hours is granted to all full-time and part-time employees
annually. Volunteer leave is pro-rated for part-time employees (50% for 20 - 29-
hour part-time employees, 75% for 30 - 39-hour part-time employees).
ii. Ineligibility:
1) Employees are ineligible if their employment terminates for any reason.
2) If the Volunteer leave program is discontinued for any reason, all leave
previously granted and unused will become null and void.
3) The Town reserves the right to modify, amend, suspend or discontinue the
program at any time without prior notice.
4) The Town reserves the right to revoke previous approval if it is determined the
employee is misusing the program.
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Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 16 of 17
iii. Leave Authorization:
1) Volunteer leave shall be requested in advance and is granted at the discretion
of each employee’s supervisor.
2) Employees must receive the approval of their supervisor for the use of
volunteer leave. It is the responsibility of the supervisor to ensure the leave
approved is in compliance with the requirements of this policy.
2) Work demands shall take priority over the volunteer leave request.
3) Volunteer leave may be used individually or with other employees as a team
volunteer activity.
4) Volunteer leave shall not be used in the computation of overtime and
compensatory time.
iv. Use of Volunteer Leave:
1) Volunteer leave must be used during the year accrued or it will be forfeited on
December 31st.
2) Employees will be paid at their regular wage for volunteer leave hours.
3) Following the use of volunteer leave, the employee must enter the time into
Paylocity using the Volunteer Leave code and insert a note regarding the
project.
4) Examples of appropriate volunteer leave include but are not limited to:
a. Working with an organization to clean up a road or trail.
b. Performing restoration work in a natural area.
c. Volunteering at a food bank.
d. Participating in childhood mentoring or educational programs.
5) Examples of inappropriate volunteer leave include but are not limited to:
a. Taking a ski vacation and charitably giving ski lessons.
b. Attending your child’s PTA conference.
c. Canvassing for a political campaign.
d. Religious, professional, or political activities.
e. Town events associated with an employee’s normal job duties per the Fair
Labor Standards Act (FLSA).
6) Volunteer Leave may be used in one day or spread over the calendar year in
one (1) hour increments, depending on the work needs of the employee’s
department and supervisor approval.
7) Volunteer Leave shall be used for nonprofits and taxing districts within the
Park R-3 School District boundary. The organization must serve the Estes
Valley.
8) Situations not addressed in this policy would require the approval of the Town
Administrator.
q. Education Leave
Eligible employees, when necessary, and upon approval of the Department Director,
may be granted a maximum of four hours per week of paid educational leave to attend
classes (see Policy 305.f for more information). For the purposes of this policy, Town-
sponsored and/or mandatory training is not considered education leave.
Page 42
Policy 306 – Leave 1/17/241/15/24
Revisions: 56 Town of Estes Park, Human Resources Page 17 of 17
r. Leave without Pay
i. Eligibility
Any full-time, part-time employee and contract employee in good standing is
eligible for leave without pay.
ii. Benefit
When in the best interests of the Town and the employee, the Town Administrator
may grant a leave without pay to any eligible employee for a period of up to three
(3) months. Such leave shall not constitute a break in employment, and the
employee shall return to his or her position at the expiration of the leave period.
Temporary help may be obtained during the employee’s absence.
iii. Interaction with other Benefits
Annual and sick leave shall not accrue while the employee is on leave without pay.
Failure to return to work at the expiration of a leave of absence shall be considered
a resignation. If applicable, leave without pay may run concurrently with FMLA
leave subject to required medical certification. The employee will be responsible
for all insurance premiums, and must pay these in advance of leave.
iv. Requesting Leave without Pay
In order to request a leave without pay, an employee shall submit a written request
to his or her Department Director. Requests for leave without pay will be
considered in the following manner:
1) If the request is for two (2) days or less, and will not exceed the two (2) days
per month limitation, the Department Director may approve, deny, or
change the requested leave.
2) If the request is for three (3) or more days, or if the two (2) days per month
limitation is to be exceeded, the Department Director shall forward this
request to Human Resources and the Town Administrator along with a
recommendation to approve, deny, or change the requested amount of
leave. In this case, the Town Administrator makes the final determination
on whether to approve, deny, or change the requested amount of leave
without pay.
Approved:
_____________________________
Wendy Koenig, Mayor
_____________
Date
Page 43
Page 44
EVENTS & VISITOR
SERVICES Memo
To: Honorable Mayor Koenig
Board of Trustees
Through: Town Administrator Machalek
From: Rob Hinkle, Events & Visitor Services Director
Date: January 23, 2024
RE: Relocation of Whiskey Warm Up from Riverside Plaza to Bond Park in
2024 due to road construction and public access
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER – Use of Bond Park
QUASI-JUDICIAL YES NO
Objective: To Receive Town Board Approval to move the annual Town Signature
Event – Whiskey Warm Up from Riverside Plaza to Bond Park for 2024 only.
Present Situation:
The road construction on Riverside Drive and the Pedestrian Fencing erected for safety
impacts our access to the Plaza and causes a safety hazard for our attendees
Proposal:
This is a one-time move and we wish to return to Riverside Plaza in 2025 and for future
editions of this festival.
Advantages:
Bond Park will allow our attendees safer access to the festival and allow us to be able to
offer food truck food – whereas now the parking for food trucks in eliminated for
Riverside Plaza because of construction.
Disadvantages:
Parking in front of Town Hall will be blocked off on Saturday, March 2, 2024
Action Recommended:
Approval on a one-time relocation of this festival for safety reasons.
Finance/Resource Impact:
N/A
Page 45
Level of Public Interest
High – this event sells out with 600 attendees.
Sample Motion:
I move for the approval of the relocation of Whiskey Warm Up from Riverside Plaza to
Bond Park for the 2024 edition.
Attachments:
1.Three (3) – Photos of Riverside Plaza Pedestrian access and roadway
Page 46
ATTACHMENT 1
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Page 56
COMMUNITY DEVELOPMENT Memo
To: Honorable Mayor Koenig
Board of Trustees
Through: Town Administrator Machalek
From: Paul Hornbeck, Senior Planner
Date: January 23, 2024
RE: Amended Plat, Lots 8A, 9A, and a Portion of 10A of the First
Resubdivision of Buenna Vista, Todd Phillips, EP Real Estate LLC
Owner/Applicant
Staff is requested that this item be continued to the February 13. 2024 Town Board meeting.
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PROCEDURE FOR LAND USE PUBLIC HEARING
Applicable items include: Annexation, Amended Plats, Boundary Line Adjustments, Development
Plans, Rezoning, Special Review, Subdivision
1.MAYOR.
The next order of business will be the public hearing on PLANNING COMMISSION
ACTION ITEM 2.A. RESOLUTION 03-24 COYOTE RUN SUBDIVISION
PRELIMINARY PLAT, CMS PLANNING & DEVELOPMENT, INC., FRANK THEIS.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, from the
Applicant, public comment, and written comments received on the
application.
Has any Trustee had any ex-parte communications concerning this
application(s) which are not part of the Board packet.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2.STAFF REPORT.
Review the staff report.
Review any conditions for approval not in the staff report.
3.APPLICANT.
The applicant makes their presentation.
4.PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
application. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
5.REBUTTAL.
The applicant will be allowed a rebuttal that is limited to or in response to
statements or questions made after their presentation. No new matters may
be submitted.
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6.MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the application which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the
application.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
7.SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
8.DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9.VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
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COMMUNITY DEVELOPMENT
Memo
To: Honorable Mayor Koenig
Board of Trustees
Through: Town Administrator Machalek
From: Paul Hornbeck, Senior Planner
Date: January 23, 2024
RE: Resolution 03-24, Coyote Run Subdivision Preliminary Plat, CMS
Planning & Development, Inc., Frank Theis, Owner/Applicant
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Conduct a public hearing to consider an application for a proposed preliminary
subdivision plat to create four (4) lots in the E-1 (Estate) Residential Zoning District,
review the application for compliance with the Estes Park Development Code (EPDC),
and approve, deny, or continue the item.
Present Situation:
The subject property is 7.62 acres in size, described as a portion of Lot 1 of Dannels
Addition to the Town of Estes Park, filed in 1954. It is zoned E-1 (Estate), and contains
one single family residence, constructed in 1965. A previous iteration of this project
proposed development of three (3) ½-acre lots and one (1) 5.82 acre lot that was
contingent upon a request to rezone the property from E-1 to E. That rezoning request
was denied by Town Board on September 26, 2023. Thus, the current application
proposes utilizing the existing E-1 zoning and developing lots that meet the minimum
one-acre lot size.
Location and Context:
The subject property is located west of the intersection of Peak View Drive and Devon
Drive, approximately ¼ mile west of South Saint Vrain Avenue (State Highway 7).
MEMO AND RESOLUTION 03-24 UPDATED 2024-01-23 BY STAFF
Vicinity Map
Zoning Map
Table 1: Zoning and Land Use Summary
COMPREHENSIVE PLAN ZONING USES
SUBJECT PARCEL Suburban Estate E-1 (Estate)Residential
NORTH Suburban Estate Unincorporated County Residential
SOUTH Suburban Estate E-1 (Estate)Residential
EAST Suburban Estate E-1 (Estate)Residential
WEST Neighborhood Village R (Residential) Residential
Proposal:
The applicant proposes a four-lot subdivision named Coyote Run Subdivision for single-
family residential use. Lots one through three will all be slightly over the one-acre
minimum lot size required by the E-1 zone district. Lot four will be approximately 4.4
acres and contains one existing single-family residence.
Access to lots one through three will be from Peak View Drive, utilizing a shared
driveway located within an access easement that will be privately maintained by the lot
owners. The existing single-family home on lot four will continue to utilize the driveway
from Peak View Drive, east of the proposed new access point.
Project Analysis
Review Criteria:
Per the EPDC, Chapter 3 Review Procedures and Standards, Section 3.9.C.1.,
General, "Subdivisions are approved in two stages: first, a preliminary subdivision plat is
approved, and second, a final subdivision plat is approved and recorded."
Section 3.2 requires the Planning Commission review the preliminary plat and make a
recommendation to the Town Board, who is the final decision-making body. The final
plat is reviewed by the Town Board only.
All applications for subdivisions shall be reviewed by the EPPC and Town Board for
compliance with the relevant standards and criteria set forth below and with other
applicable provisions of this Code. In accordance with § 3.9.E. “Standards for Review”
of the EPDC, all subdivision applications shall demonstrate compliance with the
standards and criteria set forth in Chapter 10, "Subdivision Standards," and all other
applicable provisions of this Code.
Depending upon the project's complexity, this section may be a brief summary of the
standards of review or may involve a more detailed analysis of the criteria based on
issues relevant to any particular project.
A.Lots. The proposed Coyote Run Subdivision is a subdivision of Lot 1, Dannels
Addition. The four-lot subdivision includes three lots, each approximately one
acre in size, and one lot of approximately 4.4-acres in size. All lots meet
applicable minimum zoning standards for the E-1 (Estate) Zoning District.
B.Subdivision Design Standards. No subdivision application shall be approved
unless it complies with all of the following standards and criteria:
1.Relationship to Comprehensive Plan. The subject property is designated
as Suburban Estate in the Estes Forward Comprehensive Plan's Future Land
Use Map. This category "is intended for low to medium density single family
residential development.” The Built Form of this category “typically consists of
medium-sized single-family homes on lots that are at least a quarter-acre in
size… new homes should be appropriately scaled for compatibility with
existing neighborhood character.” The proposed subdivision is consistent with
the surrounding area and with the recommendations of the Estes Forward
Comprehensive Plan.
2.Geologic and Wildfire Hazard Areas. There are no abnormal Geologic or
Wildfire Hazard areas identified within this subdivision area.
3.Off-Site Utilities and Services.
a.Water. The Town of Estes Park will provide water service to the four
proposed lots. Town Utilities/Water has stated they can provide water
with service lines using existing mains in this area and has "no
objection" to the preliminary plat application.
b.Fire Protection. The Estes Valley Fire Protection District has reviewed
this proposal and commented that fire hydrants are required (one is
proposed at the southwest corner of lot four).
c.Electric. Power and Communications has no objections to the
proposed subdivision request.
d.Sanitary Sewer. The Upper Thompson Sanitation District (UTSD)
provided general comments as information for the applicant and will
conduct a full review upon receiving a full set of construction drawings
pertaining to the sanitary sewer.
e.Stormwater Drainage. The Applicant submitted a Preliminary
Drainage Report (Attachment 4) and Grading, Drainage, and Erosion
Control Plans (Attachment 5). Public Works finds the submittal
requirements substantially met subject to minor corrections which will
be made with the Final Plat submittal.
4.Plans for Remainder Parcel(s).
There are no remainder parcels with this subdivision. Lot four is large enough
to potentially be further subdivided in the future but the applicant has not
indicated any plans to that effect.
5.Orientation of Land Uses.
The proposed four lot subdivision will be for single-family residential use and
is consistent with surrounding uses and density.
6.Improvements.
The code requires all public improvements to either be installed or financially
guaranteed. An Improvement Agreement and the associated improvements
will be secured by letter of credit or cash deposit as part of the Final Plat.
7.Reserved Strips Prohibited.
Not applicable.
C.Compliance With Zoning Requirements.
1.Compliance with Zoning Development Standards. The proposed layout of
lots, driveways, utilities, drainage facilities and other services are designed
consistent with the code requirement that seeks to minimize the land
disturbance, maximize the amount of open space in the development, and
preserve existing trees/vegetation.
2.Limits of Disturbance. Section 10.5.B.2 of the EPDC requires that limits of
disturbance (LOD) be established with the subdivision of land. The proposed
limits of disturbance for each lot coincides with the required building setback
(25 feet from all property lines).
D.Streets. No new public streets are proposed with the subdivision. Traffic
generated by the subdivision does not warrant turn lanes on Peak View Drive. As
a collector street Peak View Drive is required to have a minimum six foot wide
bike lane per Development Code Appendix D Section II.B1.c. Public Works has
indicated they will waive this requirement if a ten foot wide trail is built in
accordance with the Estes Valley Master Trails Plan (see Plan maps here).
Access to lots one through three will be from Peak View Drive, utilizing a shared
driveway located within an access easement that will be privately maintained by
the lot owners. A maintenance agreement will be required with the final
subdivision plat application and will be recorded to ensure perpetual
maintenance. The single-family home on lot four will continue to use the driveway
that already serves the residence.
E.Sidewalks, Pedestrian Connections and Trails. There is currently no trail or
sidewalk along the 1.7 mile length of Peak View Drive between Highway 7 and
Marys Lake Road but a future trail is identified in the Estes Valley Master Trails
Plan, which states:
To increase neighborhood connectivity, the Peak View Drive corridor was
identified to link Country Club Drive and the proposed Fish Creek Trail to
Kruger Rock Trail. A short segment should also be constructed on the
west side of St. Vrain Avenue. This would create needed east to west
access in the southern portion of the Estes Valley. To slow traffic on
Highway 7, a gateway treatment is recommended in advance of the trail
crossing across on Highway 7.
Trails shown in the Master Trails Plan are constructed both as capital projects
undertaken by the Town and as a requirement of private development such as
the proposed subdivision. Sections 4.3.D.3, 7.4 and 10.5.D cover sidewalk,
pedestrian connections, and trail requirements, including the following excerpts:
§ 4.3 - Residential Zoning Districts
D. Additional Zoning District Standards.
3.Pedestrian Amenities and Linkage Requirements.
a. Provision shall be made for pedestrian amenities and linkages in the
residential zoning districts, including but not limited to sidewalks,
pathways and bikeways.
b. To the maximum extent feasible, provision shall be made in the design
of developments for interconnections with existing or planned streets and
pedestrian or bikeway systems on adjoining properties, unless the Estes
Valley Planning Commission determines that such interconnections
would have adverse impacts on open spaces, wetlands, sensitive
environmental areas or other significant natural areas.
c. Sidewalks shall be provided as set forth in §10.5.D, "Sidewalks,
Pedestrian Connections and Trails.”
§ 7.4 - PUBLIC TRAILS AND PRIVATE OPEN AREAS
A. Applicability.
1.Trails. All new subdivisions shall provide for public trails pursuant to this
Section and Chapter 4, "Zoning Districts."
C. Locational Criteria.
3. Dedications for trails shall be at locations deemed appropriate by the
Decision-Making Body and shall, to the maximum extent feasible, be in
accord with the trails/bike path element contained in the Estes Valley
Comprehensive Plan or any other subsequently adopted comprehensive
hike/bike or open areas plan.
F. Design Criteria.
2.Trails. Dedicated public trails shall meet the following design standards:
a. Dedication of land shall be a minimum width of twenty-five (25)
feet; and
b. The trail shall conform to design criteria set forth in any bike/trail
plan or park and recreation plan adopted by the Town of Estes Park
or Larimer County, if applicable.
§ 10.5 - SUBDIVISION DESIGN STANDARDS
D. Sidewalks, Pedestrian Connections and Trails.
1.General.
a. To the maximum extent feasible, all subdivisions shall provide
pedestrian linkages, including trails, to parks, schools, adjacent
developments and existing and proposed hike and bike trails as depicted
in the Estes Valley Long Range Hike and Bike Trails Plan (found in the
Estes Valley Comprehensive Plan).
b. Hard-surfaced pedestrian walkways (minimum five [5] feet in width) or
easements (minimum ten [10] feet in width) may be required to provide
access to parks or open areas, schools or other similar areas where, in
the Decision-Making Body's opinion, significant pedestrian usage is
anticipated or adequate pedestrian circulation is needed.
In accordance with the above code sections, staff and Planning Commission
have determined that a ten-foot-wide concrete trail, placed within a 25-foot-wide
easement, is required along the length of Peak View Drive. The applicant has
agreed to dedicate the 25-foot-wide easement but has requested the requirement
to construct the trail be waived in the statement of intent (Attachment 3). The
Code does not specifically address criteria for waiving the trail requirement but
Section 7.4.C.3 above indicates dedications for trails shall be at locations
deemed appropriate by the Decision-Making Body, Town Board in this case.
F.Open Space Area. The EPDC Section 4.3.D. requires residential subdivisions
containing five or more lots to set aside a percentage of the gross land area for
open areas. The subdivision application proposes four lots and therefore is not
subject to this requirement.
Review Agency Comments:
The preliminary plat application was referred out to all applicable review agencies for
comment. Agency comments were received by Staff, which have been addressed with
the revised plat submittal (Attachment 4).
Public Comments:
Two public comments were received at the time of this staff report (Attachment 7).
A neighborhood and community meeting regarding the preliminary and final plat was
held in the Estes Park Library, 335 East Elkhorn Avenue on November 13, 2023. There
were approximately twelve residents in attendance. A summary of the meeting provided
by the applicant is enclosed (Attachment 8).
Findings:
At their December 19, 2023 meeting, Planning Commission adopted the following
findings:
1.The Planning Commission is the Recommending Body for the Preliminary Plat.
2.The Town of Estes Park Board of Trustees is the Decision-Making Body for the
Preliminary Plat. Town Board approval of a Final Plat is also necessary to
subdivide the property.
3.Adequate public/private facilities are currently available to serve the subject
property.
4.This request has been submitted to all applicable reviewing agency staff for
consideration and comment.
5.The Preliminary Plat application complies with applicable standards set forth in
the EPDC, with the exception of the requirement for a 10-foot-wide concrete trail
along Peak View Drive, which the applicant has requested be waived.
6.EPDC Section 4.3.D.3.a applies: provisions shall be made for pedestrian amenities and
linkages in the residential zoning districts including but not limited to sidewalks,
pathways, and bikeways.
7.EPDC Section 4.3.D.3.c states: Sidewalks shall be provided as set forth in Section
10.5.D – Sidewalks, Pedestrian Connections, and Trails.
8.EPDC Section 10.5.D.1 states: To the maximum extent feasible, all subdivisions shall
provide pedestrian linkages, including trails, to parks, schools, adjacent developments
and existing and proposed hike and bike trails as depicted in the Estes Valley Long
Range Hike and Bike Trails Plan.
9.EPDC Section 10.5.D.2 states: sidewalks shall be required as follows: Sidewalks
shall be required on one (1) side of any public or private street in all zoning districts,
except in the RE Zoning District.
10. EPDC Appendix D.III.B.5 states: to the maximum extent feasible the number of
new curb cuts shall be minimized by consolidation, shared driveways, or other
means.
Advantages:
This proposal is consistent with the standards of the EPDC, specifically: Section 3.9
“Subdivisions” and Chapter 10 “Subdivision Standards”, with the exception of the trail
requirement outlined above. Approval of the Coyote Run Subdivision Preliminary Plat
would allow the applicant to move forward with a final subdivision plat application and
towards development of a four-lot residential subdivision. This would result in an
increase in housing stock for the Estes Valley.
Disadvantages:
None known.
Action Recommended:
At their December 19, 2023 meeting, Planning Commission forwarded to the Town
Board a recommendation of approval of the Coyote Run Preliminary Subdivision Plat
according to the findings of fact and subject to the following conditions of approval:
a.The applicant shall provide a ten-foot-wide concrete trail for the length of
the Peak View Drive frontage on lots one and four.
b.Any outstanding staff and referral agency comments shall be addressed
on the final subdivision plat.
Finance/Resource Impact:
Little or none.
Level of Public Interest
Moderate.
Sample Motion:
I move that the Town Board of Trustees approve Resolution 03-24.
I move that the Town Board of Trustees deny the application, finding that [state findings
for denial].
I move to continue Resolution 03-24 to the next regularly scheduled meeting, finding
that [state reasons for continuance].
Attachments:
1. Resolution 03-24
2.Application
3.Statement of Intent
4.Preliminary Subdivision Plat
5.Preliminary Drainage Report
6.Grading, Drainage, and Erosion Control Plans
7.Public Comments
8.Neighborhood Meeting Summary
RESOLUTION 03-24
A RESOLUTION APPROVING THE COYOTE RUN SUBDIVISION PRELMINARY
PLAT
WHEREAS, an application for the Coyote Run Subdivision Final Plat was filed by
CMS Planning & Development, Inc. (Owner/Applicant, 685 Peak View Drive); and
WHEREAS, the Coyote Run Subdivision Preliminary Plat proposes subdivision
of a 7.62 acre property to create four (4) lots in E-1 (Estate) Residential Zoning District;
and
WHEREAS, a public meeting was held before the Estes Park Panning
Commission on December 19, 2023, at the conclusion of which the Planning
Commission voted to recommend approval of the Preliminary Subdivision Plat with the
following findings and conditions:
Findings:
1.The Planning Commission is the Recommending Body for the Preliminary Plat.
2.The Town of Estes Park Board of Trustees is the Decision-Making Body for the
Preliminary Plat. Town Board approval of a Final Plat is also necessary to
subdivide the property.
3.Adequate public/private facilities are currently available to serve the subject
property.
4.This request has been submitted to all applicable reviewing agency staff for
consideration and comment.
5.The Preliminary Plat application complies with applicable standards set forth in
the Estes Park Development Code (EPDC), with the exception of the
requirement for a 10-foot-wide concrete trail along Peak View Drive, which the
applicant has requested be waived.
6.EPDC Section 4.3.D.3.a applies: provisions shall be made for pedestrian
amenities and linkages in the residential zoning districts including but not limited
to sidewalks, pathways, and bikeways.
7.EPDC Section 4.3.D.3.c states: Sidewalks shall be provided as set forth in
Section 10.5.D – Sidewalks, Pedestrian Connections, and Trails.
8.EPDC Section 10.5.D.1 states: To the maximum extent feasible, all subdivisions
shall provide pedestrian linkages, including trails, to parks, schools, adjacent
developments and existing and proposed hike and bike trails as depicted in the
Estes Valley Long Range Hike and Bike Trails Plan.
9.EPDC Section 10.5.D.2 states: sidewalks shall be required as follows:
Sidewalks shall be required on one (1) side of any public or private street in all
zoning districts, except in the RE Zoning District.
10. EPDC Appendix D.III.B.5 states: to the maximum extent feasible the number of
new curb cuts shall be minimized by consolidation, shared driveways, or other
means.
Conditions of Approval:
1.The applicant shall provide a ten-foot-wide concrete trail for the length of the
Peak View Drive frontage on lots one and four.
MEMO AND RESOLUTION 03-24 UPDATED 2024-01-23 BY STAFF
2. Any outstanding staff and referral agency comments shall be addressed on the
final subdivision plat.
WHEREAS, a public hearing, preceded by proper public notice, was held by the
Board of Trustees on January 23, 2024 and at said hearing all those who desired to be
heard were heard and their testimony recorded; and
WHEREAS, the Board of Trustees finds the applicant has complied with the
applicable requirements of the Estes Park Development Code.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Coyote Run Subdivision Preliminary Plat is hereby approved, with the
following conditions of approval:
1. The applicant shall provide a ten-foot-wide concrete trail for the length of the
Peak View Drive frontage on lots one and four.
2. Any outstanding staff and referral agency comments shall be addressed on
the final subdivision plat.
DATED this day of , 2024.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
COMMUNITY DEVELOPMENT Memo
To: Honorable Mayor Koenig
Board of Trustees
Through: Town Administrator Machalek
From: Paul Hornbeck, Senior Planner
Date: January 23, 2024
RE: Resolution 03-24, Coyote Run Subdivision Preliminary Plat, CMS
Planning & Development, Inc., Frank Theis, Owner/Applicant
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Conduct a public hearing to consider an application for a proposed preliminary
subdivision plat to create four (4) lots in the E-1 (Estate) Residential Zoning District,
review the application for compliance with the Estes Park Development Code (EPDC),
and approve, deny, or continue the item.
Present Situation:
The subject property is 7.62 acres in size, described as a portion of Lot 1 of Dannels
Addition to the Town of Estes Park, filed in 1954. It is zoned E-1 (Estate), and contains
one single family residence, constructed in 1965. A previous iteration of this project
proposed development of three (3) ½-acre lots and one (1) 5.82 acre lot that was
contingent upon a request to rezone the property from E-1 to E. That rezoning request
was denied by Town Board on September 26, 2023. Thus, the current application
proposes utilizing the existing E-1 zoning and developing lots that meet the minimum
one-acre lot size.
Location and Context:
The subject property is located west of the intersection of Peak View Drive and Devon
Drive, approximately ¼ mile west of South Saint Vrain Avenue (State Highway 7).
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Vicinity Map
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Table 1: Zoning and Land Use Summary
COMPREHENSIVE PLAN ZONING USES
SUBJECT PARCEL Suburban Estate E-1 (Estate)Residential
NORTH Suburban Estate Unincorporated County Residential
SOUTH Suburban Estate E-1 (Estate)Residential
EAST Suburban Estate E-1 (Estate)Residential
WEST Neighborhood Village R (Residential) Residential
Proposal:
The applicant proposes a four-lot subdivision named Coyote Run Subdivision for single-
family residential use. Lots one through three will all be slightly over the one-acre
minimum lot size required by the E-1 zone district. Lot four will be approximately 4.4
acres and contains one existing single-family residence.
Access to lots one through three will be from Peak View Drive, utilizing a shared
driveway located within an access easement that will be privately maintained by the lot
owners. The existing single-family home on lot four will continue to utilize the driveway
from Peak View Drive, east of the proposed new access point.
Project Analysis
Review Criteria:
Per the EPDC, Chapter 3 Review Procedures and Standards, Section 3.9.C.1.,
General, "Subdivisions are approved in two stages: first, a preliminary subdivision plat is
approved, and second, a final subdivision plat is approved and recorded."
Section 3.2 requires the Planning Commission review the preliminary plat and make a
recommendation to the Town Board, who is the final decision-making body. The final
plat is reviewed by the Town Board only.
All applications for subdivisions shall be reviewed by the EPPC and Town Board for
compliance with the relevant standards and criteria set forth below and with other
applicable provisions of this Code. In accordance with § 3.9.E. “Standards for Review”
of the EPDC, all subdivision applications shall demonstrate compliance with the
standards and criteria set forth in Chapter 10, "Subdivision Standards," and all other
applicable provisions of this Code.
Depending upon the project's complexity, this section may be a brief summary of the
standards of review or may involve a more detailed analysis of the criteria based on
issues relevant to any particular project.
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A.Lots. The proposed Coyote Run Subdivision is a subdivision of Lot 1, Dannels
Addition. The four-lot subdivision includes three lots, each approximately one
acre in size, and one lot of approximately 4.4-acres in size. All lots meet
applicable minimum zoning standards for the E-1 (Estate) Zoning District.
B.Subdivision Design Standards. No subdivision application shall be approved
unless it complies with all of the following standards and criteria:
1.Relationship to Comprehensive Plan. The subject property is designated
as Suburban Estate in the Estes Forward Comprehensive Plan's Future Land
Use Map. This category "is intended for low to medium density single family
residential development.” The Built Form of this category “typically consists of
medium-sized single-family homes on lots that are at least a quarter-acre in
size… new homes should be appropriately scaled for compatibility with
existing neighborhood character.” The proposed subdivision is consistent with
the surrounding area and with the recommendations of the Estes Forward
Comprehensive Plan.
2.Geologic and Wildfire Hazard Areas. There are no abnormal Geologic or
Wildfire Hazard areas identified within this subdivision area.
3.Off-Site Utilities and Services.
a.Water. The Town of Estes Park will provide water service to the four
proposed lots. Town Utilities/Water has stated they can provide water
with service lines using existing mains in this area and has "no
objection" to the preliminary plat application.
b.Fire Protection. The Estes Valley Fire Protection District has reviewed
this proposal and commented that fire hydrants are required (one is
proposed at the southwest corner of lot four).
c.Electric. Power and Communications has no objections to the
proposed subdivision request.
d.Sanitary Sewer. The Upper Thompson Sanitation District (UTSD)
provided general comments as information for the applicant and will
conduct a full review upon receiving a full set of construction drawings
pertaining to the sanitary sewer.
e.Stormwater Drainage. The Applicant submitted a Preliminary
Drainage Report (Attachment 4) and Grading, Drainage, and Erosion
Control Plans (Attachment 5). Public Works finds the submittal
requirements substantially met subject to minor corrections which will
be made with the Final Plat submittal.
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4.Plans for Remainder Parcel(s).
There are no remainder parcels with this subdivision. Lot four is large enough
to potentially be further subdivided in the future but the applicant has not
indicated any plans to that effect.
5.Orientation of Land Uses.
The proposed four lot subdivision will be for single-family residential use and
is consistent with surrounding uses and density.
6.Improvements.
The code requires all public improvements to either be installed or financially
guaranteed. An Improvement Agreement and the associated improvements
will be secured by letter of credit or cash deposit as part of the Final Plat.
7.Reserved Strips Prohibited.
Not applicable.
C.Compliance With Zoning Requirements.
1.Compliance with Zoning Development Standards. The proposed layout of
lots, driveways, utilities, drainage facilities and other services are designed
consistent with the code requirement that seeks to minimize the land
disturbance, maximize the amount of open space in the development, and
preserve existing trees/vegetation.
2.Limits of Disturbance. Section 10.5.B.2 of the EPDC requires that limits of
disturbance (LOD) be established with the subdivision of land. The proposed
limits of disturbance for each lot coincides with the required building setback
(25 feet from all property lines).
D.Streets. No new public streets are proposed with the subdivision. Traffic
generated by the subdivision does not warrant turn lanes on Peak View Drive. As
a collector street Peak View Drive is required to have a minimum six foot wide
bike lane per Development Code Appendix D Section II.B1.c. Public Works has
indicated they will waive this requirement if a ten foot wide trail is built in
accordance with the Estes Valley Master Trails Plan (see Plan maps here).
Access to lots one through three will be from Peak View Drive, utilizing a shared
driveway located within an access easement that will be privately maintained by
the lot owners. A maintenance agreement will be required with the final
subdivision plat application and will be recorded to ensure perpetual
maintenance. The single-family home on lot four will continue to use the driveway
that already serves the residence.
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E.Sidewalks, Pedestrian Connections and Trails. There is currently no trail or
sidewalk along the 1.7 mile length of Peak View Drive between Highway 7 and
Marys Lake Road but a future trail is identified in the Estes Valley Master Trails
Plan, which states:
To increase neighborhood connectivity, the Peak View Drive corridor was
identified to link Country Club Drive and the proposed Fish Creek Trail to
Kruger Rock Trail. A short segment should also be constructed on the
west side of St. Vrain Avenue. This would create needed east to west
access in the southern portion of the Estes Valley. To slow traffic on
Highway 7, a gateway treatment is recommended in advance of the trail
crossing across on Highway 7.
Trails shown in the Master Trails Plan are constructed both as capital projects
undertaken by the Town and as a requirement of private development such as
the proposed subdivision. Sections 4.3.D.3, 7.4 and 10.5.D cover sidewalk,
pedestrian connections, and trail requirements, including the following excerpts:
§ 4.3 - Residential Zoning Districts
D. Additional Zoning District Standards.
3.Pedestrian Amenities and Linkage Requirements.
a. Provision shall be made for pedestrian amenities and linkages in the
residential zoning districts, including but not limited to sidewalks,
pathways and bikeways.
b. To the maximum extent feasible, provision shall be made in the design
of developments for interconnections with existing or planned streets and
pedestrian or bikeway systems on adjoining properties, unless the Estes
Valley Planning Commission determines that such interconnections
would have adverse impacts on open spaces, wetlands, sensitive
environmental areas or other significant natural areas.
c. Sidewalks shall be provided as set forth in §10.5.D, "Sidewalks,
Pedestrian Connections and Trails.”
§ 7.4 - PUBLIC TRAILS AND PRIVATE OPEN AREAS
A. Applicability.
1.Trails. All new subdivisions shall provide for public trails pursuant to this
Section and Chapter 4, "Zoning Districts."
C. Locational Criteria.
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3. Dedications for trails shall be at locations deemed appropriate by the
Decision-Making Body and shall, to the maximum extent feasible, be in
accord with the trails/bike path element contained in the Estes Valley
Comprehensive Plan or any other subsequently adopted comprehensive
hike/bike or open areas plan.
F. Design Criteria.
2.Trails. Dedicated public trails shall meet the following design standards:
a. Dedication of land shall be a minimum width of twenty-five (25)
feet; and
b. The trail shall conform to design criteria set forth in any bike/trail
plan or park and recreation plan adopted by the Town of Estes Park
or Larimer County, if applicable.
§ 10.5 - SUBDIVISION DESIGN STANDARDS
D. Sidewalks, Pedestrian Connections and Trails.
1.General.
a. To the maximum extent feasible, all subdivisions shall provide
pedestrian linkages, including trails, to parks, schools, adjacent
developments and existing and proposed hike and bike trails as depicted
in the Estes Valley Long Range Hike and Bike Trails Plan (found in the
Estes Valley Comprehensive Plan).
b. Hard-surfaced pedestrian walkways (minimum five [5] feet in width) or
easements (minimum ten [10] feet in width) may be required to provide
access to parks or open areas, schools or other similar areas where, in
the Decision-Making Body's opinion, significant pedestrian usage is
anticipated or adequate pedestrian circulation is needed.
In accordance with the above code sections, staff and Planning Commission
have determined that a ten-foot-wide concrete trail, placed within a 25-foot-wide
easement, is required along the length of Peak View Drive. The applicant has
agreed to dedicate the 25-foot-wide easement but has requested the requirement
to construct the trail be waived in the statement of intent (Attachment 3). The
Code does not specifically address criteria for waiving the trail requirement but
Section 7.4.C.3 above indicates dedications for trails shall be at locations
deemed appropriate by the Decision-Making Body, Town Board in this case.
F.Open Space Area. The EPDC Section 4.3.D. requires residential subdivisions
containing five or more lots to set aside a percentage of the gross land area for
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open areas. The subdivision application proposes four lots and therefore is not
subject to this requirement.
Review Agency Comments:
The preliminary plat application was referred out to all applicable review agencies for
comment. Agency comments were received by Staff, which have been addressed with
the revised plat submittal (Attachment 4).
Public Comments:
Two public comments were received at the time of this staff report (Attachment 7).
A neighborhood and community meeting regarding the preliminary and final plat was
held in the Estes Park Library, 335 East Elkhorn Avenue on November 13, 2023. There
were approximately twelve residents in attendance. A summary of the meeting provided
by the applicant is enclosed (Attachment 8).
Findings:
At their December 19, 2023 meeting, Planning Commission adopted the following
findings:
1.The Planning Commission is the Recommending Body for the Preliminary Plat.
2.The Town of Estes Park Board of Trustees is the Decision-Making Body for the
Preliminary Plat. Town Board approval of a Final Plat is also necessary to
subdivide the property.
3.Adequate public/private facilities are currently available to serve the subject
property.
4.This request has been submitted to all applicable reviewing agency staff for
consideration and comment.
5.The Preliminary Plat application complies with applicable standards set forth in
the EPDC, with the exception of the requirement for a 10-foot-wide concrete trail
along Peak View Drive, which the applicant has requested be waived.
6.EPDC Section 4.3.D.3.a applies: provisions shall be made for pedestrian amenities and
linkages in the residential zoning districts including but not limited to sidewalks,
pathways, and bikeways.
7.EPDC Section 4.3.D.3.c states: Sidewalks shall be provided as set forth in Section
10.5.D – Sidewalks, Pedestrian Connections, and Trails.
8.EPDC Section 10.5.D.1 states: To the maximum extent feasible, all subdivisions shall
provide pedestrian linkages, including trails, to parks, schools, adjacent developments
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and existing and proposed hike and bike trails as depicted in the Estes Valley Long
Range Hike and Bike Trails Plan.
9.EPDC Section 10.5.D.2 states: sidewalks shall be required as follows: Sidewalks
shall be required on one (1) side of any public or private street in all zoning districts,
except in the RE Zoning District.
Advantages:
This proposal is consistent with the standards of the EPDC, specifically: Section 3.9
“Subdivisions” and Chapter 10 “Subdivision Standards”, with the exception of the trail
requirement outlined above. Approval of the Coyote Run Subdivision Preliminary Plat
would allow the applicant to move forward with a final subdivision plat application and
towards development of a four-lot residential subdivision. This would result in an
increase in housing stock for the Estes Valley.
Disadvantages:
None known.
Action Recommended:
At their December 19, 2023 meeting, Planning Commission forwarded to the Town
Board a recommendation of approval of the Coyote Run Preliminary Subdivision Plat
according to the findings of fact and subject to the following conditions of approval:
a.The applicant shall provide a ten-foot-wide concrete trail for the length of
the Peak View Drive frontage on lots one and four.
b.Any outstanding staff and referral agency comments shall be addressed
on the final subdivision plat.
Finance/Resource Impact:
Little or none.
Level of Public Interest
Moderate.
Sample Motion:
I move that the Town Board of Trustees approve Resolution 03-24.
I move that the Town Board of Trustees deny the application, finding that [state findings
for denial].
I move to continue Resolution No. 03-24 to the next regularly scheduled meeting,
finding that [state reasons for continuance].
Attachments:
1. Resolution 03-24
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2. Application
3.Statement of Intent
4.Preliminary Subdivision Plat
5.Preliminary Drainage Report
6.Grading, Drainage, and Erosion Control Plans
7.Public Comments
8.Neighborhood Meeting Summary
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RESOLUTION 03-24
A RESOLUTION APPROVING THE COYOTE RUN SUBDIVISION PRELMINARY
PLAT
WHEREAS, an application for the Coyote Run Subdivision Final Plat was filed by
CMS Planning & Development, Inc. (Owner/Applicant, 685 Peak View Drive); and
WHEREAS, the Coyote Run Subdivision Preliminary Plat proposes subdivision
of a 7.62 acre property to create four (4) lots in E-1 (Estate) Residential Zoning District;
and
WHEREAS, a public meeting was held before the Estes Park Panning
Commission on December 19, 2023, at the conclusion of which the Planning
Commission voted to recommend approval of the Preliminary Subdivision Plat with the
following findings and conditions:
Findings:
1.The Planning Commission is the Recommending Body for the Preliminary Plat.
2.The Town of Estes Park Board of Trustees is the Decision-Making Body for the
Preliminary Plat. Town Board approval of a Final Plat is also necessary to
subdivide the property.
3.Adequate public/private facilities are currently available to serve the subject
property.
4.This request has been submitted to all applicable reviewing agency staff for
consideration and comment.
5.The Preliminary Plat application complies with applicable standards set forth in
the Estes Park Development Code (EPDC), with the exception of the
requirement for a 10-foot-wide concrete trail along Peak View Drive, which the
applicant has requested be waived.
6.EPDC Section 4.3.D.3.a applies: provisions shall be made for pedestrian
amenities and linkages in the residential zoning districts including but not limited
to sidewalks, pathways, and bikeways.
7.EPDC Section 4.3.D.3.c states: Sidewalks shall be provided as set forth in
Section 10.5.D – Sidewalks, Pedestrian Connections, and Trails.
8.EPDC Section 10.5.D.1 states: To the maximum extent feasible, all subdivisions
shall provide pedestrian linkages, including trails, to parks, schools, adjacent
developments and existing and proposed hike and bike trails as depicted in the
Estes Valley Long Range Hike and Bike Trails Plan.
9.EPDC Section 10.5.D.2 states: sidewalks shall be required as follows:
Sidewalks shall be required on one (1) side of any public or private street in all
zoning districts, except in the RE Zoning District.
Conditions of Approval:
1.The applicant shall provide a ten-foot-wide concrete trail for the length of the
Peak View Drive frontage on lots one and four.
2.Any outstanding staff and referral agency comments shall be addressed on the
final subdivision plat.
ATTACHMENT 1
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WHEREAS, a public hearing, preceded by proper public notice, was held by the
Board of Trustees on January 23, 2024 and at said hearing all those who desired to be
heard were heard and their testimony recorded; and
WHEREAS, the Board of Trustees adopts the findings of the Planning
Commission and finds the applicant has complied with the applicable requirements of
the Estes Park Development Code except insofar as conditions of approval are
required.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Coyote Run Subdivision Preliminary Plat is hereby approved, with the
following conditions of approval:
1.The applicant shall provide a ten-foot-wide concrete trail for the length of the
Peak View Drive frontage on lots one and four.
2.Any outstanding staff and referral agency comments shall be addressed on
the final subdivision plat.
DATED this day of , 2024.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
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ATTACHMENT 2
Page 73
Page 74
Page 75
__________________________________________________________________________________________________________________
CMS PLANNING & DEVELOPMENT P.O. BOX 416 ESTES PARK, COLORADO 80517 (970) 231-6200
STATEMENT OF INTENT
Preliminary Plat of Coyote Ridge Subdivision in Estes Park, Colorado
CMS Planning & Development, Inc. - Applicant
Revised on 11/27/23
The subject property is 7.62 acres located at 685 Peak View Drive, on the north side of Peak View Drive
and approximately 1/3 mile west of South Saint Vrain (Highway 7) in Estes Park, Colorado. It is zoned E-1,
which allows 1-acre minimum single-family residential lots. The Applicant is proposing a Preliminary Plat
to subdivide it into three 1-acre+ lots and one 4 ½ acre lot.
Access
All three of the new single-family lots access onto a private, shared driveway in a 45-foot-wide access
easement on Lots 1 and 2. This private driveway provides access onto Peak View Drive across from Longs
Drive. The existing residence on the 4 ½ acre lot will keep the existing access drive off of Peak View Drive.
Utilities
Underground electric and water mains will be extended to the new subdivision from locations near the
intersection of Devon Drive and Darcy to the subject property. Two new fire hydrants will be installed on
the property, and a fire truck turn around will be provided on the shared driveway. A sewer main will
extended from the west along the north side of Peak View Drive to the subject property.
Phasing Schedule
The construction of infrastructure for the subdivision will begin immediately upon Final Plat filing. The
first house will begin construction as soon as a permit can be obtained.
Waiver of Trail Requirement
The applicant is requesting a waiver of the requirement for a 10-foot-wide multi-use trail for this
subdivision. In the zoning district descriptions in Chapter 4 of the Development Code, there appears to be
a distinct difference between the E (1/2 acre lots) and E-1 (1 acre lots). The clear difference is that E
requires "providing for additional parks, open space and trail/bikeway connections", whereas E-1 makes
no mention of such amenities. The implication in the zoning district descriptions is that the trail
requirement doesn't apply in the E-1 zoning. We are not aware of any E-1 subdivisions which have been
required to install the 10'-wide concrete trail, and there are no sidewalks or trails along the entire length
of Peak View Drive.
Standards For Review
This Preliminary Plat meets all the requirements outlined in the Estes Park Development Code Chapters 3
and 10.
ATTACHMENT 3
Page 76
COYOTE RUN SUBDIVISION PRELIMINARY PLAT
LOT 5: PROSPECT MTN
SUBDIVISION
PARCEL# 3536407005
ZONING: R -RESIDENTIAL
OWNERS: SAKSHI MANCHANDA
0.73 ACRES
31,799 SQ-FT
LOT 1, DANNELS ADDITION TO THE TOWN OF ESTES PARK
LOCATED IN
RANGE
LOT 14
PEAK VIEW
SIGHT TRIANGLE
DISTANCES ARE MET
SUBDIVISION AMENDED
PARCEL# 2531309014
ZONING: E-1 ESTATE
OWNERS: DANIEL & TAMARA SCACE
1.33 ACRES
57,934 SQ-FT
VICINITY MAP
I" = 500'
THE SOUTHWEST ¼. OF THE
72 WEST OF THE 6TH P.M.,
SOUTHWEST ¾ SECTION
COUNTY OF LARIMER,
31, TOWNSHIP
STATE OF
5 NORTH,
COLORADO
LOT 10C
PEAK VIEW
SUBDIVISION AMENDED
PARCEL# 2531320003
ZONING: E-1 ESTATE
OWNERS: JED F EIDE
1.19 ACRES
51,836 SQ-FT
LOT 70B
PEAK VIEW
SUBDIVISION AMENDED
PARCEL# 2531320002
ZONING: E-1 ESTATE
I
OWNERS: JESSE & KASSONDRA
KOSCH
1.19 ACRES
51,836 SQ-FT
LOT 9
TO HWY 7 ::,,
LOT 1
MOUNTAIN VIEW SUBDIVISION
PARCEL# 2531315001
ZONING: E-1 ESTATE
OWNERS: BARTON LEE &
SHARON LEIGH DANNELS
0.88 ACRES
38,296 SQ-FT
PEAK VIEW SUBDIVISION AMENDED
PARCEL# 2531309009
ZONING: E-1 ESTATE
OWNERS: JERRY & CHRISTY JACOBS
1.28 ACRES
55,672 SQ-FT
LOT 8
PEAK VIEW SUBDIVISION AMENDED
PARCEL# 2531309008
ZONING: E-1 ESTATE
OWNERS: CHARLES & BETTY NUGENT
1.45 ACRES
63,162 SQ-FT
LINE AND CURVE TABLE
PREPARED BY·
VAN HORN ENGINEERING & SURVEYING, INC.
1043 FlSH CREEK RD.
ESTES PARK. CO 80517
(970) 586-9388
.Qll'.lifH;_
CMS PLANNING AND DEVELOPMENT, INC.
P.O. BOX 416
ESTES PARK, CO 80517-0416
L1 N00-35 47 E
L2 N24"56 58 E
L3 N24"53 37 E
L4 N00-35 47 E
LS N24"56 58""E
L6 S65"03 02"E
L7 soo·3s 47 w
CURVE RADIUS
Cl 137.50
C2 137.50
C3 160.00
C4 160.00
57.24
135.84
22.00
61.25
136.96
5.00'
83.49'
DELTA ANGLE ARC LENGTH CHORD BEARING CHORD LENGTH
21"46 44 52.27 Nl 1"29 09 E 51.95
2·34 27 6.18 N23"39 45 E 6.18
24"21 11 68.01 N12"4623 E 67.50
18"58 49R 53.00 N34"26'22"E 52.76'
LEGEND
@ WELL
<1) WATER VALVE
'O FIRE HYDRANT ASSEMBLY
[[] ELECTRIC METER/PEDESTAL
& ELECTRIC TRANSFORMER
@ SEWER CLEAN OUT
@ SEWER MANHOUE
--- ---- ---BUILDING SETBACKS
- ------- -RIGHT OF WAY CENTERLINE
--> >--SITE DRAINAGE
EDGE OF ROAD/DRIVE
---, ,---EUECTRIC LINE
---s s---SEWER LINE
--OHU OHU --OVERHEAD UTILITY LINE
---, ,---EUECTRIC LINE
---• •---WAlER LINE
---• •---GAS LINE
PROPERTY LINE
NEIGHBORING PROPERlY LINE
---0------0----FENCE
---------EDGE OF EASEMENT
-----------CENTERLINE OF EASEMENT
--• ----•
00.00
(00.00)
(00.00)
________ 7::,c:::• --.... __ ........
----------------~
4,1 ?.O'!a,
0
STORM SEWER LINE
FOUND MONUMENTATION
ALIQUOT MONUMENTA~ON
MEASURED OR CALCULATED DIMENSIONS
PLATTED OR DEEDED DIMENSIONS
DIMENSIONS FROM PLAT OF HANCEL MCCORD
TRACT -VAN HORN PROJECT (1965-05-24)
EXISTING MAJOR CONTOUR
EXISTING MINOR CONTOUR
SURFACE SLOPE LABEL
(NEGAWE IS DOWNHILL)
EXISTING TREES
CERTIFICATE OF OWNERSHIP AND DEDICATION:
(LEGAL DESCRIPTION SOURCE: ASCENT ESCROW &-TITLE COMPANY FILE # 22-001493)
SCALE: 1" 60'
0 60 120 180
KNOW ALL MEN BY THESE PRESENTS THAT THE UNDERSIGNED, BEING THE OWNERS OF THE TRACTS OF LAND LOCATED IN THAT PART OF THE sw.} OF THE Sw,l OF SECTION 31, TOWNSHIP 5 NORTH,
RANGE 72 WEST OF THE 6TH P.U., DESCRIBED AS FOLLOWS:
LOT 1, DANNELS A□□moN TO THE TOWN OF ESTES PARK, COLORADO, ACCORDING TO THE PLAT FILED NOVEMBER 30, 1954, LYING NORTH OF THE U.S. GOVERNMENT ROAD AS DESCRIBED IN SAID
PLAT AND A ONE FOOT STRIP OF LAND ALONG THE SOUTH BOUNDARY OF KORAL HEIGHTS SUBDIVISION LOCATED IN LOTS 2 AND 3 OF SECllON 31, TOWNSHIP 5 NORTH, RANGE 72 WEST, LARIMER
COUNTY, COLORADO, BEING THE STRIP LOCATED BETWEEN THE SOUTH BOUNDARY OF THE SUBDMSION AND THE SOUTH RIGHT OF WAY OF DEVON DRIVE STREET EXTENDING EAST FROM THE SOUTHWEST
CORNER OF THE SUBDMSION TO THE JUNCTION OF DEVON DRIVE AND JUNIPER STREET, ALL IN ACCORDANCE WllH THE PLAT OF RECORD, KORAL HEIGHTS SUBDIVISION, COUNTY OF LARIMER, STATE OF
COLORADO. ALSO KNOWN BY STREET AND NUMBER AS: 685 PEAK VIEW DR., ESlES PARK, CO B0517.
CONTAINING 7.62 ACRES (332,082 SQUARE FEET) MORE OR LESS; HAVE BY THESE PRESENTS CAUSED THE SAME TO BE SURVEYED AND SUBDIVIDED INTO LOTS TO BE KNOWN AS COYOTE RUN
SUBDIVISION TO THE TOWN OF ESTES PARK, AND DO ALSO DEDICATE EASEMENTS FOR THE INSTALLATION AND MAINTENANCE OF ACCESS AND UTILITIES AS ARE LAID OUT AND DESIGNATED ON THIS PLAT,
WITNESS OUR HANDS AND SEALS THIS ____ DAY OF ____ 2023.
CMS PLANNING AND DEVELOPMENT, INCORPORATED (OWNER)
NOTARIAL CERTIFICATE:
STA TE OF COLORADO)
)SS
COUNTY OF LARIMER)
THE FOREGOING INSTRUMENT WAS ACKNOWLEDGED BEFORE ME THIS
WITNESS MY HAND AND OFFICIAL SEAL
MY COMMISSION EXPIRES, ________ _
NOTARY PUBLIC
SURVEYOR'S CERTIFICATE:
___ DAY OF 2023 BY CMS PLANNING AND DEVELOPMENT, IN CORPORA TED.
I, LONNIE A. SHELDON, A DULY REGISTERED LAND SURVEYOR IN THE STAlE OF COLORADO, DO HEREBY CERTIFY THAT THIS PRELIMINARY PLAT OF COY01£ RUN SUBDIVISION, TRULY
AND CORRECTLY REPRESENTS THE RESULTS OF A SURVEY MADE BY ME OR UNDER t.lY DIRECT SUPERVISION.
LONNIE A. SHELDON
COLORADO REG. ENGINEER AND LAND SURVEYOR #26974
NOTICE OF APPROVAL:
APPROVAL. OF lHIS PLAT CREATES A VESTED PROPERTY RIGHT PURSUANT TO ARTICLE 68 OF TITLE 24, C.R.S. AS AMENDED
SURVEYOR'S NOTES:
1. THIS PRELIMINARY PLAT IS REPRESENTATIONAL ONLY AND FOR THE SUBMITTAL AND SHOULD NOT BE RELIED UPON AS A BOUNDARY SURVEY, A LAND SURVEY PLAT, NOR A FINAL SUBDIVISION
PLAT.
2. THE PLAT OF DANNELS ADDITION TO ESTES PARK, WARRANTY DEED AT RECEPTION NO. 20220061905, THE PLAT OF KORAL HEIGHTS, THE AMENDED PLAT OF LOT 10 AND 13, AMENDED PLAT
OF PEAK VIEW SUBDIVISION, THE 1965 VHE PLAT OF HANCEL MCCORD TRACT, AND THE LARIMER COUNTY LEGAL DESCRIPTION WERE THE ONLY SOURCES USED FOR BOUNDARY AND EASEMENT
RESEARCH FOR THIS. DANNELS MINOR SUBDIVISION TO THE TOWN OF ESTES PARK.
3. BASIS OF BEARINGS FOR THIS PRELIMINARY PLAT ARE BASED ON lHE NORTH LINE OF lHE SUBJECT PARCEL BEARING S89"20'00'"E AS SHOWN ON lHE DANNELS ADDITION TO lHE TOWN OF
ESTES PARK, COLORADO. ALL BEARINGS SHOWN HEREON RELATIVE lHERETO. SEE NOTE 4 FOR ADDmONAL DETAILS.
4. THE PLAT OF DANNELS ADDITION TO THE TOWN OF ESTES PARK, COLORADO LACKS SPECIFIC GEOMETRY FOR THE SUBJECT PARCEL THERE IS AN UNRECORDED VAN HORN SURVEY (PROJ. NO.
1965-05-24) OF SAID LOT SHOWING DIMENSIONS FOR THE SUBJECT LOT. DIMENSIONS FROM SAID SURVEY ARE SHOWN HEREON IN SQUARE BRACKETS AS DESCRIBED IN THE LEGEND.
5. THIS LOT IS ZONED E-1 (ESTATE). MINIMUM LOT SIZE IS 1.0 ACRES. THE PRESCRIBED BUILDING SETBACKS FOR THIS ZONING ARE 25' ALONG FRONT, SIDE AND REAR LINES.
6. THE POSTED ADDRESS FOR TI-llS PROPERTY IS 6B5 PEAK VIEW DRIVE.
7. THE EASEMENTS SHOWN HEREON ARE TO BE DEDICATED BY TI-lE FINAL PL.AT. All. PROPERTY CORNERS WILL BE INDICATED AS FOUND OR SET ON THE FINAL PLAT.
8. ACCORDING TO COLORADO LAW, YOU MUST COMMENCE ANY LEGAL ACTION BASED UPON ANY DEFECT IN THIS SURVEY WITHIN lHREE YEARS OF lHE DATE YOU FIRST DISCOVER SUCH DEFECT. IN
NO EVENT MAY ANY ACTION BASED UPON ANY DEFECT IN lHIS SURVEY BE COMMENCED MORE lHAN TEN YEARS FROM lHE CERTIFICATION DATE SHOWN HEREON.
9. THE LINEAR UNIT FOR THIS SURVEY IS THE U.S. SURVEY FOOT.
10. LIMIT OF DISTURBANCE OF THE PROPOSED LOTS IS THE ENTIRE AREA CONTAINED WllHIN lHE SETBACKS FOR lHE PROPOSED LOTS IN ADDITION TO lHE DRIVEWAYS NEEDED FOR ACCESS. MORE
PRECISE LIMITS OF DISTURBANCE WILL BE CALCULATED ONCE BUILDING PLANS ARE FINALIZED.
11. NOT ALL TREES ARE SHOWN. ONLY SIGNIFICANT TREES IN lHE SUBJECT AREA ARE SHOWN. TREES ARE TO BE PROTECTED WHERE POSSIBLE •
12. THE PROPERTY DOES NOT LIE WITHIN ANY KNOW HAZARD AREA ACCORDING TO THE FOLLOWING ESTES PARK MAPS: WILDFIRE HAZARD, GEOLOGICAL HAZARD, WETLAND RESOURCE, RIDGEUNE
PROTECTION, AND FLOOD HAZARD AREA MAPS.
13. THERE ARE NO STREAMS, RIVERS, NOR SEASONAL DRAINAGE WAYS IDEm!FlED ON SITE.
14. SITE TOPOGRAPHY GRADES ARE BETWEEN 0'1: AND 20%.
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DRAWN BY:
JJS
CHECKED BY:
LAS
SCALE
1"=60'
DATE:
11 27 2023
SHEET
1
OF
2
PROJ. NO.
1965-05-24
ATTACHMENT 4
Page 77
0
\ GAS SIGN
•
TRENCH BALE
4 INCHES
INTO GROUND
2 FT: MIN.
SCALE: 1"
60
60'
120 180
LOT 4: PROSPECT
SUBDIVISION
MTN
LOT 14
PEAK VIEW
SUBDIVISION AMENDED
EXISTING GROUND
1-------9 FT MIN.--------1
,,...----------EXCAVATED AREA~
SECTION B-B, CROSS SECTION
COYOTE RUN SUBDIVISION PRELIMINARY PLAT
DRAINAGE & EROSION CONTROL PLAN
LOT 1,
B
CONCRETE WASHOUT STRUCTURE
NTS
DANNELS ADDITION
LOCATED IN
RANGE
THE SOUTHWEST¼ OF THE
72 WEST OF THE 6TH P.M.,
I
LOT 1, BLOCK 2
TO THE TOWN OF ESTES
SOUTHWEST ¾ SECTION
COUNTY OF LARIMER,
31,
STATE
TOWNSHIP 5 NORTH,
OF COLORADO
KORAL HEIGHTS SUBDIVISION
"--._ TOE OF FILL (2: 1)
LOT 1 OB
PEAK VIEW
SUBDIVISION
I i----,,---'9 FT MIN. ---<
CONTAINMENT
AREA
15 MIN.
~
AMENDED
B
TO HWY 7 _:,,
LOT 1
MOUNTAIN VIEW SUBDIVISION
LOT 9
PEAK VIEW SUBDIVISION AMENDED
LOT 8
PEAK VIEW SUBDIVISION AMENDED
SILT FENCE
ANCHORED
IN lREHCH
SILT FABRIC
STAPLED TO
POSTS
AND ATTACHED
FIRMLY TO POST
CO~PACTED
BACKFlll
PARK
10·
MIN
~A~?~'(
STABILIZED CONSTRUCTION ENTRANCE
NTS
PLACE AND STAKE
EROSION BALES.
BACl<Flll ~TERW.
(COMPACT SOIL TO
PREVENT Pl~NG)
BALES MUST BE TIGHTLY
ABUTTING WITH NO GAPS
STAKE-<:_......_
* POINT A
□ □
STAKE
FLOW
□ □
□ □
FLOW
~
PLAN
STAKE (2" X 2" NOMINAL)
STAKED AND ENTRENCHED
EROSION BN..E
TWINE/WIRE
~TERED R~
12" MIN.
,a· x 1a· x 35•
/ lYPICAL EROSION BALES
□ □ □
* POINT A
* POINT B
SECTION A-A
s• MIN.
* POINT A MUST BE HIGHER
THAH POINT B
EROSION BALE TRENCHING
AND STAKING (TYP)
SILT FENCE FABRIC
ANCHORED IN TRENCH
AND FIRMLY ATTACHED
TO POST_::,
--------f X 5• TRENCH
SILT FENCE ERO ON BALES
PLAN VIEW
NOTES:
1. THIS SITE PLAN IS REPRESENTATIONAL ONLY AND IS NOT TO BE CONSTRUED AS A LAND
SURVEY PLAT NOR AN IMPROVEMENT SURVEY PLAT.
2.THIS LOT IS ZONED E-1 (ESTATE). MINIMUM LOT SIZE IS 1.0 ACRES. THE PRESCRIBED
BUILDING SETBACKS FOR THIS ZONING ARE 25' ALONG FRONT, SIDE ANO REAR LINES. THIS
DEVELOPMENT PROPOSES REZONING TO E (ESTATE) WHICH REQUIRES 0.5 AC OR 21.780
SQUARE FOOT LOTS AND 15' FRONT SETBACKS, 10' SIDE SETBACKS AND 15' REAR
SETBACKS.
3. ALL REQUIRED IMPROVEMENTS SHALL BE COMPLETED OR GUARANTEED IN ACCORDANCE
WITH EVDC SECTION 7 .12 AND 1 0.5.K.
4. THE OWNER SHALL BE REQUIRED TO PROVIDE FOR HANDICAP ACCESSIBILITY IN
ACCORDANCE WITH THE A.D.A. AND I.B.C.
5. ALL WALKWAYS AND DRIVES SHALL BE HARD SURFACED.
6. TRASH DUMPSTERS SHALL BE SECURED AGAINST BEARS AND OTHER ANIMALS. FENCES
FOR THE TRASH ENCLOSURES (IF ANY) SHALL CONFORM TO THOSE PREDOMINANT MATERIALS
AND COLORS OF THE BUILDINGS.
7. UTILITIES ARE SCHEMATIC. THE ACTUAL LOCATIONS WILL BE FIELD FlT AT THE TIME OF
INSTALLATION.
B. LIMITS OF DISTURBANCE SHALL BE DESIGNATED IN THE FIELD PRIOR TO COMMENCEMENT
OF EXCAVATION, GRADING, OR CONSTRUCTION WITH CONSTRUCTION BARRIER FENCING OR
SOME OTHER METHOD APPROVED BY STAFF.
9. ALL EXTERIOR LIGHTING SHALL BE SHIELDED AND DOWNCAST WITH LUMINAIRES MOUNTED
NO HIGHER THAN 15', AS PER ESTES VALLEY DEVELOPt.4ENT CODE.
10. ALL BUILDINGS WILL HAVE A WOODEN PLACARD WITH THE UNIT NUMBER DESIGNATION ON
THE FRONT OF THE BUILDING FACING THE DRIVEWAY OR CENTRAL AREA, AS APPLICABLE.
THE UNITS ACCESSED THROUGH THE CENTRAL AREA WILL HAVE THE UNITS POSTED AT THE
ENTRY FROM THE PARKING AREAS. THE ADDRESS LAYOUT IS YET TO BE DETERMINED.
11. ALL SINGLE UNIT SERVICE LINES SHALL BE 1" COPPER FOR WATER. 4" PVC FOR SEWER.
¾" PED FOR GAS, 2!!," CONDUIT FOR ELECTRIC. 2"" CONDUIT FOR TELEPHONE AND 1"
CONDUIT FOR CABLE. NOTE THAT ALL ELECTRIC MAIN LINES WILL HAVE A 4" CONDUIT FOR 1
PHASE THROUGHOUT THE DEVELOPMENT. lELEPHONE MAIN WILL HAVE 4" AND CABLE MAIN
WILL HAVE 2" CONDUIT THROUGHOUT AS WELL.
NOTE: FOR THIS NEW 3 LOT SUBDIVISION, THE FOLLOWING EROSION CONTROL IS LISTED AND
SHOWN:
(4) ROCK SOCKS
(2) INLET PROTECTION
(13) STRAW BALE OR EROSION CONTROL LOG CHECK DAMS
(1) VEHICLE TRACKING PAfJ
( 1) CONCRETE WASHOUT STRUCTURE
ADDmONAL ITEMS AS NECESSARY DURING CONSTRUCTION
®
0
8
9
®
CURBSIDE CHECK DAMS
INLET PROTECTION
EROSION BALE TRENCH
LAYOUT OR CHECK DAMSS
VEHICLE TRACKING
CONTROL
CONCRETE WASHOUT STRUCTURE
ESTES VALLEY DEVELOPMENT
EROSION CONTROL NOTES
1. SILT FENCING AND STRAW BALES TO BE PLACED PRIOR TO ANY
DEMOLITION. GRADING, OR CONSTRUCTION. EROSION CONTROL LOGS MAY BE
USED IN PLACE OF SILT FENCING.
2. NO FUELS OR CHEMICALS SHALL BE STORED ON SITE.
3. THE CONTRACTOR WILL BE RESPONSIBLE FOR CLEARING MUD TRACKED
ONTO TOWN ROADS ON A DAILY BASIS.
4. EROSION CONTROL MEASURES WILL BE INSPECTED WEEKLY DURING
CONSTRUCTION AND MAINTAINED IN WORKING ORDER.
5. ALL DISTURBED AREAS TO BE TOPSOILED AND SEEDED. SEED WILL BE
DRILLED TO INSURE j"' TO l" COVER.
6. ALL SLOPES OVER 4: 1 SHALL BE RESEEDED WITH GRASS MIXES WITH
DEEP ROOTING CHARACTERISTICS.
7. AFTER SEEDING ENTIRE DISTURBED SITE WILL BE MULCHED USING
CLEAN HAY AT A RATE OF 1.5 TONS/ACRE. SLOPES STEEPER THAN 2:1
SHALL BE BLANKETED WITH BIODEGRADABLE EROSION CONTROL FABRIC WITH
A MINIMUM WEIGHT OF !#/sq.yd. INSTALLED PER MANUFACTURES
SPECIFICATIONS.
8. ADDITIONAL SEEDING MAY BE NECESSARY IN THE FOLLOWING YEARS TO
ENSURE ADEQUATE VEGETATIVE COVER TO STABILIZE SOILS. SILT FENCING
OR EROSION LOGS SHALL REMAIN IN PLACE AND REGULARLY MAINTAINED
UNTIL SOILS ARE STABILIZED WITH ESTABLISHED VEGETATION.
9. THE CONTRACTOR IS RESPONSIBLE FOR ALL ASPECTS OF EROSION
CONTROL.
LEGEND
@ SEWER MANHOLE
__ .,. --
ELECTRIC PE DEST AL
ELECTRIC TRANSFORMER
WELL
WATER VALVE
-OHU-
FIRE HYDRANT
OVERHEAD UTILITY POLE
NEW BURIED ELECTRIC,
TELEPHONE & CABLE
OVERHEAD UTILITY LINE
-S-
-w-
-x-
0
SEWER LINE
WATER LINE
PROPERTY LINE
NEIGHBORING PROPERTY LINE
FENCE
EXISTING MINOR CONTOURS
EXISTING MAJOR CONTOURS
PROPOSED MINOR CONTOURS
PROPOSED MAJOR CONTOURS
ROAD/DRIVE
EDGE OF EASEMENT
BUILDING SETBACKS
FOUND MONUMENTATION
0 ALIQUOT MONUMENTATION
00.00
(00.00)
[00.00]
0
MEASURED OR CALCULATED DIMENSIONS
PLATTED OR DEEDED DIMENSIONS
DIMENSIONS FROM PLAT OF HANCEL
MCCORD TRACT -VAN HORN PROJECT
(1965-05-24)
EXISTING TREES
LONNIE A. SHELDON, P.E. 26974
"' z z 0
0 ~ Cf) "' > w
QC C z => 0 "'
z
j
p..
...:I z
0 0
~ ......
E-i Ul E-i z ~>
0 Ul....,.
A u Zr:Il
z 0 :::,
~Ul 0 ...... Uz Ul
0 :::, :::,
'1:: ~ '1:: ~ Ul
Jd z~
oE-i uO
~ >i
t!, 0
~ u
~ t,
I;; A w ,
w 0
I 0:
C/l n.
DRAWN BY:
DRB JJS
CHECKED BY:
LAS
SCALE 1"=60'
DATE:
11 27 2023
SHEET
2
OF
2
PROJ. NO.
1965-05-24
ATTACHMENT 6
Page 78
Karin Swanlund <kswanlund@estes.org>
685 Peak View Development Plan
1 message
Jed Eide <jeide8080@gmail.com>Tue, Dec 19, 2023 at 8:31 AM
To: planning@estes.org
Dear Planning Commission:
I'm writing to ask you to require the developer to provide the items that were contingent to your approval of the preliminary
development plan for this property at your 8/15/23 meeting. At that meeting Public Works engineer Waters said that the
town would require a trail and 25 ft. easement along Peak View Drive as required by the Development Code.
In addition, the motion to approve the preliminary plat was contingent provision of a stormwater plan that included Type R
catch basins, which would require a paved entry drive off of Peak View. The entry drive should be required to be paved
not only to control storm water, but to prevent gravel from being washed down the steep drive onto Peak View and Longs
Drive below. Paving will prevent gravel from filling up the drainage swale and circumventing the planned drainage path.
Respectfully,
Jed Eide
607 Longs Drive
ATTACHMENT 7
Page 79
Karin Swanlund <kswanlund@estes.org>
Public Comment for Coyote Run
2 messages
Kristine L Poppitz <kjpoppitz@msn.com>Mon, Dec 18, 2023 at 10:55 AM
To: Community Devleopment <planning@estes.org>
To all concerned par es:
I would like to go on record for a few items regarding the proposed Coyote Run Subdivision Plat which will
be heard by the Planning Commission on 12/19/2023 and, subsequently, for the vote of the Board of
Trustees.
To begin, there have been numerous conversa ons in the past about Mr. Theis establishing a Homeowner's
Associa on (HOA), or Property Owner's Associa on (POA), for the proposed Coyote Run Subdivision.
I am in full support of such an en ty for the upcoming Homeowners, as well as for the adjacent property
owners, and anyone who drives by, and believe that it is necessary for many reasons. Mr. Theis has
previously said that he was open to discussing this. He said this most recently, at the last Neighborhood
mee ng that he personally a ended, on 9/22/2023. Please make this a requirement of your condi ons of
approval in your recommenda ons to the Town Board.
I would also like to address the lack of a Traffic Study to inves gate the impact on Peak View Drive, a heavily
u lized collector road. It is not posted on the Town’s website. Traffic has always been a major concern f or
this property and for any proposed changes.
Next, the updated Statement of Intent that was submi ed by Mr. Theis on 11/27/2023, requests:
"Waiver of Trail Requirement
The applicant is reques ng a waiver of the requirement for a 10-foot-wide mul -use trail for this
subdivision. [sic]"
Mr. Theis refers to the EPDC in his updated Statement of Intent. Please refer to the Estes Forward
Comprehensive Plan, specifically T1 and T2 for the "...future..." as Ms. Waters, Public Works, referred to this
issue during the Planning Commission Mee ng on August 15, 2023. During this mee ng, Ms. Waters
informed the Planning Commissioners, TOEP Staff, Mr. Theis and the Public, that "...the future is now..." She
even apologized to Mr. Theis for informing him, at that moment, that Public Works "...would be requiring
Trails not sidewalks..."
I understand that there are no exis ng sidewalks or trails along Peak View. I understand that a Trail
described as "...to nowhere..." may not be best for now; however, that does not mean that the requirement
is waived for the Developer. Perhaps the Developer can fund Trails for another, immediate need, in Town
for Trails, or funds can be escrowed for the "future" Trails. This is very important.
To con nue, I have serious concerns about adding another Subdivision without a paved road (please also
refer to the Comp Plan for the "future" and “new developments”) for the EVFPD and their needed turning
radius. I understand that the EVFPD was "ok" with the earlier "temporary turn around." Others were not. It
is no longer shown on the Dra on the Town’s website. Page 80
I also have concerns about the ownership and the maintenance of a shared, unpaved driveway, as it is being
presented. This would be be er controlled with an HOA or a POA. There have been concerns about the
slope of the "road" as well.
I trust that the Planning Commissioners and Town Staff will abide by all rules and regula ons, all Code, for
the safety of the Community, as always.
There have been many instances of personal decision-making, by Staff, regarding this applica on and Mr.
Theis’ other applica ons. Previously, personal Staff "interpreta ons" played a prominent role in past
itera ons that I trust that will not happen again.
I thank you, in advance, for reading my email and for "hearing" some of my concerns, issues.
With thanks,
Kris ne L. Poppitz
Karin Swanlund <kswanlund@estes.org>Mon, Dec 18, 2023 at 11:00 AM
To: Matt Comstock <mcomstock@estes.org>, Matt Heiser <mheiser@estes.org>, Dave Shirk <dshirk@estes.org>, Chris
Pawson <cpawson@estes.org>, Charles Cooper <ccooper@estes.org>
Public comment received this morning.
This will be added to the packet as well.
[Quoted text hidden]
--
Community Development Department
Town of Estes Park
Estes Park, CO 80517
970-577-3721
Page 81
Minutes for the Coyote Run Preliminary and Final Plat Neighborhood
Meeting. On 11/13/23, 6 PM at the Estes Park Public Library.
The meeting started right at 6 PM. There were general, but no formal introductions.
A group of 12 or so from the public came up to the front table to review the materials
provided and that were laid out.
Questions/comments included:
Concern about the culvert pipe under Peak View Road at the west end of the property.
Increase in Storm water flow is the concern for the neighbor to the south.
Question about the location of the concrete washout structure, which was answered by
locating it on the erosion control plan.
Question about the distinction of a driveway versus a road.
Easement versus a right of way was discussed.
How many homes can be on the driveway before it is considered a road? 4.
Question about the height of the units. 30 foot height limit with adjustable measurement
for such according to the code.
Question about the HOA. Will there be one? Yes, seems so.
Seems like there should be an H.O.A. to share the maintenance of the driveway.
Kristine P. would like a specific answer to this.
Question, if we are submitting the preliminary and final Plats together. Both are
prepared for that.
Question about the wildlife path across the property. Not shown on drawings.
Question about if the internal driveway would be paved. Yes.
Question about if three or four more lots will be available in the 4.5 acre parcel. Future
question.
It was pointed out that the lots to the north are listed smaller than they actually exist
because they extend across Devon Drive
ATTACHMENT 8
Page 82
Question about trees on-near the spite strip. Will they be removed? Can be for utilities,
but not planned to be removed unless necessary.
There were a couple of corrections on ownership and spelling for the neighboring lot
information.
The powerline on the communication sheet does not clearly show the proposed
powerline
The owners to the south named Dan and Tami request a special meeting about the
stormwater culvert pipe outlet. That outlet water does not damage their house, but
makes their backyard wet.
There were nine people on the zoom link and 12 that attended the meeting and signed
up on the attendance roster.
The meeting ended at 7 o’clock.
Minutes-notes from Lonnie Sheldon – Van Horn Engineering and Surveying.
Page 83
Town Clerk <townclerk@estes.org>
Re: Coyote Run Subdivision Preliminary Plat - Public Comment
1 message
Wendy Koenig <wkoenig@estes.org>Sun, Jan 21, 2024 at 8:08 AM
To: Christy Jacobs <cj@ap-tm.com>
Cc: Bunny <townclerk@estes.org>
This item does not allow ex-parte communications. I will make sure it is in the packet for Tuesday. Mayor
Sent from my iPhone
On Jan 21, 2024, at 1:24 AM, Christy Jacobs <cj@ap-tm.com> wrote:
Please see the a ached .pdf document regarding my public comments for the Town Board Mtg
(Jan. 23, 2024) on Item Agenda: Coyote Run Subdivision Preliminary Plat on Resolu on 03-24.
Sincerely,
Christy Jacobs
1655 Twin Dr.
CoyoteRunSubdivision-Resol 03-23-PublicComment-Jan21-2024.pdf
307K
PUBLIC COMMENT RECEIVED 2024-01-22
Page 1 of 2
Date: January 21, 2024
To: Mayor Koenig & Board Trustees:
Subject: Agenda Item: Resolution 03-24 Coyote Run Subdivision Preliminary Plat
Dear Mayor Koenig & Board Trustee,
I am asking you all respectively to please require the developer, (Frank Theis/CMS
P&D), to follow the E.P. Planning Commission Findings & Conditions as follows:
Findings:
6) EPDC Section 4.3.D.3.a applies: Provision shall be made for pedestrian
amenities and linkages in the residential zoning districts, including but not
limited to sidewalks, pathways and bikeways.
7) EPDC Section 4.3.D.3.c states: Sidewalks shall be provided as set forth in
Section 10.5.D - “Sidewalks, Pedestrian Connections and Trails.
8) EPDC Sections 10.5.D.1 states: To the maximum extent feasible, all
subdivision shall provide linkages including trails to parks, schools, adjacent
developments, and existing and proprosed hike and bike trails as depicted in
the Estes Valley ling range Hike and Bike Trails Plan (found in the Estes Valley
Comprehensive Plan).
9) EPDC Section 10.5.D.2 states: Sidewalks shall be required as follows,
sidewalks shall be required on one side of and public or private street in all
zoning districts except in the Rezone district.
10) Appendix D.3.B.5 states: To the maximum extent feasible the number of new
curb cuts shall be minimized by consolidation, shared driveways or other
means “and based on that, that’s why I am wanting to see existing
driveway on Peak View relocated and consolidated with the proposed
driveway.
(Continued on Page 2)
Please Note : Finding #10 below is Not mentioned in the Town Board
Packed under Findings:
Why was this left out since Commissioner Shirk had added this as a
Finding and it was recorded during the December 19, 2023 Planning
Commission meeting?
Page 2 of 2
Conditions of Approval
1. The applicant shall provide a ten-foot-wide concrete trail for the length of the
Peak View Drive frontage on lots 1 and 4.
2. Any outstanding staff and referral agency comments shall be required on one
(1) side of any public or private street in all zoning districts, except in the RE
Zoning District
Commissioner Shirk stated after reading his findings: “So I read this as all being
very clear that sidewalks are required in this zone district, they need to follow the
Master plan and they need to be installed. This is not a waiver. This is not
anything new. This is CODE requirement”.
Commissioner Shirk & Cooper stated they both would prefer the concrete Trail go
along Lots 1 & 4 (down Peak View) and that Commissioner Shirk believed the
EPDC required it…as per the Findings above.
My Personal Comments & Concerns: (Christy Jacobs):
As for Finding #10 above, I highly agree with Commissioner Shirk on removing the
existing Peak View access driveway on Lot 4, and have it relocated and
consolidated with the new proposed driveway. As Commissioner Shirk stated, the
Development Code requires that access be minimized & consolidated. This would
eliminate a culvert, some potential flooding, storm water issues for those souths of
the current driveway and remove one additional conflict point and comply with the
code.
Sincerely,
Christy Jacobs
1655 Twin Dr.
PUBLIC COMMENT RECEIVED ON 1/23/2024
Board of Trustees Public Comment
Name: Bart Dannels
Stance on Item: Neutral
Agenda Item Title: Resolution 03-24.
Public Comment:
Thanks to the Town Board for listening to the public and the interests of Estes Park with your previous
disapproval of the original proposed rezoning of this Coyote Run property that would have allowed dense
development. The current proposed development seems a reasonable compromise between the owner
and surrounding properties as long as: 1) There is no further subdivision of the property. 2) The interests of
the public as presented in other public comments are addressed. 3) Staff recommendations, assumptions,
and opinions are fully questioned and vetted. I trust you will do continue to do your due diligence as
keepers of the public trust and influencers of the future of Estes Park.
File Upload
Please note, all information provided in this form is considered public record and will be included as permanent record for
the item which it references.
Files are limited to PDF or JPG.
25 MB limit. Video files cannot be saved to the final packet and must be transcribed before submitting.
PUBLIC COMMENT RECEIVED ON 1/22/2024
Board of Trustees Public Comment
Name: Kristine L. Poppitz
Stance on Item: Neutral
Agenda Item Title: Ordinance 03-24.
Public Comment:
I would like to make sure that the Town Board is aware of ALL conditions discussed by the Planning
Commission for the Coyote Run Subdivision. I would like to request that an HOA be required for this
private road and its' ownership and maintenance. It is crucial that ALL items of discussion regarding this
Ordinance, be considered by all parties. Public Works' requirements of trails, not sidewalks, and the
Applicant's requirement, of adherence to the EPDC, not to the discretions of others for items that are
clearly delineated in the existing EPDC, such as the required Trails, are, just that, requirements. Thank
you!!!
File Upload
Please note, all information provided in this form is considered public record and will be included as permanent record for
the item which it references.
Files are limited to PDF or JPG.
25 MB limit. Video files cannot be saved to the final packet and must be transcribed before submitting.
2/5/2024
1
Community Development
Town Board
January 23, 2024
Coyote Run Subdivision Preliminary Plat
(685 Peak View Drive)
Frank Theis, CMS Planning & Development, Inc
(Owner/Applicant)
Presented by Paul Hornbeck, Senior Planner
Vicinity Map of Subject Area
685 Peak View Dr.
1
2
2/5/2024
2
Zoning Map
Existing Conditions (Aerial)
Existing SF Dwelling
3
4
2/5/2024
3
Existing Conditions (Front)
Proposal
The Applicant requests the EPPC review the
proposed Coyote Run Subdivision Preliminary Plat
to create four (4) lots in the E-1 (Estate) Zoning
District.
• Lots 1 through 3 will be approximately 1 acre each.
• Lot 4 will be 4.4 acres
5
6
2/5/2024
4
Preliminary Subdivision Plat
Preliminary Subdivision Plat
(annotated)
7
8
2/5/2024
5
Drainage & Erosion Control Plan
Drainage & Erosion Control Plan
(zoomed)
9
10
2/5/2024
6
Review Criteria
In accordance with § 3.9.E. “Standards for Review”
of the EPDC, all subdivision applications shall
demonstrate compliance with the standards and
criteria set forth in Chapter 10, "Subdivision
Standards," and all other applicable provisions of
this Code.
• Subdivision Design Standards
• Compliance with Zoning Requirements
Subdivision Design Standards
Relationship to Comprehensive Plan
• Designated “Suburban Estate” in the Estes Forward
Comprehensive Plan Future Land Use Map.
• Low to medium density
• Single family residential
• Typical minimum lot size of 0.25 acre
Geologic and Wildfire Hazards
• No abnormal Geologic or Wildfire Hazards
11
12
2/5/2024
7
Subdivision Design Standards
Utilities and Services
• Estes Valley Fire Protection District and utility providers
(Water, Power & Communications, and Sanitation)
reviewed the proposed subdivision with no objections.
Plans for Remainder Parcel(s)
• There are no remainder parcels with this subdivision. Lot
four is large enough to potentially be further subdivided in
the future but the applicant has not indicated any plans to
that effect.
Compliance with Zoning Requirements
Development Standards
• The proposed layout of lots, driveways, utilities, drainage
facilities and other services are designed consistent with
the code requirement that seeks to minimize the land
disturbance, maximize the amount of open space in the
development, and preserve existing trees/vegetation.
Limits of Disturbance
• Proposed limits of disturbance for each lot coincides with
the required building setback (25 feet from all property
lines).
13
14
2/5/2024
8
Streets
• No new public streets; access to lots one through three
will be from Peak View Drive, utilizing a shared driveway.
• Lot four will continue to use the driveway that already
serves the residence.
• Traffic generated does not warrant turn lanes on Peak
View Drive.
• Minimum six foot wide bike lane per Development Code
Appendix D Section II.B1.c. to be waived if a ten foot wide
trail is built in accordance with the Estes Valley Master
Trails Plan.
Sidewalks, Pedestrian Connections and Trails
• Estes Valley
Master Trails
Plan identifies
trail along
Peak View
Drive
15
16
2/5/2024
9
Compliance with Zoning Requirements
Sidewalks, Pedestrian Connections and Trails
• Sec 4.3 Residential Zoning Districts
D. Additional Zoning District Standards.
3. Pedestrian Amenities and Linkage Requirements.
a. Provision shall be made for pedestrian amenities and linkages in
the residential zoning districts, including but not limited to sidewalks,
pathways and bikeways.
b. To the maximum extent feasible, provision shall be made in the
design of developments for interconnections with existing or planned
streets and pedestrian or bikeway systems on adjoining properties,
unless the Estes Valley Planning Commission determines that such
interconnections would have adverse impacts on open spaces,
wetlands, sensitive environmental areas or other significant natural
areas.
c. Sidewalks shall be provided as set forth in §10.5.D, "Sidewalks,
Pedestrian Connections and Trails.
Sidewalks, Pedestrian Connections and Trails
Sidewalks, Pedestrian Connections and Trails
• Sec. 7.4 – Public Trails and Private Open Areas
A. Applicability.
1.Trails. All new subdivisions shall provide for public trails pursuant to this Section
and Chapter 4, "Zoning Districts."
C. Locational Criteria.
3. Dedications for trails shall be at locations deemed appropriate by the Decision-
Making Body and shall, to the maximum extent feasible, be in accord with the
trails/bike path element contained in the Estes Valley Comprehensive Plan or any
other subsequently adopted comprehensive hike/bike or open areas plan.
F. Design Criteria.
2.Trails. Dedicated public trails shall meet the following design standards:
a. Dedication of land shall be a minimum width of twenty-five (25) feet; and
b. The trail shall conform to design criteria set forth in any bike/trail plan or
park and recreation plan adopted by the Town of Estes Park or Larimer
County, if applicable.
17
18
2/5/2024
10
Sidewalks, Pedestrian Connections and Trails
Sidewalks, Pedestrian Connections and Trails
• Sec 10.5 – Subdivision Design Standards
D. Sidewalks, Pedestrian Connections and Trails.
1. General.
a. To the maximum extent feasible, all subdivisions shall
provide pedestrian linkages, including trails, to parks,
schools, adjacent developments and existing and proposed
hike and bike trails as depicted in the Estes Valley Long
Range Hike and Bike Trails Plan (found in the Estes Valley
Comprehensive Plan).
b. Hard-surfaced pedestrian walkways (minimum five [5]
feet in width) or easements (minimum ten [10] feet in width)
may be required to provide access to parks or open areas,
schools or other similar areas where, in the Decision-
Making Body's opinion, significant pedestrian usage is
anticipated or adequate pedestrian circulation is needed.
Planning Commission Findings
1. The Planning Commission is the Recommending Body for the Preliminary
Plat.
2. The Town of Estes Park Board of Trustees is the Decision-Making Body for
the Preliminary Plat. Town Board approval of a Final Plat is also necessary to
subdivide the property.
3. Adequate public/private facilities are currently available to serve the subject
property.
4. This request has been submitted to all applicable reviewing agency staff for
consideration and comment.
5. The Preliminary Plat application complies with applicable standards set forth
in the EPDC, with the exception of the requirement for a 10-foot-wide
concrete trail along Peak View Drive, which the applicant has requested be
waived.
19
20
2/5/2024
11
Planning Commission Findings (cont.)
6. EPDC Section 4.3.D.3.a applies: provisions shall be made for pedestrian
amenities and linkages in the residential zoning districts including but not
limited to sidewalks, pathways, and bikeways
7. EPDC Section 4.3.D.3.c states: Sidewalks shall be provided as set forth in
Section 10.5.D – Sidewalks, Pedestrian Connections, and Trails.
8. EPDC Section 10.5.D.1 states: To the maximum extent feasible, all
subdivisions shall provide pedestrian linkages, including trails, to parks,
schools, adjacent developments and existing and proposed hike and bike
trails as depicted in the Estes Valley Long Range Hike and Bike Trails Plan.
9. EPDC Section 10.5.D.2 states: sidewalks shall be required as follows:
Sidewalks shall be required on one (1) side of any public or private street in
all zoning districts, except in the RE Zoning District.
10. EPDC Appendix D.III.B.5 states: to the maximum extent feasible the number
of new curb cuts shall be minimized by consolidation, shared driveways, or
other means.
Advantages & Disadvantages
Advantages:
This proposal is consistent with the standards of the EPDC,
specifically: Section 3.9 “Subdivisions” and Chapter 10
“Subdivision Standards”, with the exception of the trail
requirement outlined above. Approval of the Coyote Run
Subdivision Preliminary Plat would allow the applicant to
move forward with a final subdivision plat application and
towards development of a four-lot residential subdivision.
This would result in an increase in housing stock for the
Estes Valley.
Disadvantages:
None known.
21
22
2/5/2024
12
Action Recommended
At their December 19, 2023 meeting, Planning Commission
forwarded to the Town Board a recommendation of approval of
the Coyote Run Preliminary Subdivision Plat according to the
findings of fact and subject to the following conditions of
approval:
a) The applicant shall provide a ten-foot-wide concrete trail for
the length of the Peak View Drive frontage on lots one and
four.
b) Any outstanding staff and referral agency comments shall be
addressed on the final subdivision plat.
Sample Motion
1. I move to forward that the Town Board of Trustees approve Resolution No. 03-24
2. I move that the Town Board of Trustees deny the application, finding that [state
findings for denial].
3. I move to continue Resolution No. 03-24 to the next regularly scheduled meeting,
finding that [state reasons for continuance].
23
24
1
PROCEDURE FOR LAND USE PUBLIC HEARING
Applicable items include: Annexation, Amended Plats, Boundary Line Adjustments, Development
Plans, Rezoning, Special Review, Subdivision
1.MAYOR.
The next order of business will be the public hearing on PLANNING COMMISSION
ACTION ITEM 2.B. RESOLUTION 04-24 RAVEN SUBDIVISION PRELIMINARY
PLAT, HABITAT FOR HUMANITY OF THE ST. VRAIN VALLEY, INC.,
OWNER/APPLICANT.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, from the
Applicant, public comment, and written comments received on the
application.
Has any Trustee had any ex-parte communications concerning this
application(s) which are not part of the Board packet.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2.STAFF REPORT.
Review the staff report.
Review any conditions for approval not in the staff report.
3.APPLICANT.
The applicant makes their presentation.
4.PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
application. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
5.REBUTTAL.
The applicant will be allowed a rebuttal that is limited to or in response to
statements or questions made after their presentation. No new matters may
be submitted.
Page 79
2
6.MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the application which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the
application.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
7.SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
8.DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9.VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
Page 80
COMMUNITY DEVELOPMENT Memo
To: Honorable Mayor Koenig
Board of Trustees
Through: Town Administrator Machalek
From: Paul Hornbeck, Senior Planner
Date: Jamuary 23, 2024
RE: Resolution 04-24, Raven Subdivision Preliminary Plat, Habitat for
Humanity of the St. Vrain Valley, Inc., Owner/Applicant
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Conduct a public hearing to consider an application for a proposed subdivision
preliminary plat to create five (5) lots in an R-1 (Single-Family Residential) Zoning
District, review the application for compliance with the Estes Park Development Code
(EPDC), and approve, deny, or continue the item.
Present Situation:
The subject property is 0.82 acres in size, described as Lot 2A, Ward Minor Subdivision,
and is undeveloped. The Minor Subdivision was completed in January 2021 in
anticipation of further subdividing the property, enabling Habitat for Humanity to develop
single-family residences on five proposed lots. The property was previously zoned RM
(Multi-Family Residential). The rezoning application, known as Raven Subdivision
Rezoning, was submitted for concurrent review and proposed rezoning the parcel from
RM (Multi-Family Residential) to R-1 (Single-Family Residential), which has a minimum
lot area requirement of 5,000 square feet. The Town of Estes Park Board of Trustees
voted to approve Ordinance 09-23 for the Raven Subdivision Zoning Map Amendment
at the regular public hearing held on November 14, 2023 (Attachment 9).
Location and Context:
The subject property is located approximately 300 feet east of the corner of the
intersection of Lone Pine Drive and Raven Avenue. It is situated approximately 500 feet
north of Big Thompson Avenue (Highway 34) near an area with a mixture of density and
uses, including residential, accommodations, and commercial. The adjacent residential
Page 81
properties exhibit a range of density, including RM (Multi-Family) to the north and
directly west of the subject property. The properties to the east of the subject property
are lower density and zoned E (Estate). These lots are approximately 0.47 acres. The
Rocky Mountain Hotel and Conference Center sits just south of the subject property and
is zoned A (Accommodations).
Zoning
Table 1: Zoning and Land Use Summary
Comprehensive Plan Zone Uses
Subject
Site
Mixed Residential
Neighborhood
R-1 (Single-Family
Residential)Residential
North Mixed Residential
Neighborhood
RM (Multi-Family
Residential) Residential
South Mixed-Use
Centers & Corridors A (Accommodations) Accommodations,
Motel
East Suburban Estate E (Estate) Residential
West Mixed Residential
Neighborhood
RM (Multi-Family
Residential)
Residential,
Condominiums
Page 82
Vicinity Map
Proposal:
The Applicant is seeking approval of the Raven Subdivision Preliminary Plat application
to develop the five (5) proposed lots with single-family residences in the R-1 zone.
Habitat for Humanity will construct the dwellings and sell the homes to individual,
qualified buyers. §4.3.D.4 of the Estes Park Development Code (EPDC) states that “All
developments in the R-1 District shall be subject to the attainable housing limitations for
rental and owner occupancy set forth in §11.4.C.” A Deed Restriction or Restrictive
Covenant and Agreement is required per §11.4.E.4 (Attachment 11) and will be
recorded with the subsequent Raven Subdivision final plat.
Open Space is required per §4.3.D.1 of the EPDC at a minimum of 15% of the total
subdivision. The applicant proposes a deed restriction for the open space on Lot 5, with
the other owners retaining perpetual rights to the use of the open space (Attachment
12) This will be finalized and recorded with the subsequent Raven Subdivision final plat.
The open space is approximately 6,288 square feet and is 17.5% of the total
subdivision. The open space will be used for passive recreation and accessed from the
proposed sidewalk along Raven Avenue.
Page 83
Project Analysis
Review Criteria
Per the EPDC, Chapter 3 Review Procedures and Standards, Section 3.9.C.1.,
General, "Subdivisions are approved in two stages: first, a preliminary subdivision plat is
approved, and second, a final subdivision plat is approved and recorded."
Section 3.2 requires a Planning Commission review and recommendation of the
preliminary plat, with the Town Board's final action (approval or denial) as the decision-
making body. The final plat goes only to the Town Board.
Depending upon the project's complexity, this section may be a brief summary of the
standards of review or may involve a more detailed analysis of the criteria based on issues
relevant to any particular project.
1.Lots. The proposed Raven Subdivision is a resubdivision of Lot 2A of Ward Minor
Subdivision, approved and recorded in early 2021. The proposed subdivision
includes four (4) lots approximated 5,975 square feet in size with Lot Five (5)
approximately 11,950 square feet. All lots meet applicable minimum zoning
standards for the R-1 (Single-Family Residential) Zoning District.
2.Comprehensive Plan. The subject property is designated as a Mixed Residential
Neighborhood in the Estes Forward Comprehensive Plan's Future Land Use Map.
This category "accommodates high density mixed residential development that
facilitates the coexistence of townhomes, condos and multi-family complexes."
There is a variety of existing development in this area of Estes Park and a variety
of Future Land Use categories surrounding the subject property. Nearby uses
include Accommodations, multi-family and single-family residential, commercial
and service uses. The proposed subdivision is consistent with the surrounding
area and with the recommendations of the Estes Forward Comprehensive Plan.
3.Grading and Site Disturbance. Limits of Disturbance. The EPDC Section
10.5.B.2 requires that limits of disturbance (LOD) be established with the
subdivision of land. With platted easements, setback requirements, an existing 20-
foot Drainage and Utility Easement and another proposed Drainage Easement, the
building area of each of the five lots is limited to a specific location. This establishes
limits of disturbance for the subdivision. The Applicant’s consultant provided a
response letter to summarize the LOD (Attachment 7).
4.Open Space Area. The EPDC Section 4.3.D. requires residential subdivisions
containing five or more lots to set aside a percentage of the gross land area for
open areas. The proposed subdivision has 17.5% set aside for open space, which
exceeds the minimum requirements.
5.Geologic and Wildfire Hazard Areas. There are no Geologic or Wildlife Hazard
areas within this subdivision area.
Page 84
6.Water. The Town of Estes Park will provide water service to the five proposed lots.
Town Utilities/Water has stated they can provide water with service lines using
existing mains in this area and has "no objection" to the preliminary plat application.
7.Fire Protection. The Estes Valley Fire Protection District has reviewed this
proposal and has provided comments. Specific requirements apply to building
permit applications.
8.Electric. There is an overhead electric line across the subject area. There was
some question about whether the proposed residential structures would have the
7.5-foot minimum required separation from this line. The Applicant has determined
this distance can be met. This will be verified through the building permit review
process and prior to the issuance of any Certificate of Occupancy. Power &
Communications does not have any other issues or concerns.
9.Sanitary Sewer. Sewer service is provided by the Upper Thompson Sanitation
District (UTSD). Revisions to easements were made on the preliminary plat as
requested by UTSD, and with those revisions, UTSD has "no new comments."
10. Stormwater Drainage. A Utility, Grading and Drainage plan was submitted by the
Applicant and revised as requested by Public Works (Attachment 4). An onsite
detention pond with drainage easement is proposed to capture stormwater flows
from the project. The Applicant’s consultant provided a response letter to provide
more information on detention pond maintenance (Attachment 7). Public Works
notes a Final Drainage Report will be required with construction plans which will
be finalized and approved prior to the recordation of the final plat.
11. Vegetation Protection. Subdivision design shall retain existing vegetation where
feasible, especially trees that provide natural screening and slope stability. Existing
willows are shown on the preliminary plat (Attachment 3) and will be protected in
areas that do not fall within the Limits of Disturbance (LOD). Disturbed willows will
be transplanted and additional wetland-type plants will be added. Disturbed areas
will also be reseeded with native grasses (Attachment 5).
12. Streets and Access. The two western lots, Lots 1 and 2, will have access by a
single point from Raven Avenue, with Lots 3, 4 and 5 having individual access
directly from Raven Avenue. An Access and Driveway Easement Agreement has
been submitted for the common drive for Lots 1 and 2. This will be finalized and
recorded with the final plat. A five (5) foot concrete sidewalk is proposed and will
follow the existing curb and gutter with a 2% cross-slope.
13. Public Right-Of-Way. There is no dedication of public right-of-way associated with
this subdivision plat.
Reviewing Agency Comments:
Page 85
The preliminary plat application was referred out for agency comments. Agency
comments were received by Staff, which have been addressed with the revised plat
submittal (Attachment 3). There are no outstanding issues.
Public Comments:
A neighborhood and community meeting regarding the project was held on August 7,
2023, at the Presbyterian Community Church. There were seven attendees. The
Applicant discussed the rezone and subdivision projects and answered questions
regarding the zoning, timeframe for the project, property valuation, and landscaping of
the proposed development. Staff has meeting notes and a sign-in sheet on file
(Attachment 7).
In accordance with the notice requirements in the EPDC, notice of the Town Board
meeting was published in the Estes Park Trail-Gazette, on January 5, 2024. Notification
was mailed to all required adjacent property owners January 8, 2024.
Staff has received no public comments at this writing.
Any comments submitted will be posted to: www.estes.org/currentapplications.
Findings:
At their November 21, 2023 meeting, Planning Commission adopted the following
findings:
1.The Estes Park Planning Commission is the Recommending Body for the Raven
Subdivision Preliminary Plat.
2.The Town of Estes Park Board of Trustees is the Decision-Making Body for the
Raven Subdivision Preliminary Plat.
3.Adequate public/private facilities are currently available to serve the subject
property.
4.This request has been submitted to all applicable reviewing agency staff for
consideration and comment.
5. The Raven Subdivision Preliminary Plat application complies with applicable
standards set forth in the EPDC.
Advantages:
This proposal is consistent with the standards of the EPDC, specifically: Section 3.9
“Subdivisions” and Chapter 10 “Subdivision Standards.” Approval of the Raven
Subdivision Preliminary Plat would allow the Applicant to move forward with
development of the 0.82-acre property into five (5) single-family lots, resulting in an
increase in housing stock for the Estes Valley.
Page 86
Disadvantages:
None known.
Action Recommended:
At their November 21, 2023 meeting, Planning Commission forwarded to the Town
Board a recommendation of approval of the preliminary plat according the findings of
fact and subject to the following condition:
a.The stormwater exhibit [Conceptual Landscape Plan] presented during
this hearing be included into the stormwater plan (Attachment 5).
Finance/Resource Impact:
Little or none.
Level of Public Interest
Low.
Sample Motion:
I move that the Town Board of Trustees approve Resolution 04-24.
I move that the Town Board of Trustees deny Resolution 04-24, finding that [state
findings for denial].
I move to continue Resolution 04-24 to the next regularly scheduled meeting, finding
that [state reasons for continuance].
Attachments:
1.Resolution 04-24
2.Application
3.Statement of Intent
4.Preliminary Plat
5.Preliminary Grading Plan
6.Conceptual Landscape Plan
7.Neighborhood and Community Meeting Notes
8.Van Horn Engineering Response Letter
9.Ordinance 09-23, Raven Subdivision Zoning Map Amendment
10.EPPC 11/21/2023 Draft Minutes
11.Deed Restriction
12. Covenants Regarding Drainage & Open Space
LINK TO ATTACHMENTS 2-12
Page 87
RESOLUTION 04-24
A RESOLUTION APPROVING THE RAVEN SUBDIVISION PRELIMINARY PLAT
WHEREAS, an application for the Raven Subdivision Preliminary Plat was filed
by Habitat for Humanity of the St. Vrain Valley, Inc. (Owner/Applicant), Raven Avenue
(address TBD); and
WHEREAS, the subject 0.82-acre property is zoned R-1 (Single-Family
Residential); and
WHEREAS, the Raven Subdivision Preliminary Plat proposes a subdivision to
create five (5) lots in the R-1 (Single-Family Residential) Zoning District; and
WHEREAS, a public meeting was held before the Estes Park Panning Commission
on November 21, 2023, at the conclusion of which the Planning Commission voted to
recommend approval of the Preliminary Subdivision Plat with the following findings:
1.The Estes Park Planning Commission is the Recommending Body for the Raven
Subdivision Preliminary Plat.
2.The Town of Estes Park Board of Trustees is the Decision-Making Body for the
Raven Subdivision Preliminary Plat.
3. Adequate public/private facilities are currently available to serve the subject
property.
4.This request has been submitted to all applicable reviewing agency staff for
consideration and comment.
5.The Raven Subdivision Preliminary Plat application complies with applicable
standards set forth in the EPDC; and
WHEREAS, the Planning Commission included the following recommended
condition:
1.The stormwater exhibit [Conceptual Landscape Plan] presented during the hearing
be included into the stormwater plan; and
WHEREAS, a public hearing, preceded by proper public notice, was held by the
Board of Trustees on January 23, 2024 and at said hearing all those who desired to be
heard were heard and their testimony recorded; and
WHEREAS, the Board of Trustees finds the application has complied with the
applicable requirements of the Estes Park Development Code.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Raven Subdivision Preliminary Plat is hereby approved.
DATED this day of , 2024.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
ATTACHMENT 1
Page 88
Revised 2020.04.23 ks
Condominium Map
Preliminary Map
Final Map
Pre-App
Development Plan
Special Review
Preliminary Subdivision Plat
Final Subdivision Plat
Minor Subdivision Plat
Amended Plat
Project Description
Lot Size Area of Disturbance in Acres
Proposed Land Use
Town Well None
Town Well None
Existing Sanitary Sewer Service EPSD UTSD Septic None
Proposed Sanitary Sewer Service EPSD UTSD Septic
Is a sewer lift station required?Yes No
Existing Gas Service Other None
Existing Zoning Proposed Zoning
Are there wetlands on the site?Yes No
Site staking must be completed at the time application is submitted. Complete?Yes No
Name of Primary Contact Person
Complete Mailing Address
Primary Contact Person is Owner Applicant Consultant/Engineer
Existing Land Use
Existing Water Service
Attachments
Proposed Water Service
Site Access (if not on public street)
Please review the Estes Park Development Code Appendix B for additional submittal requirements, which
may include ISO calculations, drainage report, traffic impact analysis, geologic hazard mitigation report,
wildfire hazard mitigation report, wetlands report, and/or other additional information.
Project Address
Parcel ID #
Legal Description
General Information
Boundary Line Adjustment
ROW or Easement Vacation
Street Name Change
Rezoning Petition
Annexation Request
Time Extension
Other: Please specify
Project Name
Supplemental Map
ESTES PARK PLANNING DEPARTMENT
APPLICATION
Type of Application
Submittal Date:
Site Information
Application fee
Statement of intent
2 copies (folded) of plat or plan
11" X 17" reduced copy of plat or plan
Xcel
Primary Contact Information
Community Development Department Phone: (970) 577-3721 Fax: (970) 586-0249 www.estes.org/CommunityDevelopment
Town of Estes Park P.O. Box 1200 170 MacGregor Avenue Estes Park, CO 80517
Other (specify)
Other (specify)
Digital Copies of plats/plans in TIFF or PDF format emailed to
planning@estes.org
PLEASE CHECK ONLY ONE BOX
Sign Purchase ($10)
ATTACHMENT 2
Page 1 of 3
STATEMENT OF INTENT for the RAVEN PRELIMINARY SUBDIVISION
PLAT and REZONING of LOT 2A of the WARD MINOR SUBDIVISION,
located in Section 20, Township 5 North, Range 72 West of the 6th P.M., Town of
Estes Park, Larimer County, Colorado
September 29, 2023
PROJECT LOCATION:
The proposed development is within the Town of Estes Park, in Section 20, Township 5 North, Range
72 West of the 6th P.M. The property is located adjacent to and south of Raven Avenue which is
north of US 34 and east of Lone Pine Drive. The property addresses will be off of Raven Avenue and
there are no new named roads associated with this subdivision.
OWNER:
The owners of this land and the applicant is Habitat for Humanity with a contact of David Emerson.
Habitat will own the property until their new owner qualification and application process is finalized,
at which time, each lot will be deeded to new owners.
PROJECT DESCRIPTION:
This project is proposed as a 5 lot subdivision. The detention pond will be included with the eastmost
lot and will be covenant controlled for maintenance. Each of the four western lots are 5,975 s.f. in size
and the eastmost lot contains 11,950 s.f. Density is calculated at 5/0.82 or 6.1 units per acre which
meets the allowed R-1 zoning density. While the intent of this subdivision is to generally supply local
workforce housing, no density bonus is requested or applied for. This property is within the
annexation limits of the Town currently. There is a dedicated road (Raven Avenue) for the lot
frontage. No new right of way dedication is proposed or needed. Utility Easements are proposed to be
dedicated for the proposed utility needs associated with the buildout of this plan (see preliminary plan).
This project proposes to rezone the current property from residential (RM) zoning to residential (R-1)
zoning which will allow building of single family homes on proposed lots 1-5.
As lots are built out under Habitat for Humanity processes, 5 lots with a house each will be sold
individually and used as single family housing for owners and/or residents in the Estes Valley. This
development is intended for local working families, and not vacation rentals. An HOA with
covenants will be formed for the proposed use and care of the common spaces and improvements.
ACCESS:
Currently the 0.82 acre single lot (2A) is vacant and has no internal roads or driveways. A single
access point will serve the two western lots. The remaining three eastern lots will access directly
from Raven Avenue. The purpose of the shared driveway on the west is to provide better sight
distance given the crest vertical curve that exists on Raven Avenue. This project will easily provide
access for emergency purposes by having individual or shared driveways close to (or on) Raven
Avenue. Given the small size of the development, no traffic study was required.
OPEN SPACE:
Open space is provided by the area on the east side of Lot 5 that contains an existing drainage and
utility easement and a proposed drainage easement. The total square footage of this area is
approximately 6,287 sq-ft which is 17.5% of the existing Lot 2A. This open space area will be used
for passive recreation. The remaining area of Lot 5 to the west of the open space area is 5,660 sq-ft,
ATTACHMENT 3
Page 2 of 3
which meets the allowed R-1 zoning density. Furthermore, this project includes relatively dense
vegetation on the south and east sides. These vegetated areas have been reviewed and
determined to not be a wetland. Nonetheless, we are proposing minimal impact to the vegetated areas
on site. Two large deciduous tree clusters exist on site. The west of the two is directly under the
proposed home construction on Lot 5, so it will be removed. The east cluster of the two is directly over
the sewer line that exists and will also be removed in time.
UTILITIES (see individual utility notes below):
This property is currently adjacent to all the main utilities. The main lines will be tied into via service
lines and no main lines will be extended.
ELECTRIC: The existing overhead utility lines along the south right of way for Raven Avenue are
proposed to remain overhead.
WATER: A water main exists in Raven Avenue and one trench is proposed to connect 4 of the 5
service lines to. The fifth lot is proposed to connect to the fire hydrant stub on the south side of
Raven Avenue. Regarding fire protection, there is an existing hydrant on site (mentioned above).
SEWER: There is an existing sewer main downhill from the proposed homesites and all 5 new
houses are proposed to connect via 4” pvc separate service lines that exit the south side of each new
home. Each service line will be able to provide sewer service by gravity flow. There is also mention
of (but no formal locates as of yet) a sewer service line near the proposed service lines that serves
the building to the west. Said line will need to be located and maintained or relocated for that service
to continue.
GAS: Gas service has not been worked out at this preliminary stage, but is planned to be secured
from gas lines in the neighborhood.
PUBLIC FACILITIES: Curb and gutter exist along the south side of Raven Avenue and a new 5’
wide public sidewalk (concrete) is proposed to be added along the subdivision’s frontage. The grade
of the sidewalk will follow and be attached to the curb and gutter. The sidewalk will be within the
public right of way. For non-access areas, curb height will be returned to existing 6” height.
LANDSCAPING: This project requires landscape buffers along the north (non-arterial) road and the
district buffer along the south (accommodation zoned property). The requirements for buffering of
the streets and districts require significant landscaping that historically has overcrowded the trees so
the future landscape plan (with final plat submittal) will likely propose an alternative. It is planned to
utilize the required number of trees and shrubs, however distribute them throughout the property
including around the proposed houses. Locating trees around the houses provides screening as well
and will add to the visual appeal of the overall property.
STORMWATER: This property is not close to a river, yet has an outfall flow path that can be used for
the outfall from the detention pond that is proposed. The single detention pond is designed to capture
the developed difference in flow and release at 90% of the historic flow, which will minimize-lessen
stormwater impacts downstream. The pond is designed with an outlet structure with an orifice plate
restriction to mimic the 90% historic flow. The location of the release is such that less adverse
impacts will result downstream. There is a significant off-site pass through flow to the east that exists
as a grass lined swale along the southern line of the property. This off-site flow is detained upstream
in at least two detention ponds. No change to this off-site flow quantity is proposed and only
enhancement of the existing swale and repair of one adjacent culvert is proposed (see notes on
Page 3 of 3
drainage sheet). The pond is intentionally kept shallow for safety and the side slopes are proposed at
a 3:1 (H:V) ratio slope so that grasses will take hold, prevent erosion and look aesthetically pleasing.
The pond is also curved and shaped to blend into the natural environment better than a rectangular
pond would.
ARCHITECTURE: Attached to this preliminary proposal are elevations and floorplans for a ‘typical’
house to be built on this subdivision once it is approved.
SCHEDULE: The houses will not all be constructed at the same time, but a steady construction
process is planned as families apply and are matched up with Habitat for Humanity. The utility
service lines will all be installed at one time once approval is given for the subdivision. There is no
formal phasing plan to build the homes by.
Regarding “Standards for Review” for rezoning set forth in EPDC Section 3.3:
• The proposed rezoning and preliminary subdivision plat meet the three requirements laid
out in EPDC. Further, by rezoning from RM to R-1 it allows for the building of high-
density single-family homes. RM zoning allows for high-density development but forces
them to be multi-family attached townhomes or condos. The existing lot is currently
vacant and not a steeply sloped lot, so it is an ideal candidate to be developed and add to
the growth of Estes Park consistent with the policies and intent of the Comprehensive
Plan. There are adequate services, utilities and facilities in this area as well.
OTHER:
• This property was granted a Variance in January of 2023 by the Estes Valley Board of
Adjustment to allow 50’ wide lots (where 60’ is the Code minimum).
• A Neighborhood meeting was held in early August of 2023 for this subdivision. Minutes
of said meeting are attached with this application.
• All setbacks for the R-1 zone are met with the proposed construction within this proposed
subdivision (as shown on the attached mapping).
• A wetland study was completed by Van Horn Engineering (in 2009) and that determined that
there are no wetlands present on the property. Dense vegetation exists in the south east of the
property due to the concentration of storm drainage across this section of the property.
• The property does not lie within a Mapped Estes Valley hazard area
ATTACHMENT 4
ATTACHMENT 5
ATTACHMENT 6
MEETING NOTES
Meeting: Habitat for Humanity Raven Avenue Project
Date/Time: Thursday, August 7, 2023 at 5:00 PM
Location: Fellowship Hall, Presbyterian Community Church – 1700 Brodie Avenue
Note Taker: Daniel Barrett, Van Horn Engineering
Project Overview John Lovell, Director of Development for Habitat for Humanity of the St. Vrain Valley presented.
John introduced professionals assisting with project.
Lonnie Sheldon, Van Horn Engineering
Daniel Barrett, Van Horn Engineering
Lonnie Sheldon, Van Horn Engineering presented the following
•Site Plan – show housing footprints, 5 single family homes, each house has a 1-car garage, homes would
be two stories and have 3 or 4-bedrooms, two western most homes would utilize a shared driveway
•Conceptual Architectural Plans –conceptual but gives you an idea of what this might look like.
•Notice of Application – neighbors will be noticed that application submitted. Sign will be posted to
let you know application has been submitted.
•Reason for rezoning – RM zoning is high density but there is a caveat in the Code that does not allow for
single family homes to be built on these proposed lots. Rezoning to R-1 would solve this problem and
allow Habitat to keep the plans exactly as they are. Lonnie explained that the Town is waiving the
rezoning fee to make this process easier for Habitat. The Town generally supports rezoning. Habitat loses
out on timing because Van Horn did not catch this caveat in the Code.
John Lovell, Habitat for Humanity presented the following
•Habitat for Humanity overview
o Summary of Habitat for Humanity’s vision/mission to provide permanently affordable housing.
o Homeownership model
o Affordable, USDA mortgages 1-3% interest, recycle to build more homes
o Those selected need to have a housing need, ability to repay, and income in the range of 40-80%
of the Area Median Income ($40,000 - $80,000/year income for a family of four)
o Families partner, take classes to prepare for home ownership
o Must be US Citizen or legal resident
o Long term benefits to homeowners in the program – 2021 study completed in Colorado
Greater sense of well-being
Improved health
Safer neighborhood
Increased savings
Improved educational outcomes for family members
o Goal is to make sure Habitat for Humanity homes blend in with other homes in the neighborhood
where they are located. Provided examples of homes built in Estes Park. Have homes in 30
different neighborhoods.
o Homes will become part of Estes Park’s permanently affordable housing stock.
ATTACHMENT 7
November 19, 2020
Page 2 | 2
• Project location –lot on Raven Avenue, across from Olympian Lane which will support 5 single family
homes
Public Comments & Questions
Question:– Has rezoning been approved?
Answer – No, not yet - this meeting is the first step in that process.
Question:– How will this affect property taxes?
Answer – John Lovell explained that property taxes tend to go up and houses appreciate at the same value as the
rest of the neighborhood.
Question:– Will the Town fix that zoning issue that makes it difficult to build high-density single family homes in
RM zoning?
Answer – Lonnie explained that former Planner Randy Hunt wanted to fix it but left before he could.
Question:– From property owner across the street: will the thistle that was pulled from the lot and piled up on site
be removed soon?
Answer – John Lovell explained that it was supposed to be removed and thanked the property owner for bringing
this to his attention. He expressed his intention to get it removed as soon as possible.
Question:– What is the timeline to build?
Answer – That depends on Town support and volunteers. Habitat hopes to build at least 1 house per year. With
more community volunteers, they can build faster. Lonnie explained the utility work needed to get started with one
road cut being necessary. If this plan is approved, they can begin building foundations in the spring (2024).
Question:– Will it be landscaped and will wild, existing vegetation be replanted?
Answer – The Town has landscaping guidelines that will be followed. Lonnie explained that there will be more
public meetings moving forward and that can be discussed if the plan is approved. Lonnie explained reason for
shared access on the west side.
ATTACHMENT 8
ATTACHMENT 9
Town of Estes Park, Larimer County, Colorado, November 21, 2023
Minutes of a Regular meeting of the ESTES PARK PLANNING COMMISSION of the
Town of Estes Park, Larimer County, Colorado. Meeting held in said Town of Estes Park
on the 21 day of November 2023.
Commission: Chair Matt Comstock, Vice-Chair Matthew Heiser, Charles
Cooper, Chris Pawson, David Shirk
Attending: Vice-Chair Heiser, Commissioners Cooper, Pawson, Shirk,
Interim Community Development Director Jason Damweber,
Planner I Kara Washam, Recording Secretary Karin
Swanlund, Town Attorney Dan Kramer, Town Board Liaison
Barbara MacAlpine
Absent: Comstock
Vice Chair Heiser, acting as Chair, called the meeting to order at 1:30 p.m.
AGENDA APPROVAL
It was moved and seconded (Pawson/Cooper) to approve the agenda. The motion
passed 4-0.
PUBLIC COMMENT:
None
INTRODUCTIONS
CONSENT AGENDA APPROVAL
It was requested by Vice-Chair Heiser to fix the attendance record and change a word on
page four from prior to conflict. The minutes were changed to reflect this request.
It was moved and seconded (Shirk/Cooper) to approve the consent agenda. The
motion passed 4-0.
ACTION ITEMS
1. Preliminary Plat TBD Raven Avenue Planner Washam
Habitat for Humanity of the St. Vrain Valley, Inc., Owner/Applicant
This item was continued from the October 17, 2023 Planning Commission Meeting.
Habitat for Humanity plans to develop the five proposed lots with single-family
residences in the R-1 zone, a use-by-right.
Habitat for Humanity will construct the dwellings and sell the homes to individual,
qualified buyers. §4.3.D.4 of the Estes Park Development Code (EPDC) states, "All
developments in the R-1 District shall be subject to the attainable housing limitations for
rental and owner occupancy outlined in §11.4.C." A Deed Restriction or Restrictive
Covenant and Agreement is required per §11.4.E.4. This will be finalized and recorded
with the subsequent Raven Subdivision final plat.
Open space is required per §4.3.D.1 of the EPDC at a minimum of 15% of the total
subdivision. The Applicant proposes a conservation easement for the open space on Lot
5, with the Estes Park Housing Authority serving as the Grantee of the easement. This
will be finalized and recorded with the subsequent Raven Subdivision final plat. The open
space is approximately 6,288 square feet and is 17.5% of the total subdivision. The open
space will be used for passive recreation and accessed from the proposed sidewalk along
Raven Avenue. Staff recommended approval with the following condition: a conservation
easement agreement for the open space area on Lot 5 is reached between the Applicant
and the Town before the Raven Subdivision Preliminary Plat goes before the Town Board.
DISCUSSION:
ATTACHMENT 10
Planning Commission – November 21, 2023 – Page 2
Dave Emerson, Applicant, was available for questions.
Lonnie Sheldon, Van Horn Engineering, requested the wording be changed from a
conservation easement to a maintenance agreement/easement.
Cooper asked for confirmation that an easement meant the property would never be
developed. Town Attorney Kramer responded that this is an exception to the provision
that open space cannot be provided within someone's lot. To avoid an HOA, the
conservation easement was requested. This issue has not been fully resolved. The
conservation easement and stormwater easement are not mutually exclusive. Shirk
expressed unease with the stormwater easement location being within the conservation
easement. Kramer stated that the easement can be used for stormwater management.
Shirk had concerns with the willows and limits of disturbance and asked for more
information on preserving the willows and what type of detention pond would be used.
Sheldon explained that this is a porous landscape detention basin (aka Rain Garden),
taking the peak flow of the outfall and letting the pond release slowly.
Jennifer Waters, Town Civil Engineer, explained that Larimer County stormwater
standards serve as an appendix to the Mile High Flood District stormwater standards and
were updated this year. A Rain Garden is typically used for detention basins in this area
because it is a good fit and economically feasible.
It was moved and seconded (Shirk/Cooper) to forward a recommendation of
approval to the Town Board of Trustees of the Raven Subdivision Preliminary
Plat, according to findings and conditions of fact recommended by Staff with the
additional requirement that the stormwater exhibit presented during this hearing
be included into the stormwater plan. The motion passed 3-1, with Pawson
abstaining.
2. Amended Development Plan Max Storage Planner Washam
DJMC LLC, Owner/Applicant
This item was continued from the October 17, 2023 Planning Commission Meeting.
The Applicant has submitted an Amended Development Plan application and requests
consideration of a minor modification to the landscape plan of the approved
development plan. The approved development plan proposed planting eight (8) trees
along Acacia Drive. With the proximity of an existing sewer easement and insurance
requirements for trees to be a minimum of ten (10) feet from the structure, the Applicant
is unable to install trees in this location. The Applicant proposes shrubs in place of trees
in this location, at a ratio of three (3) shrubs to one (1) tree for a total of twenty-four (24)
additional shrubs along Acacia Drive.
DISCUSSION:
Jes Reetz, Cornerstone Engineering, was available to answer questions.
Kramer clarified that this is a Minor Modification of a Development Plan. Development
code 7.5.c.2 does not list too many review criteria as long as the landscape plan is
satisfactory.
Pawson and Heiser expressed their appreciation and thanks to the Applicant for their
work in redesigning this plan.
It was moved and seconded (Pawson/Cooper) to approve the MAX Storage
Amended Development Plan, according to findings recommended by Staff. The
motion passed 4-0.
Planning Commission – November 21, 2023 – Page 3
REPORTS:
Steve Careccia will arrive on January 8, 2024, as the new Community Development
Director.
There being no further business, Vice-Chair Heiser adjourned the meeting at 2:25 p.m.
_______________________________
Vice-Chair Heiser
Karin Swanlund, Recording Secretary
Habitat for Humanity Homes
Estes Park, Colorado
MASTER DEED RESTRICTION
Compliance with the provisions of this Agreement shall be
deemed to be a requirement of title.
Master Deed Restriction agreement contains limitations and requirements for
initial sale and resale of affordable homes offered by Habitat for Humanity of
the St. Vrain Valley
This Master Deed Restriction Agreement (the Agreement) is in effect ninety (90) years
from the date of this Agreement. Compliance with this Agreement is a condition of sale and a
requirement of title.
This Agreement applies to the real property commonly known as XYZ Street, Estes Park,
Colorado (the Property). The Property is a residential single-family unit and is entered into this xx
day of XXXX_________, 202_, between Habitat for Humanity of the St. Vrain Valley, Grantor
and XXX homeowner as Grantee.
RECITALS
WHEREAS, the Habitat for Humanity of the St. Vrain Valley have provided funds toward
the acquisition and development of the Property; and
WHEREAS, the intent of the Habitat for Humanity of the St. Vrain Valley in providing
these funds is to produce and preserve the affordability of the Property for persons of low and
moderate income; and
WHEREAS, the initial purchaser and subsequent purchasers will benefit from these funds
through limitations on the purchase price of the Property; and
WHEREAS, the availability of the Property for persons of low and moderate income will
be maintained by restricting the initial purchaser and subsequent purchasers to persons qualifying
based on the person’s income; and
WHEREAS, to preserve the affordability of the Property for subsequent purchasers, any
resale shall be subject to limitation on the maximum sale price of the Property; and
ATTACHMENT 11
2
WHEREAS, the Grantor desires to assign to the Estes Park Housing Authority, its
successor or designee, or any other any third party at Grantor’s election in the future, the right to
enforce compliance with this Master Deed Restriction pursuant to the terms of this Agreement.
In consideration of the benefits received by the parties, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions
The following terms shall have the following meanings herein:
A. “Affordability Period” means 90 years from the date of this Agreement.
B. “Agreement” means this Master Deed Restriction and all amendments.
C. “EPHA” means the Estes Park Housing Authority; provided that, should the
Estes Park Housing authority cease to exist or abandon its rights under this
Agreement, the Town of Estes Park, Colorado, a municipal corporation, shall
be assigned all rights of the Estes Park Housing Authority and may in turn
assign all such rights and responsibilities to a third party entity to act on the
Town’s behalf.
D. “Eligible Buyer” means a person who is eligible to buy the Property as more
fully set forth in Section 4 of this Agreement.
E. “First deed of trust” means a deed of trust or mortgage that is recorded senior
to any other deeds of trust or liens against the Property to secure a loan used to
purchase the Property made by an Institutional Lender.
F. “HUD” means the United States Department of Housing and Urban
Development.
G. “Area Median Income” means the Area Median Income (AMI) reported
annually for single persons and households of various sizes by the United States
Department of Housing and Urban Development, or by any successor United
States Government department, agency, or instrumentality, for Larimer County,
Colorado.
H. “Income” is defined as per Section 8 of the U.S. Housing Act of 1937 and shall
mean the anticipated total income for the next twelve-month period to be
received from all sources by each member of the household including spouse,
and children 18 years of age and older, excluding, however, temporary or non-
recurring income (including gifts), income from the employment of children
under age 18, payments for the care of foster children or foster adults, and
3
amounts received specifically for the reimbursement of medical expenses for a
member of the household.
I. “Institutional Lender” means any bank, savings and loan association, or any
other institutional lender, which is licensed to engage in the business of
providing purchase money mortgage financing for residential real property.
J. “Owner” means the Grantee and any subsequent buyer and/or transferee of the
Property resulting in buyer or transferee having status of being an owner on title
to the Property via public record recorded with the Larimer County Clerk and
Recorder’s Office. Owner does not include a person or entity having an interest
in the Property solely as the security for the performance of an obligation
including, but not limited to, a mortgagee or beneficiary under any deed of trust
or any other form of collateralized agreement.
K. “Primary Residence” means the residence, which the Owner occupies for a
minimum of ten (10) full months out of every calendar year.
L. “Property” means the single family home as more fully described in Section 2,
which is subject to the terms and conditions of this Agreement.
M. “Purchase Price” shall mean the total amount of consideration paid for the
property by the Grantee.
N. “Original Appraised Value” shall mean the Appraised value of the property at
the time of sale. The value shall be reflective of the Property’s value if it were
not subject to a restricted sales price.
O. “Transfer” means any sale, assignment or transfer, voluntary, involuntary or by
operation of law (whether by deed, contract of sale, gift, devise, bequest,
trustee’s sale, deed in lieu of foreclosure, or otherwise) of any interest in the
Property.
2. Property Description
The Property subject to the terms and conditions of this Master Deed Restriction is
more specifically described as follows:
________________________________________________________
3. Agreement Binds the Property
This Agreement shall constitute covenants, conditions and restrictions, which run
with the Property as a burden thereon, for the benefit of, and enforceable by EPHA
and its respective successors and assigns and enforceable by any other third party
Grantor so chooses to manage and otherwise enforce this Agreement. This
4
Agreement shall bind each Owner and each Owner shall be personally obligated
hereunder for the full and complete performance and observance of all covenants,
conditions and restrictions contained herein, during the Owner’s period of
ownership of the Property. Each and every conveyance of the Property, for all
purposes, shall be deemed to include and incorporate by this reference, the
covenants, covenants and restrictions contained in this Agreement, even without
reference to this Agreement in any documents of conveyance.
Each Owner agrees to comply with the provisions of this Deed Restriction as a
requirement for title.
4. Eligible Buyers
Resale of the Property by the Owner can only be to an eligible buyer defined as
follows:
A. The buyer must be a natural person.
B. The buyer’s income shall not exceed 80% of HUD’s AMI adjusted by
household size, and no more than 40% of the buyer’s debt to income ratio
shall be used for housing costs adjusted by household size.
Eligible buyers, prior to executing a contract to purchase the Property, must have a
current and valid income certification from EPHA stating that the person is an
eligible buyer. Income certification will involve verification of income from all
available sources including but not limited to federal and state income tax records,
loan records and applications, and employer pay records. Falsification or
misrepresentation of information provided by the potential buyer to EPHA will
result in automatic termination of eligibility status. As part of the eligibility
process, the buyer will be required to provide to EPHA their most recent income
tax return, including all attached information supporting such return, and other
information as requested.
C. Property title transfer will only occur after the buyer/s has/have been
certified to meet the HUD income limit according to household size, and
have been pre-qualified by an Institutional Lender for financing to be used
to purchase the property. Asset limits of the buyer/s cannot exceed 20% of
the purchase price. Assets include all cash access such as stocks, savings
and checking accounts, as well as one vehicle per person is permitted, any
additional would be an asset. Retirement accounts are not included in the
asset calculation.
D. The following transfers are exceptions to the buyer eligibility requirement,
provided that the new Owner, other than an estate, shall use the Property as
his or her principal residence:
5
i. A transfer resulting from the death of an Owner where the
transfer is to the spouse who is also an Owner as defined above.
ii. A transfer to the Owner’s estate following his or her death for the
purpose of administering the estate and distributing the assets
thereof during a limited period of time. Any transfer from an
estate shall be to an eligible buyer.
iii. A transfer resulting from the death of an Owner when the transfer
is to one or more children of the deceased Owner. In this
circumstance, Owner shall provide conclusive documentation that
Owner is using the Property as their principal residence to EPHA
as requested by EPHA. Owner shall provide such documentation
within thirty (30) days of each and any such request, in the form
and manner and including any specific documents as requested by
EPHA.A transfer by an Owner where the spouse of the Owner
becomes the co-owner of the Property, with “co-owner” relating
to the term “Owner” as defined above.
iv. A transfer resulting from a decree of dissolution of the marriage
or legal separation or from a property settlement agreement
incidental to such a decree by which a spouse, who was already an
Owner (co-owner) of the Property prior to such transfer by way of
a joint tenancy or tenancy in common, becomes the sole Owner of
the Property.
F. The requirements set forth in Paragraph 4(B) above may be modified by a
modification agreement entered into among , Habitat for Humanity of the
St. Vrain Valley, and EPHA. In order for said modification to be effective,
said modification must be recorded in the records of the Clerk and Recorder
of Larimer County, Colorado. In no event shall any modification of this
Agreement allow a buyer’s income to exceed 115% of AMI adjusted by
household size.
G. Before the property may be transferred to any Owner, the transferee must
also execute an appreciation limiting promissory note (Exhibit A) secured
by a deed of trust (Exhibit B) in favor of EPHA. The form of these
documents will be provided by EPHA, and may be updated for new Owners
over time as EPHA deems necessary. The purpose of this note and deed of
trust is to ensure EPHA is notified in advance of any future transfer and has
the opportunity to ensure compliance with this Agreement.
5. Re-Sale: Maximum Sales Price
A. In no event shall the Property be sold to an eligible buyer for an amount in
excess of the Owner’s Purchase PriceP plus an amount equal to 25% of the
appreciation in market value of the Property from the date of purchase of the
Property by the Owner to the date of Owner’s execution of the sale contract to
an Eligible Buyer. Appreciation in market value shall be determined by a
6
market value appraisal from a qualified appraiser. EPHA shall maintain a list
of qualified appraisers. The Owner shall be responsible for obtaining said
appraisal, including all associated expense with such appraisal. The
appreciation in market value shall not include any value for any approved
improvements as set forth in Paragraph 5(C) below.
a. For purposes of this calculation, the Purchase Price has been established
as $xxx,xxx.xx
b. For purposes of this calculation, the Original Appraised Value, against
which any subsequent sale’s appraised unrestricted market value shall
be compared for purposes of calculating appreciation has been
established as $xxx,xxx.xx
B. The maximum sales price shall be increased by seller’s cost of sale, including,
but not limited to, a reasonable commission, customary closing costs and title
insurance premiums. Also, the maximum sales price shall be increased by the
reasonable cost of improvements as set forth in Paragraph 5(C) below.
C. Improvements shall only include those improvements made to the Property,
which prior to construction, have received the written approval of EPHA.
Following completion of approved improvement, the Owner and EPHA shall
execute a document that specifies the reasonable cost of the improvement.
D. NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A
REPRESENTATION OR GUARANTEE BY GRANTOR OR THE EPHA
THAT THE OWNER WILL BE ABLE TO OBTAIN THE MAXIMUM SALE
PRICE, AND THE GRANTOR AND EPHA HEREBY DISCLAIM ANY
SUCH REPRESENTATION OR WARRANTY THAT MIGHT OTHERWISE
BE ALLEGED OR ATTRIBUTED.
6. Complete Consideration Stated on Deed
The purchase price for any transfer of the Property shall be stated on the deed
transferring title and shall constitute sufficient consideration by the parties to this
Agreement for each of the terms and restrictive covenants, conditions and
restrictions set forth in this Agreement.
7. Attorney-in-Fact & Assignment of Grantor Rights to Manage and Otherwise
Enforce this Agreement
Both Grantor and EPHA have the right to enforce the covenants, conditions, and
restrictions and all other terms under this Agreement, and Grantor authorizes EPHA
to act as its attorney-in-fact by way of power of attorney. Grantor reserves the right
to assign its rights and role to a different and additional third party in the future,
and shall give Owner notice of such change. As attorney-in-fact, EPHA and any
additional third party designated attorney-in-fact, shall have the right to manage,
oversee and enforce all terms under this Agreement.
7
A. The Owner agrees that he or she will give immediate written notice to
EPHA upon the first to occur of: (i) the date any notice of foreclosure is
provided to the Owner or any foreclosure is commenced against the
Property under the first deed of trust, whether initiated by way of the Public
Trustee process or judicial foreclosure or (ii) the date when Owner becomes
60 days late in making a payment on the first deed of trust mortgage. EPHA
and Grantor shall have a power of attorney to act on behalf of the Grantee
for the purpose of verifying the mortgage account is in good standing.
8. Partial Subordination of Covenant
A. The provisions of this Agreement shall be subordinate only to the lien of a
first deed of trust to secure a loan to purchase the Property, created by an
Institutional Lender and recorded with the Larimer County Clerk and
Recorder’s Office. This Agreement shall not impair the rights of such
Institutional Lender, or such lender’s assignee or successor in interest, to
exercise its remedies under the first deed of trust in the event of default by
Owner; these remedies include the right to foreclose or exercise a power of
sale or to accept a deed or assignment in lieu of foreclosure.
B. After the issuance of a public trustee’s deed pursuant to a foreclosure of a
first deed of trust or a sale or acceptance of a deed in lieu of foreclosure by
the Institutional Lender, this Agreement shall be forever terminated and
shall have no further effect as to the Property or any transferee thereafter.
9. Re-Financing of the First Deed of Trust
The Owner may only re-finance the first deed of trust so long as the total amount
of such proposed re-financing loan, plus all other liens, does not exceed eighty
percent (80%) of the Maximum Sales Price (Paragraph 5 of this Agreement) in
effect at the time of the refinancing of the Property. Such refinancing must be with
an Institutional Lender and any loan obtained through the refinancing process must
remain a first deed of trust.
Estes Park Housing Authority
363 E Elkhorn Ave Ste 101
P.O. Box 1200
Estes Park, CO 80517
Attn: Executive Director
10. Maintenance of Property
The Owner shall maintain the Property in good, safe, and habitable condition in all
respects, except for normal wear and tear, and in full compliance with all applicable
laws, ordinances, rules and regulations of any governmental authority with
jurisdiction over matters concerning the condition of the Property. The Owner shall
8
prevent third parties such as contractors, subcontractors and/or suppliers from
recording mechanics’ liens against the Property, and further, if Owner receives
Notice of a Lien from any such contractor, subcontractor and/or supplier, Owner
must immediate furnish such Notice of Lien in writing to EPHA with assurances of
preventing the recordation of such Statement of Lien accompanying the Notice of
Lien to avoid any mechanics’ lien encumbering the Property. Owner agrees to fully
indemnify EPHA, and Grantor from any harm resulting from a recorded mechanics’
lien.
11. Use of Property as Owner’s Primary Residence
The Property Owner shall use the Property as his or her primary residence.
12. Rental Conditions
The Owner may not rent or lease the Property for any period of time except upon
approval of EPHA under conditions of hardship such as disability, illness, forced
relocation, death in family, deployment for military service or other hardship or
unusual circumstance. In such case, the maximum rental period shall be limited to
12 months. The only other allowed exception being if EPHA or other subsequent
designated attorney-in-fact has obtained the unit by default of the unit owner, then
EPHA or other subsequent designated attorney-in-fact may rent the unit while the
property is being marketed for sale or until transfer to a new eligible buyer.
13. Enforcement of This Agreement
The Grantee and each Owner grants and assigns EPHA and Grantor the right to
review and enforce compliance with this Agreement. If there is reasonable cause
to believe that a violation of this Agreement has occurred, EPHA will send a notice
to the Property Owner describing the nature of the violation and allow the Property
Owner fifteen (15) days from the date of such notice to fully cure the stated
violation.
If the violation is not cured within the 15-day period of EPHA’s notice, the Property
Owner shall be considered in violation of this Agreement.
Any legal action to enforce any term of this Agreement or concerning any dispute
related to this Agreement shall be commenced in Larimer County, Colorado.
Colorado law shall govern any dispute under this Agreement. The Owner shall pay
all court costs and reasonable attorneys’ fees incurred by EPHA, Grantor, and their
agents in the enforcement of any of the terms and conditions of this Agreement.
With regard to any violation of the terms and conditions of this Master Deed
Restriction, the following remedies shall not be available to nor pursued by EPHA
other subsequent designated attorney-in-fact.
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A. The violation of the terms and conditions of the Master Deed Restriction
shall not void any conveyance of the Property by the Owner.
B. The violation of the terms and conditions of the Master Deed Restriction
shall not terminate the Owner’s interest in the Property nor any secured
party’s interest in the Property.
C. The violation of the terms and conditions of the Master Deed Restriction
shall not accelerate any Promissory Note secured by a first deed of trust nor
shall be a default under the terms and conditions of any first deed of trust
on the Property.
D. A violation of the terms and conditions of the Master Deed Restriction shall
not increase any interest rate of any Promissory Note secured by a first deed
of trust on the Property.
Upon the violation of any of the terms and conditions of this Master Deed
Restriction by Owner, EPHA may seek specific performance and an injunction
against an ineligible Owner’s continued ownership of the Property, and recover all
sums due and any funds advanced by EPHA pursuant to default of Owner as more
fully set forth in Paragraph 8(B) of this Master Deed Restriction, all court costs and
reasonable attorneys’ fees incurred by EPHA in the enforcement of this Agreement,
and all sums received by Owner from any transfer that exceeds the maximum sales
price set forth in Paragraph 5 of this Master Deed Restriction. Furthermore, Owner
acknowledges that a violation of this Agreement shall also constitute a violation of
the Estes Park Municipal Code, including the requirement that the Property be used
as attainable housing, and is punishable as provided therein.
14. Right of First Refusal
Grantor, EPHA and any subsequently designated attorney-in-fact shall each have a
right of first refusal with respect to any transfer of the Property except those
transfers specified in Paragraph 4(D) of this Agreement. This right of first refusal
is as follows:
A. If the Owner receives from any third party a bona fide offer to purchase the
Property, Owner agrees to disclose the terms of such offer to Grantor and
EPHA in writing within five (5) days following receipt of the offer.
B. Grantor and EPHA shall have forty-five (45) days after receiving notice of
the terms of the offer within which to elect to purchase the Property on terms
identical to those offered by the third party. Such an election shall be made
by written notice to Owner. Within ten (10) days thereafter the parties shall
enter into a formal contract of sale in the form approved by the Colorado
Real Estate Commission and expressly including all terms of the original
bona fide offer, except as the parties may mutually agree.
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C. If EPHA or other attorney-in-fact fails to give the written notice of its
election to exercise its First Right of Refusal, the Owner may dispose of the
property to the third party under the same terms and conditions of the
original bona fide offer.
15. Miscellaneous
A. This Agreement shall run with the land. It shall bind the land for 90 years
from the date of this Agreement and the benefit hereof shall inure
perpetually to, the Owner, his or her heirs, legal representatives, executors,
successors in interest and assignees, and to EPHA or any subsequent
attorney-in-fact, and their successors, designees, or assignees.
B. The Property is held and hereafter shall be held, conveyed, hypothecated,
encumbered and occupied subject to the covenants, conditions, restrictions
and limitations of this Agreement.
C. All of the herein-stated covenants, conditions, restrictions and limitations
are intended to constitute covenants running with the land.
D. Any buyer or transferee of the Property or of any portion of or interest in
the Property, by acceptance of a deed therefore, or by the signing of a
contract or agreement to purchase the same, shall, by acceptance of such
deed or by the signing of such contract or agreement be deemed to have
consented to and accepted the covenants, conditions, restrictions and
limitations set forth herein.
E. Notices to EPHA shall be given in writing and delivered in person or
mailed, by certified or registered mail, return receipt requested, at the
address set forth below, or such other address designated by the EPHA by
like notice as:
Estes Park Housing Authority
363 E Elkhorn Ave Ste 101
P.O. Box 1200
Estes Park, CO 80517
Attn: Executive Director
F. If any provision of this Agreement shall be held by a court of proper
jurisdiction to be invalid, illegal or unenforceable, the remaining provisions
shall survive and their validity, legality or unenforceability shall not in any
way be affected or impaired thereby.
11
G. The conditions of this Covenant shall be interpreted so as to avoid
speculation on the Property and to insure to the greatest extent possible that
its purchase price and mortgage payments remain affordable throughout the
affordability period to persons and families of low income.
H. This Covenant is prior and superior to the Owner’s right of a homestead
exemption under Article XVIII, Section I of the Colorado Constitution and
under Part 2, Article 41, Title 38 of the Colorado Revised Statutes or any
successor statutes. The Owner waives his or her homestead rights to the
full extent that they conflict with or impair EPHA’s or other attorney-in-
fact’s rights and remedies under this Covenant.
I. If EPHA or Grantor has reasonable cause to believe that an Owner is
violating any provision of this Agreement, EPHA or Grantor, through its
authorized representative, may immediately inspect the Property between
the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after
providing the Owner with no less than 24 hours written notice.
J. This Agreement cannot be modified except in writing and only upon the
express written approval of EPHA or any subsequent attorney-in-fact.
K. The EPHA and the Town of Estes Park, Colorado, are intended third-party
beneficiaries of this Agreement and are entitled to enforce its terms.
16. Administrative Fee:
Upon any transfer or sale of the Property, the Owner (Seller) shall pay at closing to
EPHA a sum equal to 0.5% of the purchase price. Said sum is for the purpose of
reimbursing EPHA for the administrative costs of monitoring this Agreement and
matters related thereto. Remit payment and mail to:
Estes Park Housing Authority
363 E Elkhorn Ave Ste 101
P.O. Box 1200
Estes Park, CO 80517
Attn: Executive Director
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
stated above.
12
Habitat for Humanity of the St. Vrain
Valley, GRANTOR
___________________________________
By: Dave Emerson, Executive Director
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this __ day of _____, 20__ by the
Executive Director, Habitat for Humanity of the St. Vrain Valley, as Grantor.
Witness my hand and official seal.
My commission expires: __________________
____________________________
Notary Public
(seal)
GRANTEE
___________________________________
XXX Homeowner
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this __ day of ___, 202_ by
Witness my hand and official seal.
My commission expires: _____________________
____________________________
Notary Public
(seal)
Page 1 of 2
Exhibit A – Appreciation Limiting Promissory Note
APPRECIATION LIMITING PROMISSORY NOTE
, November 2023
FOR VALUE RECEIVED, the undersigned, HOMEOWNER, (herein after referred to as
"Maker"), promises to pay to ESTES PARK HOUSING AUTHORITY (herein after
"Holder"), 363 E Elkhorn, Suite 101, Estes Park, Colorado 80517, or at such other place as
Holder may from time to time direct, upon sale of the property an amount equal to the Gross
Proceeds in excess of the Maximum Resale Price, under the Master Deed Restriction, dated
______ and recorded ________ under Reception No. ________ of the records of the Clerk
and Recorder of Larimer County, Colorado (the “Affordable Housing Restrictive
Covenant”).
This is Note is secured by a second Deed of Trust of even date herewith on real property located
in the County of Larimer, State of Colorado, to wit:
LOT X , xxxx - County of Larimer, State of Colorado.
And generally known as: 123 Raven Avenue, Estes Park, CO 8XXXX
Until released, said Deed of Trust contains additional rights of Holder. Such rights may cause
acceleration of the indebtedness evidenced by this Note. Reference is made to said Deed of
Trust for such additional terms.
In the event of the occurrence of any event of default, as defined below, the entire principal
balance of this Note, shall, at the option of Holder and without notice, become immediately
due and payable. For purposes of this Note, an event of default shall consist of any of the
following:
(a) A voluntary or involuntary sale, assignment or transfer of any ownership interest in
the Property, or failure to occupy the Property, by the Homebuyer, without the written
consent of the Holder.
If the proposed sale or transfer is to a person or household meeting the income guidelines of
this Agreement, the Holder shall not unreasonably withhold its consent.
If, in the opinion of Holder, it becomes necessary to employ counsel to collect or enforce this Note,
to foreclose on the Deed of Trust securing this Note, or otherwise to protect the security for the same,
Maker agrees to pay Holder, in addition to the sums above stated, a reasonable sum for attorney's
THE MAKER’S INITIAL PURCHASE PRICE FOR THE RESIDENTIAL UNIT IS $_3xx,xxx.00_____. THE
ESTIMATED MARKET PRICE FOR THE UNIT AT THE TIME OF MAKER’S INITIAL PURCHASE IS
$__3xx,xxx.xx_________.
(Maker’s Initial(s):______________)
Page 2 of 2
Exhibit A – Appreciation Limiting Promissory Note
fees for such collection and costs of collection, enforcement or protection of such security.
Presentment, notice of dishonor, and protest are hereby waived by Maker. Maker
acknowledges that Holder may assign this Note at anytime, and such assignment shall not
affect Maker's rights, duties and obligations hereunder.
IN WITNESS WHEREOF, Maker has signed this Note the day, month and year first written
above.
HOMEOWNER: HOMEOWNER:
______________________ ___________________
HOMEOWNER HOMEOWNER
State of )
) ss:
County of )
The foregoing instrument was acknowledged before me this day of
, 2023 by .
(Name of person acknowledged, i.e. signing agreement)
Witness my hand and official Seal.
Notary Public
My Commission expires .
Exhibit B – Deed of Trust
Page 1 of 8
DEED OF TRUST
(Due on Transfer - Strict)
THIS DEED OF TRUST is made on ____________, 2023 between HOMEOWNER, (Borrower),
whose address is 123 Raven Avenue, Estes Park, CO 8xxxx and the Public Trustee of the County
(Trustee) in which the Property (see paragraph 1) is situated; for the benefit of Estes Park Housing
Authority (lender), whose address is xyz.
Borrower and Lender covenant and agree as follows:
1. Property In Trust. Borrower, in consideration of the indebtedness herein recited and the
trust herein created, hereby grants and conveys to Trustee In trust, with power of sale, the following
described property located In the County of Boulder, State of Colorado:
LOT x xxx
County of Larimer, State of Colorado
which has the address of xyz Raven Avenue, Estes Park, CO 8XXXX (Property Address),
together with.all its appurtenances (Property).
2. Note; Other Obligations Secured. This Deed of Trust is given to secure to Lender
Borrower’s obligations as set forth in the Appreciation Limiting Promissory Note of even date
herewith.
3. Title. Borrower covenants that Borrower owns and has the right to grant an convey the
Property, and warrants title to the same, subject to general real estate taxes for the current year,
easements of record or in existence, and recorded declarations, restrictions, reservations and
covenants, if any, as of this date and that certain deed of trust payable to Habitat for Humanity of the
St. Vrain Valley, Inc. (Senior Lien Holder) dated October ___, 2023 in the principal sum of $xxx,xxx.
4. Payment of Principal. Borrower shall promptly pay when due the principal of the
indebtedness evidenced by the Note, and late charges as provided in the Note and shall perform all
of Borrower’s other covenants contained in the Note.
5. Application of Payments. All payments received by Lender under the terms here of shall be
applied by Lender first in accordance with the terms and conditions of the Note.
6. Prior Mortgages and Deeds of Trust; Charges; Liens. Borrower shall perform all of
Borrower's obligations under any prior deed of trust and any other prior liens. Borrower shall pay
all taxes, assessments and other charges, fines and impositions attributable to the Property which
may have or attain a priority over this Deed of Trust, and leasehold payments or ground rents, if
any, in the manner set out in paragraph 23 (Escrow Funds for Taxes and Insurance) or, if not
required to be paid in such manner, by Borrower making payment when due, directly to the payee
thereof. Despite the forgoing, Borrower shall not be required to make payments otherwise required
Exhibit B – Deed of Trust
Page 2 of 8
by this paragraph if Borrower, after notice to Lender, shall in good faith contest such obligation by,
or defend enforcement of such obligation in, legal proceedings which operate to prevent the
enforcement of the obligation or forfeiture of the Property or any part thereof, only upon Borrower
in asking all such contested payments and other payments as ordered by the court to the registry of
the court in which such proceedings are filed.
7. Property Insurance. Borrower shall keep the improvements now existing or hereafter
erected on the Property insured against loss by fire or hazards included within the term
"extended coverage" in an amount at least equal to the lesser of (1) the insurable value of the
Property or (2) an amount sufficient to pay the sums secured by this Deed of Trust as well as
any prior encumbrances on the Property. All of the foregoing shall be known as "Property
Insurance".
The insurance carrier providing the insurance shall be qualified to write Property Insurance in
Colorado and shall be chosen by Borrower subject to Lender's right to reject the chosen carrier
for reasonable cause. All insurance policies and renewals thereof shall include a standard
mortgage clause in favor of Lender, and shall provide that the insurance carrier shall notify
Lender at least ten (10) days before cancellation, termination or any material change of
coverage. Insurance policies shall be furnished to Lender at or before closing. Lender shall have
the right to hold the policies and renewals thereof.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender.
Lender may make proof of loss if not made promptly by Borrower. Insurance proceeds shall
be applied to restoration or repair of the Property damaged, provided such restoration or repair
is economically feasible and the security of this Deed of Trust is not thereby impaired. If such
restoration or repair is not economically feasible or if the security of this Deed of Trust would be
impaired, the insurance proceeds shall be applied to the sums secured by this Deed of Trust, with
the excess, if any, paid to Borrower. If the Property is abandoned by Borrower, or if Borrower fails
to respond to Lender within 30 days from the date notice is given in accordance with paragraph 16
(Notice) by Lender to Borrower that the insurance carrier offers to settle a claim for insurance
benefits, Lender is authorized to collect and apply the insurance proceeds, at Lender's option, either
to restoration or repair of the Property or to the sums secured by this Deed of Trust.
Any such application of proceeds to principal shall not extend or postpone the due date of the
installments referred to in paragraph 4 (Payment of Principal) or change the amount of such
installments. Notwithstanding anything herein to the contrary, if under paragraph 18 (Acceleration;
Foreclosure; Other Remedies) the Property is acquired by Lender, all right, title and interest of Borrower
in and to any insurance policies and in and to the proceeds thereof resulting from damage to the
Property prior to the sale or acquisition shall pass to Lender to the extent of the sums secured by this
Deed of Trust immediately prior to such sale or acquisition.
All of the rights of Borrower and Lender hereunder with respect to insurance carriers, insurance
policies and insurance proceeds are subject to the rights of any holder of a prior deed of trust with
respect to said insurance carriers, policies and proceeds.
8. Preservation and Maintenance of Property. Borrower shall keep the Property in good repair
Exhibit B – Deed of Trust
Page 3 of 8
and shall not commit waste or permit impairment or deterioration of the Property and shall comply
with the provisions of any lease if this Deed of Trust is on a leasehold. Borrower shall perform all of
Borrower's obligations under any declarations, covenants, by-laws, rules, or other documents
governing the use, ownership or occupancy of the Property.
9. Protection of Lender's Security. Except when Borrower has exercised Borrower's rights under
paragraph 6 above, if the Borrower fails to perform the covenants and agreements contained in this
Deed of Trust, or if a default occurs in a prior lien, or if any action or proceeding is commenced
which materially affects Lender’s interest in the Property, then Lender, at Lender's option, with notice
to Borrower if required by law, may make such appearances, disburse such sums and take such action
as is necessary to protect Lenders interest, including, but not limited to:
A. any general or special taxes or ditch or water assessments levied or accruing against
the Property;
B. the premiums on any insurance necessary to protect any improvements comprising a
part of the Property;
C. sums due on any prior lien or encumbrance on the Property;
D. if the Property is a leasehold or is subject to a lease, all sums due under such lease;
E. the reasonable costs and expenses of defending, protecting ,and maintaining the
Property and Lender's interest in the Property, including repair and maintenance
costs and expenses, costs and expenses of protecting and securing the Property,
receiver's fees and expenses, inspection fees, appraisal fees, court costs, attorney fees
and costs, and fees and costs of an attorney in the employment of the Lender or holder
of the certificate of purchase;
F. all other costs and expenses allowable by the evidence of debt or this Deed of Trust;
G. such other costs and expenses which may be authorized by a court of competent
jurisdiction.
Borrower hereby assigns to Lender any right Borrower may have by reason of any prior
encumbrance on the Property or by law or otherwise to cure any default under said prior
encumbrance.
Any amounts disbursed by Lender pursuant to this paragraph 9, with interest thereon, shall become
additional indebtedness of Borrower secured by this Deed of Trust. Such amounts shall be payable
upon notice from Lender to borrower requesting payment thereof, and Lender may bring suit to
collect any amounts so disbursed Nothing contained in this paragraph 9 shall require Lender to incur
any expense or take any action hereunder.
10. Inspection. Lender may make or cause to be made reasonable entries upon and inspection of
the Property, provided that Lender shall give Borrower notice prior to any such inspection specifying
reasonable cause therefor related to Lender's interest in the Property.
11. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in
connection with any condemnation or other taking of the Property, or part thereof or for conveyance
in lieu of condemnation, are hereby assigned and shall be paid to Lender as herein provided.
However, all of the rights of Borrower and Lender hereunder with respect to such proceeds are
Exhibit B – Deed of Trust
Page 4 of 8
subject to the rights of any holder of a prior deed of trust.
In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this
Deed of Trust, with the excess, if any, paid to Borrower. In the event of a partial taking of the
Property, the proceeds remaining after taking out any part of the award due any prior lien holder
(net award) shall be divided between Lender and Borrower, in the same ratio as the amount of the
sums secured by this Deed of Trust immediately prior to the date of taking bears to Borrower's equity
in the Property immediately prior to the date of taking. Borrower's equity in the Property means the
fair market value of the Property less the amount of sums secured by both this Deed of Trust and all
prior liens (except taxes) that are to receive any of the award, all at the value immediately prior to the
date of taking.
If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemn
or offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within
30 days after the date such notice is given, Lender is authorized to collect and apply the proceeds, at
Lender's option, either to restoration or repair of the Property or to the sums secured by this Deed of
Trust.
Any such application of proceeds to principal shall not extend or postpone the due date of the
installments referred to in paragraphs 4 (Payment of Principal) and 23 (Escrow Funds for Taxes and
Insurance) nor change the amount of such installments.
12. Borrower Not Released. Extension of the time for payment or modification of amortization
of the sums secured by this Deed of Trust granted by Lender to any successor in interest of Borrower
shall not operate to release, in any manner, the liability of the original Borrower, nor Borrower's
successors in interest, from the original terms of this Deed of Trust. Lender shall not be required to
commence proceedings against such successor or refuse to extend time for payment or otherwise
modify amortization of the sums secured by this Deed of Trust by reason of any demand made by the
original Borrower nor Borrower's successors in interest.
13. Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right
or remedy hereunder, or otherwise afforded by law, shall not be a waiver or preclude the exercise of
any such right or remedy.
14. Remedies Cumulative. Each remedy provided in the Note and this Deed of Trust is distinct
from and cumulative to all other rights or remedies under the Note and this Deed of Trust or
afforded by law or equity, and may be exercised concurrently, independently or successively.
15. Successors and Assigns Bound; Joint and Several Liability; Captions. The covenants
and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective
successors and assigns of Lender and Borrower, subject to the provisions of Paragraph 24 (Transfer
of the Property; Assumption). All covenants and agreements of Borrower shall be joint and several.
The captions and headings of the paragraphs in this Deed of Trust are for convenience only and are
not to be used to interpret or define the provisions hereof.
16. Notice. Except for any notice required by law to be given in another manner, (a) any
Exhibit B – Deed of Trust
Page 5 of 8
notice to Borrower provided for in this Deed of Trust shall be in writing and shall be given and
be effective upon (1) delivery to Borrower or (2) mailing such notice by first-class U.S. mail,
addressed to Borrower at Borrower's address stated herein or at such other address as Borrower
may designate by notice to Lender as provided herein, and (b) any notice to Lender shall be in
writing and shall be given and be effective upon (1) delivery to Lender or (2) mailing such
notice by first-class U.S. mail, to Lender's address stated herein or to such other address as
Lender may designate by notice to Borrower as provided herein. Any notice provided for in
this Deed of Trust shall be deemed to have been given to Borrower or Lender when given in
any manner designated herein.
17. Governing Law; Severability. The Note and this Deed of Trust shall be governed by the
law of Colorado. In the event that any provision or clause of this Deed of Trust or the Note conflicts
with the law, such conflict shall not affect other provisions of this Deed of Trust or the Note which
can be given effect without the conflicting provision, and to this end the provisions of the Deed
of Trust and Note are declared to be severable.
18. Acceleration; Foreclosure; Other Remedies. Except as provided in paragraph 24
(Transfer of the Property; Assumption), upon Borrower's breach of any covenant or agreement
of Borrower in this Deed of Trust, or upon any default in a prior lien upon the Property, (unless
Borrower has exercised Borrower's rights under paragraph 6 above), at Lender's option, all of
the sums secured by this Deed of Trust shall be immediately due and payable (Acceleration).
To exercise this option, Lender may invoke the power of sale and any other remedies
permitted by law, Lender shall be entitled to collect all reasonable costs and expenses incurred
in pursuing the remedies provided in this Deed of Trust, including, but not limited to, reasonable
attorney's fees.
If Lender invokes the power of sale, Lender shall give written notice to Trustee of such
election. Trustee shall give such notice to Borrower of Borrower's rights as is provided by law,
Trustee shall record a copy of such notice as required by law. Trustee shall advertise the time
and place of the sale of the Property, for not less than four weeks in a newspaper of general
circulation in each county in which the Property is situated, and shall mail copies of such notice
of sale to Borrower and other persons as prescribed bylaw. After the lapse of such time as
maybe required by law, Trustee, without demand on Borrower, shall sell the Property at public
auction to the highest bidder for cash at the time and place (which may be on the Property or
any part thereof as permitted by law) in one or more parcels as Trustee may think best and in
such order as Trustee may determine. Lender or Lender's designee may purchase the Property
at any sale. It shall not be obligatory upon the purchaser at any such sale to see to the application
of the purchase money.
Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable costs
and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees
and costs of title evidence; (b) to all sums secured by this Deed of Trust; and (c) the excess, if
any, to the person or persons legally entitled thereto.
19. Borrower's Right to Cure Default. Whenever foreclosure is commenced for
nonpayment of any sums due hereunder, the owners of the Property or parties liable here on
Exhibit B – Deed of Trust
Page 6 of 8
shall be entitled to cure said defaults by paying all delinquent principal and interest payments
due as of the date of cure, costs, expenses, late charges, attorney's fees and other fees all in the
manner provided by law. Upon such payment, this Deed of Trust and the obligations secured
hereby shall remain in full force and effect as though no Acceleration had occurred, and the
foreclosure proceedings shall be discontinued.
20. Assignment of Rents; Appointment of Receiver; Lender in Possession. As additional
security hereunder, Borrower hereby assigns to Lender the rents of the Property; however,
Borrower shall, prior to Acceleration under paragraph 18 (Acceleration; Foreclosure; Other
Remedies) or abandonment of the Property, have the right to collect and retain such rents as
they become due and payable. Lender or the holder of the Trustee's certificate of purchase shall
be entitled to a receiver for the Property after Acceleration under paragraph 18 (Acceleration;
Foreclosure; Other Remedies), and shall also be so entitled during the time covered by
foreclosure proceedings and the period of redemption, if any; and shall be entitled thereto as a
matter of right without regard to the solvency or insolvency of Borrower or of the then owner
of the Property, and without regard to the value thereof. Such receiver may be appointed by
any Court of competent jurisdiction upon ex parte application and without notice being hereby
expressly waived.
Upon Acceleration under paragraph 18 (Acceleration; Foreclosure; Other Remedies) or
abandonment of the Property, Lender, in person, by agent or by judicially-appointed receiver,
shall be entitled to enter upon, take possession of and manage the Property and to collect the
rents of the Property including those past due. All rents collected by Lender or the receiver
shall be applied, first, to payment of the costs of preservation and management of the Property,
second, to payments due upon prior liens, and then to the sums secured by this Deed of Trust.
Lender and the receiver shall be liable to account only for those rents actually received.
21. Release. Upon payment of all sums secured by this Deed of Trust, Lender shall cause
Trustee to release this Deed of Trust and shall produce for Trustee the Note. Borrower shall
pay all costs of recordation and shall pay the statutory Trustee's fees. If Lender shall not
produce the Note as aforesaid, then Lender, upon notice in accordance with paragraph 16
(Notice) from Borrower to Lender, shall obtain, at Lender's expense, and file any lost
instrument bond required by Trustee or pay the cost thereof to effect the release of this Deed
of Trust.
22. Waiver of Exemptions. Borrower hereby waives all right of homestead and any other
exemption in the Property under state or federal law presently existing or hereafter enacted.
23. Transfer of the Property; Assumption. The following events shall be referred to herein as a
"Transfer": (i) a transfer or conveyance of title (or any portion thereof, legal or equitable) of the
Property (or any part thereof or interest therein), (ii) the execution of a contract or agreement creating
a right to title (or any portion thereof, legal or equitable) in the Property (or any part thereof or
interest therein), (iii) or an agreement granting a possessory right in the Property (or any portion
thereof), in excess of three (3) years, (iv) a sale or transfer of, or the execution of a contract or
agreement creating a right to acquire or receive, more than fifty percent (50%) of the controlling
interest or more than fifty percent (50%) of the beneficial interest in the Borrower, (v) the
Exhibit B – Deed of Trust
Page 7 of 8
reorganization, liquidation or dissolution of the Borrower.
Not to be included as a Transfer are (i) the creation of a lien or encumbrance subordinate to this Deed
of Trust, (ii) the creation of a purchase money security interest for household appliances, or (iii) a
transfer by devise, descent or by operation of the law upon the death of a joint tenant. At the election
of Lender, in the event of each and every transfer:
A. All sums secured by this Deed of Trust shall become immediately due and payable
(Acceleration).
B. If a Transfer occurs and should Lender not exercise Lender's option pursuant to this paragraph
24 to Accelerate, Transferee shall be deemed to have assumed all of the obligations of
Borrower under this Deed of Trust including all sums secured hereby whether or not the
instrument evidencing such conveyance, contract or grant expressly so provides. This
covenant shall run with the Property and remain in full force and effect until said sums are
paid in full. The Lender may without notice to the Borrower deal with Transferee in the same
manner as with the Borrower with reference to said sums including the payment or credit to
Transferee of undisbursed reserve Funds on payment in full of said sums, without in anyway
altering or discharging the Borrower's liability hereunder for the obligations hereby secured.
C. Should Lender not elect to Accelerate upon the occurrence of such Transfer then, subject to
(b) above, the mere fact of a lapse of time or the acceptance of payment subsequent to any of
such events, whether or not Lender had actual or constructive notice of such Transfer, shall
not be deemed a waiver of Lender's right to make such election nor shall Lender be estopped
therefrom by virtue thereof. The issuance on behalf of the Lender of a routine statement
showing the status of the loan, whether or not Lender had actual or constructive notice of such
Transfer, shall not be a waiver or estoppel of Lender's said rights.
24. Borrower's Copy. Borrower acknowledges receipt of copy of the Note and this Deed of Trust.
Exhibit B – Deed of Trust
Page 8 of 8
HOMEBUYER: HOMEBUYER:
______________________ ___________________
Name Name
State of )
) ss:
County of )
The foregoing instrument was acknowledged before me this day of
, 2024 by .
(Name of person acknowledged, i.e. signing agreement)
Witness my hand and official Seal.
Notary Public
My Commission expires .
DECLARATION OF COVENANTS REGARDING DRAINAGE,
AND PRIVATE OPEN SPACE
This Declaration of Covenants Regarding Drainage and Private Open Space (the
Covenants) is made this __ day of _______, 2024 by Habitat for Humanity of the St Vrain
Valley (Declarant).
Declarant recites the following facts as the basis of the Covenants:
1. Declarant is the owner of Lot 2A Minor Subdivision of Lot 1, North Lake
Subdivision, Town of Estes Park, Larimer County, Colorado (Lot 2A).
2. Contemporaneously herewith, Declarant is recording a final plat (the Final Plat) for
the Raven Subdivision on Lot 2A (the Raven Subdivision) that will establish 5 lots in
the Raven Subdivision (Lots 1-5, Lot ___, or a ‘Lot’ as applicable).
3. The Raven Subdivision and Lots 1-5 are subject to an Easement Grant recorded
November 14, 1996 at Reception No. 96081762 in the Larimer Count Records (the
Drainage Easement) which creates a drainage easement 20’ wide on the rear or
southwest side of Lots 1-5 and then traverses Lot 5 in a northwesterly direction to
drainage facilities on the south side of Raven Avenue as shown on the Final Plat. The
Drainage Easement generally encompasses a drainage ditch (the Drainage Ditch).
4.The Final Plat establishes an area on Lot 5 dedicated for drainage, detention and
private open space (the Lot 5 Drainage and Open Space Dedication). The Lot 5
Drainage and Open Space Dedication generally includes the area of the Drainage
Easement and all of Lot 5 to the east of the Drainage Easement.
5. The purpose of the Lot 5 Drainage and Open Space Dedication is to (i) transmit
drainage per the Drainage Easement (ii) to establish a detention area and related
drainage and detention landscaping and facilities and (iii) to establish a private open
space area for the benefit of Lots 1-5, all owners of the Raven Subdivision and guests
and invitees thereof.
6.Declarant wishes to establish covenants and agreements regarding the Lot 5 Drainage
and Open Space Dedication. The Lot 5 Drainage and Open Space Dedication area is
more specifically defined by the legal description attached hereto as Exhibit A.
ATTACHMENT 12
COVENANTS
1. Binding Effect. The Covenants run with the land, bind and benefit Lot 2A, the Raven
Subdivision and Lots 1-5, the respective owners of Lots 1-5 and their respective heirs,
successors and assigns, including guests and invitees.
2. Maintenance of the Drainage Ditch. Each Owner of a Lot shall maintain the Drainage
Ditch and the area of the Drainage Easement on such Owner’s Lot in a clean, neat and
functional condition and shall insure that the Drainage Ditch at all times can reasonably
convey drainage through and across such Owner(s) lot. This obligation includes, but is
not limited to:
a. Reasonably maintaining vegetation and landscaping in the Drainage Ditch,
including replacement of dead vegetation with similar or comparable vegetation.
b. Maintaining positive drainage slopes so that the Drainage Ditch functions
properly to convey drainage.
c. Removing obstructions.
d. Keeping the Drainage Ditch and area of the Drainage Easement free of trash and
debris and maintaining the Drainage Ditch in a neat, clean and orderly status.
e. Cooperating with other Owners of Lots 1-5 in carrying out these obligations.
3. Maintenance of the Lot 5 Drainage and Open Space Dedication. The Owner of Lot 5
shall maintain the area of the Lot 5 Drainage and Open Space Dedication in a clean, neat
and functional manner and condition and shall insure that the Lot 5 Drainage and Open
Space Dedication at all times can convey drainage through and across Lot 5, can function
as a detention facility, and can provide the open space consistent with paragraph 4. This
obligation includes, but is not limited to:
a. Reasonably maintaining vegetation and landscaping in the Lot 5 Drainage and
Open Space Dedication, including replacement of dead vegetation with similar or
comparable vegetation.
b. Maintaining positive drainage slopes so that the Lot 5 Drainage and Open Space
Dedication functions properly to convey drainage.
c. Removing obstructions, including any obstructions to access by Lots 1-5, the
Owners thereof and their guests and invitees.
d. Keeping the Lot 5 Drainage and Open Space Dedication free of trash and debris
and maintaining the Drainage Ditch in a neat, clean and orderly status.
e. Maintaining all pipes, connections and other components connecting to drainage
facilities where the drainage leaves Lot 5 and proceeds under the adjacent street.
f. Maintaining conspicuous and legible signage stating that the Lot 5 Drainage and
Open Space Dedication is for the free and nonexclusive use of Lots 1-5, the
Owners thereof and their guests and invitees.
4. Open Space Use. In addition to drainage and detention functions, the Lot 5 Drainage and
Open Space Dedication constitutes a private open space area for the benefit of Lots 1-5,
the Owners thereof and their guests and invitees (the Private Open Space Use). The
Private Open Space Use is subject to the following:
a. All use is non-exclusive.
b. All use shall be reasonable and not constitute a nuisance.
c. No structures shall be constructed on the Lot 5 Drainage and Open Space
Dedication, other than drainage structures.
d. Nothing herein restricts the rights of Lot 5 to develop and use the portion of Lot 5
outside of the Lot 5 Drainage and Open Space Dedication.
e. All use of the Lot 5 Drainage and Open Space Dedication shall be at the sole risk
of any such users, who waive and release all claims they have or may have for
injury, loss or damage against the Owners of Lot 5 related to the physical
condition of the Lot 5 Drainage and Open Space Dedication to the full extent
provided at law.
f. Any users of the Lot 5 Drainage and Open Space Dedication shall be responsible
for any damage they or their guests or invitees cause to the Lot 5 Drainage and
Open Space Dedication and shall restore and repair any such damage.
g. The Owner of Lot 5 may establish a fence outside of the Lot 5 Drainage and Open
Space Dedication or on the perimeter of Lot 5, provided any such fence shall not
obstruct access of other Owners and their guests and invitees to the Lot 5
Drainage and Open Space Dedication or interfere with the Private Open Space
Use.
5. Deed Restriction. No deed to any property within the boundaries of Lot 5 may be passed
to any successive owner of the property without a restriction reported thereon,
referencing this Declaration and specifically noting that the Lot 5 Drainage and Open
Space Dedication is open space available to common use for the benefit of Lots 1-5, the
Owners thereof and their guests and invitees.
6. Major Damage. In the event of significant damage to the Lot 5 Drainage and Open Space
Dedication as a result of unforeseen or unusual occurrences or conditions, such that the
Lot 5 Drainage and Open Space Dedication requires repair or restoration beyond the
scope of the day-to-day maintenance set forth in paragraph 3 above, the Owners of all of
the Lots shall reasonably cooperate to repair and restore the condition of the Lot 5
Drainage and Open Space Dedication and shall equally share the costs thereof. The
foregoing shall not apply to the extent the damage is the result of the actions of an Owner
of a Lot or the guests or invitees thereof, in which case such Owner shall be responsible
for and carry out such repair and restoration.
7. Enforcement. The Covenants can be enforced by Declarant, at its option, for a period of
ten years after recording of these Covenants. During this period Declarant may, at its
option, determine any issues regarding performance and breach, and such determination
shall be conclusive. In addition, any Owner may enforce the Covenants, including
injunctive relief and damages, subject to any determination of the Declarant as provided
above. To the extent an Owner fails to perform obligations hereunder, the Declarant or
any other Owner may perform such obligations, including payment of costs incidental
thereto, and may recover from the defaulting Owner amounts expended, a 20%
administrative fee, interest on all such amounts at 24% per annum, plus all costs and
attorney’s fees of enforcement. Any such paying Owner or Declarant may record a lien
against the Lot of the defaulting Owner for all such amounts, which may be foreclosed on
in accordance with applicable law. In the event of any enforcement action, the defaulting
Owner shall pay all costs and attorney’s fees of enforcement.
8. Insurance. The Owner of Lot 5 shall maintain comprehensive personal injury and
property damage liability insurance with respect to Lot 5, including the Lot 5 Drainage
and Open Space Dedication, with limits of not less than $500,000 per claim and
$1,000,000 in the aggregate, which limits shall be subject to reasonable adjustment from
time to time to reflect changes in appropriate comparable policy limits. The Owners of
Lots 1-5 are required to be included as additionally insured parties under any such
policies.
9. Miscellaneous. This Agreement shall be construed under the laws of the State of
Colorado and may not be modified except by a writing signed by the Owners of all of
Lots 1-5 and, for a period of ten years after the recording hereof, signed by the Declarant.
Habitat for Humanity of the St Vrain Valley
By ____________________________
State of Colorado )
) ss.
County of Boulder )
The foregoing instrument was acknowledged before me this ______day of
__________________, 2024, by _____________________________.
Witness my hand and seal.
My commission expires:
_____
Notary Public
EXHIBIT A
LEGAL DESCRIPTION OF LOT 5 DRAINAGE AND OPEN SPACE DEDICATION
1
Community Development
1069 Moan St.
Town Board Meeting
January 23, 2024
Raven Subdivision Preliminary Plat
(Raven Avenue TBD)
Habitat for Humanity of the St. Vrain Valley, Inc.
(Owner/Applicant)
Presented by Paul Hornbeck, Senior Planner
Vicinity Map of Subject Area
1
2
PRESENTED 2024-01-23
1/26/2024
2
Zoning Map
Existing Conditions (Aerial)
3
4
1/26/2024
3
Existing Conditions (Front)
Key Points
• 0.82 acres, recently rezoned to R-1 (Single-Family
Residential).
• Legally described as Lot 2A, Ward Minor Subdivision.
• Board of Trustees approved Ordinance 09-23 for
Raven Subdivision Zoning Map Amendment on
November 14, 2023, rezoning property from RM to R-
1.
5
6
1/26/2024
4
Preliminary Subdivision Plat
Preliminary Subdivision Plat, enlarged
7
8
1/26/2024
5
Conceptual Landscape Plan
Detention Basin Landscape Sketch
9
10
1/26/2024
6
Proposal
The Applicant requests the Board of Trustees review the
Raven Subdivision Preliminary Plat to create five (5) lots
in an R-1 (Single-Family Residential) Zoning District.
• Habitat for Humanity will construct the homes to be sold to
individual, qualified buyers.
• §4.3.D.4: “All developments in the R-1 District shall be subject to
the attainable housing limitations for rental and owner occupancy
set forth in §11.4.C.”
• Deed Restriction or Restrictive Covenant and Agreement is required per
§11.4.E.4.
• Open Space is required per §4.3.D.1 of the EPDC at a minimum
of 15% of the total subdivision.
Review Criteria
In accordance with § 3.9.E. “Standards for Review”
of the EPDC, all subdivision applications shall
demonstrate compliance with the standards and
criteria set forth in Chapter 10, "Subdivision
Standards," and all other applicable provisions of this
Code.
• Relationship to Comprehensive Plan
• Utilities and Services
• Compliance with Zoning Requirements
11
12
1/26/2024
7
Review Criteria, continued
Relationship to Comprehensive Plan
• Designated “Mixed Residential Neighborhood” in the Estes
Forward Comprehensive Plan Future Land Use Map.
• High density mixed residential development that facilitates
the coexistence of townhomes, condos, and multi-family
complexes.
• It is characterized by…walkable neighborhoods that connect
to commercial nodes and other neighborhoods.” (pg. 69)
Utilities and Services
• Estes Valley Fire Protection District and utility providers
(Water, Power & Communications, and UTSD) reviewed
the proposed subdivision with no objections.
Review Criteria, continued
Compliance with Zoning Requirements
Lots
• All lots meet applicable minimum zoning standards for R-1.
Streets and Access
• Lots 1 & 2 will have access by a single point from Raven
Avenue.
• Lots 3, 4, and 5 will have individual access directly from Raven
Avenue.
• A 5’ foot concrete sidewalk is proposed along Raven Ave. and
will follow the existing curb and gutter with a 2% cross-slope.
13
14
1/26/2024
8
Review Criteria, continued
Open Space Area and Vegetation Protection
• §4.3.D. requires residential subdivisions containing 5 or
more lots to set aside a percentage of the gross land area
for open areas.
• The proposed subdivision has 6,288 sq. ft. (17.5%) set aside
for open space, which exceeds the minimum requirements.
• The applicant proposes a deed restrictions for preservation
and maintenance of open space on Lot 5.
• The open space will be used for passive recreation and can
be accessed by the entire subdivision.
• Will not be fenced, access from sidewalk, signage noting open space.
Planning Commission Findings
• Board of Trustees is the Decision-Making Body
for the Preliminary Plat. Approval of a Final Plat is
also necessary to subdivide the property.
• Adequate public/private facilities are currently
available to serve the subject property.
• Request has been submitted to all applicable
reviewing agency staff for review.
• The Raven Subdivision Preliminary Plat
application complies with applicable standards
set forth in the EPDC.
15
16
1/26/2024
9
Action Recommended
At their November 21, 2023 meeting, Planning
Commission forwarded to the Town Board a
recommendation of approval of the preliminary plat
according the findings of fact and subject to the following
condition:
The stormwater exhibit [Conceptual Landscape Plan] presented
during this hearing be included into the stormwater plan
Sample Motion
Sample Motion:
•I move that the Town Board of Trustees approve
Resolution 04-24.
•I move that the Town Board of Trustees deny
Resolution 04-24, finding that [state findings for denial].
•I move to continue the Raven Subdivision Preliminary
Plat to the next regularly scheduled meeting. [State
reasons for continuance].
17
18
PUBLIC COMMENT RECEIVED ON 1/23/2024
Board of Trustees Public Comment
Name: Wallace R. Wood
Stance on Item: For
Agenda Item Title: Resolution 04-24.
Public Comment:
Please approve the subdivision which will allow Habitat for Humanity to create five housing units in Raven
Subdivision. Estes needs affordable housing for long-term employed residents and Habitat homes are of a
quality fit for long-term employed residents with families. Also, Habitat for Humanity promotes interaction of
volunteers among retired town residents and employed town residents and young people from Americore
which is rare and valuable for Estes Park. My wife and I moved to Estes in 2018, and Habitat is where we
have connected with long-term Estes Residents. Volunteering to physically help improve lives and help
address a community problem puts our faith & conscience into action.
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PUBLIC COMMENT RECEIVED ON 1/22/2024
Board of Trustees Public Comment
Name: Kendra Wallis
Stance on Item: For
Agenda Item Title: Resolution 04-24.
Public Comment:
The homes that are built by Habitat for Humanity are so desperately needed. These homes allow families
to help build by putting in sweat equity and then purchase a home that they would normally never have
been able to afford.
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PUBLIC COMMENT RECEIVED ON 1/22/2024
Board of Trustees Public Comment
Name: Craig Ellsworth
Stance on Item: For
Agenda Item Title: Resolution 04-24.
Public Comment:
Numerous studies have shown, and recent studies continue to confirm, that Estes Park has a critical
shortage of affordable homes. As a resident of the Estes Valley, I urge you to approve RESOLUTION 04-
24 RAVEN SUBDIVISION PRELIMINARY PLAT, HABITAT FOR HUMANITY OF THE ST. VRAIN VALLEY,
INC., OWNER/APPLICANT. Failure to do so will continue to negatively impact our ability to attract and
retain critical workers in education, fire protection, medicine, law enforcement and other positions vital to
our residents and visitors.
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PUBLIC COMMENT RECEIVED ON 1/23/2024
Board of Trustees Public Comment
Name: Melissa Wood
Stance on Item: For
Agenda Item Title: Resolution 04-24.
Public Comment:
I am in favor of allowiing this subdivision, for the purpose of building Habitat for Humanity affordable
homes.
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PROCEDURE FOR PUBLIC HEARING
Applicable items include: Rate Hearings, Code Adoption, Budget Adoption
1.MAYOR.
The next order of business will be the public hearing on ACTION ITEM 1 -
INITIATED ORDINANCE PETITION - TO AMEND THE ESTES PARK
DEVELOPMENT CODE REGARDING DEVELOPMENT APPLICATIONS.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, public comment,
and written comments received on the item.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2.STAFF REPORT.
Review the staff report.
3.PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
item. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
4.MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the item which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the item.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
7.SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
Page 89
8.DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9.VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
*NOTE: Ordinances are read into record at the discretion of the Mayor as it is not required
to do so by State Statute.
Page 90
TOWN CLERK Memo
To: Honorable Mayor Koenig
Board of Trustees
Through: Town Administrator Machalek
From: Jackie Williamson, Town Clerk
Date: January 23, 2024
RE: Initiated Ordinance Petition – To Amend the Estes Park Development
Code Regarding Development Applications
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER
QUASI-JUDICIAL YES NO
Objective:
To present a citizen Initiated Ordinance filed with the Town Clerk’s Office regarding
development applications as outlined in the petition.
Present Situation:
On November 17, 2023 a letter was sent to the petitioners, James and Kristine Poppitz,
approving the form of the petition to address development applications, which allowed
the petition to be circulated. Upon approval of the form of the petition, the Town Clerk
contacted the Larimer County Elections Office and determined the total registered
electors within Estes Park. State statute 31-11-104 requires a petition to be signed by
at least 5% of the registered electors; the total number of signatures required was
established at 241.
On December 1, 2023, the Town Clerk received 40 signed petition sections containing
437 signatures. The Town Clerk reviewed the signature to verify the registration of the
individual against the voter registration list supplied to the Town by the Larimer County
Elections Office. A Statement of Sufficiency was issued on December 29, 2023
certifying the petition was signed by 5% or 241 registered voters within the Town of
Estes Park.
Total number of signatures submitted: 437
Total number of signatures reviewed 300
Total number of signatures rejected: 59
Total number of signatures accepted: 241
Number of signatures required: 241
Pursuant to 31-11-110 CRS no protest of the initiated ordinance petition was filed prior
to the memo; however, the 40-day protest period ends on January 10, 2024.
Page 91
Proposal:
Per 31-11-104 CRS the Board of Trustees within 20 days from the Statement of Sufficiency
(January 10, 2024) must either: (1) adopt, without alteration, the citizen-initiated ordinance
as proposed, Ordinance 01-24, or (2) refer the Initiated Ordinance to the registered electors
of the municipality at the regular election on Tuesday, April 2, 2024 by adopting Resolution
05-24.
Advantages:
•None
Disadvantages:
•None.
Action Recommended:
Staff does not have a recommendation as this is a legislative action requiring Town
Board direction.
Finance/Resource Impact:
No additional budgetary impact would be incurred if the Board approves the Resolution
and includes the question on the regular Municipal Election ballot. The budgetary
impact of adopting the proposed ordinance is unclear at this time.
Motion #1:
I move to adopt Ordinance 01-24.
Motion #2 if applicable:
If the Ordinance is not adopted the following motion needs to be made.
I move to approve Resolution 05-24 referring Initiated Ordinance 01-24 to the regular
Municipal Election on April 2, 2024.
Attachments:
1.Ordinance 01-24
2.Certification of Petition Sufficiency
3.Petition Section
4. Resolution 05-24
Page 92
ORDINANCE NO. 01-24
ORDINANCE TO AMEND THE ESTES PARK DEVELOPMENT
CODE REGARDING DEVELOPMENT APPLICATIONS
WHEREAS, on December 1, 2023, an Initiated Ordinance Petition was filed with
the Town Clerk; and
WHEREAS, on January 23, 2024, the Town Clerk presented a Statement of
Sufficiency to the Town Board stating that the Initiated Ordinance Petition has the
requisite number of signatures; and
WHEREAS, the Board of Trustees have reviewed the Initiated Ordinance Petition.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO AS FOLLOWS:
Procedures for Approval. All applications for text or Official Zoning Map
amendments shall follow the standard development approval process set forth in
§3.2 of this Chapter.
1. Procedures for Approval. All applications for text or Official Zoning Map
amendments initiated under §3.3.A.1-3 or for §3.4-Planned Unit Developments,
for §3.5- Special Review Uses, for §3.6- Variances, or for §3.9 – Subdivision, shall
follow the standard development approval process set forth in §3.2 of this Chapter,
except that PRIOR to any Board review or approval of such application under Sec.
3.3.A.1or 2, or submission of an application under §3.3.A.1-3, §3.4, §3.5 §3.6, §3.9
to any Board or Staff, the Boards or Private Party, Applicant must first obtain written
approval of the proposed Code text amendment or re-zoning of 60% of the
property owners of parcels within 500 feet of the property specified in the
application which will be subject to the proposed amendment.
PASSED AND ADOPTED by the Board of Trustees of the Town of Estes Park,
Colorado this ____ day of _______________, 2024.
TOWN OF ESTES PARK, COLORADO
By:
Mayor
ATTEST:
Town Clerk
I hereby certify that the above Ordinance was introduced at a regular meeting of the Board
of Trustees on the day of , 2024 and published by title in a
newspaper of general circulation in the Town of Estes Park, Colorado, on the day of
, 2024, all as required by the Statutes of the State of Colorado.
Town Clerk
APPROVED AS TO FORM:
Town Attorney
ATTACHMENT 1
Page 93
ATTACHMENT 2
e
90
ATTACHMENT 3
RESOLUTION 05-24
TO REFER PROPOSED INITIATED ORDINANCE 01-24 TO THE REGULAR
MUNICIPAL ELECTION ON APRIL 2, 2024
WHEREAS, on December 1, 2023, an Initiated Ordinance Petition was filed with
the Town Clerk; and
WHEREAS, on December 29, 2023, the Town Clerk issued a Statement of
Sufficiency and presented the petitions to the Town Board on January 23, 2024 stating
that the Initiated Ordinance Petition has the requisite number of signatures; and
WHEREAS, the Board of Trustees have reviewed the Initiated Ordinance Petition;
and
WHEREAS, following said review the Board of Trustees did not adopt the Initiated
Ordinance Petition as presented.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
1. Proposed Initiated Ordinance 01-24 is hereby referred to the registered
electors of the Town of Estes Park, Colorado for the regular Municipal
Election on April 2, 2024.
2.The Town Clerk is hereby ordered to publish forthwith the Proposed Initiated
Ordinance.
3.The ballot title shall read as follows:
Shall an ordinance be approved which states that all applications for text or
official zoning map amendments initiated under §3.3.A.1-3 or for §3.4 –
Planned Unit Developments, for §3.5 – Special Review Uses, for §3.6 –
Variances, or for §3.9 – Subdivision, shall follow the standard development
approval process set forth in §3.2 of this Chapter, except that prior to any
Board review or approval of such application under §3.3.A.1 or 2 or
submission of an application under §3.3.A.1-3, §3.4, §3.5 §3.6, §3.9 to any
Board or Staff, the Boards or private party, applicant must first obtain written
approval of the proposed Code text amendment or re-zoning of 60% of the
property owners of parcels within 500 feet of the property specified in the
application which will be subject to the proposed amendment?
YES ____
NO ____
DATED this day of , 2024.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
ATTACHMENT 4
Page 101
PUBLIC COMMENT RECEIVED ON 1/22/2024
Board of Trustees Public Comment
Name: Christy Jacobs
Stance on Item: For
Agenda Item Title: Initiated Ordinance Petition - To Amend the Estes Park Development Code
Regarding Development Applications.
Public Comment:
I am in full support of the INITIATED ORDINANCE PETITION - TO AMEND THE ESTES PARK
DEVELOPMENT CODE REGARDING DEVELOPMENT APPLICATIONS. Thank you for your
consideration in this very important and needed change to the E.P.D.C. Sincerely, Christy Jacobs
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PUBLIC COMMENT RECEIVED ON 1/22/2024
Board of Trustees Public Comment
Name: Kristine L. Poppitz
Stance on Item: For
Agenda Item Title: Initiated Ordinance Petition - To Amend the Estes Park Development Code
Regarding Development Applications.
Public Comment:
I am in full support of the Initiated Ordinance Petition - To Amend the EPDC. In collecting signatures for this
Petition, the response from Town Registered Voters, and Citizens alike, was full support of this Initiated
Ordinance. I thank YOU for your consideration in this very important needed change to the Estes Park
Development Code (EPDC).
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PUBLIC COMMENT RECEIVED ON 1/23/2024
Board of Trustees Public Comment
Name: Jed Eide
Stance on Item: For
Agenda Item Title: Initiated Ordinance Petition - To Amend the Estes Park Development Code
Regarding Development Applications.
Public Comment:
Dear Board Members, I urge you to approve the Citizen initiative to amend the Development Code which
gives adjacent property owners a voice regarding the development of their neighborhood.
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PROCEDURE FOR PUBLIC HEARING
Applicable items include: Rate Hearings, Code Adoption, Budget Adoption
1.MAYOR.
The next order of business will be the public hearing on ACTION ITEM 2 -
ORDINANCE 02-24 SUBMITTING BALLOT ISSUE 1A TO THE REGISTERED
VOTERS OF THE TOWN OF ESTES PARK ON THE APRIL 2, 2024 BALLOT.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, public comment,
and written comments received on the item.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2.STAFF REPORT.
Review the staff report.
3.PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
item. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
4.MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the item which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the item.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
7.SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
Page 103
8.DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9.VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
*NOTE: Ordinances are read into record at the discretion of the Mayor as it is not required
to do so by State Statute.
Page 104
TOWN ADMINISTRATOR’S
OFFICE
Memo
To: Honorable Mayor Koenig
Board of Trustees
From: Town Administrator Machalek
Date: January 23, 2024
RE: Ordinance 02-24 Submitting Ballot Issue 1A to the Registered Voters of
the Town of Estes Park on the April 2, 2024 Ballot
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER: _____________
QUASI-JUDICIAL YES NO
Objective:
Consider placing a ballot issue before voters at the April 2, 2024 municipal election to
renew the 1% sales tax to fund street maintenance, stormwater infrastructure
expansion, the expansion and reconstruction of public trails, wildfire mitigation, and
powerline wildfire mitigation.
Present Situation:
Voters approved the current 1% sales tax (1A) in April of 2014, with an effective term of
July 1, 2014 through June 30, 2024. The 1A sales tax supports four special revenue
funds: the Street Improvement Fund, the Trails Expansion Fund, the Community Center
Fund, and the Emergency Response Fund.
At the Board’s request, staff developed a new, proposed 1% sales tax renewal package
using local resident feedback from the Town’s 2021 National Community Survey (NCS),
the 2022 Comprehensive Plan, results from the 2019 Stormwater Survey, and
consultation with subject-matter experts. The package was further refined through
public presentations and feedback gathering through fall and winter of 2023.
Proposal:
Ordinance 02-24 submits to the voters of the Town of Estes Park the question of
whether to renew the 1% sales tax for a period of ten years. The final proposed
package consists of the following allocations:
•46% Street Maintenance
•28% Stormwater Infrastructure Expansion
•12.5% Trail Expansion and Reconstruction
•9% Wildfire Mitigation
•4.5% Powerline Wildfire Mitigation Page 105
Advantages:
•Provides funding for priorities and public infrastructure needs identified by the
community.
•The uses of a renewed tax are specified and the tax itself is limited to a ten-year
duration.
•A renewed sales tax allows for visitors to our community to share in the costs to
create and maintain public improvements that will benefit both visitors and
residents.
•Using sales tax to fund investments in public infrastructure helps to keep the
Town’s portion of property tax very low.
Disadvantages:
•Some residents expressed opposition to a renewal of the 1% sales tax, preferring
a reduced sales tax rate.
•Funding specifically allocated through a renewed sales tax would not be
available for other priorities.
Action Recommended:
Staff recommends approval of Ordinance 02-24.
Finance/Resource Impact:
Staff estimates that a renewed 1% sales tax would generate $4,617,299 in the first full
year of revenues (2025).
Level of Public Interest
High
Sample Motion:
I move for the approval/denial of Ordinance 02-24.
Attachments:
1.Ordinance 02-24
Page 106
ORDINANCE NO. 02-24
AN ORDINANCE REFERRING TO A VOTE AT THE APRIL 2, 2024 REGULAR
MUNICIPAL ELECTION AN EXTENSION OF THE INCREASE IN THE TOWN SALES
TAX RATE FROM FOUR PERCENT TO FIVE PERCENT, WITH THE REVENUES TO
BE HELD AND SPENT FOR SPECIFIED PURPOSES
WHEREAS, Ordinance 03-14 of the Town of Estes Park was approved by the
voters of Estes Park at the general municipal election on April 1, 2014, and it increased
Town sales taxes from four percent (4%) to five percent (5%) for purposes specified in
that ordinance for a ten (10) year term beginning July 1, 2014 through June 30, 2024; and
WHEREAS, the Town Board of Trustees wishes to refer to the voters at the April
2, 2024 general municipal election a TABOR ballot issue concerning the extension of that
additional municipal sales tax of one percent (1.0%) through June 30, 2034, for the
purposes specified in this Ordinance; and
WHEREAS, this Ordinance is necessary for the immediate preservation of public
health and safety because failure to timely place this ballot issue on the April 2, 2024
ballot would result in hazardous consequences for traffic safety, stormwater
management, and fire mitigation, among other things.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO AS FOLLOWS:
Section 1: Section 4 of Ordinance 03-14 is amended to read as follows:
Revenues from the increase of one percent of the Town’s sales tax
approved by the registered electors of the Town at the April 1, 2014 election and
extended by the registered electors of the Town at the April 2, 2024 election shall
be used exclusively for the purposes and the percentages set forth in the ballot
question on April 2, 2024 for such tax increase. The increase of sales tax from four
percent (4%) to five percent (5%) shall be effective on July 1, 2014 and shall
terminate on June 30, 2034. On July 1, 2034, the sales tax shall revert to four
percent (4%).
Section 2: Section 1 of this Ordinance shall not take effect unless and until a
majority of the registered voters voting at the municipal election on April 2, 2024 vote
"yes" in response to the following ballot title, which title is hereby referred to the ballot
at said election:
BALLOT ISSUE 1A
WITHOUT RAISING ADDITIONAL TAXES, SHALL THE TOWN’S EXISTING
1% SALES TAX APPROVED BY THE VOTERS BY BALLOT ISSUE 1A OF APRIL 1,
2014, THAT WOULD OTHERWISE EXPIRE ON JUNE 30, 2024, BE EXTENDED
THROUGH JUNE 30, 2034, TO PROVIDE REVENUE FOR AND BE SPENT ON THE
FOLLOWING ITEMS:
(1)FORTY-SIX PERCENT (46%) FOR THE CONSTRUCTION, REPAIR,
REPLACEMENT, REHABILITATION, AND RENOVATION OF STREETS
WITHIN THE TOWN OF ESTES PARK.
(2)TWENTY-EIGHT PERCENT (28%) FOR THE EXPANSION OF THE
TOWN’S STORMWATER INFRASTRUCTURE.
(3)TWELVE POINT FIVE PERCENT (12.5%) FOR THE EXPANSION AND
RECONSTRUCTION OF PUBLIC TRAILS WITHIN THE ESTES VALLEY.
(4)NINE PERCENT (9%) FOR THE IMPLEMENTATION OF A WILDFIRE
MITIGATION PROGRAM BY THE ESTES VALLEY FIRE PROTECTION
DISTRICT.
ATTACHMENT 1
Page 107
(5)FOUR POINT FIVE PERCENT (4.5%) FOR THE MITIGATION OF
WILDFIRE RISK FROM TOWN POWER DISTRIBUTION LINES.
AND SHALL SUCH TAX REVENUES BE COLLECTED, RETAINED, AND SPENT
AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE
LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20
OF THE COLORADO CONSTITUTION OR ANY OTHER LAW?
YES ____
NO ____
Section 3: Section 3.08.160 of the Estes Park Municipal Code is hereby
amended, by adding underlined material, to read as follows:
3.08.160 - Imposition; rate.
There is imposed on the sale of tangible personal property and the
furnishing of certain services, as specified in Section 3.08.170 below, a sales
tax of five percent (5%) upon the sale at retail of tangible personal property and
the furnishing of certain services as provided herein. The imposition of the tax
on the sale at retail of tangible personal property and the furnishing of certain
services subject to this tax shall be in accordance with the schedule set forth
in the rules and regulations of the State Department of Revenue or by separate
ordinance of the Town. On June 30, 2024, or such later date as approved by
the electors for the extension of the tax imposed by Ordinance 03-14 and
adopted by the voters as Ballot Issue 1A on April 1, 2014, the additional one
percent (1%) sales tax rate imposed by Ordinance 03-14 shall be reduced by
the rate amount by which sales taxes were increased by Ordinance 03-14.
Section 4: If any portion of this Ordinance is held to be invalid for any reason,
such decision shall not affect the validity of the remaining portions of this Ordinance.
The Town Board of Trustees and the registered voters of the Town hereby declare
that they would have passed and approved this Ordinance and each part hereof
irrespective of the fact that any one part be declared invalid.
Section 5. All other ordinances or portions thereof inconsistent or conflicting
with this Ordinance or any portion hereof are hereby repealed to the extent of such
inconsistency or conflict.
Section 6: The Board of Trustees hereby finds, determines and declares this
Ordinance is necessary for the immediate preservation of the health, safety and
welfare of the Town and its residents in order to place this ballot question on the April
2, 2024, municipal election ballot, and therefore this Ordinance shall take effect
immediately upon its passage and signature of the Mayor.
PASSED AND ADOPTED by the Board of Trustees of the Town of Estes Park,
Colorado this ____ day of _______________, 2024.
TOWN OF ESTES PARK, COLORADO
By:
Mayor
ATTEST:
Town Clerk
Page 108
I hereby certify that the above Ordinance was introduced at a regular meeting of the Board
of Trustees on the day of , 2024 and published by title in a
newspaper of general circulation in the Town of Estes Park, Colorado, on the day of
, 2024, all as required by the Statutes of the State of Colorado.
Town Clerk
APPROVED AS TO FORM:
Town Attorney
Page 109
Page 110
PROCEDURE FOR PUBLIC HEARING
Applicable items include: Rate Hearings, Code Adoption, Budget Adoption
1.MAYOR.
The next order of business will be the public hearing on ACTION ITEM 3 -
ORDINANCE 03-24 TO GRANT A CABLE FRANCHISE TO TDS
BROADBAND SERVICE, LLC, AND A CABLE FRANCHISE AGREEMENT
WITH TDS BROADCAST SERVICE, LLC.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, public comment,
and written comments received on the item.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2.STAFF REPORT.
Review the staff report.
3.PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
item. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
4.MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the item which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the item.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
Page 11
7.SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
8.DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9.VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
*NOTE: Ordinances are read into record at the discretion of the Mayor as it is not required
to do so by State Statute.
Page 112
TOWN ADMINISTRATOR’S
OFFICE
Memo
To: Honorable Mayor Koenig
Board of Trustees
From: Town Administrator Machalek
Date: January 23, 2024
RE: Ordinance 03-24 Approving the Grant of a Cable Franchise to TDS
Broadband Service, LLC, and Approving a Cable Franchise Agreement
Between TDS Broadcast Service, LLC, and the Town of Estes Park,
Colorado
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER: _____________
QUASI-JUDICIAL YES NO
Objective:
Consider the grant of a cable franchise to TDS Broadband Service, LLC.
Present Situation:
TDS Broadband Service, LLC is the current Grantee under the Cable Television
Agreement dated December 11, 2012 (the original agreement was granted to Baja
Broadband Operating Company, LLC, which was subsequently bought by TDS). Town
representatives, outside counsel, and TDS have negotiated a proposed Cable
Franchise Renewal Agreement.
Proposal:
A summary of the terms and conditions of the proposed Cable Franchise Renewal
Agreement is as follows:
1.Term. The term of the agreement is 10 years.
2.Franchise Fee. The franchise fee is five percent (5%) of the Grantee’s Gross
Revenues. This franchise fee is the same amount as the agreement fee in the
past Cable Television Agreement.
3.Access Contribution. TDS will provide to the Town a grant of $0.50 per
subscriber per month as an access contribution to be used solely for capital costs
related to Public, Educational, and Governmental access, or as may be permitted
by Applicable Law. This is a new contribution to the Town from TDS.
4.Access Channel. TDS will provide to customers, at no additional charge, one
channel for educational and governmental access channel programming to be
carried on the cable system and to be shared with Larimer County.
Page 113
5.Grant. The Town grants to TDS a non-exclusive right to make reasonable and
lawful use of the Town’s rights-of-way within the Town boundary to construct,
operate, and maintain its cable system.
6.Indemnification and Insurance. TDS indemnifies and holds the Town harmless
for claims, actions, and injuries as more fully set forth in the Agreement. TDS is
required to maintain insurance for its activities as set forth in Section 5.2 of the
Agreement.
7.Customer Service Standards. Section 6 and Exhibit I of the agreement provide
for customer service standards, including a complaint procedure.
8.Customer Service Location. Throughout the Agreement term, TDS must maintain
convenient and reasonably accessible methods for customers to pay bills,
receive, return equipment, obtain information related to services and products,
and speak with a Customer Service Representative. The agreement
acknowledges that, in the current economic climate, staffing the existing local
TDS office in town is very difficult. TDS will undertake good faith and reasonable
best-efforts to staff the local office and keep it open. However, no sooner than
one year after the Effective Date of this Agreement, if TDS’ best-efforts to
maintain staffing of the local office fail, then, upon sixty (60) days written notice to
the Town, TDS may close the local office.
9.Construction Standards. TDS will be required to apply for and obtain appropriate
permits from the Town for work done in the public right-of-way. The Agreement
also requires TDS to restore the surface of any rights-of-way impacted by TDS
excavation in Town rights-of-way, and contains appropriate maintenance and
workmanship standards.
Advantages:
•Provides Town residents with access to cable television provided using Town
rights-of-way.
•Enables the Town to continue providing public access to Town Board and School
Board meetings.
•Increases the contribution from TDS to support capital required to provide public
access to educational and governmental programming.
•Maintains standards for customer service and TDS construction/maintenance
activities in Town rights-of-way.
Disadvantages:
•The Agreement stipulates that TDS may close the local customer service location
(currently located at 405 Stanley Avenue) if they cannot maintain adequate
staffing. While this may reduce convenience for cable customers, all of TDS’
services may be accessed without having to access a physical customer service
location. In the event that the local TDS office closes, the nearest physical TDS
office location is at 266 Basher Drive #4, Berthoud, CO 80513.
Page 114
Action Recommended:
Staff recommends approval of Ordinance 03-24.
Finance/Resource Impact:
Revenue to the Town from the 5% franchise fee will be substantially the same as the
current revenue received by the Town. The additional access contribution will be new
revenue that will help support capital costs related to public, educational, and
governmental access programming.
Level of Public Interest
Medium
Sample Motion:
I move for the approval/denial of Ordinance 03-24.
Attachments:
1.Ordinance 03-24
2.Cable Franchise Renewal Agreement
Page 115
ORDINANCE NO. 03-24
AN ORDINANCE APPROVING THE GRANT OF A CABLE FRANCHISE TO TDS
BROADBAND SERVICE, LLC, AND APPROVING A CABLE FRANCHISE
AGREEMENT BETWEEN TDS BROADCAST SERVICE, LLC, AND THE TOWN OF
ESTES PARK, COLORADO
WHEREAS, pursuant to the Municipal Code for the Town of Estes Park (the
“Code”), and the authority granted to statutory towns under Colorado law, the Town of
Estes Park (the “Town”) may adopt and amend ordinances;
WHEREAS, the Town is authorized generally pursuant to C.R.S § 31-15-702, to
regulate and manage the use, maintenance, and repair of public streets, roads,
sidewalks, and public places under its jurisdiction;
WHEREAS, the Town previously granted a non-exclusive franchise for the
construction, maintenance, and operation of a cable television system within the Town
to Baja Broadband Operating Company, LLC;
WHEREAS, TDS Broadband Service LLC, known locally as TDS (“TDS”) is the
successor in interest to Baja Broadband Operating Company;
WHEREAS, TDS is agreeable to continue providing cable television service in
the Town;
WHEREAS, TDS seeks a new cable television franchise, and a proposed new
Cable Franchise Agreement acceptable to both the Town and TDS has been prepared
(the “Agreement”), a copy of which is attached hereto as Exhibit A and incorporated
herein by this reference;
WHEREAS, the Town has reviewed performance under the prior franchise and
the quality of service during the prior franchise term, has identified the future cable-
related needs and interests of the Town and its citizens, has considered the financial,
technical, and legal qualifications of TDS, and has determined that TDS plans for
operating and maintaining its Cable Systems are adequate, in a full public proceeding
affording due process to all parties;
WHEREAS, the public has had adequate notice and opportunity to comment on
TDS’s proposal to provide cable television service within the Town;
WHEREAS, the Town has a legitimate and necessary regulatory role in ensuring
the availability of cable communications service, and reliability of cable systems in its
jurisdiction, the availability of local programming and quality customer service;
WHEREAS, diversity in cable service programming is an important policy goal and
Comcast’s cable system should offer a wide range of programming services;
WHEREAS, the Board of Trustees for the Town of Estes Park (the “Board”) has
considered this Ordinance authorizing the cable television system franchise and the
Agreement;
WHEREAS, the Board hereby finds that the public has had adequate notice and
opportunity to comment upon the proposed cable television system franchise and the
Agreement;
WHEREAS, the Board hereby finds that it serves the public interest of the citizens
of the Town to grant a cable television franchise to TDS pursuant to the terms of the
Agreement; and
WHEREAS, the Board hereby finds, determines, and declares that this Ordinance
is promulgated under the general police power of the Town, that it is promulgated for the
ATTACHMENT 1
Page 116
health, safety, and welfare of the public, and that this Ordinance is necessary for the
preservation of health and safety and for the protection of public convenience and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES FOR
THE TOWN OF ESTES PARK, COLORADO, AS FOLLOWS:
Section 1. Grant of Franchise. The Town of Estes Park hereby grants to TDS
Broadband Service LLC, effective January 1, 2024, a nonexclusive Cable Franchise
subject to the terms and conditions set forth in the attached Cable Franchise Agreement
between TDS Broadband Service, LLC, and the Town of Estes Park, Colorado.
Section 2. Franchise Agreement. The Town of Estes Park hereby approves and
adopts the attached Cable Franchise Agreement between TDS Broadband Service, LLC,
and the Town of Estes Park, Colorado. The Cable Franchise Agreement shall be
available for public inspection during normal business hours from the Town Clerk at the
offices of the Town of Estes Park, Colorado.
Section 3. Severability. If any part or provision of this Ordinance, or its application
to any person or circumstance, is adjudged to be invalid or unenforceable, the invalidity
or unenforceability of such part, provision, or application shall not affect any of the
remaining parts, provisions or applications of this Ordinance that can be given effect
without the invalid provision, part or application, and to this end the provisions and parts
of this Ordinance are declared to be severable.
Section 4. Effective Date. This Ordinance shall take effect and be enforced thirty
(30) days after its adoption and publication.
PASSED AND ADOPTED by the Board of Trustees of the Town of Estes Park,
Colorado this ____ day of _______________, 2024.
TOWN OF ESTES PARK, COLORADO
By:
Mayor
ATTEST:
Town Clerk
I hereby certify that the above Ordinance was introduced at a regular meeting of the Board
of Trustees on the day of , 2024 and published by title in a
newspaper of general circulation in the Town of Estes Park, Colorado, on the day of
, 2024, all as required by the Statutes of the State of Colorado.
Town Clerk
APPROVED AS TO FORM:
Town Attorney
Page 117
1
TOWN OF ESTES PARK, COLORADO
CABLE FRANCHISE RENEWAL AGREEMENT
January 23, 2024
EXHIBIT A
2
CABLE FRANCHISE RENEWAL AGREEMENT
This Cable Franchise Renewal Agreement (“Agreement”) is entered into in Estes Park,
Colorado, this 23rd day of January, 2024, by and between the Town of Estes Park,
Colorado, hereinafter ("Grantor" or the "Town") and TDS Broadband Service LLC
hereinafter known as "Grantee". Grantor and Grantee are sometimes referred to
hereinafter collectively as the "parties."
WHEREAS, Grantee is the successor in interest to Baja Broadband Operating
Company, LLC, the grantee of a cable television franchise agreement (the “2012
Franchise”) from Grantor dated December 12, 2012; and
WHEREAS, the Grantor has reviewed Grantee's performance under the 2012
Franchise, and the quality of service during the 2012 Franchise term, has identified the
future cable-related needs and interests of the Grantor and its citizens, has considered the
financial, technical and legal qualifications of Grantee, and has determined that Grantee's
plans for constructing, operating and maintaining its System are adequate, in a public
proceeding affording due process to all parties; and
WHEREAS, the public has had adequate notice and opportunity to comment on
Grantee's proposal to provide cable television service within the Town; and
WHEREAS, the Grantor has a legitimate and necessary regulatory role in
ensuring the availability of cable communications service, technical capability and
reliability of Systems in its jurisdiction, the availability of local programming (including
Governmental Access programming) and quality Customer service; and
WHEREAS, diversity in Cable Service and local and non-local programming is
an important policy goal and the Grantee's System should offer a wide range of
programming services; and
WHEREAS, flexibility to respond to changes in technology, Subscriber interests
and competitive factors within the Cable Service market should be an essential
characteristic of this Agreement; and
WHEREAS, the Town is authorized by applicable law to grant nonexclusive
franchise agreements to construct, operate and maintain cable television Systems
within the boundaries of the Town.
NOW, THEREFORE, in consideration of the mutual promises made herein, and
other good and valuable consideration as provided herein, the receipt and adequacy of
which are hereby acknowledged, Grantor and Grantee do hereby agree as follows:
SECTION I. DEFINITIONS
For the purposes of this Agreement and all Exhibits attached hereto the following terms,
phrases, words and their derivations shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future, words
in the plural include the singular, and words in the singular include the plural. Words not
3
defined shall be given their common and ordinary meaning. The word "shall" is always
mandatory and not merely directory.
1.1 "Access" or "Access Programming" means the availability for Noncommercial
use by various governmental and educational agencies, institutions and organizations, in
the community, including Grantor and its designees, of Channels on the System
designated for such use (but not for public access) as permitted under applicable law:
(A) "Educational Access" means Access where Schools are the primary
users having editorial control over programming and services.
(B) "Governmental Access" means Access where governmental institutions
or their designees are the primary users having editorial control over programming and
services.
1.2 "Access Channel" means any Channel, or portion thereof, designated for
Noncommercial Access purposes or otherwise made available to facilitate or transmit
Access programming.
1.3 "Access Contribution" means the payments to be paid to the Grantor by the
Grantee in accordance with section 9.11.
1.4 "Activation" or "Activated" means the status of any capacity on or part of the
System wherein the use of that capacity or part thereof may be made available
without further installation of System equipment other than Subscriber premise
equipment, whether hardware or software.
1.5 "Affiliated Entity" or "Affiliate" when used in connection with Grantee means
any Person who owns or controls, is owned or controlled by, or is under common
ownership or control with Grantee.
1.6 "Agreement" means the document in which this definition appears, that is
executed between Grantor and Grantee, containing the specific provisions of the
authorization granted and the contractual and regulatory agreement created hereby.
1.7 “Applicable Law” means any statute, ordinance, judicial decision, executive
order or regulation having the force and effect of law, that determines the legal standing
of a case or issue.
1.8 "Bad Debt" means amounts lawfully owed by a Subscriber and accrued as
revenues on the books of Grantee, but not collected after reasonable efforts by
Grantee.
1.9 "Basic Service" means the lowest priced, separately available tier of
Cable Service that includes, at a minimum, the retransmission of local
Broadcast Signals and Access programming.
4
1.10 "Broadcast Signal" means a television or radio signal transmitted over the air
to a wide geographic audience, and received by a System off-the-air by antenna,
microwave, satellite dishes or any other means.
1.11 "Cable Act" means the Cable Communications Policy Act of 1984, as amended
by the Cable Television Consumer Protection and Competition Act of 1992, and as
amended by the Telecommunications Act of 1996, and any amendments thereto.
1.12 "Cable Operator" means any Person or group of Persons, including Grantee, who
provides Cable Service over the System and directly or through one or more Affiliates
owns a significant interest in such System or who otherwise control(s) or is (are)
responsible for, through any arrangement, the management and operation of the System.
1.13 "Cable Service" means the one-way transmission to Subscribers of Video
Programming, or other programming service and Subscriber interaction, if any, which is
required for the selection or use of such Video Programming or other programming
service.
1.14 "Channel" means a portion of the electromagnetic frequency spectrum that is
used in a Cable System and that is capable of delivering or carrying a television
channel (as television channel is defined by the FCC Regulations or as described as
Video Programming Services).
1.15 "Designated Access Provider" means the entity or entities designated by the
Grantor to manage or co-manage Educational or Governmental Access Channels and
facilities. The Grantor may be a Designated Access Provider.
1.16 "Downstream Channel" means a Channel capable of carrying a transmission
from the Headend to remote points on the System or to Interconnection points on the
System.
1.17 "Dwelling Unit" means any building or portion thereof that has independent
living facilities, including provisions for cooking, sanitation and sleeping, and that is
designed for residential occupancy.
1.18 "Expanded Basic Service" means the level of cable programming services
received by most Subscribers above Basic Service and does not include premium, or
pay-per-view services.
1.19 "FCC" means the Federal Communications Commission or its lawful successor.
1.20 "Fiber Optic" means a transmission medium of optical fiber cable by means of
electric lightwave pulses.
1.21 "Franchise Area" means the incorporated area within the jurisdictional
boundaries of the Grantor, including any areas annexed by Grantor during the term of
this Agreement.
5
1.22 “Franchise Fee” means that fee payable to the Grantor described in subsection
3.1.
1.23 "GAAP" means generally accepted accounting principles.
1.24 "Gross Revenues" means , and shall be construed broadly to include all revenues
derived directly or indirectly by Grantee, or by Grantee's Affiliates or by any other entity
that is a Cable Operator of the Cable System including Grantee's Affiliates as determined
in accordance with GAAP, from the operation of the Grantee's Cable System to provide
Cable Services in the Town.
(A) Gross Revenues include, by way of illustration and not limitation,
• monthly and other fees charged Subscribers for Cable Services to residential
and/or commercial customers, including without limitation, Basic Service,
Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of
Cable Service, optional Premium Service, pay-per-view and per-program
Channels
• Cable Service installation, disconnection, reconnection and change-in-service
fees, or similar charges associated with changes in subscriber Cable Service
levels;
• Leased Access Channel fees;
• digital revenues;
• Converter, remote control and other Cable Service equipment rental or lease fees;
• all other Cable Service lease payments from the Cable System,
• Advertising Revenues, which for the purposes of this Gross Revenues definition
shall mean revenues derived from sales of advertising that are made available to
Grantee’s Cable System subscribers within the Town and shall be allocated on a
pro rata basis using total Cable Service subscribers reached by the advertising.
Additionally, Grantee agrees that Gross Revenues subject to franchise fees shall
include all commissions, rep fees, Affiliated Entity fees, or rebates paid to entities
associated with sales of advertising on the Cable System within the Town
allocated according to this paragraph using total Cable Service subscribers
reached by the advertising;
• late fees, convenience fees and administrative fees;
• Franchise Fees;
• FCC regulatory fees;
• Commissions from home shopping channels and other Cable Service revenue
sharing arrangements which shall be allocated on a pro rata basis using total
Cable Service subscribers within the Town;
• fees, payments, consideration received by the Grantee from programmers for
carriage of Cable Services on the Cable System; and recognized as revenue under
generally accepted accounting principles (GAAP)
• revenue from the sale or carriage of other Cable Services;
Gross Revenues shall include revenue received by any entity other than the Grantee
where necessary to prevent evasion or avoidance of the obligation under this Agreement
to pay the Agreement Fees.
6
(B) Gross Revenues shall not include (i) Bad Debt, provided, however, that all or part
of any such Bad Debt that is written off but subsequently collected shall be included in
Gross Revenues in the period collected; or (ii) any taxes on services furnished by the
Grantee that are imposed directly on any Subscriber or user by the State, Town or other
governmental unit and that are collected by the Grantee on behalf of said governmental
unit, provided that Franchise Fees and the FCC User Fee shall not be regarded as such a
tax or fee. Subject to Federal law, all Franchise Fees may be passed through to
Subscribers.
(C) To the extent revenues are received by Grantee for the provision of a discounted
bundle of services which includes Cable Services and non-Cable Services, Grantee shall
calculate revenues to be included in Gross Revenues using the allocation methodology set
forth in Section 3.10. It is expressly understood that equipment may be subject to
inclusion in the bundled price at full rate card value. This calculation shall be applied to
every bundled service package containing Cable Service from which Grantee derives
revenues in the Town. The Grantor reserves its right to review and to challenge Grantee’s
calculations as provided in Section 3.5.
1.25 "Headend" or "Hub" means any Facility for signal reception and dissemination on
the System, including cable, antennas, wires, satellite dishes, monitors, switchers,
modulators, processors for Broadcast Signals or other signals, and other related
equipment and facilities for the Interconnection of the System with adjacent Systems and
Interconnection of any networks that are part of the System, and all other related
equipment and Facilities.
1.26 "Interconnect" or "Interconnection" means the linking of Access Channels with
Access Channels carried on a geographically contiguous Cable System, including
technical, engineering, physical, financial and other necessary components to
accomplish, complete and adequately maintain such linking, in a manner to permit the
transmission and receiving of electronic or optical signals between the System and other
Systems; or to permit the necessary components to accomplish, complete and adequately
maintain pathways that permit the transmission and receiving of electronic or optical
signals between locations connected to portions of the System outside the Franchise
Area and those portions of the System inside the Franchise Area.
1.27 "Leased Access Channel" means any Channel or portion of a Channel
commercially available for programming in accordance with Section 612 of the
Cable Act.
1.28 "Locally Scheduled Original Programming" means Government Access or
Educational Access programming that is created by the Town or any School, Fire
District, Library District or Local Marketing District including edited coverage of live
programming. It shall also include any regional or statewide programming created by
any other organization that makes available programming to the Town that meets the
definition of Access Programming. Such Locally Scheduled Original Programming
shall not be considered as qualifying as such after three (3) cablecasts (initial, first repeat
and second repeat). Automated Video Programming filler, such as cablecasts of
7
highways and roads, does not constitute Locally Scheduled Original Programming that
qualifies herein, unless part of screen upon which the referenced cablecasts are shown
also includes what would otherwise qualify as Locally Scheduled Original
Programming.
1.29 "Noncommercial" means those products and services that are not promoted or
sold for profit. This term shall not be interpreted to prohibit an Access Channel operator
or programmer from soliciting and receiving financial support to produce and transmit
Video Programming on an Access Channel, or from acknowledging a contribution, in the
manner of the Corporation for Public Broadcasting or some similar manner, subject to
applicable law.
1.30 "Normal Business Hours" means those hours during which most similar
businesses in the community are open to serve Customers, and must include at least
some evening and weekend hours.
1.31 "Normal Operating Conditions" means those service conditions that are within
the control of the Grantee. Those conditions that are not within the control of the
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions that are ordinarily within the control of the Grantee include, but are not
limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods and maintenance or upgrade of the System.
1.32 "Pay Service" or "Premium Service" means Video Programming or other
programming service choices (such as movie Channels or pay-per-view programs)
offered to Subscribers on a per-Channel, per-program or per-event basis.
1.33 "Person" means any natural person, sole proprietorship, partnership, joint
venture, association, or limited liability entity or corporation, or any other form of
entity or organization.
1.34 "Residential Subscriber" means any Person who lawfully receives Cable
Service delivered to Dwelling Units or multiple Dwelling Units, excluding such
multiple Dwelling Units billed on a bulk billing basis.
1.35 "Rights-of-Way" means each of the following which have been dedicated to the
public or are hereafter acquired and dedicated to the public and maintained under public
authority or by others and located within the Town: streets, roads, highways, avenues,
lanes, alleys, bridges, sidewalks, easements, and similar public property or other property
dedicated for compatible uses now or hereafter held by the Grantor within the Franchise
Area. Parks, trails and open space are not rights-of-way.
1.36 "School" means any State accredited K-12 public and private educational
institutions excluding home schools.
1.37 "Service Interruption" means the loss of picture or sound on one or more cable
Channels.
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1.38 "State" means the State of Colorado.
1.39 "Subscriber" or "Customer" means any Person who lawfully receives Cable
Services provided by Grantee by means of the System with Grantee's express
permission.
1.40 "System" or "Cable System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception and control equipment that
is designed to provide Cable Service that includes Video Programming and that is
provided to multiple Subscribers within a community, but such term does not include (1)
a facility that serves only to retransmit the television signals of one or more television
broadcast stations; (2) a facility that serves Subscribers without using any public right-of-
way; (3) a facility of a common carrier that is subject, in whole or in part, to the
provisions of Title II of the federal Communications Act (47 U.S.C. Section 201 et seq.),
except that such facility shall be considered a cable system (other than for purposes of
Section 621(c) (47 U.S.C. Section 541(c)) to the extent such facility is used in the
transmission of Video Programming directly to Subscribers, unless the extent of such use
is solely to provide interactive on-demand services; (4) an open video system that
complies with 47 U.S.C., Section 573 of the Cable Act; or (5) any facilities of any
electric utility used solely for operating its electric utility systems. When used herein, the
term "Cable System" or "System" shall mean Grantee's Cable System in the Franchise
Area unless the context indicates otherwise.
1.41 "Tier" means a category of Cable Services provided by the Grantee for which a
separate rate is charged.
1.42 "Town" or "Grantor" means the Town of Estes Park, Colorado.
1.43 "Video Programming" means programming provided by, or generally considered
comparable to programming provided by a television broadcast station.
SECTION 2. GRANT OF AGREEMENT
2.1 Grant
(A) Grantor hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of-Way within the Franchise Area to construct,
operate, maintain, reconstruct, repair and upgrade a System for the purpose of providing
Cable Services, subject to the terms and conditions set forth in this Agreement and
Applicable Law. This Agreement shall constitute both a right and an obligation to
provide the Cable Services required by, and to fulfill the obligations set forth in, the
provisions of this Agreement.
(B) The Grantee, through this Agreement, is granted the right to operate its
System to provide Cable Services using the Grantor's Rights-of-Way within the
Agreement Area subject to the provisions of Applicable Law, and in compliance with all
ordinances and regulations enacted pursuant thereto. This Agreement is a contract and
9
except as to those changes which are the result of Grantor’s lawful exercise of its general
police power, the Grantor may not take any unilateral action which has the effect of
limiting the benefits or expanding the obligations of Grantee that are granted or imposed
by this Agreement. Grantee reserves the right to challenge provisions of any ordinance,
rule, regulation, resolution or other enactment of the Grantor that conflicts with its
contractual rights under this Agreement, either now or in the future.
(C) No rights shall pass to Grantee by implication. Without limiting the
foregoing, by way of example and not limitation, this Agreement shall not include or be a
substitute for:
(1) Any other generally applicable permit or authorization required
for the privilege of transacting and carrying on a business within the Town that
may be required by the ordinances and laws of the Town. Grantee shall pay
permit fees and inspection fees as required by the Town from businesses in the
regular course of business.
(2) Any generally applicable permit, agreement or authorization
required by the Town for Rights-of-Way users in connection with operations on
or in Rights-of-Way or public property including, by way of example and not
limitation, street cut permits; or
(3) Any generally applicable permits or agreements for occupying
any other property of the Town or private entities to which access is not
specifically granted by this Agreement including, without limitation,
permits and agreements for placing devices on poles, in conduits or in or on
other structures.
(E) This Agreement is intended to convey limited rights and interests only as
to those Rights-of-Ways in which the Grantor has an actual interest. It is not a warranty
of title or interest in any Rights-of-Way; it does not provide the Grantee with any interest
in any particular location within the Rights-of-Way; and it does not confer rights other
than as expressly provided in the grant hereof.
(F) This Agreement is an express authorization to provide Cable Services
only and does not authorize, prohibit or condition Grantee's provision of non-Cable
Services, telecommunications services or information services in the Franchise Area.
This Agreement is not a bar to the imposition of any lawful conditions on Grantee with
respect to non-Cable Services, telecommunications services or information services,
whether similar, different or the same as the condition specify herein. This Agreement
does not relieve Grantee of any obligation it may have to obtain from the Town an
authorization to provide non-Cable Services, telecommunications services or information
services or relieve Grantee of its obligation to comply with any such authorization(s) that
may be lawfully required. However, this Agreement shall not be read as a concession by
Grantee that it needs authority to provide non-Cable Services, telecommunications
services or information services.
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2.2 Use of Rights-of-Way
(A) Grantee may erect, install, construct, repair, replace, reconstruct, and
retain in, on, over, under, upon, across, through, below and along the Rights-of-Way
within the Agreement Area, such wires, cables (both coaxial and Fiber Optic), conductors,
ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary and appurtenant to the operation of a System for
the provision of Cable Services within the Franchise Area.
(B) Grantee must install, operate, maintain, and when required by Applicable
Law, remove System facilities in a manner that minimizes interference with the use of the
Rights-of-Way by others including others that may be installing communications facilities.
Grantee shall comply with all Applicable Law and must obtain any and all necessary
permits from the Town prior to commencing any construction activities.
2.3 Duration
The term of this Agreement and all rights, privileges, obligations and restrictions
pertaining thereto shall commence upon the effective date hereof and shall expire on
January 31, 2034 unless lawfully terminated sooner as hereinafter provided.
2.4 Effective Date
(A) This Agreement and the rights, privileges, and authority granted
hereunder and the contractual relationship established hereby shall take effect and be in
force from and after the effective date of this Agreement as specified in this Section.
(B) The effective date of this Agreement shall be thirty (30) days after
publication of the ordinance approving the Agreement.
(C) The grant of this Agreement shall have no effect on the Grantee's duty
under the 2012 Franchise or any ordinance in effect prior to the effective date of this
Agreement to indemnify or insure the Grantor against acts and omissions occurring
during the period that the 2012 Franchise was in effect, nor shall it have any affect upon
liability to pay all Franchise Fees (for any prior years) that were due and owed under the
2012 Franchise.
2.5 Agreement Nonexclusive
This Agreement shall be nonexclusive, and subject to all prior rights, interests,
easements, or agreements granted by Grantor or its predecessors to any Person to use any
property, Right-of-Way, easement, right, interest for any purpose whatsoever, including
the right of Grantor to use same for any purpose it deems fit, including the same or
similar purposes allowed Grantee hereunder. Grantor may at any time grant authorization
to use the Rights-of-Way for any purpose not incompatible with Grantee's authority
under this Agreement and for such additional franchises for Cable Systems as Grantor
deems appropriate.
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2.6 Grant of Other Agreements
(A) In the event Grantor enters into an agreement, permit, authorization or
other agreement of any kind with any other Person or entity other than the Grantee,
including itself, to enter into the Grantor's streets or Rights-of-Way for the purpose of
constructing or operating a wireline System in order to provide Cable Service to the
Franchise Area in which the Grantee is providing Cable Service under the terms and
conditions of this Agreement or is required to extend Cable Service under the
provisions of this Agreement and if another cable operator offers Cable Service in the
Franchise Area served by Grantee then at Grantee's request, Grantor shall agree to
amend this Agreement, on a going-forward basis only, for the limited purpose of
ensuring that the material terms and conditions herein (unless prohibited by Applicable
Law) shall be reasonably comparable and shall be neither more favorable nor less
burdensome than those governing the other cable operator, in order that one wireline
cable operator not be granted an unfair competitive advantage over another. “Material
terms and conditions” include, but are not limited to: Franchise Fees and Gross
Revenues; insurance; System build-out requirements; security instruments; Access
Channels and support; customer service standards; required reports and related record
keeping; grant of other agreements; audits; dispute resolution; remedies; and notice and
opportunity to cure breaches. The parties agree that this provision shall not require a
word for word identical franchise so long as the regulatory and financial burdens on
each entity are materially equivalent.
(B) The modification process of this Franchise as provided for in Section 2.6
(A) shall only be initiated by written notice by the Grantee to the Grantor regarding
specified franchise obligations. Grantee’s notice shall address the following: (1)
identifying the specific terms or conditions in the competitive cable services franchise
which are materially different from Grantee’s obligations under this Franchise; (2)
identifying the Franchise terms and conditions for which Grantee is seeking
amendments; (3) providing text for any proposed Franchise amendments to the Grantor,
with a written explanation of why the proposed amendments are necessary and
consistent.
(C) Upon receipt of Grantee’s written notice as provided in Section 2.6 (B),
the Grantor and Grantee agree that they will use best efforts in good faith to negotiate
Grantee’s proposed Franchise modifications, and that such negotiation will proceed and
conclude within a ninety (90) day time period, unless that time period is reduced or
extended by mutual agreement of the parties. If the Grantor and Grantee reach agreement
on the Franchise modifications pursuant to such negotiations, then the Grantor shall
amend this Franchise to include the modifications.
2.7 Familiarity with Agreement
The Grantee acknowledges and warrants by acceptance of the rights, privileges and
agreement granted herein, that it has carefully read and fully comprehends the terms and
conditions of this Agreement and is willing to and does accept all reasonable risks of
the meaning of the provisions, terms and conditions herein. The Grantee further
acknowledges and states that it has fully studied and considered the requirements and
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provisions of this Franchise, and finds that the same are commercially practicable at this
time, and consistent with all Applicable Law currently in effect, including the Cable
Act.
2.8 Effect of Acceptance
By accepting the Agreement, the Grantee: (1) acknowledges and accepts the Grantor's
legal right to issue and enforce the Agreement; (2) accepts and agrees to comply with
each and every provision of this Agreement subject to Applicable Law; and (3) agrees
that the Agreement was granted pursuant to processes and procedures consistent with
applicable law, and that it will not raise any claim to the contrary.
2.9 Police Powers
Grantee's rights hereunder are subject to the lawful police powers of Grantor to adopt and
enforce ordinances necessary to the safety, health and welfare of the public, and Grantee
agrees to comply with all Applicable Laws enacted pursuant to the police powers of
Grantor, or hereafter enacted in accordance therewith, by Grantor or any other legally
constituted governmental unit having lawful jurisdiction over the subject matter hereof.
The Town reserves the right to exercise its lawful police powers, notwithstanding
anything in this Agreement to the contrary. Grantee reserves the right to challenge
provisions of any ordinance, rule, regulation, resolution or other enactment of the
Grantor that conflicts with its contractual rights either now or in the future.
2.10 Change in Law Modification
Should there be a change in federal or state law or regulation that alters the rights,
obligations, or authority of either Grantee or Grantor in a way that either party believes
requires amendment to the terms of this Agreement in order to bring the Agreement into
compliance with the change in law, the party believing such amendment is necessary
shall provide written notice to the other party. The Parties agree that receipt of such
notice shall initiate a one hundred twenty (120) day negotiation period, which can be
extended or shortened by agreement of the Parties, during which the Parties will
negotiate in good faith any required amendment. If the Parties cannot agree upon an
appropriate amendment, or whether an amendment is required by the change in law, the
terms of this Agreement shall remain intact and each party reserves its rights to seek
alternative remedies, including but not limited to seeking a declaratory judgment from a
court of competent jurisdiction.
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 Franchise Fee
As compensation for the use of Grantor's Rights-of-Way, Grantee shall pay as an
Franchise Fee to Grantor, throughout the duration of this Agreement, an amount equal to
five percent (5%) of Grantee's Gross Revenues. Accrual of such Franchise Fee shall
commence as of the effective date of this Agreement, but shall not be paid to the Town
until the next required filing.
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3.2 Payments
Grantee's Franchise Fee payments to Grantor shall be computed quarterly for the
preceding calendar quarter ending March 31, June 30, September 30, and December
31. Each quarterly payment shall be due and payable no later than forty-five (45) days
after said dates.
3.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by Grantor that the
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be
construed as a release of any claim Grantor may have for further or additional sums
payable or for the performance of any other obligation of Grantee. The period of
limitation for recovery of Agreement Fees payable hereunder shall be three (3) years
from the date on which payment by the Grantee was due.
3.4 Quarterly and Annual Franchise Fee Reports
Each payment shall be accompanied by a written report to Grantor verified by an
authorized representative of Grantee, containing an accurate statement in summarized
form, as well as in detail, of Grantee's Gross Revenues and the computation of the
payment amount. Such reports shall detail all Gross Revenues of the System and shall be
drafted in accordance with GAAP. The Grantee shall file an annual financial report,
consisting of Grantee's corporate parent’s 10-K filed with the Securities and Exchange
Commission, as well as a statement of Gross Revenues from Grantee’s operations in the
Town for the preceding 12 month period. This shall be submitted along with such other
reasonable information as the Town may reasonably request with respect to Grantee's
revenues and expenses related to its Cable System operations within the Town.
3.5 Audits
(A) On a maximum annual basis, upon thirty (30) days' prior written notice,
Grantor shall have the right to conduct an independent audit or financial review of
Grantee's records regarding Gross Revenues reasonably related to the enforcement of
this Agreement and to calculate any amounts determined to be payable under this
Agreement. Pursuant to subsection 1.24, as part of the Franchise Fee audit/review the
Grantor shall specifically have the right to review relevant data related to the allocation
of revenue to Cable Services in the event Grantee offers Cable Services bundled with
non-Cable Services. For purposes of this section, “relevant data” shall include, at a
minimum, Grantee’s records, produced and maintained in the ordinary course of
business, showing the subscriber counts per package and the revenue allocation per
package for each package that was available for Grantor subscribers during the audit
period. To the extent that the Grantor does not believe that the relevant data supplied
is sufficient for the Grantor to complete its audit/review, the Grantor may require other
relevant data. For purposes of this Section 3.5, the “other relevant data” shall generally
mean all: (1) billing reports, (2) financial reports (such as General Ledgers) and (3)
sample customer bills used by Grantee to determine Gross Revenues for the Franchise
Area that would allow the Grantor to recompute the Gross Revenue determination.
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(B) Provided Grantee cooperates in making all relevant records available
upon reasonable advance written request, Grantor will in good faith attempt to
complete each audit within six (6) months, and the audit period shall not be any greater
than the previous three (3) years. Any additional amounts due to the Grantor as a result
of the audit shall be paid within ninety (90) days following written notice to the
Grantee by the Grantor, which notice shall include a copy of the audit/review findings,
and Grantee's agreement that the audit findings are correct.
(C) If an undisputed Franchise Fee underpayment is discovered as the result
of an audit, Grantee shall pay, in addition to the amount due, interest at the rate of one
and one-half percent (1 1/2 %) per month calculated from the date the underpayment
was originally due until the date the Town receives the payment. If the audit shows that
Franchise Fees have been underpaid, by five percent (5%) or more in a calendar year,
Grantee shall pay the reasonable cost of the audit such cost for the entire audit not to
exceed $5,000 per audit year.
3.6 Financial Records
Grantee agrees to meet with a representative of the Grantor upon request to review
Grantee's methodology of record-keeping, financial reporting, the computing of
Franchise Fee obligations and other procedures, the understanding of which the Grantor
deems necessary for reviewing reports and records that are relevant to the enforcement
of this Agreement. The parties shall use best efforts to conduct such meetings
telephonically.
3.7 Interest on Late Payments
In the event any payment is not received within forty-five (45) days from the end of the
calendar quarter, Grantee shall pay, in addition to the payment or sum due, interest on
the amount due at the rate of one and one-half percent (1 1/2%) per month on the date the
payment was due, calculated from the date the payment was originally due until the date
the Town receives the payment.
3.8 Additional Commitments Not Franchise Fees
(A) The Access Contribution pursuant to Section 9.11, as well as any charges
incidental to the awarding or enforcing of this Franchise (including, without limitation,
payments for bonds, security funds, letters of credit, insurance, indemnification, penalties
or liquidated damage) and Grantee’s costs of compliance with customer service standards
and build out obligations shall not be offset against Franchise Fees. Furthermore, the
Grantor and Grantee agree that any local tax of general applicability shall be in addition to
any Franchise Fees required herein, and there shall be no offset against Franchise Fees.
Notwithstanding the foregoing, Grantee reserves all rights to offset cash or non-cash
consideration or obligations from Franchise Fees, consistent with Applicable Law. The
Grantor likewise reserves all rights it has under Applicable Law. Should Grantee elect to
offset the items set forth herein, or other Franchise commitments such as complimentary
Cable Service, against Franchise Fees in accordance with Applicable Law, Grantee shall
15
provide the Grantor with advance written notice. Such notice shall document the proposed
offset or service charges so that the Grantor can make an informed decision as to its course
of action. Upon receipt of such notice Grantor shall have up to one hundred twenty (120)
days to either (1) maintain the commitment with the understanding that the value shall be
offset from Franchise Fees; (2) relieve Grantee from the commitment obligation under the
Franchise; or (3) pay for the services rendered pursuant to the commitment in accordance
with Grantee’s regular and nondiscriminatory term and conditions.
(B) Grantee’s notice pursuant to Section 3.8(A) shall, at a minimum, address
the following: (1) identify the specific cash or non-cash consideration or obligations that
must be offset from Grantee’s Franchise Fee obligations; (2) identify the Franchise terms
and conditions for which Grantee is seeking amendments; (3) provide text for any proposed
Franchise amendments to the Grantor, with a written explanation of why the proposed
amendments are necessary and consistent with Applicable Law; and (4) provide all
information and documentation reasonably necessary to address how and why specific
offsets are to be calculated. Nothing in this Section 3.8(B) shall be construed to extend the
one hundred twenty (120) day time period for Grantor to make its election under Section
3.8(A); provided however, that any disagreements or disputes over whether sufficient
information has been provided pursuant to this Paragraph (B) may be addressed under
Section 15 of this Franchise.
(C) Upon receipt of Grantee’s written notice as provided in Section 3.8(B), the
Grantor and Grantee agree that they will use best efforts in good faith to negotiate Grantee’s
proposed Franchise modifications and agree to what offsets, if any, are to be made to the
Franchise Fee obligations. Such negotiation will proceed and conclude within a one
hundred twenty (120) day time period, unless that time period is reduced or extended by
mutual agreement of the parties. If the Grantor and Grantee reach agreement on the
Franchise modifications pursuant to such negotiations, then the Grantor shall amend this
Franchise to include those modifications.
(D) If the parties are unable to reach agreement on any Franchise Fee offset
issue within one hundred twenty (120) days or such other time as the parties may mutually
agree, each party reserves all rights it may have under Applicable Law to address such
offset issues.
(E) The Grantor acknowledges that Grantee currently provides one outlet of
Basic Service and Digital Starter Service and associated equipment to certain Grantor
owned and occupied or leased and occupied buildings, schools, fire stations and public
libraries located in areas where Grantee provides Cable Service. For purposes of this
Franchise, “school” means all State-accredited K-12 public and private schools. Outlets of
Basic and Digital Starter Service provided in accordance with this subsection may be used
to distribute Cable Services throughout such buildings, provided such distribution can be
accomplished without causing Cable System disruption and general technical standards are
maintained. Grantee’s commitment to provide this service is voluntary, and may be
terminated by Grantee, at its sole discretion.
(1) Grantee’s termination of complimentary services provided shall be
pursuant to the provisions of Section 3.8(A)-(E) above. Grantor may make a
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separate election for each account or line of service identified in the notice (for
example, Grantor may choose to accept certain services or accounts as offsets to
Franchise Fees, and discontinue other services or accounts), so long as all elections
are made within one hundred twenty (120) days.
(2) Notwithstanding the foregoing, Grantee reserves all rights to offset
cash or non-cash consideration or obligations from Franchise Fees, consistent with
Applicable Law. The Grantor likewise reserves all rights it has under Applicable
Law.
3.9 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the Grantor
within one hundred twenty (120) calendar days of the date of the termination, a financial
statement, certified by an independent certified public accountant, showing the Gross
Revenues received by the Grantee since the end of the previous fiscal year. Within forty
five (45) days of the filing of the certified statement with the Grantor, Grantee shall pay
any unpaid amounts as indicated. If the Grantee fails to satisfy its remaining financial
obligations as required in this Agreement, the Grantor may do so by utilizing the funds
available in a Letter of Credit or other security provided by the Grantee.
3.10 Bundling
(A) Grantor acknowledges that, during the term of this Agreement, Grantee
may offer to its Subscribers, at a discounted rate, a bundled or combined package of
services consisting of Cable Services, which are subject to the Franchise Fee referenced
above in section 3.1, and other services that are not subject to that Franchise Fee. To the
extent discounts reduce revenues includable for purposes of calculating Franchise Fees,
the Grantee shall, in accordance with GAAP, calculate the Franchise Fees based on the
retail price of Cable Services in the bundle reduced by no more than a proportionate
share of the overall discount. By way of illustrative example, if Cable Service A is sold
separately at a price of $40 per month, Non-Cable Service B is sold separately at a price
of $40 per month and Non-Cable Service C is sold separately at a price of $40 per
month, but the three services when purchased together are sold for a single aggregate
price of $100 per month, the amount of the $100 per month collected by Grantee from
each Subscriber purchasing the bundle which is to be included under Gross Revenues
under this Franchise (i.e., the amount attributable to Cable Service) shall be $33.33 per
month. As a second example, if Cable Service A is sold separately at a price of $50 per
month, Non-Cable Service B is sold separately at a price of $63 per month, Non-Cable
Service C is sold separately at a price of $74 per month, but the three services when
purchased together are sold for a single aggregate price of $150 per month, the amount
of the $150 per month collected by Grantee from each Subscriber purchasing the
bundle which is to be included in Gross Revenues under this Franchise (i.e., the amount
attributable to Cable Service) shall be $40.11 per month. These examples are based
upon GAAP in effect as of the Effective Date of this Franchise. In the event these
principles change such that it creates a conflict between GAAP and the foregoing
examples in the future, Grantee shall continue to treat its bundled Cable and Non-Cable
Service offerings in accordance with GAAP. If a dispute arises between the parties
17
regarding this matter, Grantor and Grantee will meet within ten (10) days notice and
discuss such matters in good faith in an attempt to reach a reasonable compromise
thereof.
(B) Grantee reserves the right to change the allocation methodologies set forth
in this Section 3.10 in order to meet the standards required by governing accounting
principles as promulgated and defined by the Financial Accounting Standards Board
(“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S. Securities and
Exchange Commission (“SEC”). To the extent Grantee changes the allocation
methodologies set forth herein, Grantee shall provide written notice to the Grantor of the
new methodology within ninety (90) days of making such changes, , and any such
changes shall be subject to 3.10(C) below.
(C) Resolution of any disputes over the classification of revenue should first
be attempted by agreement of the Parties, but should no resolution be reached, the Parties
agree that reference shall be made to generally accepted accounting principles (“GAAP”)
as promulgated and defined by the Financial Accounting Standards Board (“FASB”),
Emerging Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange
Commission (“SEC”). Notwithstanding the forgoing, the Grantor reserves its right to
challenge Grantee’s calculation of Gross Revenues, including the interpretation of GAAP
as promulgated and defined by the FASB, EITF and/or the SEC.
3.11 Tax Liability
The Franchise Fees shall be in addition to any taxes or other levies or assessments
which are now or hereafter required to be paid by businesses in general by any law of
the Town, the State or the United States including, without limitation, sales, use, utility
and other taxes, business license fees or other payments. Payment of the Franchise Fees
under this Agreement shall not exempt Grantee from the payment of any other license
fee, permit fee, tax or charge on the business, occupation, property or income of
Grantee that may be lawfully imposed by the Town. Any other license fees, taxes or
charges shall be of general applicability in nature and shall not be levied against
Grantee solely because of its status as a Cable Operator or against Subscribers solely
because of their status as such.
SECTION 4. ADMINISTRATION AND REGULATION
Grantor shall be vested with the power and right to administer and enforce the
requirements of this Agreement and the regulations and requirements of Applicable
Law, including the Cable Act, or to delegate that power and right of administration, or
any part thereof, to the extent permitted under federal, State and local law, to any agent
in the sole discretion of the Town provided, however, that Grantee shall have the right to
appeal to the Town Board any adverse determination made by a delegate of the Town.
4.1 No Rate Discrimination
All Grantee rates and charges shall be published (in the form of a publicly-available rate
card), and shall be non-discriminatory as to all Persons of similar classes, under similar
18
circumstances and conditions. Grantee shall apply its rates in accordance with governing
law. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in
conjunction with promotional campaigns;
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or
(C) The offering of bulk discounts for Multiple Dwelling Units.
4.2 Filing of Rates and Charges
Throughout the term of this Agreement, Grantee shall, if requested by Grantor and if not
otherwise available to Grantor via the Internet, maintain on file with Grantor a complete
schedule of applicable rates and charges for Cable Services provided under this
Agreement. Nothing in this subsection shall be construed to require Grantee to file rates
and charges under temporary reductions or waivers of rates and charges in conjunction
with promotional campaigns. As used in this subsection, no rate or charge shall be
considered temporary if Subscribers have the ability over a period greater than twelve
(12) consecutive months (or such other period as may be approved by Grantor) to
purchase Cable Services at such rate or charge.
4.3 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or
sum, however, characterized, that the Grantee imposes upon a Subscriber solely for late
payment of a bill is a late fee and shall be applied in accordance with Applicable Law.
(B) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory, and such policies and practices, and any fees imposed pursuant to
this subsection, shall apply equally in all parts of the Franchise Area without regard to
the neighborhood or income level of the subscribers.
(C) Nothing in this subsection shall be deemed to create, limit or otherwise
affect the ability of the Grantee to impose other assessments, charges, fees or sums for
the Grantee's other services or activities it performs in compliance with applicable law
including FCC law, rule or regulation.
(D) For purposes of calculating the Franchise Fee, any late fee shall be
allocated according to GAAP and be split across Cable Service and Non-Cable Service
proportionally.
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SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold
Grantor, its officers, officials, boards, commissions, authorized agents and employees,
and self-insurance pool harmless from any action or claim for injury, damage, loss,
liability, cost or expense, including court and appeal costs and attorneys' fees and
expenses, arising from any casualty or accident to Person or property, including, without
limitation, copyright infringement, defamation, and all other damages in any way arising
out of, or by reason of, any construction, excavation, operation, maintenance,
reconstruction, or any other act done under this Agreement, by or for Grantee, its
authorized agents, or its employees; provided however Grantee shall not be obligated to
indemnify or defend any claim or action arising from or related to the negligence or
willful misconduct of indemnified parties or arising from or related to the operation or use
of the Access Channels by Governmental or Educational personnel. Grantee shall consult
and cooperate with the Grantor while conducting its defense of the Grantor.
(B) Indemnification for Relocation. Grantee shall indemnify Grantor for any
damages, claims, additional costs or expenses assessed against, or payable by, Grantor
related to, arising out of, or resulting from Grantee's failure to remove, adjust or relocate
any of its facilities in the streets in a timely manner in accordance with any relocation
required by Grantor.
(C) Exceptions. Grantee will not be required to indemnify the indemnified
parties or any third party for any claims arising out of the use of Access Channels by
the Grantor and/or its Designated Access Providers or use by the Grantor of the
Emergency Alert System.
(D) Additional Circumstances. Grantee shall also indemnify, defend and hold
Grantor harmless for any claim for injury, damage, loss, liability, cost and expense,
including court and appeal costs and attorneys' fees and expenses in any way arising out
of any failure by Grantee to secure consents from the owners, authorized distributors or
franchisees/licensors of programs to be delivered by the System.
(E) Procedures and Defense. If a claim or action arises, Grantor or any other
indemnified party shall promptly tender the defense of the claim or action to Grantee,
which defense shall be at Grantee's expense. Grantor may participate in the defense of a
claim at its own expense and, in any event, Grantee may not agree to any settlement of
claims financially affecting Grantor without Grantor's written approval that shall not be
unreasonably withheld.
(F) Duty of Defense. The fact that Grantee carries out any activities under
this Agreement through independent contractors shall not constitute an avoidance of or
defense to Grantee's duty of defense and indemnification under this Section.
(G) Duty to Give Notice. The Grantor shall give the Grantee timely written
notice of any claim or of the commencement of any action, suit or other proceeding
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covered by the indemnity in this Section. In the event any such claim arises, the Grantor
or any other indemnified party shall tender the defense thereof to the Grantee, and the
Grantee shall have the obligation and duty to defend any claims arising thereunder and
the Grantor shall cooperate fully therein.
(H) Separate Representation. If separate representation to fully protect the
interests of both parties is necessary, such as a conflict of interest between the Grantor
and the counsel selected by Grantee to represent the Grantor, Grantor may participate at
its own expense. Grantee shall pay attorneys' fees and expenses incurred by the Grantor
in defending itself with regard to any action, suit or proceeding indemnified by Grantee.
The Grantor's fees and expenses shall include all reasonable out-of-pocket expenses, such
as outside counsel fees, and shall also include the reasonable value of any services
rendered by the Town Attorney or his/her assistants or any employees of the Grantor or
its agents but shall not include outside attorneys' fees or consultant fees for services that
are unnecessarily duplicative of services provided the Grantor by Grantee.
(I) During the period while Grantee owned the System prior to the Effective
Date of this Agreement, the grant of this Agreement shall have no effect on the Grantee's
duty under the 2012 Franchise to indemnify or insure the Town against acts and
omissions involving third parties occurring during the period that the 2012 Franchise
was in effect, nor shall it have any effect upon Grantee's liability to pay all Franchise
Fees which were due and owed under the 2012 Agreement.
(J) Colorado Government Immunity. The parties hereby agree and affirm
that nothing in this Agreement shall be deemed a waiver of the defenses and limitations
of the Colorado Governmental Immunity Act, Section 24-10-101 C.R.S., et seq. or any
immunities, limitations or defenses otherwise provided to the Town under federal or
state law and shall not be deemed to confer any benefits to any Person or entity not a
party to this Agreement.
5.2 Insurance Requirements
(A) General Requirement. Grantee shall at its own expense purchase and
maintain the minimum insurance required herein (and in no event shall occurrence
basis minimum limits be less than provided for by C.R.S. §24-10-114(1)(b)) with
companies duly franchised or licensed to do business in the State of Colorado. Said
insurance shall possess a current A.M. Best, Inc. rating of A-VI or better.
Said insurance shall be maintained in full force and effect until all work required to
be performed under the terms of this Agreement is satisfactorily completed.
Grantee solely shall be responsible for deductibles and/or self-insured retention.
(B) Minimum Insurance Limits. Grantee must maintain during the Agreement
term insurance in effect in accordance with the minimum insurance limits herein set forth
by the Grantor. The Grantee shall provide a certificate of insurance for the following
Minimum insurance limits:
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(1) Commercial General Liability: Two Million Dollars ($2,000,000) per
occurrence for bodily injury, personal injury and property damage, with Four Million
Dollars ($4,000,000) aggregate limit, and Two million dollars ($2,000,000) products and
completed operations;
(2) Automobile Liability: One million dollars ($1,000,000) combined
single limit per accident for bodily injury and property damage; and
(3) Employer's Liability: One hundred thousand dollars ($100,000).
(4) Umbrella Liability Insurance in the amount of Three Million
Dollars ($3,000,000).
(5) Workers Compensation Insurance in accordance with State
law requirements. .
(6) Grantee shall be responsible for judgments, settlements, damages,
costs, attorneys' fees and expenses that exceed limits of Grantee's insurance coverage.
(C) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The Grantor, its officers, officials, boards, commissions,
employees and agents are to be covered as, and have the rights of, additional
insureds with respect to liability arising out of activities performed by, or
on behalf of, Grantee under this Franchise or Applicable Law, or in the
construction, operation or repair, or ownership of the Cable System;
(b) Grantee's insurance coverage shall be primary insurance
with respect to the Grantor, its officers, officials, boards, commissions,
employees and agents. Any insurance or self-insurance maintained by the
Grantor, its officers, officials, boards, commissions, employees and agents
shall be in excess of the Grantee's insurance and shall not contribute to it;
and
(c) Grantee's insurance shall apply separately to each insured
(except for claims of named insured versus named insured) against whom a
claim is made or lawsuit is brought, except with respect to the limits of the
insurer's liability, and policy exclusions.
(2) The insurance shall provide that the insurance shall not be cancelled or
materially altered so as to be out of compliance with the requirements of this Section
without thirty (30) days written notice first being given to Grantor.
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5.3 Security
(A) Grantee shall provide, subject to the requirement of Subsection 5.3 (B)
below a Performance Bond in the amount of five thousand dollars ($5,000) to ensure the
faithful performance of its responsibilities under this Agreement and applicable law,
including, by way of example and not limitation, its obligations to relocate and remove
its facilities and to restore Town Rights-of-Way and other property. Grantee may be
required to obtain additional bonds, such as generally applicable Construction Bonds, in
accordance with the Town's ordinary practices. The Construction Bond and Performance
Bond shall be in a form reasonably acceptable to the Town's Risk Manager. Grantee
shall pay all premiums or costs associated with maintaining the bond(s), and shall keep
the same in full force and effect at all times. Except as expressly provided herein, the
Grantee shall not be required to obtain or maintain other bonds as a condition of being
awarded the Agreement or continuing its existence. Grantee may substitute the
performance bond with a letter of credit or similar instrument in the amount of
$5,000.00.
(B) If there is an uncured breach of a material provision of this Agreement or
pattern of repeated violations of any provision(s) of this Agreement, then the Town may
request and Grantee shall establish and provide, within thirty (30) days from receiving
notice from the Town, to the Town as security for the faithful performance by Grantee of
all of the provisions of this Agreement, a letter of credit from a financial institution
satisfactory to the Town or a Performance Bond in the amount of five thousand dollars
($5,000).
(C) After the giving of notice by the Town to Grantee, and expiration of any
applicable cure period, the letter of credit or performance bond may be drawn upon by
the Town for purposes that include, but are not limited to the following:
(1) Failure of Grantee to pay the Town sums due under the terms
of this Agreement;
(2) Reimbursement of costs borne by the Town to correct
Agreement violations not corrected by Grantee; and
(3) Monetary remedies or damages assessed against Grantee
as provided in this Agreement.
(D) The Town shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Any such withdrawal must be after and subject to the
cure provisions provided in this Agreement. Within fifteen (15) days following receipt of
such notice, Grantee shall restore the letter of credit or performance bond to the amount
required under this Agreement. Grantee's maintenance of the letter of credit or
performance bond shall not be construed to excuse unfaithful performance by Grantee or
limit the liability of Grantee to the amount of the letter of credit or performance bond or
otherwise limit the Town's recourse to any other remedy available at law or in equity.
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(E) The letter of credit and bonds shall provide that the letter of credit and
bonds shall not be cancelled or materially altered so as to be out of compliance with the
requirements of this Section without thirty (30) days written notice first being given to
Grantor. If the letter of credit and bonds are cancelled or materially altered so as to be out
of compliance with the requirements of this Section within or beyond the term of this
Agreement, Grantee shall provide a replacement letter of credit and bonds. Grantee agrees
to maintain continuous uninterrupted letter of credit and bonds in the amounts required as
specified in this Agreement.
(F) Grantee shall have the right to appeal to the Town Board for
reimbursement in the event Grantee believes that the letter of credit or bond was drawn
upon improperly. After a determination by the Town Board, Grantee shall also have the
right of judicial appeal if Grantee believes the letter of credit or bond has not been
properly drawn upon in accordance with this Agreement. Any funds the Town
erroneously or wrongfully withdraws from the letter of credit or bond shall be returned to
Grantee with interest, from the date of withdrawal at a rate equal one and one-half
percent (1 1/2%) per month.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards as provided in FCC Standards
47 C.F.R. Sections 76.309, 76.1602, 76.1603 and 76.1619, and as they may be
amended. Additionally, Grantee shall provide its service under Normal Operating
Conditions and comply with the Customer Service Standards set forth in Exhibit I
attached hereto and made a part hereof. Grantee recognizes that the Grantor may amend
the Customer Service Standards from time to time through generally applicable
resolution or ordinance in the exercise of its legally authorized police power. Grantee
reserves the right to challenge any Customer Service Standard that it believes is
inconsistent with its rights under this Agreement.
6.2 Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with Applicable
Law.
6.3 Customer Service Location
Throughout the Agreement term, the Grantee must maintain convenient and reasonably
accessible methods for Customers to pay bills, receive, return equipment, obtain
information related to services and products, and speak with a Customer Service
Representative. Grantor and Grantee acknowledge that, in the current economic climate,
staffing the existing local office in the Town is very difficult. Nevertheless, Grantee shall
undertake good faith and reasonable best-efforts to staff the local office and keep it open.
However, no sooner than one year after the Effective Date, if Grantee’s best-efforts to
maintain staffing of the local office fail, then, upon sixty (60) days written notice,
Grantee may close the local office. Grantee shall maintain a toll-free telephone number
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over which Customers’ complaints and requests for repair, service, or adjustments may
be received at any time. Grantee is encouraged but not required to provide a website
whereby Subscribers can request service credit and service information.
6.4 Customer Service Agreement and Manual
(A) Grantee shall provide to Subscribers an accurate, comprehensive
service agreement (currently called the work order) and Customer installation packet
(currently called the Install Packet) for use in establishing Subscriber service consistent
with Grantee's standard operating practices.
(B) A copy of the installation packet shall be provided to each Subscriber at
the time of initial installation or Cable Service upgrade requiring a home visit by the
Grantee (excluding reconnections to the same Subscriber within twelve (12) months), and
at any time the packet is requested by the Subscriber. Within thirty (30) days following
material policy changes, information regarding the changes will be provided to
Subscribers.
SECTION 7. REPORTS AND RECORDS
7.1 Records
Upon thirty (30) days prior written notice, Grantor shall have access to, and the right to
inspect, any books and records of Grantee and its Affiliates that are reasonably related to
the enforcement of the terms of this Agreement. Grantee shall not be obligated to
maintain any books or records for a period longer than three (3) years unless an audit or
financial review is pending, and in the case of Subscriber complaints, for a period of one
(1) year, and Grantee shall not deny Grantor access to any of Grantee's records on the
basis that Grantee's records are under the control of any parent corporation, Affiliated
Entity or a third party. Grantor may, in writing, request copies of any such records or
books, and Grantee shall provide such copies within thirty (30) days of the receipt of such
request. One copy of all reports and records required under this or any other Section shall
be furnished to Grantor at the sole expense of Grantee. If the requested books and records
are too voluminous, or for security reasons cannot be copied or removed, then Grantee
may request, in writing within ten (10) days of receipt of such request, that Grantor
inspect them at Grantee's local offices. If any books or records of Grantee are not kept in
a local office and not made available in copies to Grantor upon written request as set
forth above, and if Grantor determines that an examination of such records is necessary
for the enforcement of this Agreement, then all reasonable travel expenses incurred in
making such examination shall be paid by Grantee.
7.2 Confidentiality
The Grantor agrees to treat as confidential any books or records that constitute
proprietary or confidential information under federal or State law, to the extent Grantee
makes the Grantor aware of such confidentiality. Grantee shall be responsible for
clearly and conspicuously stamping the word "Confidential" on each page that contains
confidential or proprietary information. Notwithstanding anything to the contrary set
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forth in this Agreement, the Grantee shall not be required to disclose information which
it reasonably deems to be proprietary or confidential in nature. Grantee shall not be
required to provide Customer information in violation of Section 631 of the Cable Act or
any other applicable federal or state privacy law. For purposes of this Section, the terms
"proprietary or confidential" include, but are not limited to, information relating to the
Cable System design, customer lists, marketing plans, financial information unrelated to
the calculation of Agreement Fees, or rates pursuant to FCC rules or other information
that is reasonably determined by the Grantee to be competitively sensitive. If the
Grantor believes it must release any such confidential books and records in the course of
enforcing this Franchise, or for any other reason, it shall advise Grantee in advance so
that Grantee may take appropriate steps to protect its interests. If the Grantor receives a
demand from any Person for disclosure of any information designated by Grantee as
confidential, the Grantor shall, so far as consistent with Applicable Law, advise Grantee
and provide Grantee with a copy of any written request by the party demanding access to
such information within a reasonable time. Until otherwise ordered by a court or agency
of competent jurisdiction, the Grantor agrees that, to the extent permitted by State and
federal law, it shall deny access to any of Grantee's books and records marked
confidential as set forth above to any Person. Grantee shall reimburse the Grantor for all
reasonable costs and attorneys fees incurred in any legal proceedings pursued under this
Section.
7.3 Records Required
(A) Consistent with Section 7.1, Grantee shall at all times maintain:
(1) A complete set of maps showing the exact location of all Cable
System equipment and facilities in the Right-of-Way but excluding detail on
proprietary electronics contained therein and Subscriber drops. As-built maps
including proprietary electronics shall be made available for inspection by the
Grantor’s authorized representative(s) or agent(s) during the course of technical
inspections as reasonably conducted by the Grantor. These maps shall be
certified as accurate by an appropriate representative of the Grantee;
(2) A copy of all FCC filings on behalf of Grantee, its parent
corporations or Affiliates that relate to the operation of the System in the
Franchise Area including any such filing that shows the Cable System or Grantee
not to be in compliance with FCC Standards or requirements;
(3) A list of Grantee's Cable Services, rates and Channel line-ups;
(4) A log of Cable Services added or dropped, Channel changes,
number of Subscribers added or terminated, all construction activity, and total
homes passed for the previous twelve (12) months; and
(5) A compilation of service outages within the Town of more than two
(2) hours.
7.4 Copies of Federal and State Reports
Upon reasonable written request, Grantee shall submit to Grantor copies of any
pleading, applications, notifications, communications and documents of any kind,
submitted by Grantee or its Affiliates to any federal, State or local courts, regulatory
26
agencies and other government bodies if such documents directly relate to the
operations of Grantee's System within the Franchise Area. Grantee shall submit such
documents to Grantor no later than thirty (30) days after receipt of Grantor's request.
Grantee shall not claim confidential, privileged or proprietary rights to such documents
unless under federal, State, or local law such documents have been determined to be
confidential by a court of competent jurisdiction, or a federal or State agency. With
respect to all other reports, documents and notifications provided to any federal, State
or local regulatory agency as a routine matter in the due course of operating Grantee's
System within the Franchise Area, Grantee shall make such documents available to
Grantor upon Grantor's written request.
7.5 Complaint File and Reports
(A) Grantee shall keep an accurate and comprehensive file of any escalated
complaints regarding the Cable System, in a manner consistent with the privacy rights of
Subscribers, and Grantee's actions in response to those complaints. For the purposes of
this Section, records of complaints relate only to complaints brought to Grantee’s
attention by the Town and complaints made by Subscribers in the Town to the FCC or
consumer focused organizations like the Better Business Bureau. Consistent with
Section 7.1, this file shall be made available to the Grantor upon request.
(B) Within thirty (30) days of a written request, where the Town has reason to
believe there is an ongoing problem of widespread or repeated service interruptions or
other service call issues Grantee shall provide the Grantor a report containing the
following information from the preceding quarter:
(1) A summary of service calls, identifying the number and nature of
the requests and their disposition. For the purposes of this Section, "service calls"
means an in person visit to a Subscriber premise or some other part of the Cable
System to investigate, test, repair or evaluate any concern with the quality of the
Cable Services provided by Grantee, in response to a report or request of any
Person If Grantee is not able to provide such service call information reflecting
requests within the Town, it may provide the information on a regional basis,
together with a description of the complete boundaries of the region.
(2) A log of all service interruptions affecting multiple subscribers
lasting more than 2 hours if the outage occurs between 5 and 11 p.m., or more
than 4 hours for all other times, during the previous quarter; and
(3) A summary of customer complaints referred by the Grantor to
Grantee.
7.6 False Statements
Any intentional false or misleading statement or representation in any report required by
this Agreement shall be a material breach of this Agreement and may subject Grantee to
all remedies, legal or equitable, that are available to Grantor under this Agreement or
otherwise.
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SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide at least the following initial broad categories of programming to the
extent such categories are reasonably available.
(A) Educational programming;
(B) Colorado News, weather and information;
(C) National news, weather and information;
(D) Sports, including some variety of Colorado sports;
(E) General entertainment including movies;
(F) Children, family oriented;
(G) Arts, culture and performing arts;
(H) Foreign language programming;
(I) Science/documentary; and
(J) Public, Educational and Government Access, to the extent required by this
Franchise.
8.2 Deletion of Broad Programming Categories
(A) Consistent with Applicable Law, and except where the elimination of
a broad category of programming is not within Grantee’s control, Grantee shall not
delete or so limit as to effectively delete any broad category of programming without
the prior written consent of the Town, such consent not to be unreasonably withheld.
(B) In the event that the Grantor makes an adverse determination with
respect to a request to eliminate any of the broad categories of programming
enumerated in Section 8.1, such determination shall be in writing, along with a
concise statement of the reasons therefore. In the event the Grantor fails to make a
determination within sixty (60) days after a receipt from Grantee, Grantee shall have
the right to eliminate the broad category of programming as requested.
(C) For purposes of this Section 8.2, the elimination of a broad category
of programming will be deemed not to be within Grantee’s control where it is
occasioned by the interruption of cessation of a Channel’s operations due to a
technical or other equipment failure not directly caused by Grantee or the refusal of
the vendor of a Channel to extend or renew an expiring agreement for the carriage of
such Channel, and where Grantee has no reasonable options from any other
28
programming vendors to obtaining programming that would qualify to meet the
broad category of programming proposed for deletion.
8.3 Obscenity
Grantee shall comply with applicable laws related to obscenity.
8.4 Services for the Disabled
Grantee shall comply with the Americans With Disabilities Act and any amendments or
successor legislation thereto.
8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall make available at its regular and
nondiscriminatory charge a parental control or lockout device, traps or filters to enable a
Subscriber to prohibit viewing of a particular cable service during periods selected by
the Subscriber. Grantee shall inform its Subscribers of the availability of the lockout
device at the time of their initial subscription and periodically thereafter.
8.6 Complementary Cable Service
The Grantee, upon request, shall provide without charge, a Standard Installation and one
outlet of Basic Service and Expanded Basic Service to those Town buildings now
existing or hereafter constructed within the Franchise Area provided that the buildings are
either owned and occupied or leased and occupied by the Grantor or other local
government, for any of its services or programs, fire station(s), police and sheriff
station(s), libraries and School(s) and including but not limited to, Town Hall, Fire
Department, Library District, Local Marketing District (Administrative Office), Senior
Center, Stanley Park (Administrative Building), Light & Power Shop, Fleet Building and
Water Shop, Visitor Center, Town Museum and Multiple Purpose Events Center and
provided further that they are already served or passed by the Grantee's Cable System and
are within 150 feet (provided that this does not require extensive boring or the use of
costly construction equipment) (a Standard Installation) of its Cable System, excluding
those buildings or portions of buildings that house or occupy prison/jail populations.
Grantee shall maintain complementary Basic and Expanded Basic Cable Service to one
outlet for each conference room that is currently served and those outlets currently
provided in Town buildings. The Cable Service described herein is a voluntary initiative
of Grantee.. Grantee must provide one hundred twenty (120) days’ notice of any
location where it intends to cease the voluntary initiative and begin charging for service
or equipment, so that the Grantor may notify Grantee to suspend service or take such
other steps as may be appropriate under Applicable Law. The Cable Service provided
shall not be distributed beyond the originally installed outlet without authorization from
Grantee. Such installation shall not interfere with the operation of Grantee's Cable
System. In the case of leased facilities leased by the Town for administrative functions,
the recipient of service is responsible for securing approval for appropriate right of entry
suitable to the Grantee in its reasonable discretion. The Cable Service provided shall
only be used for lawful purposes, shall not be used for commercial purposes or to
29
entertain public or private groups and shall not be located in public waiting areas. The
intent of the preceding provision is to ensure access to Cable Services for the benefit of
the Grantor and educational institutions. The Grantor shall take reasonable precautions
to prevent any use of the Grantee's Cable System in any manner that results in the
inappropriate use thereof or any loss or damage to the Cable System. To the extent not
inconsistent with other provisions in this Agreement, the Grantor shall hold the Grantee
harmless from any and all liability or claims arising out of the use of Cable Service at
Town facilities and educational facilities required by this Section. For new hookups, the
Grantee shall not be required to provide an outlet to such buildings where a non-
Standard Installation is required, unless the Grantor or building owner/occupant agrees
to pay the incremental cost of any necessary Cable System extension and non-Standard
Installation. If additional outlets of Cable Service are provided to such buildings beyond
those required herein, the building owner/occupant shall pay the usual installation and
service fees associated therewith. Grantor shall notify Grantee if the Town ceases to
occupy any facility or building where complimentary Cable Service is provided.
SECTION 9. EDUCATIONAL AND GOVERNMENTAL ACCESS
9.1 Access Channels
(A) Grantee shall continue at all times during the term of this Agreement to
make available, as part of the Basic Service package, at no additional charge, one
Channel for Access Channel Programming to be carried on the Cable System and
shared with Larimer County.
(B) Upon the Effective Date, Grantee shall have activated one (1) high
definition (HD) Access Channel, for which the Grantor may provide Access Channel
signals in HD format to the demarcation point at the designated point of origination for
the Access Channel. Upon the Effective Date, the HD Access Channel will be located
at channel 999.
(1) The Town shall be responsible for providing the HD Access
Channel signal in an HD digital format to the demarcation point at the designated
point of origination for the HD Access Channel. For purposes of this Agreement,
an HD signal refers to a television signal delivering picture resolution of either 720
or 1080, or such other resolution in this same range that Grantee utilizes for other
similar non-sport, non-movie programming channels on the Cable System,
whichever is greater.
(2) Grantee shall transport and distribute the HD Access Channel signal
on its Cable System and shall not unreasonably discriminate against HD Access
Channels with respect to accessibility, functionality and to the application of any
applicable Federal Communications Commission Rules & Regulations, including
without limitation Subpart K Channel signal standards. With respect to signal
quality, Grantee shall not be required to carry a HD Access Channel in a higher
quality format than that of the HD Access Channel signal delivered to Grantee, but
Grantee shall distribute the HD Access Channel signal without degradation.
Grantee shall carry all components of the HD Access Channel signals provided by
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the Designated Access Provider including, but not limited to, closed captioning,
stereo audio and other elements associated with the Programming.
(3) HD Access Channels may require Subscribers to buy or lease special
equipment, available to all Subscribers, and subscribe to those tiers of Cable
Service, upon which HD channels are made available. Grantee is not required to
provide free HD equipment to Subscribers, including complimentary government
and educational accounts, nor modify its equipment or pricing policies in any
manner.
(4) The Grantor or any Designated Access Provider is responsible for
acquiring all equipment necessary to produce programming in HD. The Grantor
shall be responsible for the costs of all transmission equipment, including HD
modulator and demodulator, and encoder or decoder equipment, and multiplex
equipment, required in order for Grantee to receive and distributed the HD Access
Channel signal, or for the cost of any resulting upgrades to the video return line.
The Grantor and Grantee agree that such expense of acquiring and installing the
transmission equipment or upgrades to the video return line qualifies as a capital
cost for PEG facilities within the meaning of Section 622(g)(2)(C) of the Cable Act
(47 U.S.C. 542(g)(2)(C)), and therefore is an appropriate use of the PEG Capital
fees provided for in this Agreement.
(5) There shall be no restriction on Grantee’s technology used to deploy
and deliver HD signals so long as the requirements of this Agreement are otherwise
met. Grantee may implement HD carriage of the PEG channel in any manner
(including selection of compression, utilization of IP, and other processing
characteristics) that produces a signal quality for the consumer that is reasonably
comparable and functionally equivalent to similar commercial HD channels carried
on the Cable System. In the event Grantor believes that Grantee fails to meet this
standard, the Grantor will notify Grantee of such concern, and Grantee will respond
to any complaints in a timely manner.
(C) Permitted noncommercial uses of the Access Channel may include: (i) the
identification of financial supporters similar to what is provided on public broadcasting
stations; or (ii) the solicitation of financial support for the provision of Access
Programming for charitable, educational or governmental access purposes; or (iii)
programming offered by accredited, non-profit, educational institutions which may offer
telecourses over an access channel; or (iv) other permitted noncommercial uses allowed
by federal or State law.
(D) Additionally, Grantee shall make available at no charge one (1) additional
HD Channel to be triggered for PEG programming in accordance with Section 9.2 herein.
In the event Grantee makes any change in the System and related equipment and facilities
or in signal delivery technology, which change directly or indirectly affects the signal
quality or transmission of any Access Channel programming or services, the Grantee
shall, at its own expense, take necessary technical steps, acquire new equipment, and in
addition, provide the necessary assistance and foregoing equipment so that the Access
facilities and equipment may be used as intended to ensure that delivery of Access Video
31
Programming signals is not diminished or adversely affected, including, among other
things, so that live and taped programming can be cablecast with as good or better signal
quality than existed prior to such change.
9.2 Triggers for Additional Access Channels
Pursuant to Section 9.1 (Access Channels), the Town may require Grantee to make
available one (1) additional activated HD Downstream Channel when the Access
Channel required by Section 9.1 is used for Locally Scheduled Original Programming
(excluding character generated and filler programming, e.g. NASA, AM/FM Radio
Programming) during fifty percent (50%) of the hours between 10:00 A.M. and 10:00
P.M., Monday through Friday during any consecutive eight (8) week period, Grantee
shall make available, upon written request within six (6) months one additional Access
Channel for Access Programming purposes. Therefore, an average of six (6) hours of
Locally Scheduled Original Programming per day on a five day per week basis for an
eight (8) consecutive week period is required to trigger use of an additional Access
Channel. The programming of an additional Access Channel required herein must
contain distinct and non-repetitive programming of the other Access Channel.
9.3 Management and Control of Access Channels
Grantor may authorize Designated Access Providers to control, operate, and manage the
use of any and all Access facilities including, without limitation, the programming of
Access Channels. The Grantor or its designee may formulate rules for the operation of
the Access Channels, consistent with this Agreement. Nothing herein shall prohibit the
Grantor from authorizing itself to be a Designated Access Provider or from assigning
several Designated Access Providers with similar types of Governmental or Educational
programming to share Access Channel space consistent with local, State and Federal
law.
9.4 Underutilized Access Channels
Grantee and the Grantor agree that it is their mutual goal to fully and efficiently use the
Channel capacity of the Cable System, which may include allowing the Grantee to use
underutilized time on Access Channels. If Grantee believes that any Access Channel has
underutilized time, Grantee may file a request with the Grantor to use that time. The
Grantor shall render a decision regarding the matter within sixty (60) days of receiving
the request. Should the Grantor find that the Access Channel or portion of the Access
Channel may be used by the Grantee, then Grantee may begin using such time ninety (90)
days after receipt of the decision. If Grantor wants the time back on the Channel and has
a plan to use it, Grantee shall, within sixty (60) days' notice of receiving the request,
return the time back to Grantor.
9.5 Access Channel Identification/Location/Relocation
Grantee will use commercially reasonable efforts to minimize the movement of Access
Channel assignments. Grantee shall provide to the Grantor a minimum of sixty (60)
days’ notice, and use commercially reasonable efforts to provide ninety (90) days’
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notice, prior to any relocation of its Access Channels, unless the change is required by
federal law, in which case Grantee shall give the Grantor the maximum notice possible.
If the change is not required by Federal Law, Grantee shall place notice of the change on
its regular monthly schedule. If a PEG Channel is going to be relocated or moved,
Grantee will make commercially reasonable efforts to relocate it within the same
channel grouping as broadcast channels.
In addition, Grantee shall provide Grantor with a total not to exceed one hundred (100)
thirty second (:30) promotional spots ("Spots") on the System serving the Franchise
Area during a thirty (30) day period prior to the date of the change in the location of the
Access Channels. The number of Spots to be provided under this Section shall be
prorated with respect to any partial period less than thirty (30) days. Grantor or its
designee shall have sole responsibility to produce and deliver the Spots to Grantee on a
timely basis and in a cablecast-ready state. Such Spots shall promote the Access
Channels and the Channel relocations only for the sole purpose of notifying Subscribers
of the change in Channel designations, and shall not include any mention of third party or
other sponsors. Placement of the Spots shall be made by the Grantee on a run-of schedule
basis. All Spots are subject to Grantee's approval; such approval not to be unreasonably
withheld or delayed. Any new Channel designations for the Access Channels provided
pursuant to this Agreement shall be in full compliance with FCC signal quality and proof-
of-performance standards.
9.6 Access Interconnections
(A) The Access Channels required by this Agreement shall be
Interconnected with the Access Channels of geographically adjacent Cable Systems that
are owned and operated by Grantee or an Affiliate of Grantee but not with the
nonadjacent cable systems of Grantee. Grantee shall take all necessary technical steps to
ensure that downstream transmissions provide an adequate signal quality in accordance
with FCC regulations. Nothing in this section alters Grantee's Channel obligations for
Access programming delivered to Subscribers within the Franchise Area. Unless the
Grantor directs otherwise, or an affected jurisdiction objects, any Interconnection shall
allow Access Channels to operate without disruption or delay across and within the
Franchise Area boundaries.
(B) It is not the Grantee's responsibility to ensure that the signals provided
to the Interconnection by unaffiliated Interconnecting System meet industry standards.
(C) If any equipment and construction costs are borne by Grantee in
connection with the obligation to provide for Access Channel Interconnection the pro rata
share of same shall be considered a capital cost. Grantor agrees that such cost is an
"external cost" as such term is used in 47 C.F.R. Section 76.922(f) on the date of this
Agreement, and as such, the cost is permitted under federal law and regulation to be
passed through to Subscribers, to the extent and in a manner provided for in federal
regulations governing the same.
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9.7 Access Channels On Lowest Tier
All Access Channels provided to Subscribers under this Agreement shall be included by
Grantee, without limitation, on the lowest Tier of Cable Service offered by Grantee on
its System.
9.8 Technical Quality
Grantee shall maintain all upstream and downstream Access services and Channels on
its side of the demarcation point at the same level of technical quality and reliability
required by this Franchise Agreement and all other applicable laws, rules and regulations
for Residential subscriber Channels. Grantee shall provide routine maintenance for all
transmission equipment on its side of the demarcation point, including modulators,
decoders, multiplex equipment, and associated cable and equipment necessary to carry a
quality signal to and from Grantor’s facilities for the Access Channels provided under
this Franchise Agreement. Grantee shall also provide, if requested in advance by the
Grantor, advice and technical expertise regarding the proper operation and maintenance
of transmission equipment on the Grantor’s side of the demarcation point.
9.9 Technical Quality
The Grantee shall maintain all Access channels and Interconnections as required by FCC
standards and consistent with the quality and level with Grantee's other Basic Service
Channels to the extent it is within the control of the Grantee. The Grantee shall provide
routine maintenance and shall repair and replace, if necessary, any of Grantee's
equipment required to carry a quality signal from the Access facilities provided under
this Agreement to Subscribers.
9.10 Return Lines
(A) Grantee shall continue to maintain a fiber-optic return line from the Town
Hall to Grantee's Hub so that there can be delivery of Access programming to
Subscribers. All other return line construction costs (other than maintaining the return line
which is currently in place) shall be paid by the Grantor at a cost mutually agreed to
between the Grantor and Grantee and shall be completed within six (6) months of request.
Grantee may require that a reasonable deposit of the estimated project cost be paid in
advance. The Parties agree that there is at present no requirement for any upgrades
necessary to the functioning of the HD Channel for the Grantor.
(B) After satisfactory completion of work requested by the Grantor for which
the Grantor is to reimburse the Grantee and upon submission by Grantee, in such form as
may be requested by the Grantor, of a proper invoice for payment of the cost reasonably
incurred and accompanied by such evidence in support thereof as may be reasonably
required by the Grantor, the Grantor agrees to make payment for the cost reasonably
incurred up to the estimated cost for the work; provided, however, that all payments
shall be subject to adjustment for any amount found upon audit or otherwise to have
been improperly invoiced. All work shall be performed in a cost-effective manner to
minimize the costs to the Grantor.
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9.11 Support for Access Capital Costs
During the term of this Agreement, Grantee shall provide to the Grantor a grant
of $0.50 per subscriber per month (the "Access Contribution") to be used solely
for capital costs related to Public, Educational and Governmental Access, or as
may be permitted by Applicable Law. Grantee shall make Access Contribution
payments quarterly, following the effective date of this Franchise for the
preceding quarter ending March 31, June 30, September 30, and December 31.
Each payment shall be due and payable no later than forty-five (45) days
following the end of the quarter. The Grantor, or its Designated Access Provider,
shall have sole discretion to allocate the expenditure of such payments, so long as
such payments are used for capital costs related to Access Programming.
Grantor shall provide Grantee, upon request, with a reasonable accounting, nor
more than annually, of the distribution of, or expenditures made with, the Access
Contribution.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Construction
(A) Subject to Applicable Law, regulations and ordinances of Grantor and
the provisions of this Agreement, Grantee shall perform all maintenance, construction,
repair, upgrade and reconstruction necessary in the Rights-of-Way for the operation of
its System. All construction and maintenance of any of Grantee's facilities within
Rights-of-Way shall, regardless of who performs the construction, be and remain
Grantee's responsibility. Grantee shall apply for, and obtain, all permits necessary for
construction or installation of any facilities and for excavating and laying any facilities
within the Rights-of-Way. Grantee shall pay all applicable fees upon issuance of the
requisite construction permits by Grantor to Grantee.
(B) Prior to doing any work in the Right-of Way, Grantee shall apply for, and
obtain, appropriate permits from the Grantor. As part of the permitting process, the
Grantor may impose such conditions and regulations as are necessary for the purpose of
protecting any structures in such Rights-of-Way, proper restoration of such Rights-of-
Way and structures, the protection of the public, and the continuity of pedestrian or
vehicular traffic. Such conditions may also include the provision of a construction
schedule and maps showing the location of the facilities to be installed in the Right-of-
Way. Grantee shall pay all applicable fees for the requisite Grantor permits received by
Grantee.
(C) In the event that emergency repairs are necessary, Grantee shall
immediately notify Grantor of the need for such repairs after such repairs are
undertaken. Grantee may initiate such emergency repairs, and shall apply for
appropriate permits within forty-eight (48) hours after discovery of the emergency.
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10.2 Location of Facilities
Prior to doing any work in the Right-of-Way, Grantee shall give appropriate notices to
the Grantor and to the notification association established in C.R.S. Section 9-1.5-105,
as such may be amended from time to time.
(A) Within forty-eight (48) hours after any Grantor bureau or franchisee,
licensee or permittee notifies Grantee of a proposed Right-of-Way excavation, Grantee
shall, at Grantee's expense, mark on the surface all of its located underground facilities
within the area of the proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area of
the proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground
facilities in the vicinity of the proposed excavation.
10.3 Restoration of Rights-of-Way
(A) Whenever Grantee disturbs the surface of any Rights-of-Way for any
purpose, Grantee shall promptly restore the Rights-of-Way to a condition reasonably
comparable to the condition of the Rights-of-Way immediately prior to such
disturbance normal wear and tear excepted. When any opening is made by Grantee in a
hard surface pavement in any Rights-of-Way, Grantee shall promptly refill the opening
and restore the surface as required by its construction permit.
(B) If Grantee excavates the surface of any Rights-of-Way, Grantee shall be
responsible for restoration in accordance with applicable regulations regarding the
Rights-of-Way and its surface within the area affected by the excavation. Grantor may,
after providing reasonable notice to Grantee and giving Grantee sufficient opportunity
to fix the surface itself, refill or repave any opening made by Grantee in the Rights-of-
Way, and the reasonable expense thereof shall be paid by Grantee. Grantor may, after
providing reasonable notice to Grantee, and giving Grantee sufficient opportunity to fix
the work, remove and repair any work done by Grantee that, in the determination of
Grantor, does not conform to applicable code. The reasonable cost thereof, including
the costs of inspection and supervision shall be paid by Grantee. All excavations made
by Grantee in Rights-of-Way shall be properly safeguarded for the prevention of
accidents. Grantee shall warrant any restoration work performed by or for Grantee in
the Right-of-Way and all of Grantee's work under this Agreement, and this Section in
particular, shall be done in compliance with Applicable Law.
10.4 Maintenance and Workmanship
(A) Grantee's System shall be constructed and maintained in such manner as
not to interfere with sewers, Sewer Districts, water pipes or any other property of
Grantor, or with any other pipes, wires, conduits, pedestals, structures or other facilities
that may have been laid in Rights-of-Way by, or under, Grantor's authority.
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(B) Grantee shall provide and use any equipment and appliances necessary
to control and carry Grantee's signals so as to prevent damage to Grantor's property or
property belonging to any Person. Grantee, at its own expense, shall repair, renew,
change and improve its facilities to keep them in good repair and safe and presentable
condition.
(C) The Grantee's transmission and distribution System, wires and
appurtenances shall be located, erected and maintained so as not to endanger or
interfere with the lives of Persons, or to unnecessarily hinder or obstruct the free use of
Rights-of-Way, alleys, bridges or other public property.
(D) Grantee will maintain membership in good standing with the Utility
Notification Center of Colorado, or other similar or successor organization designated
to coordinate underground equipment locations and installations. Grantee shall abide
by Colorado State's "Underground Utilities" statutes and will further comply with and
adhere to local procedures, customs and practices relating to the one call locator
service program.
(E) Grantee shall give notice to private property owners of
construction work in adjacent Rights-of-Way in accordance with Applicable
Law. Grantee shall protect private property from damage. If damage occurs as
a result of Grantee’s work, the Grantee shall promptly notify the property
owner within twenty-four (24) hours in writing, and shall take reasonable steps
to repair and restore any such damage.
10.5 Acquisition of Facilities
Upon Grantee's acquisition of facilities in any Rights-of-Way, or upon the addition or
annexation to the Town of any area in which Grantee owns or operates any facility,
Grantee shall, at Grantor's written request, submit to Grantor a statement describing all
facilities involved, whether authorized by agreement, permit, or other prior right, and
specifying the location of all such facilities to the extent Grantee has possession of such
information. Such facilities shall immediately be subject to the terms of this Agreement
to the extent that such facilities are consistent with the terms of this Agreement or can
be made consistent within a reasonable time.
10.6 Reservation of Rights-of-Way
(A) Nothing in this Agreement shall prevent Grantor or public utilities from
constructing any public work or improvement. All such work shall be done insofar as
practicable so as not to obstruct, injure, or prevent the use and operation of Grantee's
Cable System.
(B) Movement of System For and By Grantor. The Grantor shall have the
right to require Grantee to relocate, remove, replace, modify or disconnect Grantee's
facilities and equipment located in the Rights-of-Way or on other property of the Grantor
in the event of an emergency or when necessary to protect or further the health, safety or
welfare of the general public and such work shall be performed at Grantee's expense
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consistent with applicable law. Except during an emergency, Grantor shall provide
reasonable notice to Grantee, not to be less than fifteen (15) business days and allow
Grantee the opportunity to perform such work.
Following notice by the Grantor, Grantee shall remove, replace, relocate, modify or
disconnect any of its facilities or equipment within any Right-of-Way, or on any other
property of the Grantor, except that the Grantor shall provide at least ninety (90) days'
written notice of any major capital improvement project that would require the removal,
relocation, replacement, modification or disconnection of Grantee's facilities or
equipment. If the Grantee fails to complete this work within the time prescribed and to
the Grantor's reasonable satisfaction, the Grantor may cause such work to be done and
bill the cost of the work to the Grantee. Grantee shall remit payment to Grantor within
thirty (30) days of receipt of an itemized list of those costs. If the Town requires
Grantee to relocate its facilities located within the Rights-of-Way, the Town shall make
a reasonable effort to provide Grantee with an alternate location in the Rights-of-Way.
If funds are generally made available to users of the Rights-of-Way for such relocation,
Grantee shall be entitled to seek its pro rata share of such funds.
(C) Movement for Other Permittees. At the request of any Person holding a
valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower
or remove its wires as necessary to permit the moving of a building, vehicle, equipment
or other item. The cost of such temporary change must be paid by the permit holder, and
Grantee may require the estimated payment in advance.
10.7 Rights-of-Way Vacation
If any Rights-of-Way or portion thereof used by Grantee is vacated by Grantor during
the term of this Agreement, unless Grantor specifically reserves to Grantee the right to
continue the use of vacated Rights-of-Way, Grantee shall, without delay or expense to
Grantor, remove its facilities from such Rights-of-Way, and restore, repair or reconstruct
the Rights-of-Way where such removal has occurred. Grantor shall make a reasonable
effort to provide Grantee with an alternate location within the Rights-of-Way. In the
event of failure, neglect or refusal of Grantee, after thirty (30) days' written notice by
Grantor, to restore, repair or reconstruct such Rights-of-Way, Grantor may do such work
or cause it to be done, and the reasonable cost thereof shall be paid by Grantee within
thirty (30) days of receipt of an invoice and documentation.
If Grantor has access to funds that are made available to any Person using the Rights-of-
Way for the purpose of deferring the cost of any of the foregoing, and if Grantor
otherwise has authorization to so utilize the funds for this purpose, the Grantor shall
reimburse the Grantee in the same manner in which other Persons affected by the
requirement are reimbursed.
10.8 Removal of Discontinued Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,
Grantee shall submit for Grantor a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee shall remove the facility
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or request that Grantor allow it to remain in place. Notwithstanding Grantee's request that
any such facility remain in place, Grantor may require Grantee to remove the facility
from the Rights of Way or modify the facility to protect the public health, welfare, safety
and convenience, or otherwise serve the public interest. Grantor may require Grantee to
perform a combination of modification and removal of the facility. Grantee shall
complete such removal or modification in accordance with a schedule reasonably set by
Grantor. Until such time as Grantee removes or modifies the facility as reasonably
directed by Grantor, or until the rights to and responsibility for the facility are accepted
by another Person having authority to construct and maintain such facility, Grantee shall
be responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Rights-of-Way, and shall retain all liability for such facilities in the
same manner and degree as if the facility were in active use. If Grantee does not remove
the facilities as reasonably directed by Grantor, Grantor may effectuate the removal and
Grantee shall be liable to Grantor for all costs incurred in connection with such removal.
If Grantee has requested Grantor’s approval and received written authorization from
Grantor to abandon its facilities, Grantor may choose to use such facilities for any
purpose whatsoever including, but not limited to, Access Channel purposes. If Grantor
chooses to utilize any such abandoned facilities, Grantee's liability for those facilities
shall cease.
10.9 Hazardous Substances
(A) Grantee shall comply with all Applicable Laws concerning hazardous
substance.
(B) Grantor may inspect Grantee's facilities in Rights-of-Way to determine if
any release of hazardous substances has occurred, or may occur, from or related to
Grantee's System. In removing or modifying Grantee's facilities as provided in this
Agreement, Grantee shall also remove all residue of hazardous substances related thereto.
10.10 Undergrounding of Cable
(A) When the general ordinances, resolutions, regulations or rules of the
Grantor or applicable State or federal law require all electric, telephone or other above-
ground utilities to relocate facilities underground, Grantee's Cable System shall be placed
underground at Grantee's expense unless funding is generally available for such
relocation to all users of the Rights-of-Way. Placing facilities underground does not
preclude the use of ground-mounted appurtenances.
(B) Where electric and telephone utility wiring are installed underground at
the time of System construction and when all such wiring is subsequently placed
underground, all System lines, wiring and equipment shall also be placed underground
by Grantee with other wireline service concurrently unless it is not feasible to
underground due to rocky soil (which shall be in the Town's reasonable determination)
or within a reasonable time thereafter at no expense to the Grantor unless otherwise
allowed by Applicable Law and/or funding is generally available for such relocation to
users of the Rights-of-Way. Related System equipment, such as pedestals, power
supplies and other ground-mounted appurtenances must be placed in accordance with
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applicable Town Code requirements and rules. In areas where either electric or
telephone utility wiring are aerial, the Grantee may install aerial cable, except when a
property owner or resident requests underground installation and agrees to bear the
additional cost in excess of aerial installation. Nothing contained in this subsection
shall require Grantee to construct, operate and maintain underground any ground-
mounted appurtenances including, but not limited to pedestals, power supplies, etc.
(C) The Grantee shall utilize existing poles and conduit wherever
commercially reasonable.
(D) This Agreement does not grant, give or convey to the Grantee the right
or privilege to install its facilities in any manner on specific utility poles or equipment
of the Grantor or any other Person. Terms, compensation for and use of Town Poles
shall be governed by a separate Pole Attachment Agreement between the Town and
Grantee.
(E) The Grantee shall participate with other providers in joint trench projects
to relocate its overhead facilities underground and remove its overhead facilities in areas
where all utilities are being converted to underground facilities. To the extent technically
feasible, relocation of overhead facilities underground shall be completed within ninety
(90) days (or such other period of time provided by Town Code) in areas where electric
or telephone utilities are being converted to underground facilities.
10.12 Construction and Use of Poles
Whenever feasible, Grantee shall use existing poles when the installation of facilities
above-ground is permitted. In the event Grantee cannot obtain the necessary poles and
related facilities pursuant to a pole attachment agreement, and only in such event, then it
shall be lawful for Grantee to make all needed excavations in the streets for the purpose of
placing, erecting, laying, maintaining, repairing and removing poles, conduits, supports for
wires and conductors, and any other facility needed for the maintenance or extension of
Grantee's System. All poles of Grantee shall be erected in locations approved by the
Grantor, and each pole shall be set whenever practicable at an extension lot line. Grantor
shall have the right to require Grantee to change the location of any pole within Rights-of-
Way when, in the opinion of Grantor, the public health, safety or welfare requires such
change, and the expense thereof shall be paid by Grantee. Terms, compensation for and
use of Town Poles shall be governed by a separate Pole Attachment Agreement between
the Town and Grantee. Any dispute between a private property owner and the Grantee
regarding the proposed location of a pole shall be resolved between such private property
owner and Grantee and shall not involve the Grantor.
10.13 Tree Trimming
Upon obtaining a written permit from Grantor, if such a permit is required, Grantee
may prune or cause to be pruned, using proper pruning practices in accordance with
such permit, any tree or other natural growth in the Rights-of-Way that interferes with
the System.
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10.14 Standards
(A) All work authorized and required hereunder shall be done in a safe,
thorough and workmanlike manner. The Grantee must comply with all federal, State and
local safety requirements, rules, regulations, laws and practices, and employ all
necessary devices as required by applicable law during construction, operation and
repair of its System. By way of illustration and not limitation, the Grantee must comply
with the National Electric Code, National Electrical Safety Code and Occupational
Safety and Health Administration (OSHA) Standards.
(B) Grantee shall ensure that all cable drops are properly bonded and
grounded at the home, consistent with applicable code requirements. All non-
conforming or nonperforming cable drops shall be replaced by Grantee as necessary.
(C) All installations of equipment shall be permanent in nature, durable and
installed in accordance with good engineering practices and of sufficient height to comply
with all Applicable Law so as not to interfere in any manner with the right of the public or
individual property owner, and shall not interfere with the travel and use of public places
by the public during the construction, repair, operation or removal thereof, and shall not
obstruct or impede traffic.
(D) In the maintenance and operation of its System in Rights-of-Way and
other public places, and in the course of any new construction or addition to its facilities,
the Grantee shall proceed so as to cause minimal inconvenience to the general public; any
opening or obstruction in the Rights-of-Way or other public places made by the Grantee
in the course of its operations shall be guarded and protected at all times by the placement
of adequate barriers, fences or boarding, the bounds of which, during periods of dusk and
darkness, shall be clearly marked.
10.15 Stop Work
On notice from Grantor that any work is being conducted contrary to the provisions of
this Agreement, or in an unsafe or dangerous manner as determined by Grantor, or in
violation of the terms of any Applicable Law, the work may immediately be stopped by
Grantor. The stop work order shall:
(A) Be in writing;
(B) Be sent to Grantee by mail at the address given herein;
(C) Indicate the nature of the alleged violation or unsafe condition; and
(D) Establish conditions under which work may be resumed.
10.16 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with
local ordinances, regulations and requirements. Work by contractors and subcontractors
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shall be subject to the same restrictions, limitations and conditions as if the work were
performed by Grantee. Grantee shall be responsible for all work performed by its
contractors and subcontractors and others performing work on its behalf, and shall ensure
that all such work is performed in compliance with this Agreement and other applicable
law, and shall be jointly and severally liable for all damages caused by them. It is
Grantee's responsibility to ensure that contractors, subcontractors or other persons
performing work on Grantee's behalf are familiar with the requirements of this
Agreement and other Applicable Law governing the work performed by them.
10.17 Safety
Under any circumstances regarding operation or use of the System that poses or involves
public health, safety or welfare hazards, peril or danger or property hazards, Grantee shall
take steps and act expeditiously to rectify such situations until conclusion.
10.18 Joint Trenching/Boring
To the extent it is technically and economically feasible, Grantee shall joint trench or
share bores or cuts and work with other providers (such as, but not limited to,
telecommunications, gas, sewer, water and electric companies), licensees, permittees so
as to reduce the number of right-of-way cuts within the Town.
10.19 GIS Mapping
Grantee shall within a reasonable timeframe comply with any ordinances, rules and
regulations of the Town regarding geographic information systems mapping for users of
the rights-of-way and upon thirty (30) days written request, provide electronic copies of
route locations from Assessor's Maps showing the location of System lines and facilities
in the Rights-of-Way, but excluding detail on proprietary electronics or other proprietary
information related to Grantee's specific design of the System. It is understood that this
requirement is for Grantee to provide information which is already available to it and not
new information which would be otherwise necessary to be generated by Grantee.
SECTION 11. SYSTEM DESIGN
(A) The Cable System is capable of delivering signals that meet FCC technical
quality standards regardless of a particular manner in which the signal is transmitted.
Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of
these specifications throughout the term of the Agreement.
(B) Subscriber Network. Grantee’s Cable System shall be equivalent to or
exceed technical characteristics of an HFC 860 MHz Cable System All or part of the
Cable System shall be capable of delivering at least two hundred (200) Channels of
Video Programming services to Subscribers, and shall be two-way capable provided that
the Grantee reserves the right to use the bandwidth in the future for other uses based on
market factors.
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(C) Equipment must be installed so that all closed-captioned programming
received by the Cable System shall include the closed caption signal so long as the
closed caption signal is provided consistent with FCC standards.
(D) Grantee acknowledges that the minimum Cable System design and
performance requirements set forth in this Agreement are enforceable, to the extent
allowed by law.
SECTION 12. TECHNICAL STANDARDS
12.1 Technical Performance
The technical performance of the Cable System shall meet all applicable technical
standards authorized or required by law, including, without limitation, FCC technical
standards, as they may be amended from time to time, regardless of the transmission
technology utilized. The Town shall have the full authority permitted by Applicable
Law to enforce compliance with these technical standards.
12.2 Inspection of Construction
Grantor shall have the right to inspect any construction or installation work performed
under this Agreement and to charge inspection fees therefor. If an unsafe condition is
found to exist, the Grantor, in addition to taking any other action permitted under
applicable law, may order Grantee, in writing, to make the necessary repairs and
alterations specified therein forthwith to correct the unsafe condition within the time
specified by Grantor. The Grantor has the right to correct, inspect, administer and repair
the unsafe condition if Grantee fails to do so within the time specified, and to charge
Grantee the reasonable cost therefore. In such event, the Grantor shall not be liable for
any damage to any portion of Grantee's Cable System unless the Grantor acted in a
negligent manner and Grantor's liability is only to the extent permitted by State law.
12.3 Cable System Performance Testing
(A) Grantee shall, at its expense, perform all tests on its Cable System
required by the FCC and shall maintain written records of its test results in accordance
with applicable law. Upon advance request, all FCC required technical performance tests
may be witnessed by representatives of the Town. The expense of the Town providing its
representatives to witness the test shall be borne by the Town. Copies of such test results
will be provided to the Town upon request.
(B) Upon request, Grantee will notify the Town before any required
technical proof-of-performance or other testing occurs.
(C) Grantee shall promptly take such measures as are necessary and
diligently continue the same until completion in order to correct any performance
deficiencies fully and to prevent their recurrence. Grantee's failure to correct deficiencies
identified through this testing process shall be a violation of this Agreement. Sites shall
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be re-tested following correction until correction has been confirmed and satisfactory
results are obtained.
12.4 Additional Tests
(A) Where there exists an ongoing pattern of poor technical performance or
quality on the Cable System, then upon thirty (30) days prior written notice, the Town
may require Grantee to conduct proof of performance tests on test points located within
the Town and provide results of such tests within thirty (30) days after completion
thereof. This testing requirement may only be triggered by the Town once during each
twelve (12) month period.
(B) Grantee shall cooperate with the Town in performing the testing
described in Subsection (A) and shall prepare the results and a report if requested, within
thirty (30) days after testing. Such report shall include the following information:
(1) the nature of the complaint or problem that precipitated the special
tests;
(2) the Cable System component tested;
(3) the equipment used and procedures employed in testing;
(4) the method, if any, in which such complaint or problem
was resolved; and
(5) any other information pertinent to said tests and analysis that may
be reasonably required.
SECTION 13. SERVICE EXTENSION
13.1 Service Availability
(A) In general, except as otherwise provided herein and subject to receiving
permits from the Town, Grantee shall provide a standard installation of Cable Service
within seven (7) days of a request by any Person within its Franchise Area. For purposes
of this Section, a request shall be deemed made on the date of signing a service
agreement, receipt of funds by Grantee, receipt of a written request by Grantee or receipt
by Grantee of a verified verbal request. Grantee shall provide such service:
(1) With no line extension charge except as specifically
authorized elsewhere in this Agreement.
(2) At a non-discriminatory installation charge for a standard
installation, consisting of a one hundred twenty five (125) foot aerial drop or sixty
(60) feet for an underground drop connecting to the exterior demarcation point for
Subscribers, with additional charges for non-standard installations computed
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according to a non-discriminatory methodology for such installations, adopted by
Grantee and provided upon request in writing to the Town.
(3) At non-discriminatory monthly rates for all Residential
Subscribers, excepting commercial Customers, MDU Bulk Customers and
other lawful exceptions to uniform pricing.
(4) Notwithstanding any other provision of this Agreement, the
Grantee shall have the right, but shall have no obligation (except as provided in
subsection (B) below) to extend the Cable System into any portion of the
Franchise Area where Grantee is not providing Cable Service on the effective
date of this Agreement, or where another cable operator is providing Cable
Service, or into any area that is not contiguous to the present service area of the
Grantee. Additionally, Grantee shall not be obligated to provide Cable Service to
any area that is commercially unreasonable.
(B) No Customer shall be refused service arbitrarily. However, for unusual
circumstances, such as a Customer's request to locate the cable drop underground with a
distance of more than sixty (60) feet or the existence of more than one hundred twenty-
five (125) aerial feet of distance from distribution cable to connection of service to
Customers, or a density of less than fifteen (15) residences (excluding those residences
that have direct broadcast satellite video service and those where access easements cannot
be obtained on a reasonable basis from third parties) per 5280 cable-bearing strand feet of
trunk or distribution cable, service may be made available on the basis of a capital
contribution in aid of construction, including cost of material, labor and easements. For the
purpose of determining the amount of capital contribution in aid of construction to be
borne by the Grantee and Customers in the area in which service may be expanded, the
Grantee will contribute an amount equal to the construction and other costs per mile,
multiplied by a fraction whose numerator equals the actual number of residences per 5280
cable-bearing strand feet of its trunk or distribution cable and whose denominator equals
fifteen (15). Customers who request service hereunder will bear the remainder of the
construction and other costs on a pro rata basis. The Grantee may require that the payment
of the capital contribution in aid of construction borne by such potential Customers be
paid in advance. The density requirement contained herein shall also apply to annexed
and newly developed areas within the Town as well.
(C) The Grantee shall provide Cable Service to Multiple Dwelling Units in
accordance with an agreement with the property owner or owners, this Agreement and
all applicable laws.
SECTION 14. STANDBY POWER AND EMERGENCY ALERT SYSTEM
14.1 Standby Power
Grantee shall provide standby power generating capacity at the System Headend
capable of providing at least twelve (12) hours of emergency operation. Grantee shall
maintain standby power system supplies throughout the System rated for at least four
(4) hours duration.
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14.2 Emergency Alert Capability
(A) Grantee shall provide an operating Emergency Alert System ("EAS") in
compliance with FCC standards throughout the term of this Agreement. Given the
possibility of fire, flood or other natural disaster, the Town shall have the ability to
remotely phone in to exercise override capability (using a passcode or password) and
send emergency messages over and on the EAS System since it would impact only the
Estes Park area and Larimer County near Estes Park and not other jurisdictions. The
Grantee shall pay for the cost of the EAS equipment in the Headend and the Grantor shall
pay for the monthly cost of one standard phone line.
(B) Grantee shall ensure that the EAS system is functioning properly at all
times. It will test the EAS system periodically, in accordance with FCC regulations.
Upon request, Grantee will advise the Town of the testing schedule so that the Town
may be present for the tests.
SECTION 15. AGREEMENT BREACHES; TERMINATION OF AGREEMENT
15.1 Procedure for Remedying Agreement Violations
(A) If Grantor believes that Grantee has failed to perform any material
obligation under this Agreement or has failed to perform in a timely manner, Grantor
shall first informally discuss the matter with Grantee. If this discussion does not lead to
resolution of the problem, the Grantor shall notify Grantee in writing, stating with
reasonable specificity, the nature of the alleged default. Grantee shall have thirty (30)
days from the receipt of such notice to:
(1) Respond to Grantor, contesting Grantor's assertion that a default
has occurred;
(2) Cure the default; or
(3) Notify Grantor that Grantee cannot cure the default within the thirty (30)
days, because of the nature of the default. In the event the default cannot be cured
within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the
default and notify Grantor in writing and in detail as to the exact steps that will be
taken and the projected completion date. Upon five (5) business days' prior written
notice, either Grantor or Grantee may call an informal meeting to discuss the
alleged default.
(B) If Grantee does not cure the alleged default within the cure period stated
above, or by the projected completion date under subsection (A)(3), or denies the
default, each party reserves its rights to pursue any legal or equitable remedy available
under this Agreement or Applicable Law.
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15.2 Removal
(A) In the event of lawful termination, expiration, revocation or lawful
nonrenewal of this Agreement, and after all appeals from any judicial determination are
exhausted and final, Grantor may order the removal of the System facilities from the
Franchise Area at Grantee's sole expense within a reasonable period of time (not to
exceed 180 days) as determined by Grantor. In removing its plant, structures and
equipment, Grantee shall refill, at its own expense, any excavation that is made by it
and shall leave all Rights-of-Way, public places and private property in a condition
reasonably comparable to the condition as that prevailing immediately prior to
Grantee's removal of its equipment.
(B) If Grantee fails to complete any required removal to the satisfaction of
Grantor, Grantor may after written notice to Grantee cause the work to be done, and
Grantee shall reimburse Grantor for the reasonable costs incurred within thirty (30)
days after receipt of an itemized list of Grantor's expenses and costs, or Grantor may
recover its expenses and costs from the security, or pursue any other judicial remedies
for the collection thereof.
SECTION 16. ABANDONMENT
If the Grantee abandons its System during the Agreement term, or fails to operate its
System in accordance with any duty to provide continuous service to Subscribers or the
Town or Schools as required herein, the provisions of this Agreement and the Town Code
shall apply and the Grantor, at its option, may operate the System or; designate another
entity to operate the System temporarily until the Grantee restores service under
conditions acceptable to the Grantor, or until the Agreement is revoked and a new cable
operator is selected by the Grantor. If the Grantor designates another entity to operate the
System, the Grantee shall reimburse the Grantor for all reasonable costs, expenses and
damages incurred, including reasonable attorney fees, court expenses and attributed
expenses for work conducted by Grantor's staff or authorized agents.
SECTION 17. AGREEMENT RENEWAL
(A) The Grantor and Grantee agree that any proceedings undertaken by Grantor
that relate to the renewal of the Agreement shall be governed by and comply with the
provisions of Section 626 of the Cable Act, unless the procedures or substantive protections
set forth therein shall be deemed to be preempted and/or superseded by the provisions of
any subsequent provision of Federal law.
(B) In addition to the procedures set forth in said Section 626(a), Grantor agrees
to notify Grantee of the completion of its assessments regarding the identification of future
cable-related community needs and interests, as well as the past performance of Grantee under
the then current Agreement term. Notwithstanding anything to the contrary set forth herein,
Grantee and Grantor agree that at any time during the term of the then current Agreement,
while affording the public adequate notice and opportunity for comment, Grantor and Grantee
may agree to undertake and finalize negotiations regarding renewal of the then current
Agreement and Grantor may grant a renewal thereof. Grantee and Grantor consider the terms
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set forth in this subsection to be consistent with the express provisions of Section 626 of the
Cable Act.
SECTION 18. TRANSFER OF OWNERSHIP OR CONTROL
18.1 The Cable System and this Agreement shall not be sold, assigned, transferred,
leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary
sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right,
interest or property therein pass to or vest in any Person or entity without the prior written
consent of the Grantor, which consent shall be by the Town Board, acting by ordinance or
resolution which consent shall not be unreasonably withheld.
18.2 The Grantee shall promptly notify the Grantor of any actual or proposed change
in, or transfer of, or acquisition by any other party of control of the Grantee. The word
"control" as used herein is not limited to majority stockholders but includes actual
working control in whatever manner exercised. Every change, transfer or acquisition of
control of the Grantee shall make this Agreement subject to cancellation unless and
until the Grantor shall have consented in writing thereto and Grantor's consent shall not
be unreasonably withheld.
18.3 The parties to the sale or transfer shall make a written request to the Grantor
for its approval of a sale or transfer or change in control and shall furnish all
information required by law and this Agreement.
18.4 In seeking the Grantor's consent to any change in ownership or control, the
proposed transferee or controlling entity shall indicate whether it:
(A) Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(B) Has ever had a judgment in an action for fraud, deceit, or misrepresentation
entered against the proposed transferee by any court of competent jurisdiction;
(C) Has pending any material legal claim, lawsuit, or administrative proceeding
arising out of or involving a Cable System; Is financially solvent, by submitting
financial data including financial statements that are audited by a certified public
accountant who may also be an officer of the transferee or controlling entity; and
(D) Has the financial, legal and technical capability to enable it to maintain
and operate the Cable System for the remaining term of the Agreement.
18.5 The Grantor shall act by ordinance or resolution on the request within one hundred
twenty (120) days of the request provided it has received all information required by
Applicable Law, provided it has received a complete application and any other relevant
information timely requested by Grantor. Subject to the foregoing, if the Grantor fails to
render a final decision on the request within one hundred twenty (120) days, such request
shall be deemed granted unless there is a mutually agreed to extension of time.
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18.6 Within thirty (30) days of any transfer or sale or change in control, if approved or
deemed granted by the Grantor, Grantee shall file with the Grantor a redacted copy of the
deed, agreement, lease or other written instrument evidencing such sale or transfer of
ownership or control, certified and sworn to as correct by Grantee and the transferee or
controlling entity, and the transferee or controlling entity shall file its written acceptance
agreeing to be bound by all of the provisions of this Agreement, subject to applicable
law. In the event of a change in control, in which the Grantee is not replaced by another
entity, the Grantee will continue to be bound by all of the provisions of the Agreement,
subject to Applicable Law, and will not be required to file an additional written
acceptance. The approval of any change in control shall not be deemed to waive any
rights of Grantor to subsequently enforce noncompliance issues relating to this
Agreement. For purposes herein to the extent that a change of control involves an entity
that was not an Affiliate prior to the contemplated transaction, the Town's consent shall
be required for such change in control.
18.7 In reviewing a request for sale or transfer or change in control, the Grantor may
inquire into the legal, technical and financial qualifications of the prospective controlling
party or transferee, and Grantee shall assist the Grantor in so inquiring. The Grantor may
condition said sale or transfer or change in control upon such terms and conditions as it
deems reasonably appropriate consistent with applicable law, provided, however, any such
terms and conditions so attached shall be related to the legal, technical and financial
qualifications of the prospective controlling party or transferee and to the resolution of
outstanding and unresolved issues of noncompliance with the terms and conditions of this
Agreement by Grantee.
18.8 Notwithstanding anything to the contrary in this subsection, the prior approval of
the Grantor shall not be required for any sale, assignment or transfer or change in control
of the Agreement or Cable System to an Affiliate provided that the proposed assignee or
transferee or new controlling entity must show financial responsibility as may be
determined necessary by the Grantor and must agree in writing to comply with all of the
provisions of the Agreement. Further, Grantee may pledge the assets of the Cable System
for the purpose of financing without the consent of the Grantor; provided that such
pledge of assets shall not impair or mitigate Grantee's responsibilities and capabilities to
meet all of its obligations under the provisions of this Agreement.
SECTION 19. PROHIBITED PRACTICES AND NOTICES
19.1 Preferential or Discriminatory Practices Prohibited
Throughout the term of this Agreement, Grantee shall fully comply with all equal
employment and non-discrimination provisions and requirements of federal, State and
local laws, and rules and regulations relating thereto.
19.2 Notices
Unless otherwise expressly agreed between the parties, all notices required to be given
under this Agreement shall be in writing and shall be deemed to be given when deposited
in a correctly addressed envelope via U.S. Mail (with receipt deemed if sent via regular
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mail within 5 business days after having been posted in the regular mail) or upon receipt
when hand delivered or with Federal Express, UPS or similar service with
receipt/acknowledgement or upon receipt when sent Certified Mail or Registered Mail.
Throughout the term of this Agreement, each party shall maintain and file with the other
a local address for the service of notices by mail. All notices shall be sent to such
respective address. At the effective date of this Agreement:
Grantee's address shall be:
TDS Broadband Service LLC
525 Junction Road
Madison, WI 53717
Attention: Legal Department
Grantor's address shall be:
Town Administrator
Town of Estes Park Colorado
170 MacGregor Avenue
Estes Park, CO 80517
With a Copy to:
Estes Park Town Attorney
170 MacGregor Avenue
Estes Park, CO 80517
The Grantor and Grantee may designate such other address or addresses from time to
time by giving notice to the other in the manner provided for in this subsection.
SECTION 20. MISCELLANEOUS PROVISIONS
20.1 Cumulative Rights
All rights and remedies given to the Town by this Agreement or retained by the Town
herein shall be in addition to and cumulative with any and all other rights and remedies,
existing or implied, now or hereafter available to the Town, at law or in equity, and such
rights and remedies shall not be exclusive, but each and every right and remedy
specifically given by this Agreement or otherwise existing or given may be exercised
from time to time and as often and in such order as may be deemed expedient by the
Town and the exercise of one or more rights or remedies shall not be deemed a waiver of
the right to exercise at the same time or thereafter any other right or remedy.
20.2 Costs to be Borne by Grantee
Grantee shall pay for costs of publication of this Agreement and all Notices prior to
any public meeting or hearing provided for or in connection with this Agreement if
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such publication or notices are required by a Town Ordinance or other Applicable
Law.
20.3 Binding Effect
This Agreement shall be binding upon the parties hereto, their permitted successors and
assigns.
20.4 Authority to Amend
This Agreement may be amended at any time by mutual written agreement between the
parties.
20.5 Venue
The venue for any dispute related to this Agreement shall be in the United States District
Court for the District of Colorado or in the District Court in Larimer County, Colorado.
20.6 Governing Laws
This Agreement shall be governed, construed and enforced in accordance with the laws
of the State of Colorado (as amended), the Cable Act as amended, any applicable rules,
regulations and orders of the FCC, and any other Applicable Laws, consistent with this
Agreement (as such now exist, are later amended or subsequently adopted). Nothing
contained herein shall be deemed a waiver of any rights or protections of Grantor or
Grantee existing under such laws or regulations.
20.7 Captions
The captions and headings of this Agreement are for convenience and reference purposes
only and shall not affect in any way the meaning or interpretation of any provisions of
this Agreement.
20.8 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner that would indicate any such relationship
with the other.
20.9 Waiver
The failure of either party at any time to require performance by the other of any
provision hereof shall in no way affect the right of the other party hereafter to enforce the
same. Nor shall the waiver by either party of any breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such provision, or as a waiver of the
provision itself or any other provision.
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20.10 Severability
If any Section, subsection, paragraph, sentence, clause, phrase, term or provision of
this Agreement is for any reason determined to be illegal, invalid or unconstitutional by
any Court or agency of competent jurisdiction, such shall be deemed separate, distinct
and independent and such determination shall have no effect on the validity of any
other Section, subsection, paragraph, sentence, clause, phrase, term or provision of this
Agreement, all of which will remain in full force and effect for the term of the
Agreement.
20.11 Force Majeure
The Grantee shall not be held in default under, or in noncompliance with, the provisions
of this Agreement, nor suffer any enforcement or imposition of damages relating to
noncompliance or default, where such noncompliance or alleged defaults occurred or
were caused by circumstances reasonably beyond the ability of the Grantee to control,
including, but not limited to, war or riots, civil disturbances, declared local or national
emergencies, including health emergencies, floods or other severe or unusual weather
conditions or natural catastrophes, labor stoppages, slow downs, power outages
exceeding back-up power supplies or work delays caused by waiting for utility
providers to service or monitor their utility poles to which the Grantee's Cable System is
attached. If Grantee believes that a reason beyond its control has prevented or
delayed its compliance with the terms of this Agreement, Grantee shall provide
documentation as reasonably required by the Grantor to substantiate the Grantee’s
claim. If Grantee has not yet cured the deficiency, Grantee shall also provide the
Grantor with its proposed plan for remediation, including the timing for such cure.
20.12 Entire Agreement
Except as provided in Section 2.4(C), the 2012 Franchise shall be of no further force
or effect and this Agreement and Exhibit represent the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof and
supersede all prior oral and written negotiations between the parties.
20.13 Attorneys' Fees
If any action or suit arises in connection with this Agreement, the prevailing party (either
the Town or Grantee, as the case may be) shall be entitled to recover all of its reasonable
attorneys' fees, costs and expenses in connection therewith, in addition to such other
relief as the court may deem proper.
20.14 Action of the Town or Grantee
In any action by the Town or Grantee mandated or permitted under the terms hereof, it
shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance
where approval or consent is required under the terms hereof, such approval or consent
shall not be unreasonably withheld unless otherwise specified herein.
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20.15 Authorization
Each of the undersigned represents and warrants that he or she is duly and properly
authorized to sign on behalf of their respective entity.
IN WITNESS WHEREOF this Agreement is signed in the name of The Town
of Estes Park, Colorado this __th day of January, 2024.
Accepted and approved this _____ day of ____________, 2024.
TDS BROADBAND SERVICE LLC
__________________________________
By: _______________________________
Its: _______________________________
TOWN OF ESTES PARK, COLORADO
By: __________________________________
Mayor
ATTEST:
__________________________________
Town Clerk
APPROVED AS TO FORM
__________________________________
Town Attorney
__________________________________
Special Counsel
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EXHIBIT I
CUSTOMER SERVICE STANDARDS
SECTION 1. POLICY.
Grantee should be permitted the option and autonomy to first resolve citizen complaints
without delay and interference from the Town.
Where a given complaint is not addressed by Grantee to the citizen's satisfaction, the Town
may intervene, if requested to do so by the citizen.
These Standards are intended to be of general application; however, Grantee shall be
relieved of any obligations hereunder if it is unable to perform due to circumstances beyond
its reasonable control, such as a region-wide natural emergency or in the event of force
majeure (as defined in Section 20.11 of the Agreement) affecting a significant portion of
the Town. Grantee is free to exceed these Standards to the benefit of its Customers and
such shall be considered performance for the purposes of these Standards.
Grantee is responsible to the Town to insure that its agents, contractors and subcontractors
comply with all applicable provisions of these Standards.
SECTION 2. DEFINITIONS
When used in these Customer Service Standards (the "Standards"), the following words,
phrases, and terms shall have the meanings given below.
2.1 "Cable Service" shall mean the one-way transmission to Customers of video
programming or other programming service, and Customer interaction, if any, which is
required for the selection or use of such video programming or other programming service.
2.2 "Cable System" shall mean any facility including that of Grantee consisting of a set
of closed transmission paths and associated signal generation, reception and control
equipment that is designed to provide Cable Service which includes video programming and
which is provided to multiple Customers within a community, but such term does not include
(A) a facility that serves only to retransmit the television signals of one or more television
broadcast stations; (B) a facility that serves Customers without using any right-of-way; (C) a
facility of a common carrier which is subject in whole or in part to the provisions of Title II
of the Federal Communications Act (47 U.S.C. 201, et. seq.), except that such facility shall
be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c))
to the extent such facility is used in the transmission of video programming directly to
Customers, unless the extent of such use is solely to provide interactive on-demand services;
(D) an open video system that complies with federal statutes, or (E) any facilities of any
electric utility used solely for operating its electric utility systems.
2.3 "Customer" shall mean any person who lawfully receives within the Town, Cable
Service from Grantee with Grantee's express permission.
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2.4 "Customer Service Representative" (or "CSR") shall mean any person employed
by Grantee to assist, or provide service to, Customers, whether by answering public
telephone lines, writing service or installation orders, answering Customers' questions,
receiving and processing payments, or performing other Customer service-related tasks.
2.5 "Town" shall mean Estes Park, Colorado acting by and through the Town
Board or its designee. The Town refers to the incorporated portions of the Town.
2.6 "Grantee" shall mean TDS Broadband Service LLC and its lawful successors and
assigns and any Person, who provides Cable Services and directly or through one or more
affiliates owns a significant interest in such Cable System or who otherwise controls or is
otherwise responsible for through any arrangement, the management and operation of such a
Cable System.
2.7 "Person" shall mean any individual, sole proprietorship, partnership, association or
corporation, or any other form of entity or organization.
2.8 "Service interruption" means the loss of picture or sound on one or more cable
channels.
SECTION 3. CUSTOMER SERVICE.
3.1. Courtesy
All employees of Grantee shall provide effective and satisfactory service in all contacts with
Customers.
3.2. Accessibility; Cable System office hours and telephone availability
(A) Grantee shall maintain a local, toll-free or collect call telephone access
line which will be available to its Customers 24 hours a day, seven days a week.
(1) Trained company representatives will be available to respond to
Customer telephone inquiries during Normal Business Hours.
(2) After Normal Business Hours, the access line may be answered
by a service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a
trained company representative on the next business day.
(B) Under Normal Operating Conditions, if a Customer service telephone call is
answered with a recorded message providing the Customer with various menu options to
address the Customer's concern, the recorded message must provide the Customer with the
option to connect to and speak with a Customer Service Representative (CSR) within ninety
(90) seconds of the commencement of the recording. From the time a Customer chooses a
menu option to speak directly with a CSR, the answer time by a CSR, including wait time,
shall not exceed thirty (30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no
less than seventy five (75) percent of the time under Normal Operating Conditions, measured
on a quarterly basis.
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(C) Grantee will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards set forth above, unless a
historical record of complaints indicates a clear failure to comply.
(D) Subject to the provisions of Section 6.3 of the Franchise Agreement, a
Customer service center shall be provided and be open for business as set forth in the
Agreement.
3.3. Responsiveness; installations, outages and service calls
(A) Under normal operating conditions, each of the following five standards will
be met no less than seventy-five (75) percent of the time measured on a quarterly basis:
(1) Standard installation will be performed within seven (7) business days
after an order has been placed unless the Customer agrees to a later date for
installation. "Standard" installations are those that are located up to 125 aerial feet
or sixty (60) underground feet from the existing distribution system provided that
this does not require extensive boring or the use of costly construction equipment.
(2) Excluding conditions beyond the control of a Grantee, Grantee will
begin working on "service interruptions" promptly and in no event later than 24 hours
after
the interruption becomes known. Grantee must begin actions to correct other
service
problems the next business day after notification of the service problem.
(3) The "appointment window" alternatives for installations, service calls,
and other installation activities will be either a specific time or, at maximum, a four-
hour time block during Normal Business Hours. For purposes herein, "Normal
Business Hours" shall be between 8:00 A.M. to 5:00 P.M., Monday through Friday.
Grantee may schedule service calls and other installation activities outside of
Normal Business Hours for the express convenience of the Customer.
(4) Grantee may not cancel an appointment with a Customer after the
close of business on the business day prior to the scheduled appointment unless an
emergency exists.
(5) If Grantee's representative is running late for an appointment with a
Customer and will not be able to keep the appointment as scheduled, the Customer
will be contacted. The appointment will be rescheduled, as necessary, at a time
mutually agreed upon by the Customer and the Grantee for the convenience of the
Customer.
(B) Grantee shall provide clear television reception that meets technical
standards established by the United States Federal Communications Commission (the
"FCC"). Grantee shall render efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest time possible. Scheduled interruptions shall be
preceded by notice, and to the extent reasonably possible, and shall occur during periods
of minimum use of the System, preferably between midnight and six a.m. (6:00 a.m.).
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(C) Grantee's Customer Service Representative shall have the authority to
provide credit for interrupted service, to waive fees, and to schedule service appointments
where appropriate.
(D) Billings, refunds and credits.
(1) Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium service
charges and equipment charges. Bills will also clearly delineate all activity during the
billing period, including optional charges, rebates and credits. In case of a billing
dispute, Grantee must respond to a written complaint from a Customer within thirty
(30) days.
(2) Refund checks or credits will be issued promptly, but no later than
either the Customer's next billing cycle following resolution of the request or thirty
(30) days, or upon the return of the equipment supplied by Grantee if service is
terminated.
(E) Treatment of Private Property.
(1) Grantee shall keep tree trimming to a minimum; trees and shrubs
or other landscaping that are damaged by Grantee, any employee or agent of
Grantee during installation or construction shall be restored to their prior
condition or replaced. Trees and shrubs shall not be removed without the prior
permission of the owner or legal tenant of the property on which they are located.
(2) Grantee shall, at its own cost and expense, and in a manner
approved by the property owner, restore any property to as good condition as
before the work causing such disturbance was initiated. Grantee shall repair,
replace or compensate a property owner for any damage resulting from Grantee's
installation, construction, service or repair activities.
(3) Except in the case of an emergency involving public safety or service
interruption to a large number of Customers, Grantee shall give reasonable notice to
property owners or legal tenants prior to entering upon private premises. Nothing
herein shall be construed as authorizing access or entry to private property, or any
other property, where such right to access or entry is not otherwise provided by law,
easement, and/or an agreement with the Town. For the installation of pedestals or
other major construction or installation projects on private property, Grantee will
use reasonable efforts to provide advance notice of work on or use of such private
property. In the case of an emergency, Grantee shall attempt to contact the property
owner or legal tenant in person, and shall leave a door hanger notice in the event
personal contact is not made. Notwithstanding the foregoing, if another Person's
property will be affected by work requested by a Customer or potential Customer,
Grantee shall endeavor to provide notice to that Person as well.
(4) Grantee personnel shall clean all areas surrounding any work site and
ensure that all cable materials have been disposed of properly.
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3.4 Services for Customers with Disabilities
Grantee will use reasonable good faith efforts to meet the special needs of Customers with
disabilities.
3.5 Notification to Customers
(A) Grantee shall provide written information on each of the following areas at
the time of installation of service, at least annually to all Customers, and at any time upon
request.
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the Cable Service;
(5) Channel positions programming carried on the Cable System; and,
(6) Billing and complaint procedures.
(B) Customers will be notified of any changes in rates, programming services or
channel positions as soon as possible in writing consistent with applicable law. Notice must
be mailed to Customers a minimum of thirty (30) days in advance of such changes if the
change is within the control of Grantee. In addition, Grantee shall notify Customers by mail
thirty (30) days in advance of any significant changes in the other information required by
Section 3.5(A). Notwithstanding any other provision herein, Grantee shall not be
required to provide prior notice of any rate change that is the result of a regulatory fee or
any other fee, tax, assessment, or charge of any kind imposed by any Federal or State
agency, on the transaction between Grantee and the Customer.
(C) All officers, agents, and employees of Grantee or its contractors or
subcontractors who are in personal contact with Customers shall have identification cards
bearing their name and photograph. Grantee shall account for all identification cards at all
times. Every vehicle of Grantee shall be clearly visually identified to the public as
working for Grantee. All CRSs shall identify themselves orally to callers immediately
following the greeting during each telephone contact with the public.
3.6 Customer Privacy
(A) Grantee shall not monitor cable television signals to determine the
individual viewing patterns or practices of any Customer without prior written consent
from that Customer, except as needed to maintain System integrity or as otherwise
permitted by Federal Law.
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(B) Grantee shall not sell or otherwise make available Customer lists or other
personally identifiable Customer information without prior written Customer consent,
except as otherwise permitted by Federal Law. Grantee is permitted to disclose such
information if such disclosure is necessary to render, or conduct, a legitimate business
activity related to a Cable Service or other service provided by Grantee to its Customers.
3.7 Safety
Grantee shall install and locate its facilities, Cable System, and equipment in compliance
with all federal, state, local, and company safety standards, and in such manner as shall
not unduly interfere with or endanger persons or property. Whenever a Grantee receives
notice that an unsafe condition exists with respect to its equipment, Grantee shall
investigate such condition immediately, and shall take such measures as are necessary to
remove or eliminate any unsafe condition.
SECTION 4. COMPLAINT PROCEDURE
4.1 Complaints to Grantee
(A) Grantee shall establish written procedures for receiving, acting upon, and
resolving Customer complaints, and crediting Customer accounts and shall publicize such
procedures through printed documents at Grantee's sole expense consistent with Section
3.5(A) of these Standards.
(B) Said written procedures shall prescribe a simple manner in which any
Customer may submit a complaint by telephone or in writing to Grantee that it has violated
any provision of these Customer Service Standards, any terms or conditions of the
Customer's contract with Grantee, or reasonable business practices.
(C) At the conclusion of Grantee's investigation of a Customer complaint, but
in no more than thirty (30) calendar days after receiving the complaint, Grantee shall notify
the Customer of the results of its investigation and its proposed action or credit.
(D) Grantee shall also notify the Customer of the Customer's right to file a
complaint with the Town in the event the Customer is dissatisfied with Grantee's decision,
and shall thoroughly explain the necessary procedures for filing such complaint with the
Town.
(E) Grantee's complaint procedures shall be filed with the Town prior to
implementation.
4.2 Complaints to the Town
(A) Any Customer who is dissatisfied with any proposed decision of Grantee
or who has not received a decision within the thirty (30) day period as required with
respect to an unresolved complaint shall be entitled to have a written complaint reviewed
by the Town or its designee. The Customer may initiate the review by filing a written
complaint together with Grantee's written decision, if any, with the Town.
59
(B) The Customer shall make such filing and notification within thirty (30) days
of receipt of Grantee's decision or, if no decision has been provided, within forty (40) days
after filing the original complaint with Grantee. The Customer shall notify Grantee that a
complaint has been filed with the Town by mailing a copy of the complaint to Grantee by
certified mail, return receipt requested.
(C) Grantee shall file a written response to the complaint with the Town within
fifteen (15) days of receipt of a copy of the complaint from the Customer.
(D) If the Town or its designee decides that further evidence is warranted, the
Town or its designee may require Grantee and the Customer to submit, within ten (10)
days of notice thereof, a written statement of the facts and arguments in support of their
respective positions.
(E) Grantee and the Customer shall produce any additional evidence,
including any reports from Grantee, which the Town or its designee may deem necessary
to an understanding and determination of the complaint.
(F) The Town or its designee shall issue a determination within fifteen (15) days
after examining the materials submitted, setting forth its basis for the determination.
(G) The Town or its designee may extend these time limits for reasonable
cause and may intercede and attempt to negotiate an informal resolution.
(H) If the Town determines that the Customer's written complaint is valid and
that Grantee did not provide the complaining Customer with the proper solution and/or
credit, the Town may require Grantee to grant a specific solution in accordance with the
Grantee's credit/refund policy or resolve the matter as otherwise mutually agreed upon by
the Grantee and the Town. If the Town finds that the Customer's written complaint has no
validity, the complaint shall be dismissed with no further action being taken.
4.3 Overall Quality of Service
The Town may evaluate the overall quality of Customer service provided by Grantee to
Customers:
(A) In conjunction with any performance review provided for in the
Agreement with the Town; and,
(B) At any other time, at its sole discretion based on the number of written
Customer complaints received by Grantee and the Town, and Grantee's response to those
complaints.
(C) If there is an uncured breach of a material provision of these Customer
Service Standards or pattern of repeated violations of any provision of these Customer
Service Standards, then the Town may require the Grantee to hire, at its expense, a qualified
consultant to make an independent review of the Cable System to confirm that the Grantee
and the Cable System are in substantial compliance with the terms and conditions of these
Customer Service Standards as well as all FCC Technical Standards. Prior to
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commencement of this review, the consultant shall contact the Town and confirm any
specific areas of interest by the Town which should be reviewed. Upon completion of the
report, the consultant shall submit such report to the Town confirming the status of
Grantee's Cable System and setting forth any areas of noncompliance.
4.4 Non-Compliance with Customer Service Standards.
Non-compliance with any provision of these Customer Service Standards is a violation of
these Customer Service Standards.
SECTION 5. MISCELLANEOUS
5.1 Severability
Should any Section, subsection, paragraph, sentence, clause, phrase, term, or provision of
these Standards be determined to be illegal, invalid, or unconstitutional by any court or
agency of competent jurisdiction with regard thereto, such determination shall have no
effect on the validity of any other Section, subsection, paragraph, sentence, clause, phrase,
term, or provision of these Standards, each of the latter of which shall remain in full force
and effect.
5.2 Non-Waiver
Failure to enforce any provision of these Standards shall not operate as a waiver of the
obligations or responsibilities of Grantee under said provision, or any other provision of
these Standards.
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TOWN ADMINISTRATOR’S
OFFICE
Memo
To: Honorable Mayor Koenig
Board of Trustees
From: Town Administrator Machalek
Date: January 23, 2024
RE: Revised Policy 671 for Economic Development Funding
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER: _Policy_______
QUASI-JUDICIAL YES NO
Objective:
Consider revision to Policy 671 (Town Funding of Outside Entities) replacing the “Estes
Park Economic Development Corporation” with the “Estes Chamber of Commerce
Economic Development Department” as an entity eligible to apply for Base Funding
from the Town of Estes Park.
Present Situation:
The Town has invested in the Estes Park Economic Development Corporation (EDC)
since 2013. The EDC is currently eligible for, and receives, Base Funding from the
Town pursuant to Policy 671. Only entities that have been added to the Base Funding
eligibility list in Section 3.a.ii are eligible to receive Base Funding.
The EDC and Estes Chamber of Commerce (Chamber) are combining operations. More
details about the rationale behind this change can be found in the attached memo from
Interim EDC CEO Schnipkoweit and Chamber Executive Director DePasquale. The
combined operations will exist as a newly created Economic Development Department
within the Chamber.
The Chamber is not currently eligible for Base Funding. In order to continue funding the
economic development program currently produced by the EDC, the Town Board would
need to replace the EDC with the “Estes Chamber of Commerce Economic
Development Department” in Section 3.a.ii of Policy 671. The Town’s continued
participation in funding this economic development program is critical to the solvency of
this combined Economic Development Department.
Proposal:
The proposed edits to Policy 671 would replace the “Estes Park Economic Development
Corporation” with the “Estes Chamber of Commerce Economic Development
Department” as an entity eligible to apply for Base Funding. The 2024 budget contains
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$65,000 in Base Funding for the Economic Development Corporation. During the 2024
budget process, the Board indicated a desire to keep this funding in the budget as a
placeholder while ongoing conversations about EDC operations continued. Absent other
direction from the Town Board, and only if the Board approves the proposed policy
revisions, staff would allocate the existing $65,000 budget to the Estes Chamber of
Commerce Economic Development Department and process a check for that amount.
Advantages:
•Continues Town support and funding for economic development.
•Enables the continuation of the BASE program.
•Reorganizes and streamlines EDC operations.
Disadvantages:
•Funding spent on economic development may not be spent on other priorities.
•Board members have expressed concerns about the mixing of funds for the
Chamber’s advocacy and economic development activities. The Chamber has
provided a summary of the firewalls that will be used to ensure that these funding
sources and activities will remain separate.
Action Recommended:
Staff recommends approval of the proposed edits to Policy 671.
Finance/Resource Impact:
The 2024 budget includes $65,000 in Base funding for the Economic Development
Corporation.
Level of Public Interest
Medium
Sample Motion:
I move for the approval/denial of the edits to Policy 671 as presented.
Attachments:
1.Policy 671 Redlined
2.01/09/2023 EDC Base Funding Memo from EDC Interim CEO Schnipkoweit and
Chamber Executive Director DePasquale
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Document Title Policy 671 – Town Funding of Outside Agencies 06/14/202201/23/2024
Revisions: 45 Town of Estes Park, Finance Page 1 of 5
Effective Period: Until superseded
Review Schedule: Triennially
Effective Date: Revised 06/14/202201/23/2024
References: Governing Policies Manual 3.12
FINANCE
671
Town Funding of Outside Entities
1. PURPOSE
To provide a process by which the Town of Estes Park allocates and distributes funding
to outside entities.
2. POLICY
The Town of Estes Park recognizes the important role those outside entities play in
meeting the needs of the residents of the Estes Valley. Accordingly, when adequate funds
are available, the Town may make financial contributions to these entities in accordance
with the procedure below.
3. PROCEDURE
a. Base Funding
i. Purpose
Base funding from the Town is intended to support the general operations and
overhead of nonprofit entities that play a critical role in supporting the Town’s
Strategic Plan.
ii. Eligibility
The following entities are eligible to apply for Base Funding from the Town of Estes
Park:
1)Crossroads Ministry of Estes Park
2)Estes Park Economic Development CorporationEstes Chamber of
Commerce Economic Development Department
3) Estes Park Housing Authority
4) Estes Park Nonprofit Resource Center
5) Estes Valley Crisis Advocates
6) Estes Valley Investment in Childhood Success
7) Salud Family Health Centers (Estes Park)
ATTACHMENT 1
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Document Title Policy 671 – Town Funding of Outside Agencies 06/14/202201/23/2024
Revisions: 45 Town of Estes Park, Finance Page 2 of 5
8)Via Mobility Services
9) Estes Valley Watershed Coalition
10) Estes Arts District
iii. Review of Eligible Entities
The Town Board will review the list of entities eligible to apply for Base Funding at
each scheduled review of this policy or at the request of the Town Board. This
review will also include opportunity for public comment.
iv. Application
Eligible entities seeking Base Funding from the Town shall submit a completed
“Base Funding Application” (Exhibit A) to the Assistant Town Administrator by July
1st of each calendar year for the next year’s budget (i.e. by July 1, 2021 for the
2022 budget year).
v. Process
Applications for Base Funding will be processed as a departmental budget request
by Town staff and presented to the Town Board as such. The following information
will be presented by staff to the Town Board during the public budget hearings:
1) The Base funding request from each entity; and
2) The Base funding support recommended by the Town Administrator.
vi. Annual Reporting
1) Written Report: Any entity receiving Base Funding must submit an annual
report to the Town Administrator’s Office by May 30th of the year following
the year in which funding was received (i.e. May 30th, 2022 for funding
received for the 2021 calendar year). This report must be no more than 350
words and should be structured as a press release on what programs and
services the entity used the Town funding to support. The report should
specify how the organization used Town funds to benefit the community
and/or advance the Town’s Strategic Plan for the funding year.
2) Town Board Presentation: Any entity receiving Base Funding is expected
to present to the Town Board once per year. Similar to the written report,
the presentation should specify how the organization used Town funds to
benefit the community and/or advance the Town’s Strategic Plan for the
funding year. In addition to providing information about community benefits
in a public setting, another reason for requiring a presentation is to provide
the Town Board with an opportunity to directly engage with representatives
of Base Funding entities.
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Document Title Policy 671 – Town Funding of Outside Agencies 06/14/202201/23/2024
Revisions: 45 Town of Estes Park, Finance Page 3 of 5
b.Community Initiative Funding
i. Purpose
Community Initiative funding is intended to support specific projects and programs
that advance one or more Outcome Areas in the Town’s Strategic Plan.
ii. Eligibility
Any entity or group serving the Estes Valley is eligible to apply for Community
Initiative funding, except those groups receiving Base funding under Section 3.a
of this policy, other taxing districts, and organizations that exist for the purpose of
providing financial support and/or fundraising for other taxing districts. Base
Funding recipients must ask for all desired funds through the Base Funding
process.
iii. Application
Eligible entities seeking Community Initiative funding shall submit a completed
“Community Initiative Funding Application” (Exhibit B) to the Town Administrator’s
Office on or before August 31st of every year.
iv. Process
Applications for Community Initiative funding will be reviewed and ranked by each
Board member individually in advance of the annual public budget hearings.
Funding decisions will be made by the Board as a whole and will be adopted along
with the budget.
v. Criteria
The following criteria will be used in the evaluation of Community Initiative funding
applications:
1) Application Quality – is the application complete and does it adequately
describe the proposed project or program?
2) Strategic Plan Advancement – how well, or to what degree, does the
proposed project/program advance the Town’s Strategic Plan?
3) Initiative Reach – how many residents of the Estes Valley will benefit from
the proposed project or program?
vi. Project Report
Any recipient of Community Initiative funding must submit a project/program report
to the Assistant Town Administrator upon completion of the project/program that
received funding from the Community Initiative funding process. The report must
be no more than 350 words and should be structured as a press release that the
Town may use to tell the story of the project.
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Document Title Policy 671 – Town Funding of Outside Agencies 06/14/202201/23/2024
Revisions: 45 Town of Estes Park, Finance Page 4 of 5
c. Event Sponsorship Funding
i. Purpose
Event Sponsorship funding is intended to demonstrate the Town’s support for
community events.
ii. Eligibility
Any nonprofit organization that is organizing a local event (serving the Estes
Valley) that is open to the public may request Event Sponsorship funding from the
Town.
iii. Application
Eligible entities seeking event sponsorship funding shall submit a completed
“Event Sponsorship Funding Application” (Exhibit C) to the Town Administrator’s
Office.
iv. Process
All Event Sponsorship funding applications will be reviewed and awarded by the
Leadership Team. No sponsorship shall exceed $1,000 and an organization may
only receive one (1) sponsorship per calendar year (no in-kind funding requests
will be considered). A budget for event sponsorships will be adopted annually and
will be distributed on a first-come, first-served basis.
v. Criteria
The Leadership Team will evaluate Event Sponsorship funding applications using
the following criteria:
1) Vision Alignment – does the event align with the Town’s Vision?
2) Cost of Event Attendance – is the event free or affordable for the general
public?
3) Reach of Event – how many people does the event expect to attract?
4) Other Funding – have the organizers of the event received any other
funding?
vi. Exclusions
Promotional sponsorships funded by Trailblazer Broadband are excluded from
subsection (c), including the Event Sponsorship Funding criteria and processes.
d. Limitations on Off-Cycle Funding Requests
i. Definitions
For the purposes of this policy, an “Off-Cycle Funding Request” is any request for
financial support from an eligible outside entity that occurs outside of the
procedures established in Sections 3.a, 3.b, and 3.c of this policy.
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Document Title Policy 671 – Town Funding of Outside Agencies 06/14/202201/23/2024
Revisions: 45 Town of Estes Park, Finance Page 5 of 5
ii. Purpose
The Town of Estes Park strives to consider all funding requests from eligible
outside agencies in a holistic manner in order to best prioritize these requests. To
this end, the Town does not accept or grant off-cycle funding requests with the
exception of those described in Section 3.d.iii.
iii. Exceptions
The Town will only consider off-cycle funding requests from entities that are eligible
for Community Initiative funding, and only in the following circumstances:
1) The Town is being asked to fund the final gap of a fundraising effort for a
time-sensitive project or program, and the Town’s contribution represents
twenty-five percent (25%) or less of the total amount fundraised; or
2) There is a time-limited opportunity to leverage a significant amount of
outside funding (at least a 1:1 match of the funding requested from the
Town).
iv. Application
Eligible entities seeking off-cycle funding must submit the following to the Town
Administrator:
1) A completed “Community Initiative Funding Application” (Exhibit B); and
2) A letter (no more than 500 words) explaining why the request qualifies under
one of the exceptions listed in Section 3.d.iii of this policy.
v. Process
If the off-cycle funding request application falls under one of the two exceptions
listed in Section 3.d.iii of this policy, the Town Administrator will schedule the
consideration of said request as an action item for a Town Board meeting.
Approved:
_____________________________
Wendy Koenig, Mayor
_____________
Date
Page 125
From: John Schnipkoweit, Interim CEO, Estes Park EDC
Colleen DePasquale, Executive Director, Estes Chamber of Commerce
Date: January 9th, 2024
Subject: EDC Base Funding
Purpose of Study Session Item:
The EDC is Combining Operations with the Chamber and Requesting to Estes Chamber of
Commerce as an eligible recipient of the EDC awarded Base Funding on Policy 671
The EDC
The EDC was founded a decade ago as a public/private non-profit partnership out of concern
for the present vitality and future viability of the Estes Valley economy. The EDC has played an
important role in numerous economic development initiatives since its inception, with some
notable initiatives like the facilitation of business recovery funding (Flood 2013, COVID 2020),
support and advocacy for a fiber-to-the-home broadband system, and the creation of the
Business Accelerator Services of Estes (BASE) programs. Its mission and programming have
adapted as the economy has changed, but in 2023, EDC investors and board members
commissioned a task force which called for a renewal of its focus - creating better alignment
with local organizations, macro and micro level economics, while building on its own past
successes.
Collaborative workshops were held during the summer of 2023 with participation from 15 EDC
investors, who represented 90% of 2023 investor contributions. In 2023, the funding breakdown
of the EDC included: 27% from Public Investors (Town, County, etc), 26% from Large
Commercial Organizations, 7% from Small Businesses or Individuals and 40% from a Federal
EDA Grant. These workshops used a design thinking methodology, specifically framing
economic development problems that we aspire to solve, for whom, and to gain clarity on where
we should focus future investments. The culmination of this work was to identify the best way to
operationalize the strategic results, maximizing the impact of the EDC and investor dollars.
While the strategic work provided clarity and reinforced our BASE educational programs, the
biggest change came when evaluating our operations. We researched 20+ other
gateway/tourism economies - most with similar sized populations and visitation. Of those
communities that invest in Economic Development, 50% had a single local organization that not
only handled Economic Development, but also Chamber and sometimes Visitors
Bureau/marketing functions - and the other 50% outsourced their Economic Development
activities to a regional organization, one that often supported multiple counties in less populated
areas. We then conducted interviews with communities who had combined separate EDC and
Chamber organizations to better understand the potential challenges, benefits and methods for
streamlining operations for similar, yet distinct functions. These interviews revealed that
combination is common, but different communities require different levels of procedural
separation. We then brought those findings to our investors and designed the following plan for
combining operations - providing transparency and a framework to execute on our dependent,
yet unique missions inside one operational entity. To quantify the impact of combining
ATTACHMENT 2
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operations, the resulting Economic Development operations will realize an immediate 30% cost
savings, with great potential for qualitative improvements to existing and future services.
The Chamber’s Economic Development Department
In order to streamline operations, the Estes Chamber of Commerce (the “Chamber”) will
manage a newly created Economic Development Department (the “Department”) that will
assume the EDC’s recently revised Economic Development Mission and services. The
Department is responsible for maintaining existing and creating new programs, while providing
business assistance that is aligned with the Economic Development mission. The Department is
funded separately from the normal business operations of the Chamber and only the defined
management and administrative fees contribute to the Chamber’s overall general fund (set at
17% of Economic Development expenditures). Funding for the Department is allocated with
guidance from the Chamber’s Economic and Workforce Development Council (EWDC) and
approved by the Chamber’s budgetary process. This structure has been created with the intent
to eliminate potential financial conflicts between Chamber Member contributions and Economic
Development Investors. Ultimately, the success and strength of the Chamber’s overall mission
and the Chamber’s Economic Development Mission are the responsibility of the Executive
Director, who manages the Department and all other Chamber operations.
Financial transparency is important for this process to be successful. The Chamber will
implement the following processes and has the flexibility to revise as needed:
● Open separate bank account for Economic Development (ED)
● Utilize Quickbooks to create specific reports on ED (Annual Budget, Balance Sheets,
Monthly and YTD P&L)
● Create tracking form for Grant use and reimbursement
● Present monthly P&L, Balance sheet and Grant updates to Chamber Executive
committee and Economic and Workforce Development Council
The Chamber will update Town administration on Financials per the Base funding guidelines
and as requested.
The Chamber’s Economic and Workforce Development Council (EWDC)
The newly created EWDC will be a standing committee of the Chamber and is governed by a
charter created by the current EDC Board. The EWDC has the responsibility to provide strategic
guidance and advice to the Department, for execution of the Chamber’s Economic Development
mission. Operation and administration of the Department are the responsibility of the to-be-hired
Programming Manager, as overseen by the EWDC and managed by the Executive Director. The
EWDC shall consist of seven members. The initial EWDC will be appointed by the EDC Board,
while each subsequent termed member shall be appointed by the Chamber Board for a term of
two years. The EWDC shall designate one member to serve as Chair for annual terms, who will
be a voting member of the Chamber’s Executive Committee. The EWDC members shall
represent at least 5 contributing investors, with standing investor appointments held by each the
Town of Estes Park, Larimer County and Visit Estes Park. The EWDC shall also represent at
Page 127
least 2 Private Business Owners, who have either taken part in Department programming or
whose business(es) is/are aligned with the programming’s objectives.
The Chamber recognizes that though the work of the Chamber and Economic Development
align, each has their own responsibilities. The Chamber will continue to build events and
programming on relevant topics using the “Food for Thought” events and workshops. The
Chamber will offer opportunities for networking and connecting through established monthly and
annual events. The Chamber will follow legislation and business related bills through session,
sharing relevant information and advocating as needed. The Chamber will continue working with
community partners: Visit Estes Park, EPNRC, EP School district and more.
The Department will focus on developing and implementing an annual BASE program and offer
a post-BASE program for former participants. The Department responsibilities will include
developing resources for businesses and implementing county and regional workforce
development programming. This also includes identifying gaps and implementing new
programming on specific opportunities for local businesses, developers and workforce. The
Department will continue building upon new partner relationships with SBDC Larimer County,
Northern Colorado Hospitality Sector Partnership, Larimer County Workforce Development
Board, NoCo Works – Business Resources subcommittee, OEDIT Rural Opportunity Office and
Larimer County Business Retention & Expansion Partnership
Community Collaboration
Collaboration has been identified as a strategic opportunity among the primary local economic
supporters, so it is important that the Department understands its role. Economic and Workforce
Development collaboration starts locally and is then multiplied through regional and national
partners. Additionally, the Economic Development mission was created to provide a unique
value proposition for the economic challenges specific to Estes Park - while also preventing
duplication of other initiatives. The Chamber and its Economic Development missions are
unique, but directly dependent on each other, so the Department staff will need to be
collaborative, contributing members of normal Chamber operations. It is however noted that
certain Chamber activities may present a direct conflict with Economic Development investors.
In those instances, it is the responsibility of staff, the EWDC or the Executive Director, to use
their best judgment in abstaining Department resources from such activities. The ultimate
responsibility lies with the Chamber Executive Director and their ability to create a culture of
clarity within the organization, based on the following principles of dependent missions and
ownership:
Visit Estes Park
To be a year-round, family-friendly tourism and event destination that supports our vibrant
mountain town with a balance of financial success, positive and memorable experiences for
guests and a meaningful quality of life for our community.
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Estes Chamber of Commerce
The mission of the Chamber is to be the champion for business, dedicated to promoting a
strong business climate in the Estes Valley trade area and enhancing the quality of life for our
members, making Estes Park a better place to live, work, and play.
Estes Chamber of Commerce: Economic Development Department
The Economic Development mission of the Chamber is to assist businesses in scaling a robust
workforce and cultivating a diverse economy in the Estes Valley.
Town of Estes Park
The Mission of the Town of Estes Park is to provide high-quality, reliable services for the benefit
of our residents, guests and employees, while being good stewards of public resources and our
natural setting
Collaboratively, the local economic dependencies can be defined as:
❖A Memorable Guest experience (VEP) is reliant on a
❖Strong Business Community (Chamber) is reliant on a
❖Robust Workforce (Chamber Economic Development) is reliant on
❖High Quality Services (Town)
By applying this lens to the respective mission statements, operating plans and initiatives, we’ve
identified the following owners of economic support in Estes Park:
Visit Estes Park is a Communicator for Business
● Markets Tourism and Events
● Encourages Memorable Experiences
● Promotes Destination Stewardship
The Chamber is a Coordinator for Business
● Advocates for Business Success
● Fosters Community Relationships
● Collaborates with Local, Regional & Beyond
The Chamber’s Economic Development Department is a Cultivator for Business
● Accelerates Business Prosperity
● Diversifies Robust Workforce Opportunities
● Scales Economic Impact Within Constraints
The Town is a Catalyst for Business
● Creating and Maintaining High Quality Services
● Managing Clear and Transparent Regulations
● Planning and Providing Resources for Resiliency
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BASE Update 2023 and 2024
In May of 2023, 22 Companies successfully graduated from the EDC’s 6 month Business
Accelerator Services of Estes (“BASE”) program. 28 representatives from those companies
(57% were women leaders), graduated from a curriculum that was tailored for business
management in Estes Park, each investing almost 20 hours every month of the program. The
2023 program focused on three core areas: Workforce Leadership, Operations and Innovation.
Feedback gathered after the program highlighted that the Workforce Leadership curriculum will
have the most immediate impact to their businesses and that overall the program received a Net
Promoter Score (“NPS”) score of 80 (out of 100)! NPS is an industry benchmark representing
the likelihood that a participant would recommend the program to a friend or colleague. For
reference, the industry average NPS for Business Training is 67. The BASE program’s above
average NPS score is reinforced by the 19 businesses who have applied for the 2024 program -
65% applied because it was recommended by someone who had previously attended.
Initially the Chamber’s Economic Development Department will be responsible for continuing
the BASE programming, which in previous years has been provided at no-cost thanks to a grant
from the EDA and EDC investors. The Department will be responsible for re-calibrating this
programming, in order to make it sustainable beyond the exhaustion of grant funds in 2025.
While some program fees may be introduced, we are committed to providing instruction at
no-cost to companies or individuals who demonstrate a financial need. Based on feedback from
past participants, the BASE program will continue delivering the high quality instruction that's
grown over its initial 5 years, but tailor it for small groups of companies by stage, with an
underlining focus on Workforce Leadership. Additionally, instead of running one 6 month
program to a large group, resources will be delivered to each small group (3-6) in shorter
segments (estimated to be 1-2 months) - with continued education/case working as each
company grows. While programming has previously begun each October, we have delayed the
start of the 2024 program as we finalize combining operations with the Chamber and hire a new
Programming Manager. Finally, the program will take a cue from Venture backed Accelerators,
and balance instruction with execution time, this is generally done through a hybrid learning and
co-working environment - ie. participants have a desk that they work from before and after the
instructional session. This not only creates space for working “on” their business, but also the
much needed camaraderie from other business owners in a similar stage - building an
ecosystem around business prosperity.
Measuring Success
Economic Development results in qualitative changes to a community over years and impacts
multi-dimensional standards (quality of life, infrastructure, etc). Following the 2024 Town of
Estes Park’s Strategic Plan for “measurement of economic development decisions”, the
Chamber will use “a triple bottom line model, considering economic, social and environmental
impacts and benefits.” This provides a framework for evaluating each area of measurement
equally and will not only be used for operations, but when selecting program participants,
partners, etc. Specifically, these areas map to the activities of the Department as follows:
ECONOMIC: Accelerates Business Prosperity
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Provide education to businesses that assist them in prospering at a faster rate than others in
their industry
SOCIAL: Diversifies Robust Workforce Opportunities
Make Estes Park an industry leader for Hospitality Career Leadership and Opportunities
ENVIRONMENTAL: Scales Economic Impact Within Constraints
Embrace population and geographic constraints while increasing economic prosperity
Specific Triple Bottom Line Measurements
From the EDC’s most recently completed business survey (BEAR, Q4 2022), the following
measurements are examples of measuring our Triple Bottom Line impact. When asked to rate
factors related to doing business in Estes Park:
Economic: 90% rated support from the town as Excellent or Good
- In 2011, prior to the founding of the EDC, a Citizen Survey identified economic
development as the most under-performing Town Service. It should be noted that the
2022 BEAR Survey results may have been bolstered by the support the EDC provided to
nearly 400 businesses for COVID recovery assistance. We believe that by combining
with the Chamber to have a “one stop shop” for business support, we can continue to
keep this rating high.
Social: 64% rated the Estes Workforce Quality as Fair or Poor
- The 2023 BASE program attendees not only rated leadership and culture sessions as
most relevant, but also sessions on “Hiring the right people”, “Organizational Health” and
“Employee Buy-in.” Our goal will be to tailor BASE programming to increase the rated
quality of the workforce.
Environmental: 82% rated Availability of commercial space as Poor
- This is an area of opportunity to expand programming, especially as the 2024 Town of
Estes Park Strategic Plan has included a specific action item to “Work with the Estes
Chamber and Downtown businesses to evaluate implementation options for the
Downtown Plan.” Programming examples could be around Enterprise Zone rehabilitation
tax credits, etc.
Next Steps
Upon successful approval of the Chamber to be an eligible recipient of the EDC’s awarded Base
funding, work will begin on hiring a Programming Manager. Candidates have already been
recruited by the EDC’s Interim CEO and will be jointly interviewed with the Chamber Executive
Director. Combining support from the Town with our other investors who have already pledged
their 2024 contributions, we are optimistic that we will be able to onboard the Programming
Manager and begin providing Economic Development services from the Chamber’s Economic
Development Department within the first quarter of 2024.
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RECEIVED 2024-01-23