Peterson July 21, 2006 Letter

CHRISTIAN N. PETERSON
(Address)

July 21, 2006

Mayor Matthew Godfrey
Ogden City
2549 Washington Boulevard, Suite 910
Ogden, UT 84401

Re: Malan's Basin Approval Process

Dear Mayor Godfrey:

I have appreciated your willingness and the willingness of other members of the Ogden City organization to provide preliminary input on my proposed development projects (more fully described below as the "Projects") involving Malan's Basin, the Mt. Ogden Golf Course, other public and private lands, and the public and private gondola systems. I believed it was essential, in evaluating related projects of the magnitude, to understand at the outset the major issues that would need to be addressed in the planning of the Projects and the extent to which the City would envision the Projects as important in achieving broader public purposes. I am incorporating what I have learned during the last 90 days of public meetings into concept plans that will be the basis for any approvals granted by the City. While those plans are in development, it is time to move into a specifically defined process that will result in full consideration and, I hope, approval of the Projects.

As I recently mentioned to you, I have retained the services of Tom Ellison, a development and land use lawyer with Stoel Rives LLP in Salt Lake City. Tom served as a member of Salt Lake City's planning Commission for 10 years and has extensive experience in the planning, entitlement and development of larger scale projects, in particular those with resort elements. Tom will be involved in helping me to define the necessary approvals ("Approvals") and conduct approval processes ("Approval Processes") necessary to entitle the projects for subsequent development and construction. In his initial review of the City's ordinances, he has identified the need for several key policy decisions (the"Major Policy Decisions") that must be made, including the creation of a new zoning district to accommodate the mix of uses contemplated by the Projects and the authorization of development agreements as an additional regulatory tool available to the City to regulate complex, large scale and multi-phased projects. Tom has helped me to develop a proposal for a phased process that will resolve all policy matters and result in the full consideration of my development concepts. Our proposal is set forth in the balance of this letter for your immediate consideration and input, with the view that the Developer and the City will enter into a "pre-development agreement" by the end of business on August 4, 2006 incorporating our agreements regarding the Approval Processes to be followed and the expected contributions of each party in such Approval Processes.

The Projects

This proposal addresses the Approval Processes for evaluating and approving the following major Projects:

(a) a cross town, City-owned, Developer-built-and-managed gondola system running
from the existing multi-modal transit hub eastbound on 23rd Street to Harrison, then southbound on Harrison to Weber State University, with a cross-campus segment eastbound to the upper campus (the "Cross-Town Gondola Project");

(b) the redevelopment of the Mt. Ogden Golf Course in part on City-owned land and
in part on land owned by Developer and on land to be acquired from Weber State
University and other third parties, including, without limitation the sale of the existing Golf Course land by City to Developer for fair market value and the conversion of the public course into a privately owned course with explicit public play rights and a discount negotiated for Ogden City residents (the "Golf Course Project");

(c) the improvement of residential building lots on private land surrounding the relocated golf course (the "Golf Residential Project");

(d )the creation of a new mixed-use village on land adjacent to the Golf Course Project and generally located to the east of the College (the "Golf Village Project");

(e) the creation of public trails and trail access points and possibly other essential public facilities in connection with the annexation of Developer-owned land east of the current City boundaries and the vacation of public rights in certain existing trails to be used for private development ("the "Public Trails Project");

(f) the creation of new ski lifts, trails and other resort-related facilities in Malan's Basin and in other mountain areas east of the existing City boundary, including without limitation a gondola to connect the Golf Village Project with such uphill ski facilities (the "Mountain Resort Project") and

(g) the creation of a new mixed-use village on land adjacent to the Mountain Resort Project and located in Malan's Basin (the "Mountain Village Project").

I believe we are in agreement that each of the Projects is interrelated and, although elements of the Projects may be phased, the Projects are ultimately interdependent on each other for success. For this reason, I believe the City and Developer each needs to have the assurance of a development agreement entitling and regulating the private aspects of each of the Projects to assure that each party is fully protected and to assure that the Projects are developed consistent with the final Approvals.

The Major Policy Decisions

In developing our Approval Process proposal, we have considered certain Major Policy Decisions, each of which must ultimately be finalized in order to approve the Projects. Our Approval Process proposal is made with the assumption that each of the following Major Policy Decisions will ultimately be approved at an appropriate time in the Approval Process, subject to conditions appropriate to protect the interests of the City:

1. Zoning. The City Council will be asked to amend the Zoning Ordinance to create a new "Planned Community Development Zone" to authorize and regulate the development and construction of the Projects. The PCD zone would be a flexible zone, allowing Developer to propose a conceptual plan consisting of the proposed configuration of the Projects, the proposed uses and densities, specific development standards that would govern proposed development, proposed phases and other relevant development details. The conceptual plan, uses, densities, development standards and other regulatory details would be approved and incorporated into the terms of a development agreement (generally described below), that would finally be approved by the City Council using full legislative and public hearing processes. The PCD zone test would reflect application requirements and approval criteria. The PCD zone could be tailored to be applied solely to the Projects, if that approach is desired by the City Council. Developer proposes that the PCD zone be substituted for all existing base and overlay zones applicable to any Project property within the City and to all property newly annexed into the City.

2. Development Agreement Approval. The City Council will be asked to authorize the use of development agreements to regulate the Projects within the PCD zone. The development agreement would become the essential regulatory tool of the City in assuring that all policies applicable to the Projects are agreed to and implemented. In addition to containing all pertinent concept plan, use, density, phasing and other regulatory provisions, including any special approval conditions, the development agreement would contain provisions assuring the periodic review of the Projects to ascertain compliance with the development agreement's requirements and would describe any subsequent approval processes (such as final platting) that would be required as elements of the Projects are more specifically engineered or designed. The development agreement for the Projects would incorporate all discretionary public policy decisions and would include a provision vesting the right to develop the Projects in accordance with the development agreement, subject to compliance with the development agreement's requirements and subject to additional ministerial plat and site plan review processes necessary to confirm such compliance.

3. Annexation of Property. The City Council will be asked to annex the lands necessary for the Projects that are not yet within the City's boundaries and to amend such planning documents as may be necessary to contemplate and be consistent with such an annexation. Specific amendments will be identified in the process described below.

4. General Plan Amendments. The City Council will be asked to amend the General Plan and any applicable neighborhood or other planning documents to contemplate and be consistent with the Projects and to contemplate the creation of a new PCD zone and the creation of development agreement authority. Specific amendments will be identified in the process described below.

5. Public Land and Interests. The City Council will be asked to vacate public rights in and sell the existing Mr. Ogden golf course land and to vacate any public rights that may exist in certain trails on private development lands. This power will only be utilized in connection with the provision of assurances for the completion of replacement golf and replacement and expanded public trails and with appropriate contractual rights for public access to both the golf and the trails.

6. Budget Authority. The City Council will be asked to use its budget authority to authorize the funding for the Cross-Town Gondola Project.

7. Contemporaneous Decisions. The City Council will ultimately be asked to proceed with the following final Project Approvals as a package and not as separate, isolated Approvals: (1) approval of the annexation of any land; (2) approval of the general plan amendments related to the Projects as distinguished from general plan changes necessary to make ordinance changes; (3) approval of the development agreement authorizing and vesting the Projects; and (4) approval of the sale of the existing golf course and the vacation of any public trail rights across development property. In addition to contemporaneous and mutually conditioned Approvals, we specifically propose that the closing of the sale of the golf course be conditioned on the Developer's provision of financing, bonding, and/or other financial assurances sufficient to assure the completion of replacement golf, replacement and expanded public trails as ultimately approved by the City and Developer and certain other key feature of Projects that are mutually agreed to be essential in the first phase of construction. We believe that the approach outlined in the point 7 will protect the respective interests of City and Developer.

The Proposed Framework For Approvals

We propose for the City's consideration the following approach to address the Major Policy Decisions and the anticipated Approval Processes:

A. Initial Phase. During the initial phase, City and Developer will (i) identify any additional Major Policy Decisions, (ii) identify all applicable Approvals and Approval Processes, (iii) obtain City Council input on the Major Policy Decisions, and (iv) reach final understandings regarding the Approval Process framework to be followed. City and Developer will enter into a Pre-Development Agreement that will reflect the results of this phase and describe the anticipated obligations of the parties in the subsequent phases outlined in the final Approval Process framework. Developer proposes that this phase be completed by August 4, 2006.

B. General Plan and Zoning Ordinance Amendment Phase. During amendment phase, City and Developer will (i) identify necessary text amendments to the general plan and any neighborhood plans, the proposed structure and content of the PCD zoning district text and the structure and content of the enabling ordinance approving development agreements, (ii) make and process necessary applications for any plan and ordinance text changes and (iii)_ adopt final plan and ordinance text amendments after required recommendations and hearings. Developer proposes that this phase be completed by October 31, 2006. Developer would proceed to finalize conceptual plans and other information required for applications when application requirements are determined in the amendment phase.

C. Project Application, Evaluation and Hearing Phase. During the Project application, evaluation and hearing phase, (i) Developer will make such applications for Project-specific general plan amendments, rezoning, development agreement approval, preliminary plat approval and other approvals as may be required by then-applicable law or necessary to accomplish the final Approvals for the Projects, and (ii) City will conduct such evaluations of the applications, hold such public hearings, obtain such other input and otherwise process the applications in accordance with normal public processes. Developer proposes that this phase be completed within ninety (90) days after the filing of applications for the Projects by Developer.

D. Documentation and Approval Phase. During the documentation and approval phase, City and Developer will (i) negotiate such revisions to the proposed development agreement as may be agreed based on the input and recommendations received during the review and hearing process, and (ii) obtain final approval by the City Council of the final development agreement. Developer proposes that this phase be completed within thirty (30) days after the final public hearing before the City Council.

E. Closing Phase. During the closing phase, City and Developer will (i) finalize such closing documents as may be necessary to evidence the golf course purchase, Developer financing required for the first phase of development, third party land acquisition documents, and all City/Developer agreements, (ii) record the development agreement, evidence of rezoning, golf course and other deeds, appropriate financing documents and any other necessary documents, and (iii) exchange purchase consideration, non-recorded documents and other instruments as necessary to carry out the closings in accordance with the requirements of the development agreement. Developer proposed that this phase be completed within ninety (90) days after the final Approvals are granted by the City Council

I will contact you early next week to see how you wish to proceed with this proposal. Thank you again for your continuing cooperation as we determine the best approach for processing and regulating the Projects.

Very truly yours,


Christian N. Peterson
(no signature.)

--------- End of Document ---------

(Close browser to return to main page)