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HomeMy WebLinkAbout1989-07-18 Support Documentation Town Council Regular SessionVAIL TOWN COUNCIL ~~ REGULAR MEETING TUESDAY, JULY 18, 1989 7:30 p.m. AGENDA 1. Ten Year Employment Anniversary Award to Matt Lindvall 2. Ordinance No. 13, Series of 1989, second reading, an ordinance creating Town of Vail, Colorado, Booth Creek Local Improvement District; approving the plans for and authorizing the construction and installation of special and local improvements therein, in connection with which special assessments shall hereafter be levied to pay a portion of the cost thereof; approving the method of apportioning such assessments; making findings and conclusions based upon evidence presented at a public hearing concerning the foregoing; and setting forth details in relation thereto. 3. Ordinance No. 20, Series of 1989, first reading, an ordinance concerning the issuance of local improvement bonds of the Town of Vail, Colorado for the Booth Creek Local Improvement District; ratifying action heretofore taken in connection therewith; prescribing details in connection with said bonds and district; prescribing duties of certain Town officials in connection therewith; repealing all ordinances and other action of the Town to the extent inconsistent herewith; and providing other matters relating thereto. 4. Ordinance No. 18, Series of 1989, first reading, Town of Vail cable television franchise ordinance. 5. Ordinance No. 19, Series of 1989, first reading, an ordinance granting a cable television franchise to Heritage Cablevision to construct, reconstruct, operate, and maintain a cable communications system within the Town of Vail pursuant to and subject to the provisions of Ordinance No. 18, Series of 1989. 6. Resolution No. 26, Series of 1989, a resolution creating a temporary Town of Vail Art in Public Places Board and adopting the Art in Public Places Program. 7. Resolution Nos. 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, Series of 1989, designating the following as depositories for the funds of the Town as permitted by the Charter of the Town, its ordinances, and the Statutes of the State of Colorado. No. 28 - Shearson Lehman Hutton, Inc., Houston, Texas No. 29 - Underwood, Neuhaus and Company, Houston, Texas No. 30 - Eastern Savings Bank, Hunt Valley, Maryland No. 31 - Kislak National Bank, North Miami, Florida No. 32 - Republic National Bank, Phoenix, Arizona No. 33 - Standard Pacific Savings & Loan, Newport Beach, California No. 34 - Century Bank of Suffolk, Chelsea, Massachusetts No. 35 - Century Bank and Trust, Somerville, Massachusetts No. 36 - Brentwood Square Savings & Loan, Los Angeles, California No. 37 - Trustcorp Bank, Toledo, Ohio No. 38 - Columbia National Bank, Santa Monica, California No. 39 - First Cheshire Bank, Keene, New Hampshire No. 40 - Sunwest Bank, Tustin, California No. 41 - Pioneer Federal Savings & Loan, Chester, Virginia No. 42 - Fidelity Federal Savings Bank, Richmond, Virginia No. 43 - St. Edmonds Savings & Loan, Philadelphia, Pennsylvania No. 44 - Monadnock Bank, Jaffrey, New Hampshire No. 45 - East Bank NA, New York, New York No. 46 - Charter Bank for Savings, Sante Fe, New Mexico No. 47 - Bay Loan and Investment Bank, East Greenich, Rhode Island No. 48 - Coast Bank, Long Beach, California No. 49 - Mission Viejo National Bank, Mission Viejo, California No. 50 - Souhegon National Bank, Milford, New Hampshire No. 51 - Center Bank, Waterberry, Connecticut No. 52 - First Capital Bank, Concord, New Hampshire No. 53 - Security Pacific State Bank, Irvine, California CITIZEN PARTICIPATION 8. Adjournment VAIL TOWN COUNCIL REGULAR MEETING TUESDAY, JULY 18, 1989 7:30 p.m. EXPANDED AGENDA 7:30 1. Ten Year Employment Anniversary Award to Matt Lindvall 7:35 2. Ordinance No. 13, Series of 1989, second reading, an Larry Eskwith ordinance establishing the Booth Falls Local Improvement Stan Berryman District Action Requested of Council: Approve/deny Ordinance No. 13, Series of 1989, on second reading. Background Rationale: The ordinance establishes the Booth Falls Local Improvement District to construct rockfall mitigation. Staff Recommendation: Approve Ordinance No. 13, Series of 1989, on second reading. 7:55 3. Ordinance No. 20, Series of 1989, first reading, concerning Larry Eskwith the issuance of local improvement bonds for the Booth Creek Local Improvement District Action Requested of Council: Approve/deny Ordinance No. 20, Series of 1989, on first reading. Background Rationale: This ordinance authorizes the issuance of local improvement bonds in the amount of $335,000 to finance the Booth Creek Local Improvement District. Staff Recommendation: Approve Ordinance No. 20, Series of 1989, on first reading. 8:15 4. Ordinance No. 18, Series of 1989, first reading, concerning Larry Eskwith cable TV communications Action Requested of Council: Approve/deny Ordinance No. 18, Series of 1989, on first reading. Background Rationale: After a lengthy period of negotiation and review by the Town Council, this ordinance is now ready to be brought before the Council for final approval or denial. Staff Recommendation: Approve Ordinance No. 18, Series of 1989, on first reading. 8:35 5. Ordinance No. 19, Series of 1989, first reading, granting Larry Eskwith a five year cable television franchise to Heritage Cablevision Action Requested of Council: Approve/deny Ordinance No. 19, Series of 1989, on first reading. Background Rationale: After review of the franchise agreement by the Town Council, the Town Attorney was directed to draft an ordinance granting a five year franchise to Heritage Cablevision. Staff Recommendation: Approve Ordinance No. 19, Series of 1989, on first reading. 8:55 6. Resolution No. 26, Series of 1989, concerning the Arts in Kristan Pritz Public Places Program Action Requested of Council: Approve/deny Resolution No. 26, Series of 1989. Background Rationale: The resolution provides for the adoption of the Art in Public Places Program and the establishment of the AIPP Board for a period of two years. Staff Recommendation: Approve Resolution No. 26, Series of 1989. 9:15 7. Resolution Nos. 28 - 53, Series of 1989, designating the Steve Thompson following as depositories for Town of Vail funds: No. 28 - Shearson Lehman Hutton, Inc., Houston, Texas No. 29 - Underwood, Neuhaus and Company, Houston, Texas No. 30 - Eastern Savings Bank, Hunt Valley, Maryland No. 31 - Kislak National Bank, North Miami, Florida No. 32 - Republic National Bank, Phoenix, Arizona No. 33 - Standard Pacific Savings & Loan, Newport Beach, California No. 34 - Century Bank of Suffolk, Chelsea, Massachusetts No. 35 - Century Bank and Trust, Somerville, Massachusetts No. 36 - Brentwood Square Savings & Loan, Los Angeles, California No. 37 - Trustcorp Bank, Toledo, Ohio No. 38 - Columbia National Bank, Santa Monica, California No. 39 - First Cheshire Bank, Keene, New Hampshire No. 40 - Sunwest Bank, Tustin, California No. 41 - Pioneer Federal Savings & Loan, Chester, Virginia No. 42 - Fidelity Federal Savings Bank, Richmond, Virginia No. 43 - St. Edmonds Savings & Loan, Philadelphia, Pennsylvania No. 44 - Monadnock Bank, Jaffrey, New Hampshire No. 45 - East Bank NA, New York, New York No. 46 - Charter Bank for Savings, Sante Fe, New Mexico No. 47 - Bay Loan and Investment Bank, East Greenich, Rhode Island No. 48 - Coast Bank, Long Beach, California No. 49 - Mission Viejo National Bank, Mission Viejo, California No. 50 - Souhegon National Bank, Milford, New Hampshire No. 51 - Center Bank, Waterberry, Connecticut No. 52 - First Capital Bank, Concord, New Hampshire No. 53 - Security Pacific State Bank, Irvine, California Action Requested of Council: Approve/deny Resolution Nos. 28 - 53, Series of 1989. Background Rationale: Financial institutions require a corporate resolution be adopted and in their files in order to hold public funds. Staff Recommendation: Approve Resolution Nos. 28 - 53, Series of 1989. 9:30 CITIZEN PARTICIPATION 9:45 8. Adjournment _2_ ;~ ORDINANCE NO. 13 Series of 1989 AN ORDINANCE CREATING TOWN OF VAIL, COLORADO, BOOTH CREEK LOCAL IMPROVEMENT DISTRICT; APPROVING THE PLANS FOR AND AUTHORIZING THE CONSTRUCTION AND INSTALLATION OF SPECIAL AND LOCAL IMPROVEMENTS THEREIN, IN CONNECTION WITH WHICH SPECIAL ASSESSMENTS SHALL HEREAFTER BE LEVIED TO PAY A PORTION OF THE COST THEREOF; APPROVING THE METHOD OF APPORTIONING SUCH ASSESSMENTSf MAKING FINDINGS AND CONCLUSIONS BASED UPON EVIDENCE PRESENTED AT A PUBLIC HEARING CONCERNING THE FOREGOING; AND SETTING FORTH DETAILS IN RELATION THERETO. WHEREAS, pursuant to the Charter of the Town of Vail, Eagle County, Colorado (the "Town"), Title 20 of the Vail Code and Resolution No. 30, Series of 1988, the Town Council held a public hearing on June 6, 1989, relating to the creation of a local improvement district for the construction and installation of certain special and local improvements to the Booth Creek area of the Town; and WHEREAS, the Town Council has considered the testimony and other evidence presented at said hearing and all comments made by affected parcel owners and members of the general public relating thereto. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. Based upon all the evidence, the Town Council finds as followso 1.1 Pursuant to Resolution No. 30, Series of 1988, the Town Council has duly initiated by appropriate order the special and local improvement project (the "Project") described herein. -1- 1.2 The Town Manager or his delegee has duly held administrative hearings relating to the Project for the purpose of informing affected parcel owners about the same and about the assessments proposed, and for the purpose of providing the affected parcel owners the opportunity to respond thereto. 1.3 Notice of a public hearing on the Project and assessments therefor and the formation of a local improvement district in the required legal form was published in The Vail Trail, a newspaper of general circulation in the Town, on May 26, 1989. 1.4 A copy of the same notice was mailed by first-class mail, postage prepaid, on May 23, 1989, to all affected parcel owners at i~heir last known addresses as shown on the rea:1 parcel assessment rolls for general (ad valorem) taxes of Eagle County, Colorado, as of May 18, 1989. In addition, steps were taken by Town officials to ascertain the current owners of affected properties and their addresses, if such differed from the information shown in the tax records, and attempts were made to furnish them with actual notice via mail. Included with each mailed notice was a form entitled "Protest" that could be used to protest against the Project. 1.5 Notice of a second public hearing reflecting certain revisions in the nature of the improvements to be constructed and installed by the Project and in the total Project cost and the amount of the' Project cost to be assessed against parcels in the proposed local improvement district in the required legal form was published in The Vail Trail on July 7, 1989, and a copy of such notice was mailed by first-class mail on July 3, 1989, postage prepaid, to all persons who received the notice described in Section. 1.4. -2- 1.6 All necessary legal requirements and conditions precedent for initiation of the Project and for the public hearings on the same held on June 6, 1989 and July 18, 1989, have been fully performed, met and satisfied. 1.7 Public hearings on the Project and assessments therefore and the formation of a local improvement district were duly held on June 6, 1989 and July 18, 1989, and full opportunity was afforded all affected parcel owners to present their views. 1.8 There have been protests filed in accordance with the Charter and Title 20 of the Vail Code. The Town Council therefore finds and determines that protests were filed by less than 50 percent of the affected parcel owners in the proposed local improvement district. The Town Council hereby determines that the Project should proceed, as it is necessary for the preservation of the public health, safety and welfare and is in the public interest. 1.9 Schematic design plans for generally includes, but is not limited to, installing a trench-berm complex to prevent reaching and damaging private property, have k to the Town Council. The schematic design approved. the Project, which constructing and falling rock from peen duly presented plans are hereby 1.10 The improvements to be constructed and installed are special and local improvements that also confer general benefits upon the Town. The Town Council finds it is appropriate that the general public share in a portion of the cost of the improvements. The total estimated cost of the improvements is $386,766. The portion of the cost of the improvements to be borne by the Town is $20,000. The portion of -3- the cost of the improvements to be defrayed by the levying of special assessments against affected parcels specially benefited thereby shall not exceed $366,756, except as permitted by the Vail Code and as provided :in the notices previously published and mailed to affected parcel owners. The cost estimate and apportionment are found i:o be satisfactory and reasonable in every respect. 1.11 Parcels proposed to be assessed abut or are in the vicinity of the improvements to be constructed and installed and will benefit from the construction and installation thereof. The improvements will confer substantial special benefits on all of the affected parcels within the boundaries of the local improvement district, which special benefits are separate and distinct from the general benefits to the Town that will also result therefrom. 1.12 The proposed assessments on specially benefited parcels have been determined by assessing an equal amount of the total cost to be assessed against each parcel of land within the proposed local improvement district. For purposes of this ordinance, "parcelN shall mean a lot, tract or parcel of land which is separately identified on the property tax records of the Eagle County assessor's office. The Town Council hereby determines that method of assessment to be fair and equitable and that it results in a reasonable apportionment consistent with the benefits to be conferred by the Project. 1.13 The 'T'own has jurisdiction over the Booth Creek area where the improvements are to be made and over all of the aff=ected parcels to be included in the local improvement district. -4- Section 2. The Town Council finds, concludes and orders as follows 2.1 The Town Council, in addition to the express determinations hereinabove set forth, by the adoption of this Ordinance hereby denies all protests, objections or remonstrances that were made, either in writing or orally at the public hearing. 2.2 There is hereby created within the corporate limits of the Town of Vail, Eagle County, Colorado, a local improvement district to be known and designated as "Town of Vail, Colorado, Booth Creek Local Improvement District" (the '°District'°) for the purpose of constructing and installing certain improvements to mitigate rockfall damage in the Booth Creek area of the Town and of assessing a portion of the cost thereof to the parcels specially benefited thereby. 2.3 The area to be included within the boundaries of the District and to be assessed for a portion of the cost of the improvements shall be all the real property described in Exhibit A attached hereto. 2.4 The schematic designs for the improvements are hereby approved, subject to modifications that could be imposed due to cost constraints. The construction and installation of the improvements within the District as shown by the preliminary plans are hereby authorized and ordered. 2.5 The Town shall pay $20,000 of the cost of constructing and installing the improvements. The remaining costs shall be assessed against the parcels in the District. -5- 2.6 The Town Council has determined, and does hereby determine, that assessments shall be levied against the affected parcels in the District (the parcels specially benefited by the :improvements therein) according to the method described in Section 1.11 of this Ordinance. 2.7 After considering all of the circumstances and weighing the factors sL~ecified in Title 20 of the Vail Code, the Town Council has determined, and does hereby determine, that as a result of the improvements to be constructed and installed within-the District each such parcel will receive a special benefit in an amount which equals or exceeds the amount of the particular assessment to be assessed against .each parcel as indicated on Exhibit A; that said method of assessment is a fair and equitable method; and that the assessments are in proportion to they special benefits conferred upon such parcels. Accordingly, the method of assessment is hereby approved. 2.8 The proposed assessment schedule shown on Exhibit A attached hereto is hereby approved. The assessments to be levied against the affected parcels shall not exceed the assessment amounts provided in said schedule except (a) if actual construction costs exceed estimated construction costs (but only to the maximum of an additional fifteen percent), (b) if land acquisition costs exceed e:~timated costs, or (c) if separate and additional elements of cost are incurred in construction or for other items which are of a nature generally not foreseen and included in the construction costs at the time of estimate, as providedi by Section 20.04.080 of the Vail Code and the notice previously published and mailed to affected parcel owners. 2.9 The total cost of the Project (excepting the amount to be paid from sources other than special assessments) shall k>e apportioned upon the substantial completion of the -6- improvements in an assessment roll against each parcel to be assessed as herein described. After notice thereof and a hearing thereupon, assessments shall be levied by ordinance of the Town Council using the method of assessment provided for herein. The assessments shall be a lien until paid in the several amounts assessed against each such parcel from the effective date of the assessing ordinance. 2.10 All assessments shall be due and payable without demand within 30 days after the adoption and final publication of the assessing ordinance. Parcel owners shall be permitted, at their election, upon the levy of assessments to pay such assessments on an installment basis in not more than 10 substantially equal annual installments beginning March 1, 1990 at an interest rate not to exceed twelve percent per annum, but not less than the highest interest rate borne by any special assessment bonds issued to pay the cost of the improvements. Interest shall be computed on the outstanding principal and shall be paid at the same times as installments of principal. 2.11 Pursuant to the laws of the State of Colorado, the Town Charter, and Title 20 of the Vail Code, special assessment bonds (the "Bonds") of the Town shall hereafter be issued for the purpose of paying for the improvements described in this Ordinance, in an aggregate principal amount not to exceed the cost and expenses of providing said improvements, including engineering, legal and incidental costs, and interest as provided by Iaw. The Bonds shall be issued based upon estimates approved by the Town Council and as authorized by an Ordinance to be passed by the Town Council at a later date, The maximum met effective interest rate on the Bonds is twelve percent per annum. The principal of and interest on the Bonds shall be payable from the special assessments m~_ S authorized herein to be levied against the parcels of real property within the District. Section 3. The officers of the Town are hereby authorized and directed to enter into such agreements and take all action necessary or appropriate to effectuate the provisions of this Ordinance and to comply with the requirements of law. Section 4. All actions not inconsistent with the provisions of this Ordinance heretofore taken by the Town and by the officers thereof and directed toward the creation of the District, the construction and installation of the improvements therein, and the levy of assessments to pay a portion of the cost thereof are hereby ratified, approved and confirmed. Section 5. All ordinances or resolutions, or parts thereof, in conflict with this Ordinance are hereby repealed. This repealer shall not be construed to revive any ordinance of part of any ordinance heretofore repealed. Section 6. If any section, paragraph, clause of provision of this Ordinance shall for any reason be held to be invalid or unenforceable, i:he invalidity or unenforceability of such section, paragraph, class or provision shall not affect any of the remaining provisions of this Ordinance. -8- Section 7e The Town Council finds that this Ordinance is necessary to and for the benefit of the public interest and the public health, safety, and welfarea INTRODUCED, READ BY TITLE, PASSED ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL this 6th day of June, 1989° (TOWN SEAL) ATTEST: Town Clerk Town of Vail Mayor Town of Vail READ BY TITLE, AMENDED, FINALLY APPROVED ON SECOND READING, ADOPTED AND ORDERED PUBLISHED IN FULL THIS 18th day of July, 1989a Mayor Town of Vail (TOWN SEAL) ATTESTo Town Clerk Town of Vail -9- EXHIBIT A PROPOSED ASSESSMENT SCHEDULE Owner and F~ddress_ Parcel Owned Jack P. and Carol A. Acuff Block 1, Lot 5, Vail Village P.O. Box 525 12th Filing Uail, CO 81658 Pat and Anne Baker Block 1, Lot 10, Unit B, Vail Village 3135 Booth Falls Court 12th Filing T own house Vail, CO 81657 Pat and Anne Baker I_ot 1 , Parcel B, Vail Village 12th Duplex 3135 Booth Falls Court ftesub of Lot 2 Vail, CO 81657 Edith A. Boulware Block 2, Lot 6, Vail Village 1104 Montecito Drive 12th Filing San Angelo, TX 76901 Brandess-Cadmus Real Estate, Inc. Block 1, Lot 10, Unit A, Vail Village 281 Bridge Street 1.2th Filing T own house Vail, CO 81657 George H. Clowes, Jr. Block 2, Lot 3, Vail Village Robert Lammerts 1.2th Filing c/o Lammerts 125 Park Avenue Oklahoma City, OK 73102 Amount of Assessment $14,106 $14,106 $14,106 $14,106 $14,106 $14,106 A-1 Crown Corr, Inc. P.O. Box 1750 Highland, IN 46322 Lynn S. Deutschman 448 Garrison Forrest Owings Mills, MD 21117 Daniel J, and Barbara A. Feeney P. 0. Box 3385 Vail, CO 81658 John W. Gray 1902 West Colorado Avenue, Suite A Colorado Springs, CO 80904 Edward J. Gund P.O. Box 3145 Vail, CO 81658 Edward M. & Katherine Gwathmey 3226 Katsos Ranch Road Vail, CO 81657 Jeanine Hallenbeck 3236 Katsos Ranch Road Vail, CO 81657 Arthur S. and Shelby G. Kleimer Lawrence and Susan C. Ast P.O. Box 2244 Vail, CO 81658 Block 1, Lot 11, Resubdivision of Lot 7, Vail Village 12th Filing Block 1, Lot 2, Unit 1, Marquez Duplex, Vail Village 12th Filing Block 2, Lot 2, Unit B, Vail Village 12th Filing Block 1, Lot 6, Unit B, Vail Village 12th Filing Townhouse Block 2, Lot 8, Vail Village Filing 12 Block 1, Lot 2, Unit B Marquez Duplex Block 1, Lot 4, Vail Village 12th Filing Block 2, Lot 7, Vail Village 12th Filing A-2 $14,106 $14,106 $14,106 $14,106 $14,106 $14,106 $14,106 $14,106 Robert P. Lammerts Block 2, Lot 4, Vail Village $14,106 125 Park Avenue 12th Filing Oklahoma City, OK 73102 Robert Leavitt Parcel A, Vail Village $14,106 6065 South Quebec Street 12th Filing Denver, CO 80111 Margem III Lot 8, Resubdivision of Lot 1, Block 1, $14,106 2525 Camino Del Rio South Parcel B-1, B-2, Vail Village San Diego, CA 92108 12th Filing Ouplex Charles H. L. McLaughlin Block 1, Lot 6, Unit A, Vail Village $14,106 P.O. Box 11.2 12th Filing Townhouse Vail, CO 81658 Jorge A. and Sybill R. Navas Block 1, Lot 9, Resubdivision of Lot 7, $14,106 3255 Katsos Ranch Road Vail Village 12th Filing Vail, CO 81657 Jerome J. Ruther Parcel A, Vail Village 12th Duplex, Lot 3 $14,106 1245 Sunset Road a resubdivision of Lot 7, Vail Village Winnetka, IL 60093 Filing 12 Michael D. and Cynthia Steimle Block 1, Lot 1, Vail Village $14,106 John D. and Ruth K. Steimle 12th Filing P.O. Box 2024 Vail, CO 81658 Ray E. Story and Pamela V. Story Block i, Lot 3, Vail Village $14,106 3230 Katsos Ranch Road Filing 12 Vail, CO 81657 A-3 Joe H. Tonahill, Jr. Block 2, Lot 5, Unit A, Vail Village $14,106 P.O. Box 3326 12th Filing Townhouse Vail, CO 81658 Joe H. Tonahill, Jr. P.O. Box 3326 Vail, CO 81658 Block 2, Lot 5, Unit 6, Vail Village 12th Filing Townhouse $14,106 Vail Mountain School P.O. Box 602 Vail, CO 81658 James H. and Thomas F. Weisberg Peggy Jo Epstein P.O. Box 597 Denver, CO 80201 Block 2, Lot 12, Vail Village 12th Filing Block 2, Lot 2, Unit A, Vail Village 12th Filing A-4 $14,106 $14,106 ~ r ORDINANCE NOo 13 ~ Series of 1989 ~ ~~ AN ORDIN V ANCE CREATING TOWN OF AIL, COLORADO, BOOTH CREEK LOCAL IMPROVEMENT DISTRICT; APPROVING THE PLANS FOR AND AUTHORIZING THE , CONSTRUCTION AND INSTALLATION OF SPECIAL AND ^ CVO LOCAL IMPROVEMENTS THEREIN, IN CONNECTION WITH WHICH SPECIAL ASSESSMENTS SHALL HEREAFTER BE LEVIED TO PAY A PORTION OF THE COST THEREOF; APPROVING THE METHOD OF APPORTIONING SUCH ASSESSMENTS; MAKING FINDINGS AND CONCLUSIONS BASED UPON EVIDENCE PRESENTED AT A PUBLIC HEARING CONCERNING THE FOREGOING; AND SETTING FORTH DETAILS IN RELATION THERETOo WHEREAS, pursuant to the Charter of the Town of Vail, Eagle County, Colorado (the "Town"), Title 20 of the Vail Code and Resolution Noe 30, Series of 1988, the Town Council held a public hearing on June 6, 1989, relating to the creation of a local improvement district for the construction and installation of certain special and local improvements to the Booth Creek area of the Town; and WHEREAS, the Town Council has considered the testimony and other evidence presented at said hearing and all comments made by affected parcel owners and members of the general public relating theretoe BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADOe Section le Based upon all the evidence, the Town Council finds as follows lel Pursuant to Resolution Noo 30, Series of 1988, the Town Council has duly initiated by appropriate order the special and local improvement project (the "Project") described hereino -2~ 1.2 The Town Manager or his delegee has duly held administrative hearings relating to the Project for the purpose of informing affected parcel owners about the same and about the assessments proposed, and for the purpose- of providing the affected parcel owners the opportunity to respond thereto. 1.3 Notice of a public hearing on the Project and assessments therefor and the formation of a local improvement district in the required legal form was published in The Vail Trail, a newspaper of general circulation in the Town, on May 26, 1989. 1.4 A copy of the same notice was mailed by first-class mail, postage prepaid, on May 23, 1989, to all affected parcel owners at their last known addresses as shown on the real parcel assessment rolls for general (ad valorem) taxes of Eagle County, Colorado, as of May 18, 1989. In addition, steps were taken by Town officials to ascertain the current owners of affected properties and their addresses, if such differed from the information shown in the tax records, and attempts were made to furnish them with actual notice via mail. Included with each mailed notice was a form entitled "Protest" that could be used to protest against the Project. 1.5 All necessary legal requirements and conditions precedent for initiation of the Project and for the public hearing on the same held on June 6, 1989, have been fully performed, met and satisfied. 1.6 A public hearing on the Project and assessments therefore and the formation of a local improvement district was duly held on June 6, 1989, and full opportunity was afforded all affected parcel owners to present their views. -3- , 1.7 There have been protests filed in accordance with the Charter and Title 20 of the Vail Code. The Town Council therefore finds and determines that protests were filed by less than 50 percent of the affected parcel owners in the proposed local improvement district. The Town Council hereby determines that the Project should proceed, as it is necessary for the preservation of the public health, safety and welfare and is in the public interest. 1.8 Schematic design plans for the Project, which generally includes constructing and installing certain berms and barriers to prevent falling rock from reaching and damaging private property, have been duly presented to the Town Council. The schematic design plans are hereby approved. 1.9 The improvements to be constructed and installed are special and local improvements that also confer general benefits upon the Town. The Town Council finds it is appropriate that the general public share in a portion of the cost of the improvements. The total estimated cost of the improvements is $355,000. The portion of the cost of the improvements to be borne by the Town is $20,000. The portion of the cost of the improvements to be defrayed by the levying of special assessments against affected parcels specially benefited thereby shall not exceed $335,000, except as permitted by the Vail Code and as provided in the notices previously published and mailed to affected parcel owners. The cost estimate and apportionment are found to be satisfactory and reasonable in every respect. 1.10 Parcels proposed to be assessed abut or are in the vicinity of the improvements to be constructed and installed and will benefit from the construction and installation thereof. The improvements will confer substantial special -4° benefits on all of the affected parcels within the boundaries of the local improvement district, which special benefits are separate and distinct from the general benefits to the Town that will also result therefrom. 1.11 The proposed assessments on specially benefited parcels have been determined by assessing an equal amount of the total cost to be assessed against each parcel of land within the proposed local improvement district. For purposes of this ordinance, "parcel" shall mean a lot, tract or parcel of land which is separately identified on the property tax records of the Eagle County assessor's office. The Town Council hereby determines that method of assessment to be fair and equitable and that it results in a reasonable apportionment consistent with the benefits to be conferred by the Project. 1.12 The Town has jurisdiction over the Booth Creek area where the improvements are to be made and over all of the affected parcels to be included in the local improvement district. Section 2.~ The Town Council finds, concludes and orders as follows: 2.1 The Town Council, in addition to the express determinations hereinabove set forth, by the adoption of this Ordinance hereby denies all protests, objections or remonstrances that were made, either in writing or orally at the public hearing. 2.2 There is hereby created within the corporate limits of the Town of Vail, Eagle County, Colorado, a local improvement district to be known and designated as "Town of Vail, Colorado, Booth Creek Local Improvement District" (the -5- ~ 6 'District") for the purpose of constructing and installing certain improvements to mitigate rockfall damage in the Booth Creek area of the Town and of assessing a portion of the cost thereof to the parcels specially benefited thereby. 2.3 The area to be included within the boundaries of the District and to be assessed for a portion of the cost of the improvements shall be all the real property described in Exhibit A attached hereto. 2.~ The schematic designs for the improvements are hereby approved, subject to modifications that could be imposed due to cost constraints. The construction and installation of the improvements within the District as shown by the preliminary plans are hereby authorized and ordered. 2.5 The Town shall pay $20,000 of the cost of constructing and installing the improvements. The remaining costs shall be assessed against the parcels in the District. 2.6 The Town Council has determined, and does hereby determine, that assessments shall be levied against the affected parcels in the District (the parcels specially benefited by the improvements therein) according to the method described in Section 1.11 of this Ordinance. 2.7 After considering all of the circumstances and weighing the factors specified in Title 20 of the Vail Code, the Town Council has determined, and does hereby determine, that as a result of the improvements to be constructed and installed within the District each• such parcel will receive a special benefit in an amount which equals or exceeds the amount of the particular assessment to be assessed against •each parcel as indicated on Exhibit A; that said method of assessment is a fair ~6- and equitable method; and that the assessments are in proportion to the: special benefits conferred upon such parcels. Accordingly, the method of assessment is hereby approved. 2.8 The proposed assessment schedule shown on Exhibit A attached hereto i.s hereby approved. The assessments to be levied against the affected parcels shall not exceed the assessment amounts provided in said schedule except (a) if actual construc:ti.on costs exceed estimated construction costs (but only to the maximum of an additional fifteen percent), (b) if land acquisition costs exceed estimated costs, or (c) if separate and additior,~al elements of cost are incurred in construction or for other items which are of a nature generally not foreseen and included in the construction costs at the time of estimate, as provided by Section 20.04.080 of the Vail Code and the notice previously published and mailed to affected parcel owners. 2.9 The total cost of the Project (excepting the amount t:o be paid from sources other than special assessments) shall be apportioned upon the substantialcompletion of the improvements in an assessment roll against each parcel to be assessed as herein described. After notice thereof and a hearing thereupon, assessments shall be levied by ordinance of the Town Council using the method of assessment provided for herein. The assessments shall be a lien until paid in the several amounts assessed. against each such parcel from the effective date of the assessing ordinance. 2.10 All assessments shall be due and payable without demand within 30 days after the adoption and final publication of the assessing ordinance. Parcel owners shall be permitted, at their election, upon the levy of assessments to pay such as:~essments on an installment basis in not more than 10 substantially equal annual installments beginning March 1, 1990 -7-~ at an interest rate not to exceed twelve percent per annum, but not less than the highest interest rate borne by any special assessment bonds issued to pay the cost of the improvements. Interest shall be computed on the outstanding principal and shall be paid at the same times as installments of principal. 2.11 Pursuant to the laws of the State of Colorado, the Town Charter, and Title 20 of the Vail Code, special assessment bonds (the "Bonds'°) of the Town shall hereafter be issued for the purpose of paying for the improvements described in this Ordinance, in an aggregate principal amount not to exceed the cost and expenses of providing said improvements, including engineering, legal and incidental costs, and interest as provided by law. The Bonds shall be issued based upon estimates approved by the Town Council and as authorized by an Ordinance to be passed by the Town Council at a later date. The maximum met effective interest rate on the Bonds is twelve percent per annum. The principal of and interest on the Bonds shall be payable from the special assessments authorized herein to be levied against the parcels of real property within the District. Section 3. The officers of the Town are hereby authorized and directed to enter into such agreements and take all action necessary or appropriate to effectuate the provisions of this Ordinance and to comply with the requirements of law. Section 4. All actions not inconsistent with the provisions of this Ordinance heretofore taken by the Town and by the officers thereof and directed toward the creation of the District, the construction and installation of the improvements therein, and the levy of assessments to pay a portion of the cost thereof are hereby ratified, approved and confirmed. -8- Section 5. All ordinances or resolutions, or parts thereof, in conflict with this Ordinance are hereby repealed. This repealer shall not be construed to revive any ordinance of part of any ordinance heretofore repealed. Section 6. If any section, paragraph, clause of provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, class or provision shall not affect any of the remaining provisions of this Ordinance. Section 7. The Town Council finds that this Ordinance is necessary to and for the benefit of the public interest and the public health, safety, and welfare. INTRODUCED, READ BY TITLE, PASSED ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL this 6th day of June, 1989. (TOWN SEAL) ATTEST: Town Clerk Town of Vail Mayor Town of Vail -9- READ BY TITLE, _AMENDED FINALLY APPROVED ON SECOND READING, ADOPTED AND ORDERED PUBLISHED~IN FULL THIS day of July, 1989a - Mayor Town of Vail (TOWN SEAL) ATTEST: Town Clerk Town of Vail -10- Owner and Address lack P, and Carol A. Acuff P.O. Box 525 Vail, CO 81658 Pat and Anne Baker 3135 Booth Falls Court Vail, CO 81657 Pat and Anne Baker 3135 Booth Falls Court Vail, CO 81657 Edith A. Boulware 1104 Montecito Orive San Angelo, TX 76901 Brandess-Cadmus Real Estate. Inc. 281 Bridge Street Vail, CO 81657 George H. Clowes, Jr. Robert Lammert°s c/o Lammerts 125 Park Avenue Oklahoma City, OK 73102 EXHIBIT A PROPOSEII ASSESSMENT SCHEDULE Parcel Owned Block 1, Lot 5, Vail Village 12th Filing Block 1, Lot 10, Unit B, Vail Village 12t:h Filing Townhouse Lot. 1, Parcel B, Vail Village 12th Duplex Resub of Lot 2 Block 2, Lot 6, Vail Village 12th Filing Block 1, Lot 10, Unit A, Vail Village 12th Filing Townhouse Block 2, Lot 3, Vail Village 12th Filing A-1 Amount of Assessment $12,885 $12,885 $12.885 $12,885 $12,885 $12,885 Crown Corr, Inc. Block 1, lot il, Resubdivision of Lot 7, $12,885 P.O. Box 1750 Vail Village 12th Filing Highland, IN 46322 Lynn S. Deutschman Block 1, Lot. 2, Unit 1, Marquez Duplex, $12,885 448 Garrison Forrest Yail Village 12th Filing Owings Mills, MD 21117 Daniel J. and Barbara A. Feeney Block 2, Lot 2, Unit B, Vail Village $12,885 P. 0. Box 3385 12th Filing Vail, CO 81658 John W. Gray Block 1, Lot 6, Unit B, Vail Village $12,885 1902 West Colorado Avenue, Suite A 12th Filing Tow nhous e Colorado Springs, CO 80904 Edward J. Gund Block 2, Lot 8, Vail Village $12,885 P.O. Box 3145 Filing 12 Vail, CO 81658 Edward M. & Katherine Gwathmey Block 1, Lot 2, Unit B Marquez Duplex $12,885 3226 Katsos Ranch Road Vail, CO 81657 Jeanine Hallenbeck Block 1, Lot 4, Vail Village $12,885 3236 Katsos Ranch Road 12th Filing Vail, CO 81657 Arthur S. and Shelby G. Kleimer Block 2, Lot 7, Vail Village $12,885 Lawrence and Susan C. Ast Filing 12 P.O. Box 2244 Vail, CO 81658 A-2 Robert P. Lammerts Block 2, Lot 4, Vail Village $12,885 125 Park Avenue 12th Filing Oklahoma City, OK 73102 Robert Leavitt Parcel A, Vail Village $12,885 6065 South Quebec Street 12th Filing Denver, CO 80111 Margem III Lot 8, Resubdivision of lot 7, Block 1, $12,885 2525 Camino Del Rio South Parcel B-1, B-2, Vail Village San Diego, CA 92108 12th Filing Duplex Charles H. L. McLaughlin Block 1, Lot 6, Unit A, Vail Village $12,885 P.O. Box 112 12th Filing Townhouse Vail, CO 81658 Jorge A. and Sybill R. Navas Block 1, Lot 9, Resubdivision of Lot 7, $12,885 3255 Katsos Ranch Road Vail Village Filing 12 Vail, CO 8165% Jerome J. Ruther Parcel A, Vail Village 12th Duplex, Lot 3 $12,885 1245 Sunset Road a resubdivision of Lot 7, Vail Village Winnetka, IL 60093 Filing 12 Michael D. and Cynthia Steimle Block 1, Lot 1, Vail Village $12.885 John D. and Ruth K. Steimle Filing 12 P.O. Box 2024 Vail, CO 81658 Ray E. Story and Pamela V. Story Block 1, Lot 3, Vail Village $12,885 3230 Katsos Ranch Road Filing 12 Vail, CO 81657 A-3 Joe H. Tonahill, Jr. Block 2, Lot 5, Unit A, Vail Village $12,885 P.O. Box 3326 12th Filing Townhouse Vail, CO 81658 Joe H. Tonahill, Jr. P.O. Box 3326 Vail, CO 81658 Block 2, Lot 5, Unit 8, Vail Village 12th Filing Townhouse $12,885 Vail Mountain School P.O. Box 602 Vail, CO 81658 James H. and Thomas F. Heisberg Peggy Jo Epstein P.O. Box 597 Denver, C0 80201 Block 2, Lot 12, Vail Village 12th Filing Block 2, Lot 2, Unit A, Vail Village 12th Filing A-4 $12,885 $12,885 Council Member ~ duly seconded the motion, and the question being upon the approval on first reading of the foregoing Ordinance, the roll was called with the following result: Council Members voting "Yes": Kent R. Rose John C. Slevin Eric Affeldt Merv Lapin Gail Wahrlich-Lowenthal Michael Cacioppo Thomas Steinberg Council Members voting "No": Council Members having voted in favor of said motion, the Mayor thereupon declared the Ordinance duly approved on first reading and directed that the Ordinance, as approved, be published once in full in The Vail Trail, a newspaper of general circulation within the Town and legally qualified for Town publications, and that notice of~ public hearing on the ordinance be published as required by the Vail Code. After consideration of other business to come before the Town Council, the meeting was adjourned. Town Clerk Town of Vail (TOWN SEAL) -11- STATE OF COLORADO ) _ ) COUNTY OF EAGLE ) SS. TOWN OF VAIL ) The Town Council of the Town of Vail, Eagle County, Colorado, met in regular session, in full conformity with the Town Charter, ordinances and all other applicable laws, rules and regulations, at the Municipal Building in Vail, Colorado, the regular meeting place thereof, on Tuesday, the 18th day of July, 1989, at the hour of 7:30 p.m. The following members of the Town Council were present: Mayor: Kent R. Rose Mayor Pro Tem: John C. Slevin Council Members: Eric Affeldt Merv Lapin Gail Wahrlich-Lowenthal Michael Cacioppo Thomas Steinberg The following members of the Town Council were absent: The following persons were also present: Town Manager: Rondall V. Phillips Town Attorneys Lawrence A. Eskwith Town Clerk: Pamela A. Brandmeyer Director of Adminis- trative Services: Charles Wick Thereu o th p n e following proceedings, among others, were had and taken: The Mayor informed the Town Council that Ordinance No. _, Series of 1989, which was introduced, read by title, passed on first reading, approved and ordered published in full -12- at a regular meeting of the Town Council held on June 6, 1989, was duly published in full in The Vail Trail, a newspaper of general circulation in the Town, in its issue of June 9, 1989, and that the publisher's affidavit of said publication is now on file in the office of the Town Clerk. Council Member then introduced said Ordinance a second time and read the Ordinance by its title, sufficient copies of the full Ordinance having previously been made available to the Town Council and to the public. Council Member then noted that notice of the public hearing of July 18, 1989 was duly mailed to' affected parcel owners on July 3, 1989 and published in The Vail Trail on July 7, 1989, reflecting that the improvements to bed constructed and installed by the Project will consist generally of, but are not limited to, a trench-berm complex; that the total estimated Project cost is $386,766; that $366,756 of the total Project cost would be provided by assessments to be levied against specially benefitted parcels; and that each parcel owner would be assessed an amount not to exceed $14,106 (except as otherwise provided by the Vail Code), and moved that the Ordinance as introduced be amended to reflect those facts as shown in the ordinance attached hereto as Exhibit 1, and be finally approved on second reading. The Mayor then declared that this was the time and place for a public hearing on the Ordinance and the meeting was then opened for such purpose. After all persons had been given an opportunity to speak, the hearing was declared closed. Council Member ` duly seconded the motion, and the question being upon the amendment and final approval on second reading of the said Ordinance, the roll was called with the following result: -13- Council Members voting '°Yes'D Council Members voting "No'°e Kent R. Rose John C. Slevin Eric Affeldt Merv Lapin Gail Wahrlich-Lowenthal Michael Cacioppo Thomas Steinberg Council Members having voted in favor of said motion, the Mayor thereupon declared the Ordinance amended and finally approved on second reading and directed that the Ordinance, as amended and approved, be published in full in The ®~ Vail Trail, a newspaper of general circulation within the Town and legally qualified for Town publications. After consideration of other business to come before the Council, the meeting was adjourned. Town Clerk Town of Vail (TOWN SEAL) -14- - STATE OF COLORADO ) _ ) COUNTY OF EAGLE ) SS. TOWN OF VAIL ) I, Pamela A. Brandmeyer, the duly qualified and acting Town Clerk of the Town of Vail, Eagle County, Colorado, do hereby certify that the foregoing pages 1 to 14, inclusive, constitute a true and correct copy of the Record of the Proceedings of the Town Council of the Town, taken at regular meetings thereof held at the Municipal Building in Vail, Colorado, on Tuesday, the 6th day of June, 1989, commencing at the hour of 7:30 p.m. and on Tuesday, the 18th day of Jul 1989, commencing at the hour of 7:30 p.m., as recorded in the official Record of the Proceedings of the Town kept in my office, insofar as said proceedings relate to Ordinance No. _, Series of 1989, creating Town of Vail, Colorado, Booth Creek Local Improvement District, authorizing the construction and installation of special and local improvements therein, and approving the method of apportioning assessments to pay a portion of the cost thereof; that said proceedings were duly had and taken; that said meetings were duly held; and that the persons were present at said meetings as therein shown. It is hereby further certified that the Ordinance was published in full in The Vail Trail, a newspaper published and having general circulation in the Town and legally qualified for Town publications, on June 9, 1989, and in full in said newspaper on Jul 2J 1989, as evidenced by the affidavits of publication attached hereto. IN WITNESS WHEREOF, the undersigned has hereunto set her hand and the seal of the Town this day of July, 1989. (TOWN SEAL) Town Clerk Town of Vail -15- Affidavit of publication of Ordinance in full and notice of public hearing thereon. -16- Affidavit of publication of Ordinance in full after second reading. -17- Exhibit '1 ' [Conformed to reflect amendment on second reading.] ORDINANCE NO. Series of 1989 AN ORDINANCE CREATING TOWN OF VAIL, COLORADO, BOOTH CREEK LOCAL IMPROVEMENT DISTRICT; APPROVING THE PLANS FOR AND AUTHORIZING THE CONSTRUCTION AND INSTALLATION OF SPECIAL AND LOCAL IMPROVEMENTS THEREIN, IN CONNECTION WITH WHICH SPECIAL ASSESSMENTS SHALL HEREAFTER BE LEVIED TO PAY A PORTION OF THE COST THEREOF; APPROVING THE METHOD OF APPORTIONING SUCH ASSESSMENTS; MAKING FINDINGS AND CONCLUSIONS BASED UPON EVIDENCE PRESENTED AT A PUBLIC HEARING CONCERNING THE FOREGOING; AND SETTING FORTH DETAILS IN RELATION THERETO. WHEREAS, pursuant to the Charter of the Town of Vail, Eagle County, Colorado (the "Town"), Title 20 of the Vail Code and Resolution No. 30, Series of 1988, the Town Council held a public hearing on June 6, 1989, relating to the creation of a local improvement district for the construction and installation of certain special and local improvements to the Booth Creek area of the Town; and WHEREAS, the Town Council has considered the testimony and other evidence presented at said hearing and all comments made by affected parcel owners and members of the general public relating thereto. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. Based upon all the evidence, the Town Council finds as follows: 1.1 Pursuant to Resolution No. 30, Series of 1988, the Town Council has duly initiated by appropriate order the special and local improvement project (the "Project") described herein. -1- 1.2 The Town Manager or his delegee has duly held administrative hearings relating to the Project for the purpose of informing affected parcel owners about the same and about the assessments proposed, acid for the purpose of providing the affected parcel owners the opportunity to respond thereto. 1.3 Notice of a public hearing on the Project and assessments therefor and the formation of a local improvement district in the required legal form was published in The Vail Trail, a newspaper of general circulation in the Town, on May 26, 1989. 1.4 A copy of the same notice was mailed by first-class mail, postage prepaid, on May 23, 1989, to all affected parcel owners at their last known addresses as shown on the real parcel assessment rolls for general (ad valorem) taxes of Eagle County, Colorado, as of May 18, 1989. In addition, steps were taken by Town officials to ascertain the current owners of affected properties and their addresses, if such differed from the information shown in the tax records, and attempts were made to furnish them with actual notice via mail. Included with each mailed notice was a form entitled nProtest" that could be used to protest against the Project. 1.5 Notice of a second public hearing reflecting certain revisions in the nature of the improvements to be constructed and installed by the Project and in the total Project cost and the amount of the Project cost to be assessed against parcels in the proposed local improvement district in the required legal form was published in The Vail Trail on July 7, 1989, and a copy of such notice was mailed by first-class mail on July 3, 1989, postage prepaid, to all persons who received the notice described in Section 1.4. -2- 1.6 All necessary legal requirements and conditions precedent for initiation of the Project and for the public hearingo on the same held on June 6, 1989 and July 18, 1989, have been fully performed, met and satisfied. _- 1.7~Public hearings on the Project and assessments therefore and the formation of a local improvement district were duly held on June 6, 1989 and July 18, 1989, and full opportunity was afforded all affected parcel owners to present their views. 1.8 There have been protests filed in accordance with the Charter and Title 20 of the Vail Code. The Town Council therefore finds and determines that protests were filed by less than 50 percent of the affected parcel owners in the proposed local improvement district. The Town Council hereby determines that the Project should proceed, as it is necessary for the preservation of the public health, safety and welfare and is in the public interest. 1.9 Schematic design plans for the Project, which generally includes, but is not limited to, constructing and installing~a trench-berm complex to prevent falling rock from reaching and damaging private property, have been duly presented to the Town Council. The schematic design plans are hereby approved. 1.10 The improvements to be constructed and installed are special and local improvements that also confer general benefits upon the Town. The Town Council finds it is appropriate that the general public share in a portion of the cost of the improvements. The total estimated cost of the improvements is/ $386 766. The portion of the cost of the improvements to be borne by the Town is $20,000. The portion of -3- the cost of the improvements to be defrayed by the levying of special assessments against affected parcels specially benefited thereby shall not exceed $366 756 except as permitted by the Vail Code and as provided in the notices previously published and mailed to affected parcel owners. The cost estimate and apportionment are found to be satisfactory and reasonable in every .respect. 1.11 Parcels proposed to be assessed abut or are in the vicinity of the improvements to be constructed and installed and will benefit from the construction and installation thereof. The improvements will confer substantial special benefits on all of the affected parcels within the boundaries of the local improvement district, which special benefits are separate and distinct from the general benefits to the Town that will also result therefrom. 1.12 The proposed assessments on specially benefited parcels have been determined by assessing an equal amount of the total cost to be assessed against each parcel of land within the proposed local improvement district. For purposes of this ordinance, "parcel" shall mean a lot, tract or parcel of land which is separately identified on the property tax records of the Eagle Country assessor's office. The Town Council hereby determines that method of assessment to be fair and equitable and that it results in a reasonable apportionment consistent with the benefits to be conferred by the Project. 1.13 The Town has jurisdiction over the Booth Creek area where the improvements are to be made and over all of the affected parcels to be included in the local improvement district. -4- Section 2. The Town Council finds, concludes and orders as followse 2.1 The Town Council, in addition to the express determinations hereinabove set forth, by the adoption of this Ordinance hereby denies all protests, objections or remonstrances that were made, either in writing or orally at the public hearing. 2.2 There is hereby created within the corporate limits of the Town of Vail, Eagle County, Colorado, a local improvement district to be known and designated as "Town of Vail, Colorado, Booth Creek Local Improvement District" (the "District") for the purpose of constructing and installing certain improvements to mitigate rockfall damage in the Booth Creek area of the Town and of assessing a portion of the cost thereof to the parcels specially benefited thereby. 2.3 The area to be included within the boundaries of the District and to be assessed for a portion of the cost of the improvements shall be all the real property described in Exhibit A attached hereto. 2.4 The schematic designs for the improvements are hereby approved, subject to modifications that could be imposed due to cost constraints. The construction and installation of the improvements within the District as shown by the preliminary plans are hereby authorized and ordered. 2.5 The Town shall pay $20,000 of the cost of constructing and installing the improvements. The remaining costs shall be assessed against the parcels in the District. -5~ 2.6 The Town Council has determined, and does hereby determine, that assessments shall be levied against the affected parcels in the District (the parcels specially benefited by the improvements therein) according to the method described in Section l.ll of this Ordinance. 2.7 After considering all of the circumstances and weighing the factors specified in Title 20 of the Vail Code, the Town Council has determined, and does hereby determine, that as a result of the improvements to be constructed and installed within the District eacri such parcel will receive a special benefit in an amount which equals or exceeds the amount of the particular assessment to be assessed against each parcel as indicated on Exhibit A; that said method of assessment is a fair and equitable method; and that the assessments are in proportion to the special benefits conferred upon such parcels. Accordingly, the method of assessment is hereby approved. 2.8 The proposed assessment schedule shown on Exhibit A attached hereto is hereby approved. The assessments to be levied against the affected parcels shall not exceed the assessment amounts provided in said schedule except (a) if actual construction costs exceed estimated construction costs (but only to the maximum of an additional fifteen percent), (b) if land acquisition costs exceed estimated costs, or (c) if separate and additional elements of cost are incurred in construction or for other items which are of a nature generally not foreseen and included in the construction costs at the time of estimate, as provided by Section 20.04.080 of the Vail Code and the notice previously published and mailed to affected parcel owners. 2.9 The total cost of the Project (excepting the amount to be paid from sources other than special assessments) shall be apportioned upon the substantial completion of the -6- improvements in an assessment roll against each parcel to be assessed as herein described. After notice thereof and a hearing thereupon, assessments shall be levied by ordinance of the Town Council using the method of assessment provided for herein. The assessments shall be a lien until paid in the several amounts assessed against each such parcel from the effective date of the assessing ordinance. 2.10 All assessments shall be due and payable without demand within 30 days after the adoption and final publication of the assessing ordinance. Parcel owners shall be permitted, at their election, upon the levy of assessments to pay such assessments on an installment basis in not more than 10 substantially equal annual installments beginning March 1, 1990 at an interest rate not to exceed twelve percent per annum, but not less than the highest interest rate borne by any special assessment bonds issued to pay the cost of the improvements. Interest shall be computed on the outstanding principal and shall be paid at the same times as installments of principal. 2.11 Pursuant to the laws of the State of Colorado, the Town Charter, and Title 20 of the Vail Code, special assessment bonds (the yBonds") of the Town shall hereafter be issued for the purpose of paying for the improvements described in this Ordinance, in an aggregate principal amount not to exceed the cost and expenses of providing said improvements, including engineering, legal and incidental costs, and interest as provided by law. The Bonds shall be issued based upon estimates approved by the Town Council and as authorized by an Ordinance to be passed by the Town Council at a later date. The maximum met effective interest rate on the Bonds is twelve percent per annum. The principal of and interest on the Bonds shall be payable from the special assessments -7- authorized herein to be levied against the parcels of real properi~y within the District. Section 3. ThE: officers of the Town are hereby authorized and directed to enter into such agreements and take all action necessary or appropriate to effectuate the provisions of this Ordinance and to comply with the requirements of law. Section 4. All. actions not inconsistent with the provisions of this Ordinance heretofore taken by the Town and by the officers thereof and directed toward the creation of the District, the construction and installation of the improvements therein, and the levy of assessments to pay a portion of the cost thereof are hereby ratified, approved and confirmed. Section 5. All ordinances or resolutions, or parts thereof, in conflict with this Ordinance are hereby repealed. This repealer shall not be construed to revive any ordinance of part-o:E any ordinance heretofore repealed. Section 6. If any section, paragraph, clause of provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, class or provision shall not affect any of the remaining provisions of this Ordinance. -8- , Section 7. The Town Council finds that this Ordinance is necessary to and for the benefit of the public interest and the public health, safety, and welfare. INTRODUCED, READ BY TITLE, PASSED ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL this 6th day of June, 1989. (TOWN SEAL) Mayor Town of Vail ATTEST: Town Clerk Town of Vail READ BY TITLE, AMENDED, FINALLY APPROVED ON SECOND READING, ADOPTED AND ORDERED PUBLISHED IN FULL THIS 18th day of July, 1989. Mayor Town of Vail (TOWN SEAL) ATTEST: Town Clerk Town of Vail -9- , - Owner and Address Jack P, and Carol A. Acuff P.O. Box 525 Vail, CO 81658 Pat and Anne Baker 3135 Booth Falls Court Vail, CO 81657 Pat and Anne Baker 3135 Booth Falls Court Vail, CO 81657 Edith A. Boulware 1104 Montecito Drive San Angelo, TX 76901 Brandess-Cadmus Real Estate. Inc. 281 Bridge Street Vail, CO 81657 George H. Clowes, Jr. Robert Lammerts c/o Lammerts 125 Park Avenue Oklahoma City, OK 73102 EXHIBIT A PROPOSED ASSESSMENT SCHEDULE Parcel Owned Block 1, Lot 5, Uail Village 12th Fiiing 31ock 1, Lot 10, Unit B, Vail Village 12th Filing Townhouse Lot i, Parcel B, Vail Village 12th Duplex Resub of Lot 2 Block 2, Lot 6, Vail Village 12th Filing Block 1, Lot 10, Unit A, Vail Village 12th Filing Townhouse Block 2, Lot 3, Vail Village 12th Filing Amount of Assessment 514,106 314,106 $14,106 514,106 ~~ 514,106 514,106 A-1 Crown Corr, [nc. Block 1, Lot 11, Resubdivision of Lot 7, $14,106 P.O. Box 1750 Vail Village 12th Filing Highland, IN 46322 Lynn S. Deutschman Block 1, Lot 2, Unit 1, Marquez Duplex, $14,106 448 Garrison Forrest Vail Village 12th Filing Owings Mills, MD 21117 Daniel J. and Barbara A. Feeney Block 2, Lot 2, Unit B, Vail Village 514,106 P. 0. Box 3385 12th Filing 'Jail, CO 81658 John W. Gray Block 1, Lot 6, Unit B, Vail Village 514,106 1902 West Colorado Avenue, Suite A 12th Filing Townhouse Colorado Springs, CO 80904 Edward J. Gund Block 2, Lot 8, Vail Village $1 P.O. Box 3145 Filing 12 Vail, CO 81658 Edward M. & Katherine Gwathmey Block 1, Lot 2, Unit B Marquez Duplex $1~ 06 3226 Katsos Ranch Road Vail, CO 81657 Jeanine Hallenbeck Block 1, Lot 4, Vail Village $14,106 3236 Katsos Ranch Road 12th Filing Vail, CO 81651 Arthur S. and Shelby G. Kleimer Block 2, Lot 7, Vail Village $14,106 Lawrence and Susan C. Ast ~ 12th Filing P.O. Box 2244 Vail, CO 81658 A-2 Robert P. Lammerts Block 2, Lot 4, Vail Village $14,106 125 Park Avenue 12th Filing Oklahoma City, OK 73102 Robert Leavitt Parcel A, Vail Village $14,106 ~~~ 6065 South Quebec Street 12th Filing Denver, CD 80111 Margem III Lot 8, Resubdivision of Lot 1, Block 1, $14,106 2525 Camino Del Rio South Parcel B-1, B-2, Vail Village San Diego„ CA 92108 12th Filing Duplex Charles H. L. McLaughlin Block 1, Lot 6, Unit A, Vail Village 514,106 P.O. Box 112 12th Filing Townhouse Vail, CO 81658 Jorge A. and Sybill R. Navas Block 1, Lot 9, Resubdivision of Lot 7, $14,106 3255 Katsos Ranch Road Vail Village~l~2th Filing^ Vail, CO 81651 Jerome J. Ruther Parcel A, Vail Village 12th Duplex, Lot 3 $14,106 ~~~ 1245 Sunset Road a resubdivision of Lot 7, Vail Village Winnetka, IL 60093 Filing 12 Michael D, and Cynthia Steimle Block 1, Lot 1, Vail Village $14,106 John D. and Ruth K. Steimle 12th Filing ~ P.O. Box 2024 Vail, CO 81658 Ray E. Story and Pamela V. Story Block 1, Lot 3, Vail Village $14,106 __. 3230 Katsos Ranch Road Filing 12 Vail, CO 81657 A-3 Joe H. Tonahill, Jr. Block 2, Lot 5, Unit A, Vail Village 514,106 P.O. Box 3326 12th Filing Townhouse Vail, CO 81658 Joe H. Tonahill, Jr. Block 2, Lot 5, Unit B, Vail Village 514,106 P.O. Box 3326 12th Filing Townhouse Vail, CO 81658 Vail Mountain School Block 2, Lot 12, Vail Village $14,106 P.O. Box 602 12th Filing Vail, CO 81658 James H. and Thomas F~eisberg Block 2, Lot 2, Unit A, Vail Village S14,i06 Peggy Jo Epstein 12th Filing P.O. Box 597 Denver, CO 80201 A-4 ORDINANCE NOe 20 Series of 1989 AN ORDINANCE CONCERNING THE ISSUANCE OF LOCAL IMPROVEMENT BONDS OF THE TOWN OF VAIL, COLORADO FOR THE BOOTH CREEK LOCAL IMPROVEMENT DISTRICT; RATIFYING ACTION HERETOFORE TAKEN IN CONNECTION THEREWITH; PRESCRIBING DETAILS IN CONNECTION WITH SAID BONDS AND DISTRICT; PRESCRIBING DUTIES OF CERTAIN TOWN OFFICIALS IN CONNECTION THEREWITH; REPEALING ALL ORDINANCES AND OTHER ACTION OF THE TOWN TO THE EXTENT INCONSISTENT HEREWITH; AND PROVIDING OTHER MATTERS RELATING THERETOe WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado, is a municipal corporation duly organized and existing as a home-rule town under Article XX of the State Constitution and the Charter of the Town (the "Charter"); and WHEREAS, pursuant to the Charter and the Town's Code of Ordinances (the '°Vail Code"), the Town Council (the "Council") has by ordinance created within the corporate limits of the Town a local improvement district known and designated as the Town of Vail, Colorado Booth Creek Local Improvement District (the "District"), for the purpose of making certain local and special improvements to mitigate rockfall damage (the "Improvements"), and has determined to assess a portion of the cost thereof to the parcels of property in the District specially benefited thereby; and WHEREAS, the Town has duly advertised for bids for such Improvements based on estimates provided to the Council and has entered into a construction contract for the construction and installation of the Improvements; and WHEREAS, in recognition of the general benefits conferred by the Improvements, the Council has determined to contribute $20,000 from funds of the Town to the total estimated -1- cost of constructing and installing the Improvements, has determined to assess the remaining costs against parcels of property in the District (the "assessments") in an aggregate amount not to exceed $366,756 (except as otherwise permitted by the Charter and the Vail Code) in recognition of special benefits conferred on owners of parcels of property in the District, and has determined that local :improvement bonds of the Town shall be issued payable from such assessments. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. Issuance of Bonds Authorized. The Town and its officers have determined and do hereby determine that it is necessary and for the best interest of the Town and the inhabitants thereof that, pursuant to the Charter and the Vail Code, the Town issue and sell bonds of the Town of Vail, Colorado Booth CY•eek Local Improvement District in the aggregate principal amount of $365,000 (the "bonds") at a price of $ plus accrued interest, for the purpose of paying the costs of constructing and otherwise acquiring the Improvements and all proper incidental expenses (including, without limitation, capitalized interest on the bonds). Section 2. Sale of Bonds. The Town has determined to accept the offer of to purchase all of the bonds for a price of $_ plus accrued interest. Section 3. Approval of Estimates. The bonds are herein authorized to be, and they shall be, issued based upon the contract price for the Improvements and upon estimates of the Town Manager, all of which hereby are approved by the Council. Section 4. Completion of Improvements. The Town covenants that the Improvements will be constructed and completed with due diligence and in a timely manner. Section 5. Bond Details. For the purpose of paying the costs of the improvements, including all proper incidental expenses, there shall be issued in the name of the Town bonds designated "Town of Vail, Colorado Booth Creek Local Improvement _2_ District, Local Improvement Bonds, Series 1989," in the aggregate principal amount of $365,000. The bonds shall be issuable in fully registered form (i.e., registered as to payment of both principal and interest) payable to the registered owner thereof, in the denomination of $5,000 each, shall be dated as of August 15, 1989, shall be numbered consecutively in regular numerical order from 1 through 73, inclusive, shall mature on April 1, 1999, and shall bear interest from the date of the bonds until maturity (unless redeemed prior to maturity) at the interest rates herein set forth. The following numbered bonds in the aggregate principal amounts indicated shall bear interest at the following rates per annume Bonds Numbered (Inclusive) Aggregate Principal Amount Interest Rates 1 to 7 8 to 12 13 to 17 18 to 23 24 to 30 31 to 37 38 to 45 46 to 54 55 to 63 64 to 73 $35,000 25,000 25,000 30,000 35,000 35,000 40,000 45,000 45,000 50,000 Bonds which are reissued upon transfer or other replacement shall bear interest from the most recent interest payment date to which interest has been paid or duly provided for or, if no interest has been paid, from the date of the bonds, such interest being payable to the registered owners of the bonds on April 1, 1990, and semiannually thereafter on April 1 and October 1 of each year. The principal of the bonds is payable to the registered owner thereof as shown on the registration books of the Town kept by in Colorado, or its successor (the "registrar"), upon presentation and surrender at the office of in -3- Colorado, or its successor (the spaying agents). If, upon presentation of any bond at maturity, payment is not made as therein provided, interest thereon shall continue at the same rate per annum previously borne by the bond, until the principal thereof is paid in full. Payment of interest on any bond shall be made to the registered owner thereof by check or draft mailed by the paying agent on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day), to the registered owner thereof at his address as shown on the registration books kept by the registrar at the close of business on the fifteenth day (whether or not a business day) of the calendar month preceding the interest payment date; but any such interest not so timely paid shall cease to be payable to the person who is the registered owner thereof at the close of business on such day and shall be payable to the person who i.s the registered owner thereof at the close of business on a special record date for the payment of any such defaulted interest. Such special record date shall be fixed by the registrar whenever moneys become available for payment of the defaulted interest, and notice of the special record date shall be given to the registered owners of the bonds not less than teri days prior thereto by first-class mail to each such registered owner as shown on the registration books on a date selected by the registrar, stating the date of the special record date and the date fixed for the payment of such defaulted interest. The paying agent may make payments of interest by such alternative means as may be mutually agreed to between the owner of any bond and the paying agent. All such payments shall be made in lawful money of the United States of America without deduction for the services of the paying agent or registrar. Section 6. Prior Redemption. All of the bonds shall be subject to redemption prior to maturity at the option of the Town in regular numerical order on any bond interest payment date, at a price equal to the principal amount thereof plus -4- accrued interest to the redemption date. Whenever there are available moneys (other than amounts deposited therein as accrued and capitalized interest) in the "Town of Vail, Colorado Booth Creek Local Improvement District, 1989 Bond Retirement Fund'° (the "Bond Fund'°) which is hereby created, in excess of the amount required to pay interest on the bonds then outstanding on the next interest payment date, the Town shall exercise its option to redeem on the next practicable interest payment date a suitable number of bonds outstanding. Nothing herein shall preclude the Town from refunding all or a portion of the bonds or from exercising its right to redeem bonds prior to maturity from any available source of fundso Notice of prior redemption shall be given by the paying agent in the name of the Town by sending a copy thereof by certified or registered first class mail, postage prepaid, to the registered owner of each bond designated for redemption at his address as it appears on the registration books as of the close of business on the day preceding the mailing of such notice. Such notice shall specify the number or numbers of the bonds to be so redeemed and the date fixed for redemption, and shall further state that on such date there will be due and payable upon each bond so to be redeemed at the office of the paying agent the principal amount thereof plus accrued interest to the redemption date, and that from and after such date interest shall cease to accrue. Notice having been given in the manner hereinabove provided, the bond or bonds so called shall become due and payable on the date so designated, and upon presentation thereof at the paying agent, the Town will pay the bond or bonds so called. Failure to give notice by mailing or any defect in such notice shall not affect the validity of the proceedings for the redemption of any other bonds, Any notice mailed as herein provided shall be conclusively presumed to have been given, whether or not received< Any bonds redeemed prior to maturity shall be cancelled by the Paying Agent. -5- Section 7. Registration and Transfer. The Town shall cause to be kept at the principal office of the registrar books for the registration and transfer of bonds. Upon surrender for transfer of any bond at the principal office of the registrar, fully endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his attorney duly authorized in writing, the registrar shall authenticate and deliver in the name of the transferee a new bond bearing the same number as the bond being surrendered. All bonds issued upon any transfer shall be the valid obligations of the Town evidencing the same obligation and entitled to the same security and benefits under this ordinance as the bonds surrendered upon such transfer. The registrar shall require 'the payment by the owner of any bond requesting transfer of any tax or other governmental charge required to be paid with respect to such transfer, and the registrar may further impose a reasonable service charge for any transfer of bonds. The registrar shall not be required to transfer any bond during a period beginning at the opening of business 15 days before the day of mailing by the registrar of a notice of prior redemption of bonds and ending at the close of business on the day of such mailing, nor, with respect to a particular bond after the publication or the mailing of notice calling such bond for prior redemption. As to any bond, whether or not such bond be overdue, the person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for the purpose of making payments thereof and for all other purposes (except to the extent otherwise provided in Section 5 hereof) and neither the Towra, the registrar, the paying agent nor any other agent of the Town. shall be affected by any notice to the contrary. Except as otherwise provided in Section 5 hereof, payment of either principal or interest on any bond shall be made only to or upon the written order of the registered owner thereof or his legal representative, but such registration may be changed as -6- hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such bond to the extent of the sum or sums paid. If any bond shall be lost, stolen, destroyed or mutilated, the registrar shall, upon receipt of such evidence, information or indemnity relating thereto as it or the Town may reasonably require, and upon payment of all expenses in connection therewith, authenticate and deliver a replacement bond bearing the same number as the lost, stolen, destroyed or mutilated bond. If such lost, stolen, destroyed or mutilated bond shall have matured or shall have been called for redemption, the registrar may direct that such bond be paid by the paying agent in lieu of replacement. All bonds surrendered for redemption, payment or transfer, if surrendered to the paying agent, shall be cancelled by the paying agent, and, if surrendered to any person other than the paying agent, shall be delivered to the paying agent for cancellation. Section 8. Negotiability. Subject to the registration provisions of this ordinance, the bonds shall be fully negotiable and shall have all the qualities of negotiable paper, subject to the registration and payment provisions stated herein, and the owner or owners thereof shall possess all rights enjoyed by holders of negotiable instruments under the provisions of the "Uniform Commercial Code e Investment Securities." Section 9. Execution and Authentication. The bonds shall be executed in the name of the Town with the facsimile signature of the Mayor, shall bear the facsimile seal of the Town, shall be attested by the facsimile signature of the Town Clerk, and shall be authenticated by the manual signature of a duly authorized officer of the registrar. The bonds bearing the signatures of the officers in office at the time of the authorization thereof shall be the valid and binding obligations of the Town (subject to the requirement of authentication by the registrar), notwithstanding that any or all of the persons whose _~e signatures appear thereon shall have ceased to fill their respective offices. Pursuant to the Uniform Facsimile Signature of Public Officials Act, part 1 of article 55 of title 11, Colorado Revised Statutes, the Mayor and Town Clerk shall prior to delivery of the bonds file with the Secretary of State of Colorado their manual signatures certified by them under oath. No bond shall be valid or obligatory for any purpose unless the certificate of authentication, substantially in the form hereinbelow provided., has been duly executed by the registrar. The registrar's certificate of authentication shall be deemE~d to have been executed by it if manually signed by an authorized officer or employee of the registrar, but it shall not be necessary that the Came officer or employee sign the certificate of authentication on all of the bonds issued hereunder. By authenticating any of the bonds delivered pursuant to this ordinance, the registrar shall be deemed to have assented to all of the provisions of this ordinance. Section 10. Patent of Bonds. The bonds authorized by this ordinance and the interest thereon shall be payable (except as provided in Section 11 hereof) solely from moneys in the Bond Fund, consisting only of moneys collected (principal, interest and penalties, if any) from the assessments to be levied to pay for the Improvements (except to the extent that such moneys are payable to the Town as a reimbursement pursuant to Section 11 hereof); provided that any proceeds from the sale of the bonds, other than such proceeds deposited in the Bond Fund to be used to pay interest on the bonds, :remaining after the payment of all the costs anal expenses of making the Improvements shall be deposited in the Bond Fund and used for bond redemption. Any assessments in the Bond Fund remaining after the bonds, both principal and interest, are paid in full (and after any reimbursement due the Town), shall to the extent required by the Charter be deposited in the 'T'own's surplus and deficiency fund created pursuant to Section 10.8 of the Charter. Immediately upon the collection of any assessments (including interest and any penalties thereon), -8- the moneys therefrom shall be deposited in the Bond Fund (except to the extent that such moneys are payable to the Town as a reimbursement pursuant to Section 11 hereof), and said fund is and will continue to be irrevocably and exclusively pledged for the payment of the principal of and the interest on the bonds. Section 11. Surplus and Deficiency Fund; Town Payment of Bonds and Reimbursement. Pursuant to Section 10.8 of the Charter, whenever there is a deficiency in the Bond Fund to make the payment of principal and interest on the outstanding bonds when due, such deficiency shall be paid out of the Town's surplus and deficiency fund created pursuant to Section 10.8 of the Charter. Further, whenever three-fourths of the bonds have been paid and cancelled and for any reason the remaining assessments are not paid in time to take up the remaining bonds and the interest due thereon, and there is not sufficient money in the Town's surplus and deficiency fund, then the Town shall pay the bonds when due and interest thereon, and reimburse itself by collecting the unpaid assessments due the District. Section 12. Bonds Not a Debt of Town. The bonds shall not be a debt of the Town, and the Town shall not be liable thereon, nor shall it thereby pledge its full faith and credit for their payment, nor shall the bonds be payable out of any funds other than the special assessments and other moneys pledged to the payment thereof, as herein provided. The payment of bonds is not secured by an encumbrance, mortgage or other pledge of property of the Town except for such special assessments. No property of the Town, subject to said exception, shall be liable to be forfeited or taken in payment of the bonds. Section 13. Form of Bonds. The bonds and the registrar's certificate of authentication shall be in substantially the following forms, with such omissions, insertions, endorsements and variations as to any recitals of fact or other provisions as may be required by the circumstances, be required or permitted by this ordinance or be consistent with this ordinance and necessary or appropriate to conform to the -9- rules and requirements of any governmental authority or any usage or requirement of law with respect thereto, and provided that any of the text on the face of the bonds may, with appropriate reference, be printed on the back of the bonds: -10- (Form of Bond) STATE OF COLORADO UNITED STATES OF AMERICA COUNTY OF EAGLE TOWN OF VAIL, COLORADO BOOTH CREEK LOCAL IMPROVEMENT DISTRICT LOCAL IMPROVEMENT BONDS SERIES 1989 NO. Interest Rate Maturity Date April 1, 1999 CUSIP Dated as of Number REGISTERED OWNERe PRINCIPAL AMOUNTa August 15, 1989 $5,000 The Town of Vail (the "Town") in the County of Eagle and State of Colorado, a municipal corporation duly organized and existing, for value received, hereby promises to pay to the Registered Owner identified above, or registered assigns, upon presentation and surrender hereof at the principal office of in Colorado (the "Paying Agent"), the Principal Amount identified above on the Maturity Date identified above (subject to the right of prior redemption hereinbelow mentioned), and to pay interest on the Principal Amount from the most recent interest payment date to which interest has been paid or duly provided for or, if no interest has been paid, from the date of this Bond, at the Interest Rate per annum identified above, payable on April 1, 1990 and semi- annually thereafter on April 1 and October 1 of each year, until payment of the Principal Amount hereof has been made. Interest on this Bond will be paid on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day) to the registered owner of this Bond by check or draft mailed to such registered owner at -11- the address appearing on the registration books kept for that purpose at the office of in ' Colorado, as Registrar, at the close of business on the fifteenth day (whether or not a business- day) of the calendar month preceding the interest payment date (the "Regular Record Date"). Any such interest not so timely paid shall cease to be payable to the person who is the registered owner hereof at the close of business on the Regular Record Date and shall be payable to the person who is the registered owner hereof at the close of business on a Special Record Date for the payment of any defaulted interest. Such Special Record Date shall be fixed by the Registrar whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to the registered owners of the Bonds of the series of which this is one not less than ten days prior thereto. Alternative means of payment of interest may be used if mutually agreed t.o between the owner of any Bond and the Paying Agent, as provided in the ordinance authorizing the issuance of the Bonds (the "Bond Ordinance"). The principal of and interest on this Bond are payable in lawful money of the United States of America, without deduction for the services of the Paying Agent or Registrar. If upon presentation and surrender of this Bond to the Paying Agent at maturity payment of this Bond is not made as herein provided, interest hereon shall continue at the Interest Rate identified above until the Principal Amount hereof is paid in full. This Bond is one of a series subject to prior redemption in regular numerical order by and at the option of the Town of Vail, on any interest payment date, at a price equal to the principal amount thereof with accrued interest to the redemption date. Whenever there are available moneys (other than amounts deposited therein as accrued and capitalized interest) in the Bond Fund in excess of the amount required to pay interest on the bonds then outstanding on the next interest payment date, the -12- Town will exercise its option to redeem on the next practicable interest payment date a suitable number of bonds outstanding. Nothing shall preclude the Town from refunding all or a portion of the bonds or from exercising its right to redeem bonds prior to maturity from any available source of funds. Redemption shall be made upon giving prior notice by mailing to the owner of this Bond at his address as the same appears upon the registration books, in the manner and upon the conditions provided in the Bond Ordinance. The Registrar will not be required to transfer any Bond during a period beginning at the opening of business 15 days before the day of the mailing by the Registrar of a notice of prior redemption of Bonds and ending at the close of business on the day of such mailing, or, with respect to a particular Bond, after the mailing of notice calling such Bond for prior redemption. This Bond is one of a series of local improvement Bonds numbered consecutively from 1 to 73, both inclusive, issued by the Town of Vail, and maturing on April 1, 1999, all of which are of like designation, and which are in the aggregate principal amount of $365,000. Said Bond series is issued in payment for local improvements made in the Town of Vail, Colorado Booth Creek Local Improvement District pursuant to and in accordance with the Charter and the Vail Code, the ordinance creating the District, and all laws and proceedings thereunto enabling. Pursuant to the Bond Ordinance, reference to which is made for further details, the principal of and the interest on the Bonds of the series of which this is one shall be payable solely from a special fund designated "Town of Vail, Colorado Booth Creek Local Improvement District, 1989 Bond Retirement Fund'° (the "Bond Fund") consisting of moneys collected by the Town of Vail from the special assessments (principal, interest and penalties, if any) to be levied against all the assessable parcels of land in the District, to the extent provided in the Bond Ordinance; provided that any proceeds from the sale of the -13- Bonds, other than such proceeds deposited in the Bond Fund to be used to pay interest on the Bonds, remaining after the payment of all the costs and expenses of making the local improvements shall be deposited in the Bond Fund and shall be used for bond redemption. The Bond Fund is irrevocably and exclusively pledged for the full and prompt payment of all the Bonds. If there is a deficiency in the Bond Fund to meet the payment of the outstanding Bonds and interest due thereon, the deficiency shall be paid. out of any moneys available therefor in the surplus and deficiency fund created pursuant to Section 10.8 of the Town's Charter. Whenever three-fourths of the Bonds have been paid and cancelled and for any reason the remaining assessments are not paid in time to take up the remaining Bonds and interest due thereon, and there is not sufficient money in the surplus and deficiency fund, then the Town shall pay the Bonds when due and the inierest thereon and reimburse itself by collecting the unpaid assessments due the District. All assessments shall be a lien in the several amounts assessed from the effective date of the assessment ordinance to be adopted by the Town upon completion of the local improvements in the District. The lien for such assessments shall be prior and superior to all other liens except general tax liens, other assessment liens, and possibly other liens imposed by the State of Colorado or its political subdivisions or by the United States of America or any agency oz• instrumentality thereof. In the Bond Ordinance, the Town covenants to levy and collect assessments against all assessable parcels of property in the District and to diligeni:ly enforce the lien of the assessments against the property subject thereto. It is hereby certified, recited and declared that the principal amount of the Bonds does not exceed the amount authorized by law to be issued. It is hereby also certified, recited and declared that the proceedings taken to date with reference to issuing the Bonds and to making such local improvements have been regularly had and taken in compliance with -14- law; that all prerequisites to issuing the Bonds have been performed; and that all acts, conditions and things essential to the validity of this Bond exist, have happened and have been done in due time, form and manner as required by law. The Bonds are not a debt of the Town and the Town is neither liable thereon, nor has it pledged its full faith and credit for their payment, nor are the Bonds payable out of any funds other than special assessments and other amounts pledged to the payment thereof as herein stated. The payment of the Bonds is not secured by an encumbrance, mortgage or other pledge of property of the Town except for such special assessments pledged for the payment of the Bonds. No property of the Town, subject to said exception, shall be liable to be forfeited or taken in payment of the Bonds. The Town has designated the Bonds of the series of which this is one as a qualified tax-exempt obligation pursuant to Section 265 (b) (3) (B) of the Internal Revenue Code of 1986, as amended. This Bond is fully transferable by the registered owner hereof in person or by his duly authorized attorney on the registration books of the Town kept at the office of the Registrar upon surrender of this Bond together with a duly executed written instrument of transfer satisfactory to the Registrar. Upon such transfer a new Bond of the same principal amount and bearing the same number will be issued to the transferee in exchange for this Bond, on payment of such charges and subject to such terms and conditions as are set forth in the Bond Ordinance. The Town, the Registrar and the Paying Agent may deem and treat the person in whose name this Bond is registered as the absolute owner hereof, whether or not this Bond shall be overdue, for the purpose of receiving payment and for all other purposes except to the extent otherwise hereinabove and in the Bond Ordinance provided with respect to the payment of interest, and neither the Town, the Registrar nor the Paying Agent shall be affected by any notice to the contrary. °15° This Bond must be registered in the name of the owner as to both principal and interest on the registration books kept by the Registrar in conformity with the provisions stated herein and endorsed hereon -and subject to the terms and conditions set forth in the Bond Ordinance. No transfer of this Bond shall be valid unless made on the registration books maintained at the principal office of the Registrar by the registered owner or his attorney duly authorized in. writing. This Bond shall not be valid or obligatory for any purpose until the Registrar shall have manually signed the certific:ate of authentication hereon. IN TESTIMONY WHEREOF, the Town Council of the Town of Vail has caused this Bonci to be executed with the facsimile signature of the Mayor, and to be signed and attested with the facsimile signature of the Town Clerk under the facsimile seal of the Town. Signed: Facsimile Signature Mayor (FACSIM]:LE SEAL) Attest: (Fa_c_ simile Signature) Town Clerk -16- Certificate of Authentication for Bond This is one of the Bonds described in the within- mentioned Bond Ordinance, and this Bond has been duly registered on the registration books kept by the undersigned as Registrar for such Bondso Registrar Colorado, as Date of Authentication: By Authorized Representative -17- ASSIGNMENT FOR BOND FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto the within Bond and irrevocably appoints , attorney-in-fact, to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without any alteration whatsoever. Signature Guaranteed: Address: Tax Identification Number or Social Security Number(s): (End of Form of Bond) -18- Section 14. Delivery and Application of Proceeds. When the bonds have been duly sold, executed and registered, the Town shall deliver the bonds to the lawful purchaser thereof on receipt of the purchase price. The registrar shall initially register the bonds in the name of the purchaser, or in the names of such transferees as the purchaser may designate in writing or writings satisfactory to the registrar, or any combination thereof as directed by the purchaser. The proceeds of the bonds (excluding accrued interest and capitalized interest) shall be deposited into the "Town of Vail, Colorado Booth Creek Local Improvement District Construction Fund" (the "Construction Fund") which is hereby created, and applied solely to defray the costs and expenses of making the Improvements (including incidental expenses and costs related to the issuance of the bonds). All moneys received as accrued interest and capitalized interest shall be deposited into the Bond Fund to apply to the payment of a portion of the interest due on the bonds through April 1, 1990. All moneys received as investment income on the Bond Fund shall be retained in the Bond Fund. All moneys received as investment income on the proceeds of the bonds shall either be used to pay for the Improvements or incidental costs or to pay principal of or interest on the bonds as the Town determines. The purchaser of the bonds shall in no manner be responsible for the application by the Town, or any of its officers, of any of the funds derived from the sale thereof. Section 15. Levy of Assessments. The Town shall cause the assessments to be levied and collected as provided by law for the benefit of the registered owners of the bonds. The Town hereby covenants for the benefit of each owner of the bonds that the costs of the Improvements in amounts sufficient, together with any excess bond proceeds as provided in Section 10 hereof, to provide for payment of the bonds and interest thereon, shall be apportioned, levied and assessed against the assessable parcels in the District, in accordance with the Charter and the Vail Code, by ordinance to be hereafter adopted. Further, the -19- Town covenants that such assessments will hear interest at a rate which is at least equal to the highest rate of interest on the bonds and payable in one payment or in ten annual installments of principal, on March 1 of each year commencing on March 1, 1990, with interest on the unpaid principal balance of the assessment, payable annually on March 1 of each year commencing March 1, 1990. The Town hereby covenants to use its best efforts to insure that such assessments are levied as soon as possible upon substantial completion of the Improvements and to diligently enforce the lien of the assessments against the property subject thereto. Section 16. Assessment Revenues. All moneys received from C,uch assessments, including interest and any penalties thereon (except to the extent that such moneys are payable to the Town as a reimbursement pursuant to Section 11 hereof), shall be deposited into the Bond Fund and said moneys, along with any other moneys deposited into the Bond Fund pursuant to the provisions of this ordinance, shall be used for the purpose of paying the principal of and interest on the bonds and for no other purpose whatsoever, and as security for such payment the Bond Fund is hereby exclusively pledged. Section 17. Books and Records. So long as any of the bonds remain outstanding, the Town will keep or cause to be kept true and accurate books of records and accounts showing full and true entries covering the collection and disposition of special assessments as well as any delinquencies in the collection thereof, covering deposits and disbursements in the Bond Fund, the redemption of bonds, both principal and interest, and disbursements to defray the cost of the Improvements, including incidental expenses; and the Town will permit an inspection and examination of all books and accounts at all reasonable times by a representative of the original purchaser of the bonds. Section 18. Resignation of Registrar or Payinq Agent. If the registrar or paying agent initially appointed hereunder shall resign, or if the Town shall reasonably determine that said -20- registrar or paying agent has become incapable of fulfilling its duties hereunder, the Town may, upon notice mailed to each registered owner of the bonds at his address last shown on the registration books, appoint a successor registrar or paying agent, or both. No such resignation or dismissal may take effect until a successor is appointed. Every such successor registrar or paying agent shall be a bank or trust company located in and in good standing in the State of Colorado. It shall not be required that the same institution serve as both registrar and paying agent hereunder, but the Town shall have the right to have the same institution serve as both registrar and paying agent hereunder. Section 19. Authorized Action. The officers of the Town hereby are authorized and directed to take all action necessary or appropriate to effectuate the provisions of this ordinance, including, without limiting the generality of the foregoing, the printing of the bonds (which may include thereon an opinion of bond counsel and related certification by the Town Clerk), the execution of such certificates as may reasonably be required by the initial purchaser thereof or bond counsel, relating, inter alia, to the signing of the bonds, the tenure and identity of the municipal officials, the absence and existence of factors affecting the exemption of interest on the bonds from federal income taxation, the accuracy of property descriptions, the delivery of the bonds and the absence of litigation pending or threatened affecting the validity of the bonds, if such is in accordance with the facts, and the execution of a bond purchase contract and appropriate agreements with respect to the services of paying agent and registrar. Section 20. Bondholders' Rights and Remedies. Any owner of any one or more of the bonds may, either at law or in equity, by suit, action, mandamus or other appropriate proceedings in any court of competent jurisdiction, protect the lien created by this ordinance on the proceeds of said assessments and the moneys in the Bond Fund, and may by suit, -21- action, mandamus or other appropriate proceedings enforce and compel the performance of any covenant of the Town or any duty imposed upon the Town by the provisions of this ordinance, or any ordinance heretofore or hereafter adopted concerning the District, including, without limiting the generality of the foregoing, the segregation of assessments into the Bond Fund, the proper application thereof and the appointment of a receiver. The failure of any such owner so to proceed shall not relieve the Town, the Council or any of the Town's officers, agents or employees of any liability for failure to perform any such duty. No remedy or right conferred by this ordinance is intended to be exclusive of any other remedy or right, but each such remedy or right is cumulative and may be pursued without waiving any other remedy or right. Section 21. Tax Covenants. The Town covenants for the benefit of the owners of the bonds that it will not take any action or omit to take any action with respect to the bonds, the proceeds thereof, any other funds of the Town, or any facilities financed with the proceeds of the bonds if such action or omission would (i) cause the interest on the bonds to lose its exclusion from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended (the "Tax Code"), (ii) cause interest on the bonds to lose its exclusion from alternative minimum taxable income as defined in Section 55(b)(2) of the Tax Code except to the extent such interest is required to be included in the adjusted net book income and adjusted current earnings adjustments applicable to corporations under Section 56 of the Tax Code in calculating corporate alternative minimum taxable income, (iii) subject the Town to any penalties under Section 148 of the Tax Code, or (iv) cause interest on the bonds to lose its exclusion from Colorado taxable income or Colorado alternative minimum taxable income under present Colorado law. The foregoing covenant shall remain in full force and effect notwithstanding the payment in full or defeasance of the bonds until the date on which all -22- obligations of the Town in fulfilling the above covenant under the Tax Code and Colorado law have been met. Section 22. Designation as Qualified Tax-Exem t Obligation. The Town hereby designates the bonds as a qualified tax-exempt obligation for purposes of Section 265(b)(3)(B) of the Tax Code. Section 23. Amendment or Supplement of Ordinance. This ordinance may be amended or supplemented by an ordinance or ordinances adopted by the Town Council in accordance with the Charter and the Vail Code with or without the receipt by the Town of any additional consideration, with the written consent of the owners of 75 percent of the bonds authorized by this ordinance and outstanding at the time of the adoption of such amendatory or supplemental ordinance, provided, however, that no such ordinance shall have the effect of permitting: (a) an extension of the maturity of any bond authorized by this ordinance without the written consent of the owner of the bond; or (b) a reduction in the principal amount of any bond or the rate of interest thereon without the written consent of the owner of the bond; or (c) the creation of a lien upon or a pledge of property, revenues or funds, ranking prior to the liens or pledges created by this ordinance; or (d) a reduction of the principal amount of bonds required for consent of such amendatory or supplemental ordinance. Section 24. Ratification. All action (not inconsistent with the provisions of this ordinance) heretofore taken by the Town, the Council and the officers of the Town, directed toward the creation of the District, the construction and other acquisition of the Improvements therein, the sale and -23- issuance of the bonds, and the levy of assessments for that purpose, hereby is ratified, approved and confirmed. Section 25. Ordinance Irre ealable. After the bonds have been issued, this ordinance shall constitute a contract between the Town and the owner or owners of the bonds and shall be and remain irrepealable until the bonds and the interest accruing thereon shall have been fully paid, satisfied and discharged. Section 26. Limitation on Challenge. After the expirat:ion of 30 days from the date of final adoption and approva:L of this ordinance, all actions or suits attacking its findings, determinations and contents or questioning the legality of the bonds and all proceedings relating thereto shall be perpetually barred, and the ordinance and bonds shall be conclus:ive of the facts stated therein and shall be conclusively deemed valid and legal in every court or tribunal and shall not be open to contest for any reason. Section 27. Severability. If any section, paragraph, clause, or provision of this ordinance shall be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any other provision of this ordinance. Section 28. Repealer. All ordinances, resolutions, bylaws and regulations of the Town in conflict with this ordinance are hereby repealed to the extent only of such inconsistency. Section 29. Recording; Effective Date. Immediately upon its final passage, this ordinance shall be recorded in the Town book of ordinances kept for that purpose, authenticated by the signatures of the Mayor and the Town Clerk and shall be -24- published in The Vail Trail, a legal newspaper of general circulation in the Town. This ordinance shall take effect five days following its publication after final passage. INTRODUCED AND APPROVED ON FIRST READING on July 18, 1989. Mayor (SEAL) Atteste Town Clerk ADOPTED AND APPROVED on August 1, 1989. Mayor (SEAL) Attest: Town Clerk -25- ``~ ORDINANCE NO. 20 ~,~n ~t ', 4 V ~ C~-~~'~ Series of 1989 U' AN ORDINANCE CONCERNING THE ISSUANCE OF LOCAL IMPROVEMENT BONDS OF THE TOWN OF VAIL, COLORADO FOR THE BOOTH CREEK LOCAL IMPROVEMENT DISTRICT; RATIFYING ACTION HERETOFORE TAKEN IN CONNECTION THEREWITH; PRESCRIBING DETAILS IN CONNECTION WITH SAID BONDS AND DISTRICT; PRESCRIBING DUTIES OF CERTAIN TOWN OFFICIALS IN CONNECTION THEREWITH; REPEALING ALL ORDINANCES AND OTHER ACTION OF THE TOWN TO THE EXTENT INCONSISTENT HEREWITH; AND PROVIDING OTHER MATTERS RELATING THERETO. WHEREAS, the Town of Vail (the "Town'°), in the County of Eagle and State of Colorado, is a municipal corporation duly organized and existing as a home rule town under Article XX of the State Constitution and the Charter of the Town (the "Charter"); and WHEREAS, pursuant to the Charter and the Town's Code of Ordinances (the '°Vail Code'°) , the Town Council (the '°Council'°) has by ordinance created within the corporate limits of the Town a local improvement district known and designated as the Town of Vail, Colorado Booth Creek Local Improvement District (the "District'°), for the purpose of making certain local and special improvements to mitigate rockfall damage (the "Improvements'°), and has determined to assess a portion of the cost thereof to the parcels of property in the District specially benefited thereby; and WHEREAS, the Town has duly advertised for bids for such Improvements based on estimates provided to the Council and has entered into a construction contract for the construction and installation of the Improvements; and WHEREAS, in recognition of the general benefits conferred by the Improvements, the Council has determined to contribute $20,000 from funds of the Town to the total estimated -1- ~ _ ~ cost of constructing and installing the Improvements, has determined to assess the remaining costs against parcels of property in the District (the nassessmentsn) in an aggregate amount not to exceed $366 756 (except as otherwise permitted by the Charter and the Vail Code) in recognition of special benefits conferred on owners of parcels of property in the District, and has determined that local .improvement bonds of the Town shall be issued payable from such assessments. BE IT ORDAINED BY' THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. Issuance of Bonds Authorized. The Town and its officers have determined and do hereby determine that it is necessary and for the best interest of the Town and the inhabitants thereof that, pursuant to the Charter and the Vail Code, the Town issue and sell bonds of the Town of Vail, Colorado Booth Creek Local Improvement District in the aggregate principal amount of $365,000 (the nbonds") at a price of $ plus accrued interest, for the purpose of paying the costs of constructing and otherwise acquiring the Improvements and all proper incidental expenses (including, without limitation, capitalized interest on the bonds). Section 2. Sale of Bonds. The Town has determined to accept the offer of to purchase all of the bonds for a price of $ plus accrued interest. Section 3. Approval of Estimates. The bonds are herein authorized to be, and they shall be, issued based upon the contract price for the Improvements and upon estimates of the Town Manager, all of which hereby are approved by the Council. Section 4. Completion of Improvements. The Town covenants that the Improvements will be constructed and completed with due diligence and in a timely manner. Section 5. Bond Details. For the purpose of paying the costs of the improvements, including all proper incidental expenses, there shall be issued in the name of the Town bonds designated "Town of Vail, Colorado Booth Creek Local Improvement -2- District, Local Improvement Bonds, Series 1989," in the aggregate principal amount of~$365,0~, The -bonds shall be issuable in fully registered form (iveo, registered as to payment of both principal and interest) payable to the registered owner thereof, in the denomination of $5,000 each, shall be dated as of August 15, 1989, shall be numbered consecutively in regular numerical order from 1 through 73, inclusive, shall mature on April 1, 1999, and shall bear interest from the date of the bonds until maturity (unless redeemed prior to maturity) at the interest rates herein set fortho The following numbered bonds in the aggregate principal amounts indicated shall bear interest at the following rates per annum: Bonds Numbered Aggregate Principal ~ Interest (Inclusive) Amount Rates ~ ~ 1 to 7 $35,000 ° 0 8 to 12 25,000 13 to 17 25,000 18 to 23 30,000 24 to 30 35,000 31 to 37 35,000 38 to 45 40,000 46 to 54 45,000 55 to 63 45,000 64 to 73 50,000 Bonds which are reissued upon transfer or other replacement shall bear interest from the most recent interest payment date to which interest has been paid or duly provided for or, if no interest has been paid, from the date of the bonds, such interest being payable to the registered owners of the bonds on April 1, 1990, and semiannually thereafter on April 1 and October 1 of each yearn The principal of the bonds is payable to the registered owner thereof as shown on the registration books of the Town kept by in , Colorado, or its successor (the "registrar"), upon presentation and surrender at the office of in -3- Colorado, or its successor (the spaying agents). If, upon presentation of any bond at maturity, payment is not made as therein provided, interest thereon shall continue at the same rate pez- annum previously borne by the bond, until the principal thereof is paid in full. Payment of interest on any bond shall be made to the registered owner thereof by check or draft mailed by the paying agent on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day), to the registered owner thereof at his address as shown on the registration books kept by the registrar at the close of business on the fifteenth day (whether or not a business day) of the calendar month preceding the interest: payment date; but any such interest not so timely paid shall cease to be payable to the person who is the registered owner thereof at the close of business on such day and shall be payable to the person who is the registered owner thereof at the close of:rbusiness on a special record date for the payment of any such defaulted interest. Such special record date shall be fixed by the registrar whenever moneys become available for payment of the defaulted interest, and notice of the special record date shall bra given to the registered owners of the bonds not less than ten days prior thereto by first-class mail to each such registered owner as shown on the registration books on a date selected by the registrar, stating the date of the special record date and the date fixed for the payment of such defaulted interest:. The paying agent may make payments of interest by such alternative means as may be mutually agreed to between the owner of any bond and the paying agent. All such payments shall be made in lawful money of the United States of America without deductic>n for the services of the paying agent or registrar. Section 6. Prior Redemption. All of the bonds shall be subject to redemption prior to maturity at the option of the Town in regular numerical order on any bond interest payment date, at a price equal to the principal- amount thereof plus -4- accrued interest to the redemption date. Whenever there are available moneys (other than amounts deposited therein as accrued and capitalized interest) in the roTown of Vail, Colorado Booth Creek Local Improvement District, 1989 Bond Retirement Fund'° (the '°Bond Fund!°) which is hereby created, in excess of the amount required to pay interest on the bonds then outstanding on the next interest payment date, the Town shall exercise its option to redeem on the next practicable interest payment date a suitable number of bonds outstanding. • Nothing herein shall preclude the Town from refunding all or a portion of the bonds or from exercising its right to redeem bonds prior to maturity from any available source of funds. Notice of prior redemption shall be given by the paying agent in the name of the Town by sending a copy thereof by certified or registered first class mail, postage prepaid, to the registered owner of each bond designated for redemption at his address as it appears on the registration books as of the close of business on the day preceding the mailing of such notice. Such notice shall specify the number or numbers of the bonds to be so redeemed and the date fixed for redemption, and shall further state that on such date there will be due and payable upon each bond so to be redeemed at the office of the paying agent the principal amount thereof plus accrued interest to the redemption date, and that from and after such date interest shall cease to accrue. Notice having been given in the manner hereinabove provided, the bond or bonds so called shall become due and payable on the date so designated, and upon presentation thereof at the paying agent, the Town will pay the bond or bonds so called. Failure to give notice by mailing or any defect in such notice shall not affect the validity of the proceedings for the redemption of any other bonds. Any notice mailed as herein provided shall be conclusively presumed to have been given, whether or not received. Any bonds redeemed prior to maturity shall be cancelled by the Paying Agent. _5_ Section 7. Registration and Transfer. The Town shall cause to be kept at the principal office of the registrar books for the registration and transfer of bonds. Upon surrender for transfer of any bond at the principal office of the registrar, fully endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his attorney duly authorized in writing, the registrar shall authenticate and deliver in the name of the transferee a new bond bearing the same number as the bond being surrendered. All bonds issued upon any transfer shall be the valid obligations of the Town evidencing the same obligation and entitled to the same security and benefits under this ordinance as the bonds surrendered upon such transfer. The registrar shall require the payment by the owner of any bond requesting transfer of any tax or other governmental charge required to be paid with respect to such transfer, and the registrar may further impose a reasonable service charge for any transfer of bonds. The registrar shall not be required to transfer any bond during a period beginning at the opening of business 15 days before the day of mailing by the registrar of a notice of prior redemption of bonds and ending at the close of business on the day of such mailing, nor, with respect to a particular bond after the publication or the mailing of notice calling such bond for prior redemption. As to any bond, whether or not such bond be overdue, the person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for the purpose of making payments thereof and for all other purposes (except to the extent otherwise provided in Section 5 hereof) and neither the Town, the registrar, the paying agent nor any other agent of the Town shall be affected by any notice to the contrary. Except as otherwise provided in Section 5 hereof, payment of either principal or interest on any bond shall be made only to or upon the written order of the registered owner thereof or his legal representative, but such registration may be changed as -6- hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such bond to the extent of the sum or sums paid. If any bond shall be lost, stolen, destroyed or mutilated, the registrar shall, upon receipt of such evidence, information or indemnity relating thereto as it or the Town may reasonably require, and upon payment of all expenses in connection therewith, authenticate and deliver a replacement bond bearing the same number as the lost, stolen, destroyed or mutilated bond. If such lost, stolen, destroyed or mutilated bond shall have matured or shall have been called for redemption, the registrar may direct that such bond be paid by the paying agent in lieu of replacement. All bonds surrendered for redemption, payment or transfer, if surrendered to the paying agent, shall be cancelled by the paying agent, and, if surrendered to any person other than the paying agent, shall be delivered to the paying agent for cancellation. Section 8. Negotiability. Subject to the registration provisions of this ordinance, the bonds shall be fully negotiable and shall have all the qualities of negotiable paper, subject to the registration and payment provisions stated herein, and the owner or owners thereof shall possess all rights enjoyed by holders of negotiable instruments under the provisions of the "Uniform Commercial Code a Investment Securities. Section 9. Execution and Authentication. The bonds shall be executed in the name of the Town with the facsimile signature of the Mayor, shall bear the facsimile seal of the Town, shall be attested by the facsimile signature of the Town Clerk, and shall be authenticated by the manual signature of a duly authorized officer of the registrar. The bonds bearing the signatures of the officers in office at the time of the authorization thereof shall be the valid and binding obligations of the Town (subject to the requirement of authentication by the registrar), notwithstanding that any or all of the persons whose _~_ signatures appear thereon shall have ceased to fill their respective offices. Pursuant to the Uniform Facsimile Signature of Public Officials Act, part 1 of article 55 of title 11, Colorado Revised Statutes, the Mayor and Town Clerk shall prior to delivery of the bonds file with the Secretary of State of Colorado their manual signatures certified by them under oath. No bond shall be valid or obligatory for any purpose unless the certificate of authentication, substantially in the form hereinbelow provided, has been duly executed by the registrar. The registrar's certificate of authentication shall be deemed to have been executed by it if manually signed by an authorized officer or employee of the registrar, but it shall not be necessary that the game officer or employee sign the certificate of authentication on all of the bonds issued hereunder. By authenticating any of the bonds delivered pursuant to this ordinance, the registrar shall be deemed to have assented to all of the provisions of this ordinance. Section 10. Payment of Bonds. The bonds authorized by this ordinance and the interest thereon shall be payable (except as provided in Section 11 hereof) solely from moneys in the Bond Fund, consisting only of moneys collected (principal, interest and penalties, if any) frorn the assessments to be levied to pay for the Improvements (except to the extent that such moneys are payable to the Town as a reimbursement pursuant to Section 11 hereof); provided that any proceeds from the sale of the bonds, other than such proceeds deposited in the Bond Fund to be used to pay interest on the bonds, remaining after the payment of all the costs and expenses of making the Improvements shall be deposited in the Bond Fund and used for bond redemption. Any assessments in the Bond Fund remaining after the bonds, both principal and interest, are paid in full (and after any reimbursement due the Town), shall to the extent required by the Charter be deposited in the 'town's surplus and deficiency fund created pursuant to Section 10.8 of the Charter. Immediately upon the collection of any assessments (including interest and any penalties thereon), -8- the moneys therefrom shall be deposited in the Bond Fund (except to the extent that such moneys are payable to the Town as a reimbursement pursuant to Section 11 hereof), and said fund is and will continue to be irrevocably and exclusively pledged for the payment of the principal of and the interest on the bonds. Section 11. Surplus and Deficiency Fund; Town Payment of Bonds and Reimbursement. Pursuant to Section 10.8 of the Charter, whenever there is a deficiency in the Bond Fund to make the payment of principal and interest on the outstanding bonds when due, such deficiency shall be paid out of the Town's surplus and deficiency fund created pursuant to Section 10.8 of the Charter. Further, whenever three fourths of the bonds have been paid and cancelled and for any reason the remaining assessments are not paid in time to take up the remaining bonds and the interest due thereon, and there is not sufficient money in the Town's surplus and deficiency fund, then the Town shall pay the bonds when due and interest thereon, and reimburse itself by collecting the unpaid assessments due the District. Section 12. Bonds Not a Debt of Town. The bonds shall not be a debt of the Town, and the Town shall not be liable thereon, nor shall it thereby pledge its full faith and credit for their payment, nor shall the bonds be payable out of any funds other than the special assessments and other moneys pledged to the payment thereof, as herein provided. The payment of bonds is not secured by an encumbrance, mortgage or other pledge of property of the Town except for such special assessments. No property of the Town, subject to said exception, shall be liable to be forfeited or taken in payment of the bonds. Section 13. Form of Bonds. The bonds and the registrar's certificate of authentication shall be in substantially the following forms, with such omissions, insertions, endorsements and variations as to any recitals of fact or other provisions as may be required by the circumstances, be required or permitted by this ordinance or be consistent with this ordinance and necessary or appropriate to conform to the -9- rules and requirements of any governmental authority or any usage or requirement of law with respect thereto, and provided that any of the text on the face of the bonds may, with appropriate reference, be printed on the back of the bonds: -10- (Form of Bond) STATE OF COLORADO UNITED STATES OF AMERICA COUNTY OF EAGLE TOWN OF VAIL, COLORADO BOOTH CREEK LOCAL IMPROVEMENT DISTRICT LOCAL IMPROVEMENT BONDS SERIES 1989 NO. Interest Rate Maturity Date April 1, 1999 CUSIP Dated as of Number REGISTERED OWNERo PRINCIPAL AMOUNTo August 15, 1989 $5,000 The Town of Vail (the "Town") in the County of Eagle and State of Colorado, a municipal corporation duly organized and existing, for value received, hereby promises to pay to the Registered Owner identified above, or registered assigns, upon presentation and surrender hereof at the principal office of in Colorado (the "Paying Agent"), the Principal Amount identified above on the Maturity Date identified above (subject to the right of prior redemption hereinbelow mentioned), and to pay interest on the Principal Amount from the most recent interest payment date to which interest has been paid or duly provided for or, if no interest has been paid, from the date of this Bond, at the Interest Rate per annum identified above, payable on April 1, 1990 and semi- annually thereafter on April 1 and October 1 of each year, until payment of the Principal Amount hereof has been made. Interest on this Bond will be paid on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day) to the registered owner of this Bond by check or draft mailed to such registered owner at °11- the address appearing on the registration books kept for that purpose at the office of in , Colorado, as Registrar, at the close of business on the fifteenth day (whether or not a business day) of the calendar month preceding the interest payment date (the "Regular Record Date"). Any such interest not so timely paid shall cease to be payable to the person who is the registered owner hereof at the close of business on the Regular Record Date and shall be payable to the person who is the registered owner hereof at the close of business on a Special Record Date for the payment of any defaulted interest. Such Special Record Date shall be fixed by the Registrar whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to the registered owners of the Bonds of the series of which this is one not less than ten days prior thereto. Alternative means of payment of interest may be used if mutually agreed to between the owner of any Bond and the Paying Agent, as provided in the ordinance authorizing the issuance of the Bonds (the "Bond Ordinance"). The principal of and interest on this Bond are payable in lawful money of the United States of America, without deduction for the services of the Paying Agent or Registrar. If upon presentation and surrender of this Bond to the Paying Agent at maturity payment of this Bond is not made as herein provided, interest hereon shall continue at the Interest Rate identified above until the Principal Amount hereof is paid in full. This Bond is one of a series subject to prior redemption in regular numerical order by and at the option of the Town of Vail, on any interest payment date, at a price equal to the principal amount thereof with accrued interest to the redemption date. Whenever there are available moneys (other than amounts deposited therein as accrued and capitalized interest) in the Bond Fund in excess of t:he amount required to pay interest on the bonds then outstanding on the next interest payment date, the -12- Town will exercise its option to redeem on the next practicable interest payment date a suitable number of bonds outstandinge Nothing shall preclude the Town from refunding all or a portion of the bonds or from exercising its right to redeem bonds prior to maturity from any available source of fundse Redemption shall be made upon giving prior notice by mailing to the owner of this Bond at his address as the same appears upon the registration books, in the manner and upon the conditions provided in the Bond Ordinances The Registrar will not be required to transfer any Bond during a period beginning at the opening of business 15 days before the day of the mailing by the Registrar of a notice of prior redemption of Bonds and ending at the close of business on the day of such mailing, or, with respect to a particular Bond, after the mailing of notice calling such Bond for prior redemption< This Bond is one of a series of local improvement Bonds numbered consecutively from 1 to ~, both inclusive, issued by the Town of Vail, and maturing on April 1, 1999, all of which are of like designation, and which are in the aggregate principal amount of $365,000° Said Bond series is issued in payment for local improvements made in the Town of Vail, Colorado Booth Creek Local Improvement District pursuant to and in accordance with the Charter and the Vail Code, the ordinance creating the District, and all laws and proceedings thereunto enablinge Pursuant to the Bond Ordinance, reference to which is made for further details, the principal of and the interest on the Bonds of the series of which this is one shall be payable solely from a special fund designated nTown of Vail, Colorado Booth Creek Local Improvement District, 1989 Bond Retirement Fund" (the "Bond Fund") consisting of moneys collected by the Town of Vail from the special assessments (principal, interest and penalties, if any) to be levied against all the assessable parcels of land in the District, to the extent provided in the Bond Ordinance; provided that any proceeds from the sale of the -13- Bonds, other than such proceeds deposited in the Bond Fund to be used to pay interest on the Bonds, remaining after the payment of all the costs and expenses of making the local improvements shall be deposited in the Bond Fund and shall be used for bond redemption. The Bond Fund is irrevocably and exclusively pledged for the full and prompt payment of all the Bonds. If there is a deficiency in the Bond Fund to meet the payment of the outstanding Bonds and interest due thereon, the deficiency shall be paid out of any moneys available therefor in the surplus and deficiency fund created pursuant to Section 10.8 of the Town's Charter. Whenever three-fourths of the Bonds have been paid and cancelled and for any reason the remaining assessments are not paid in time to take up the remaining Bonds and interest due thereon, and there is not sufficient money in the surplus and deficiency fund, then the Town shall pay the Bonds when due and the interest thereon and reimburse itself by collecting the unpaid assessments due the District. All assessments shall be a lien in the several amounts assessed from the effective date of the assessment ordinance to be adopted by the Town upon completion of the local improvements in the District. The lien for such assessments shall be prior and superior to all other 'liens except general tax liens, other assessment liens, and possibly other liens imposed by the State of Colorado or its politica:L subdivisions or by the United States of America or any agency or instrumentality thereof. In the Bond Ordinance, the Town covenants to levy and collect assessments against all assessable parcels of property in the District and to diligently enforce the lien of the assessments against the property subject thereto. It is hereby certified, recited and declared that the principal amount of the Bonds does not .exceed the amount authorized by law to be issued. It is hereby also certified, recited and declared that the proceedings taken to date with reference to issuing the Bonds and to making such local improvements have been regularly had and taken in compliance with -14- law; that all prerequisites to issuing the Bonds have been performed; and that all acts, conditions and things essential to the validity of this Bond exist, have happened and have been done in due time, form and manner as required by law. The Bonds are not a debt of the Town and the Town is neither liable thereon, nor has it pledged its full faith and credit for their payment, nor are the Bonds payable out of any funds other than special assessments and other amounts pledged to the payment thereof as herein stated. The payment of the Bonds is not secured by an encumbrance, mortgage or other pledge of property of the Town except for such special assessments pledged for the payment of the Bonds. No property of the Town, subject to said exception, shall be liable to be forfeited or taken in payment of the Bonds. The Town has designated the Bonds of the series of which this is one as a qualified tax-exempt obligation pursuant to Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended. This Bond is fully transferable by the registered owner hereof in person or by his duly authorized attorney on the registration books of the Town kept at the office of the Registrar upon surrender of this Bond together with a duly executed written instrument of transfer satisfactory to the Registrar. Upon such transfer a new Bond of the same principal amount and bearing the same number will be issued to the transferee in exchange for this Bond, on payment of such charges and subject to such terms and conditions as are set forth in the Bond Ordinance. The Town, the Registrar and the Paying Agent may deem and treat the person in whose name this Bond is registered as the absolute owner hereof, whether or not this Bond shall be overdue, for the purpose of receiving payment and for all other purposes except to the extent otherwise hereinabove and in the Bond Ordinance provided with respect to the payment of interest, and neither the Town, the Registrar nor the Paying Agent shall be affected by any notice to the contrary. -15- This Bond must be registered in the name of the owner as to both principal and interest on the registration books kept by the Registrar in conformity with the provisions stated herein and endorsed hereon and subject to the terms and conditions set forth in the Bond Ordinance. No. transfer of this Bond shall be valid unless made on the registration books maintained at the principal office of the Registrar by the registered owner or his attorney duly authorized in writing. This Bond shall not be valid or obligatory for any purpose until the Registrar shall have manually signed the certificate of authentication hereon. . IN TESTIMONY WHEREOF, the Town Council of the Town of Vail has caused this Bond to be executed with the facsimile signature of the Mayor, and to be signed and attested with the facsimile signature of the Town Clerk under the facsimile seal of the Town. Signed: (Facsimile Signature) Mayor (FACSIMILE SEAL) Attest: (Facsimile Signature) Town Clerk -16- Certificate of Authentication for Bond This is one of the Bonds described in the within- mentioned Bond Ordinance, and this Bond has been duly registered on the registration books kept by the undersigned as Registrar for such Bondse Colorado, as Registrar Date of Authentications By Authorized Representative -17- ASSIGNMENT FOR BOND FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto_ the within Bond and irrevocably appoints , attorney-in-fact, to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without any alteration whatsoever. Signature Guaranteed: Address: Tax Identification Number or Social Security Number(s): (End of Form of Bond) -18- Section 14. Delivery and Application of Proceeds. When the bonds have been duly sold, executed and registered, the Town shall deliver the bonds to the lawful purchaser thereof on receipt of the purchase price. The registrar shall initially register the bonds in the name of the purchaser, or in the names of such transferees as the purchaser may designate in writing or writings satisfactory to the registrar, or any combination thereof as directed by the purchaser. The proceeds of the bonds (excluding accrued interest and capitalized interest) shall be deposited into the "Town of Vail, Colorado Booth Creek Local Improvement District Construction Fund'D (the 'OConstruction Fund") which is hereby created, and applied solely to defray the costs and expenses of making the Improvements (including incidental expenses and costs related to the issuance of the bonds). All moneys received as accrued interest and capitalized interest shall be deposited into the Bond Fund to apply to the payment of a portion of the interest due on the bonds through April 1, 1990. All moneys received as investment income on the Bond Fund shall be retained in the Bond Fund. All moneys received as investment income on the proceeds of the bonds shall either be used to pay for the Improvements or incidental costs or to pay principal of or interest on the bonds as the Town determines. The purchaser of the bonds shall in no manner be responsible for the application ,by the Town, or any of its officers, of any of the funds derived from the sale thereof. Section 15. Levy of Assessments. The Town shall cause the assessments to be levied and collected as provided by law for the benefit of the registered owners of the bonds. The Town hereby covenants for the benefit of each owner of the bonds that the costs of the Improvements in amounts sufficient, together with any excess bond proceeds as provided in Section 10 hereof, to provide for payment of the bonds and interest thereon, shall be apportioned, levied and assessed against the assessable parcels in the District, in accordance with the Charter and the Vail Code, by ordinance to be hereafter adopted. Further, the °19- Town covenants that such assessments will bear interest at a rate which is at least equal to the highest rate of interest on the bonds and payable in one payment or in ten annual installments of principal, on March 1 of each year_ commencing on March 1, 1990, with interest on the unpaid principal balance of the assessment, payable annually on March 1 of each year commencing March 1, 1990. The Town hereby covenants to use its best efforts to insure that such assessments are levied as soon as possible upon substantial completion of the Improvements and to diligently enforce the lien of the assessments against the property subject thereto. Section 16. Assessment Revenues. All moneys received from such assessments, including interest and any penalties thereon (except to the extent that such moneys are payable to the Town as a reimbursement pursuant to Section 11 hereof), shall be deposited into the Bond Fund and said moneys, along with any other moneys deposited into the Bond Fund pursuant to the provisions of this ordinance, shall be used for the purpose of paying i:he principal of and interest on the bonds and for no other purpose whatsoever, and as security for such payment the Bond Fund is hereby exclusively pledged. Section 17. .Books and Records. So long as any of the bonds remain outstanding, t:he Town will keep or cause to be kept true and accurate books of records and accounts showing full and true entries covering the collection and disposition of special assessments as well as any delinquencies in the collection thereof, covering deposits and disbursements in the Bond Fund, the redemption of bonds, both principal and interest, and disbursements to defray the cost of the Improvements, including incidental expenses; and the Town will permit an inspection and examination of all books and accounts at all reasonable times by a representative of the original purchaser of the bonds. Section 18. Resignation of Registrar or Paying Agent. If the registrar or paying agent initially appointed hereunder shall resign, or if the Town shall reasonably determine that said -20- registrar or paying agent has become incapable of fulfilling its duties hereunder, the Town may, upon notice mailed to each registered owner of the bonds at his address last shown on the registration books, appoint a successor registrar or paying agent, or both. No such resignation or dismissal may take effect until a successor is appointed. Every such successor registrar or paying agent shall be a bank or trust company located in and in good standing in the State of Colorado. It shall not be required that the same institution serve as both registrar and paying agent hereunder, but the Town shall have the right to have the same institution serve as both registrar and paying agent hereunder. Section 19. Authorized Action. The officers of the Town hereby are authorized and directed to take all action necessary or appropriate to effectuate the provisions of this ordinance, including, without limiting the generality of the foregoing, the printing of the bonds (which may include thereon an opinion of bond counsel and related certification by the Town Clerk), the execution of such certificates as may reasonably be required by the initial purchaser thereof or bond counsel, relating, inter alia, to the signing of the bonds, the tenure and identity of the municipal officials, the absence and existence of factors affecting the exemption of interest on the bonds from federal income taxation, the accuracy of property descriptions, the delivery of the bonds and the absence of litigation pending or threatened affecting the validity of the bonds, if such is in accordance with the facts, and the execution of a bond purchase contract and appropriate agreements with respect to the services of paying agent and registrar. Section 20. Bondholders' Rights and Remedies. Any owner of any one or more of the bonds may, either at law or in equity, by suit, action, mandamus or other appropriate proceedings in any court of competent jurisdiction, protect the lien created by this ordinance on the proceeds of said assessments and the moneys in the Bond Fund, and may by suit, m21~ action, mandamus or other appropriate proceedings enforce and compel the performance of any covenant of the Town or any duty imposed upon the Town by the provisions of this ordinance, or any ordinance heretofore or hereafter adopted concerning the District, including, without limiting the generality of the foregoing, the segregation of assessments into the Bond Fund, the proper application thereof and the appointment of a receiver. The failure of any such owner so to proceed shall not relieve the Town, the Council or any of the Town's officers, agents or employees of any liability for failure to perform any such duty. No remedy or right conferred by this ordinance is intended to be exclusive of any other remedy or right, but each such remedy or right is cumulative and ma~- be pursued without waiving any other remedy or right. Section 21. Tax Covenants. The Town covenants for the benefit of the owners of the bonds that it will not take any action or omit to take any action with respect to the bonds, the proceeds thereof, any other funds of the Town, or any facilities financed with the proceeds of the bonds if such action or omission would (i) cause the interest on the bonds to lose its exclusion from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended (the "Tax Code"), (ii) cause interest on the bonds to lose its exclusion from alternative minimum taxable income as defined in Section 55(b)(2) of the Tax Code except to the extent such interest is required to be included in the adjusted net book income and adjusted current earnings adjustments applicable to corporations under Section. 56 of the Tax Code in calculating corporate alternative minimum taxable income, (iii) subject the Town to any penalties under Section 148 of the Tax Code, or (iv) cause interest on the bonds to lose its exclusion from Colorado taxable income or Colorado alternative minimum taxable income under present Colorado law. The foregoing covenant shall remain i.n full force and effect notwithstanding the payment in full or defeasance of the bonds until the date on which all -22- obligations of the Town in fulfilling the above covenant under the Tax Code and Colorado law have been met. Section 22. Designation as Qualified Tax-Exempt Obligation. The Town hereby designates the bonds as a qualified tax-exempt obligation for purposes of Section 265(b)(3)(B) of the Tax Code. Section 23. Amendment or Supplement of Ordinance. This ordinance may be amended or supplemented by an ordinance or ordinances adopted by the Town Council in accordance with the Charter and the Vail Code with or without the receipt by the Town of any additional consideration, with the written consent of the owners of 75 percent of the bonds authorized by this ordinance and outstanding at the time of the adoption of such amendatory or supplemental ordinance, provided, however, that no such ordinance shall have the effect of permittingo (a) an extension of the maturity of any bond authorized by this ordinance without the written consent of the owner of the bond; or (b) a reduction in the principal amount of any bond or the rate of interest thereon without the written consent of the owner of the bond; or (c) the creation of a lien upon or a pledge of property, revenues or funds, ranking prior to the liens or pledges created by this ordinance; or (d) a reduction of the principal amount of bonds required for consent of such amendatory or supplemental ordinance. Section 24. Ratification. All action (not inconsistent with the provisions of this ordinance) heretofore taken by the Town, the Council and the officers of the Town, directed toward the creation of the District, the construction and other acquisition of the Improvements therein, the sale and -23- issuance of the bonds, and the levy of assessments for that purpose, hereby is ratified, approved and confirmed. Section 25. Ordinance Irrepealable. After the bonds have been issued, this ordinance shall constitute a contract between the Town and the owner or owners of the bonds and shall be and remain irrepealable until the bonds and the interest accruing thereon shall have been fully paid, satisfied and discharged. Section 26. Limitation on Challenge. After the expiration of 30 days from the date of final adoption and approval of this ordinance, all actions or suits attacking its findings, determinations and contents or questioning the legality of the bonds and all proceedings relating thereto shall be perpetually barred, and the ordinance and bonds shall be conclusive of the facts stated therein and shall be conclusively deemed valid and legal in every court or tribunal and shall not be open to contest for any reason. Section 27. Severability. If any section, paragraph, clause, or provision of this ordinance shall be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any other provision of this ordinance. Section 28. Repealer. All ordinances, resolutions, bylaws .and regulations of the Town in conflict with this ordinance are hereby repealed to the extent only of such inconsistency. Section 29. Recording; Effective Date. Immediately upon its final passage, this ordinance shall be recorded in the Town book of ordinances kept for that purpose, authenticated by the signatures of the Mayor and the Town Clerk and shall be -24- published in The Vail Trail, a legal newspaper circulation in the Town. This ordinance shall take days following its publication after final passage. INTRODUCED AND APPROVED ON FIRST READING 1989. of general effect five on July 18, Mayor (SEAL) Atteste Town Clerk ADOPTED AND APPROVED on August 1, 1989. Mayor (SEAL) Attest: Town Clerk °25- ;~ t TOWN OF VAIL CABLE TELEVISION FRANCHISE ORDINANCE TABLE OF CONTENTS PARAGRAPH TITLE PAGE N0. 1. Cable Communications Ordinance 1 2. Purpose 1 3. Applicability 1 4. Definitions 1 5. Requirement of a Franchise 5 6. General Franchise Characteristics 5 7. Franchise as a Contract 5 8. Conflicts 5 9. Franchisee Subject to Police Power 6 10. Franchise Validity 6 11. Filing of Applications 6 12. Content of Applications 7 13. Consideration of Applications g 14. Acceptance g 15. Franchise Term 10 16. Franchise Fee 10 17. Insurance, Bonds, Indemnity 11 18. Letter of Credit 14 19. Liquidated Damages 14 20. Forfeiture and Termination 15 21. Insolvency 1~ 22. Removal of Cable Communications System 17 23. Subscriber Fees and Rates lg t F TOWN OF VAIL CABLE TELEVISION FRANCHISE ORDINANCE TABLE OF CONTENTS (page 2) PARAGRAPH TITLE PAGE N0. 24. Reports 19 25. Records Required 20 26. Filings 20 27. Service Calls and Complaint Procedures 20 28. Service to Subscribers 22 29. Leased Access 22 30. Public Drops 22 31. Lock Out Device 23 32. Protection of Subscriber Privacy 23 33. Construction and Installation Work 23 34. Location of Structures, Lines and Equipment 23 35. Replacement of Paving 24 36. Alteration of Streets by Town 24 37. Trimming Trees 24 38. Temporary Move of Cables 25 39. Refunds and Service Terminations 25 40. Service Area 26 41. Continuity of Service 26 42. Transitional Operation 27 43. Periodic Reevaluation and Renegotiations 27 44. Theft of Services and Tampering 28 45. Renegotiation 28 46. Severability 28 t r ORDINANCE N0. 18 Series of 1989 TOWN OF VAIL CABLE TELEVISION FRANCHISE ORDINANCE. 1. This chapter shall be known as the Cable Communications Ordinance. 2. PURPOSE The purposes of this ordinance are: a. Provide for the franchising and regulation of cable television within the Town of Vail. b. Provide for a cable communications system that will meet the current needs of the Town and that can be improved and upgraded to meet future needs. c. Provide for the payment of fees and other valuable consideration to the Town for the use of the public ways and for the privilege to construct and operate cable communications systems. d. Provide for the regulation by the Town of certain rates to be charged to subscribers for certain cable communications services, as permitted by law. e. Provide for the development of cable communications as a means to improve communication between and among the members of the public and public institutions of the Town. f. Provide remedies and prescribe by penalties for violation of this ordinance and any franchise granted hereunder. 3. APPLICABILITY This ordinance is applicable to any application for a cable franchise filed on or after the effective date of this ordinance and to any such franchise granted thereafter. 4. DEFINITIONS For the purpose of this ordinance the following terms, phrases, words and the derivations shall have the meanings given herein. When not inconsistent with the context, words used from the present tense include the future, words in the plural number include the singular and words in the singular number include the plural number. The word shall is mandatory and the word may is permissive. Words not defined shall be given their common and ordinary meanings. a. "Access channel" shall mean any channel set aside for public use, educational use, or governmental use without a channel use charge. b. "Access user" shall mean any person or entity entitled to make use of an access channel consistent with the intended purpose-of the channel. c. "Application" shall mean a proposal seeking authority to construct and operate a cable communications system within the Town pursuant to this ordinance. It shall include the initial proposal plus all related subsequent amendments and correspondence with the Town. d. "Basic service" shall mean subscriber cable television services which includes thE~ delivery of local television broadcast signals as required by the FCC, access channels, lease channels and local origination channels as covered by the regular monthly charge paid by all subscribers to any service tier excluding premium services, tvro way services, and FM radio services. e. "Cable television services" shall mean the one way transmission of video programming and associated non-video signals to subscribers together with subscriber interaction, if any, which is provided in connection with the video programming. f. "Cable communications system" or system shall mean a non-broadcast facility consisting of a set of transmission paths and associated signal generation, and reception and control equipment, under common ownership and control, that distributes or is designed to distribute to public subscribers cable television services, institutional services, or other communications services, but such terms shal 1 not i ricl ude: 1) A facility or combination of facilities that serves only to retransmit the television signals of one or more television broadcast signals; 2) A facility or combination of facilities that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities use any public right-of-way; 3) A facility of a common carrier which is subject, in whole or in part to the provisions of Title II of the Communications Act of 1934, as amended; except that such facility shall be considered a cable system [other than for the purposes of 47 U.S.C. 541(c)] to the extent such facility is used and the transmission of video programming directly to subscribers; or 4) Any facilities of an electric utility used solely for operating its electric utility system. g. "Town" is the Town of Vail, Colorado. h. "Channel" shall mean six (6) Megahertz (Mhz) frequency band which is capable of carrying either one standard video signal, a number of audio, digital or other non-video signals or some combination of such signals and which is at least six (6) Mhz wide. -2- r i. "Connection" shall mean the attachment of the drop to the radio or television set or other communication device of the subscriber. j. "Converter" shall mean an electronic tuning device which converts transmitted signals to a frequency which permits the reception on an ordinary television receiver. k. "Council" or "Town Council" shall mean the governing body of the Town of Vail. 1. "Drop" shall mean the cable that connects a subscriber's terminal to the nearest feeder line of the cable communications system. m. "Easement" shall mean a right to use all public rights-of-way including public utility easements. n. "Feeder line" shall mean the coaxial or fiber optic cable running from the trunk line to line extenders and taps for the purpose of interconnection to individual subscribers. o. "FCC" shall mean the Federal Communications Commission. p. "Gross revenue" shall mean all operating revenue from the cable communications system derived directly or indirectly by a Franchisee, its affiliates, subsidiaries, parent, and any person in which the Franchisee has a financial interest in association with the provision of cable communications services with the Town, including but not limited to, service tier monthly fees, pay service fees in excess of programming vendor fees, institutional service fees, installation and reconnection fees, leased channel fees, converter rentals, studio rental, production equipment and personnel fees, advertising revenues, copyright fees; provided, however, that this shall not include any taxes on services furnished by the Franchisee payable to the State of Colorado or any other governmental unit and collected by the Franchisee on behalf of said governmental unit, or any revenues from the provision of cable communications services outside the Town, or any revenues from sale of capital assets or lease of property for purposes unrelated to cable communications system. q. "Installation" means the act of connecting the system from the feeder cable to the subscriber's receiver so that the installation is to the subscriber's terminal or receiver. r. "Institutional services" shall mean one and two way non-entertainment transmission services for businesses, public agencies and community institutions. Such services include, but are not limited to, video transmission and voice and data communications. -3- s. "Leased channel" or "leased access channel" shall mean any channel or part of a channel, available for commercial use on a fee basis by persons or entities other than a Franchisee. t. "Franchise" shall mean the non-exclusive right and authority to construct, maintain, and operate a cable communications system through use of the public streets, dedications, public utility easements, or other public right-of-way or public places in the Town pursuant to a contractual agreement executed by the Town and a 1=ranchisee. u. "Franchisee" or "Grantee" refers to an entity authorized to construct, or operate, or both, a cable communications system, within the Town pursuant to this chapter including any lawful successor, transferee, or assignee of the original Grantee. v. "Monitoring" shall mean observing a communications signal carried on a cable communications system, or the absence of such a signal, by any person without regard to whether such observation is by visual or electronic means. Monitoring shall not include system-wide sweeps of the cable communications system for purposes of verifying the integrity of the system and controlling return path of the transmissions. w. "Pay Television" shall mean the delivery over the system of per channel audio-video signals to subscribers for a fee or charge in addition to the charge for basic service. x. "Person" shall mean a.ny person, firm, partnership, association, corporation, company, or organization of any kind. y. "Service tier" shall mean a specific set of cable subscriber services which are made available as, and only as, a group for purchase by subscribers at a specific rate for the group. z. "Street" or "public way" shall mean the surface and the space below and above any public street, road, highway, path, sidewalk, alley, court, or easement now or hereafter held by the Town for the purpose of public travel or public utilities and shall include public easements or rights-of-way. aa. "Subscriber" shall mean a recipient of cable television service or other services provided over a cable communications system. bb. "User" shall mean a party utilizing a cable communications systems facility for the purpose of product:ion or transmission of material or information to subscribers. -4- 5. REQUIREMENT OF A FRANCHISE It shall be unlawful to construct, install, maintain, or operate a cable communications system or part of a cable communications system within the Town without a valid franchise obtained in accordance with the provisions of this chapter. 6. GENERAL FRANCHISE CHARACTERISTICS Any franchise issued in accordance with the provisions of this chapter shall be deemed to: a. Authorize use of the public ways for installing cables, wires, lines and other facilities in order to operate a cable communications system, but shall neither expressly nor implied be deemed to authorize the Grantee to provide service to, or install cable, wires, lines, or any other equipment or facilities upon private property without owner consent, or to utilize publicly or privately owned utility poles or conduits without a separate agreement with the owners therefore; b. Be non-exclusive, and shall neither expressly nor implied be deemed to preclude the issuance of subsequent franchises to operate one or more cable communications systems within the Town; and c. Convey no property right to the Franchisee or right to renewal except as required by Federal and State law. 7. FRANCHISE AS A CONTRACT A franchise issued pursuant to the provisions of this chapter shall be deemed to constitute a contract between the Franchisee and the Town. The Franchisee shall be deemed to have contractually committed itself to comply with the terms, conditions, and provisions of the franchise documents, and with all rules, orders, regulations, and determinations applicable to the franchise which are issued, promulgated, or made pursuant to the provisions of this chapter. 8. CONFLICTS a. All terms, conditions and provisions of this chapter and the application for a franchise shall be deemed to be embodied in a franchise, and conflicts in terms, conditions or provisions between these documents shall be resolved as follows: 1) The express terms of this chapter shall prevail over conflicting or inconsistent provisions of the franchise; 2) The express terms of the franchise shall prevail over conflicting or inconsistent provisions in the application and any request for proposals; and -5- r f 3) The express terms of any request for proposals shall prevail over conflicting or inconsistent provisions in the application for the franchise. b. The provisions of the franchise shall be liberally construed in order to effectuate its purposes and objectives consistent with this chapter and the public interest. In the event one or more provisions of the franchise or this chapter or subsequently found to be unlawful, null and void or unenforceable, the Town shall, at its sole option, have the right to consider said provisions severed from the franchise so as to continue the franchise's effectiveness, in accordance with the terms of this chapter. Any franchise agreement will be construed under the laws of the State of Colorado. 9. FRANCHISEE SUBJECT TO POLICE POWER A Franchisee shall, at all times during the life of a franchise, be subject to all lawful exercise of the police power by the Town and through such lawful regulations as the Town shall hereafter enact. The construction, operation, and maintenance of the system shall also be in full compliance with all other applicable rules and regulations now in effect: or hereafter adopted by the United States, the State of Colorado, or any agency of said governments. 10. FRANCHISE VALIDITY A Grantee shall agree, by the acceptance of a franchise, to accept the validity of the terms and the conditions of this ordinance and the franchise in their entirety and that the Grantee will not, at any time in any claim or proceeding, challenge any term or provision of this ordinance or the franchise as unreasonable or arbitrary or argue that the Town did not have the authority to impose such term or condition. 11. FILING OF APPLICATIONS Applications for a cable communications franchise will be considered pursuant to the following procedures: a. An application may be filed at any time or pursuant to a request for proposals issued by the Town. b. Upon the filing of an application, the Town shall publish .notice of ° the filing in a newspaper of general circulation in the Town. Any person wishing to submit any comment on the application shall, within fifteen (15) days of the date of notice of the first application, file such comment with the Town Manager. c. All applications to be acceptable for filing must be accompanied by a filing fee of ten thousand sixty dollars ($10,060). The Town shall apply all filing fees received against all costs associated with its evaluation of any pending -6- applications pursuant to this chapter. In the event that total costs are less than the total filing fees, the Town shall refund a portion of the filing fee on a prorated basis for each Applicant within forty-five (45) days after franchise grant. The Town shall furnish applicant with documentation of all costs incurred at that time. 12. CONTENT OF APPLICATIONS To be acceptable for filing, an application must conform to any applicable request for proposals and all the information specified therein. Where an application is not filed pursuant to a request for proposals shall contain at minimum, the following information: a. Identification of the ownership of the Applicant, if not a natural person, including the names and addresses of all persons with one (1) percent or more ownership interest and the ultimate controlling natural persons and identification of all officers and directors and any other primary business affiliation of each. b. An indication whether or not the Applicant, or any entity controlling the Applicant, including any officer of a corporation or a major stockholder thereof, has been adjudged bankrupt, has had a cable franchise revoked, or been found guilty by any court or administrative agency in the United States of: 1) A violation of a security or antitrust law; or 2) A felony or any other crime involving moral turpitude. Identify any such person or entity and fully explain the circumstances. c. A demonstration of the Applicant's technical and financial ability to construct and operate the proposed cable facility. d. A description of the physical facility proposed, including channel capacity including one way and two way, if any, the area to be served, a summary of technical characteristics, and head end and access facilities. e. A description relating how any construction will be implemented, identification of areas having above ground or below ground cable facilities, the proposed construction schedule, and a description where appropriate, indicating how service will be converted from any existing facility to a new facility. f. A description of the services to be provided over the system, including identification of television signals, both broadcast and non-broadcast, to be carried and all non-television services to be provided initially. Where service will be offered by tiers, identify the signals or services, or both, to be included on each tier. -7- w y g. The proposed rates to be charged, including rates for each service tier, as appropriate, and charges for installation, converters and other services. h. Information as necessary to demonstrate compliance with all relevant requirements contained in this chapter. i. A demonstration stating how the proposal is reasonable to meet the future cable related community needs and interests. In particular, the application should describe how the proposal will satisfy the needs as analyzed in any recent community needs assessment commissioned by the Town. j. A demonstration how the proposal was designed to be consistent with all federal and state requirements. k. Pro forma financial projections for each year of the franchise term. The projections shall include a statement of income, balance sheet, statement of sources and use of funds, and schedule of capital additions. All significant assumptions shall be explained in notes or supporting schedules set accompanying the projections.. 1. A complete list of all cable communications systems in which the Applicant or' a principle thereof holds an equity interest. ° m. An affidavit of the Applicant or duly authorized officer thereof certifying, in a form acceptable to the Town, the truth and accuracy of the information contained in the application. n. In the case of an application by an existing Franchisee for renewed franchise, a demonstration that said Franchisee has substantially complied with the material terms of the existing franchise and with applicable law. o. Any person who files an application with the Town for a cable communications franchise shall forewith, at all times, disclose to the Town, in writing, the names, addresses, and occupations of all persons who are authorized to represent or act on behalf of the Applicant in those matters pertaining to the application. The requirement to make- such disclosure shall continue until the Town shall have rejected an Applicant's application or until an Applicant withdraws its application. 13. CONSIDERATION OF APPLICATIONS a. The Town shall consider each application for a franchise with the applications found to be acceptable for filing and in substantial compliance with the requirements of this chapter and any applicable request for proposals. In evaluating an application, the Towri will consider, among other things, the Applicant's past service record in other communities, the nature of the proposed -8- facilities and services, including rates to be charged therefor, and whether the proposal is adequate to meet the future cable related community needs and interests of the citizens of the Town. Where the application is for a renewed franchise, the Town shall consider whether: 1) The cable operator has substantially complied with the material terms of the existing franchise and with applicable law; 2) The quality of the operator's service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, quality, or level of cable services or other services provided over the system, has been reasonable in light of community needs; 3) The operator has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the operator's proposal; and 4) The operator's proposal is reasonable to meet the future cable related community needs and interests, taking into account the cost of meeting such needs and interests. b. Where the Town determines that an Applicant's proposal, including the proposed service area, would serve the public interest, and may grant a franchise to the Applicant. The franchise agreement will constitute a contract, freely entered into, between the Town and the Grantee. Said franchise agreement shall incorporate by reference the relevant provisions of this chapter. Any such franchise must be approved by ordinance of the Town Council pursuant to the ordinances of the Town and the Charter of the Town. c. In the course of considering an application for renewed franchise, the Council shall hold a public hearing, consistent with the provisions of 47 U.S.C., Section 626 as existing or as may from time to time be amended. d. A franchise granted pursuant to this chapter shall not take effect until the Applicant pays a grant fee to the Town. The grant fee shall be equal to the Town's reasonable direct costs in the franchising process, less the application filing fee received. The Town shall provide to the Grantee a statement summarizing such costs prior to the execution of the franchise. 14. ACCEPTANCE A franchise and its terms and conditions shall be accepted by a Grantee by written instrument, in a form acceptable to the Town Attorney, and filed with the Town Clerk within thirty (30) days after the granting of the franchise by the Town. In its acceptance, the Grantee shall declare that it has carefully read the terms -9- and conditions of this ordinance and the franchise and accepts all of the terms and conditions of this ordinance and the franchise and agrees to abide by same. In accepting a franchise, a Grantee shall indicate that it has relied upon its own investigation of all relevant facts, that it was not induced to accept the franchise and that it accepts all reasonable risks relating to the interpretation to the franchise. 15. FRANCHISE TERM The term of a franchise shall be as specified in the franchise agreement, but it shall not exceed fifteen (15) years. If a Franchisee seeks authority to operate a cable system in the Town beyond the term of its franchise, it shall file an application for a renewed franchise not later than thirty (30) months prior to the expiration of its franchise. 16. FRP~NCHISE FEE a. The Franchisee in consideration of the privilege granted under a franchise for the use of the public ways and the privilege to construct and operate a cable communications system, shall pay to the Town five (5) percent of its annual gross revenues during the period of its operation under the franchise. b. A Franchisee shall file with the Town, thirty (30) days after the last day of each quarter, a financial statement showing the gross revenues received by the Franchisee during the preceding quarter. A Franchisee shall pay the quarterly portion of t:he franchise fee to the Town on or before the time such financial statement is due to be filed. With each payment required by this Section 902 the Franchisee shall submit a written statement, signed and certified by the Franchisee to be true and correct, showing for the immediately preceding calendar quarter the amount of gross revenues, the amount of all revenues derived from the system and an itemization of all permissible deductions therefrom to arrive at gross revenues. The Franchisee shall also submit to the Town on or before the 30th day following the end of each calendar year and following the expiration or termination of this franchise a written statement, signed and certified by the Franchisee to be true and correct, showing for the immediately preceding year or partial year, as applicable, the amount cif gross revenues, the amount of all revenues derived from the system and an itemization of all permissible deductions therefrom to arrive at gross revenues. The Town shall have the right on thirty (30) days notice to the Franchisee to demand that the annual statement be certified to be true and correct and in compliance with the requirements of this ordinance by both the Franchisee and an independent certified public accountant in accordance with sound and accepted accounting -10- practice. The statements referred to in this subsection shall be in such form and style and contain such details and information as the Town shall reasonably designate. The acceptance by the Town of payments or reports thereof shall be without prejudice and shall not constitute a waiver of the Town's right to claim a deficiency in the payment of franchise fees or to audit the Franchisee's books and records, as hereinafter set forth. c. Upon five (5) days arior written notice to the Franchisee, the Town shall have the right to cause a complete audit to be made of the books and records of the Franchisee with respect to the System. If the results of such audit show that the Franchisee's statement of gross revenues for any period ending not more than three (3) years prior to the commencement of the audit has been understated by three percent (3%) or more, then the Franchisee shall pay the Town the cost of such audit, any deficiency payment shown by such audit to be due and interest thereon at the agreed rate. A report of the findings of the Town's accountant shall be binding and conclusive upon the Franchisee and the Town. d. In the event that any franchise payment is not received by the Town on or before the applicable date, interest shall be charged from such due date at an annual interest rate then chargeable for unpaid federal income taxes (26 U.S.C., Section 6621). In addition to the foregoing, the Franchisee shall pay a late charge of five (5) percent of the amount of such payment. Interest and late charges will not be chargeable to the Franchisee for additional payment required under the yearly adjustment, provided that such payment does not exceed ten (10) percent of the total monthly payments made during the year. In the event such payment exceeds ten (10) percent, the Franchisee shall be liable for interest and late charges for the entire amount. e. In the event a franchise is revoked or otherwise terminated prior to its expiration date, the Franchisee shall file with the Town, within ninety (90) days of the date of revocation or termination, an audited financial statement showing the gross revenues received by the Franchisee since the end of the previous year and shall make adjustments at that time for the franchise fees due up to the date of revocation or termination. 17. INSURANCE, BONDS, INDEMNITY a. Upon the granting of a franchise and following simultaneously the filing of the acceptance of the franchise and at all times during the term of the franchise including the time for removal of facilities or management as a trustee as provided for herein, the Franchisee shall obtain, pay all premiums for, and deliver -11- to the Town written evidence of payment of premiums for and the originals of the following: 1) A general comprehensive public liability policy or policies indemnifying, defending, and saving harmless the Town, its officers, boards, commissions, agents, or employees from any and all claims by any person whatsoever, including the costs, defenses, attorneys fees, and interest arising therefrom on account of injury to or death of a person or persons occasioned by the operations of the Franchisee under the franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability of one million dollars ($1,000,000) per personal injury or death of any one (1) person and three million dollars ($3,000,000} for personal injury or death of any two (2) or more persons in any one (1) occurrence. The policy shall be endorsed adding coverage against all claims for personal injury liability offenses. 2) A property damage insurance policy or policies indemnifying, defending, and saving harmless the Town, its officers, boards, commissions, agents, and employees from and against any and all claims by any person whatsoever, including the costs, defenses, attorneys fees, and interest arising therefrom, for property damage occasioned by the operation of the Franchisee under the franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability of five hundred thousand dollars ($500,000) for property damage to the property of any one (1) person and one million dollars ($1,000,000) for property damage to the property of two (2) or more persons in any one (1) occurrence. 3) A performance bond or bonds in favor of the Town with good and sufficient surety approved by the Town in the sum set forth in the franchise agreement conditioned upon the faithful performance and discharge of the obligations imposed by this ordinance and the franchise awarded hereunder from the date hereof. The amount of the bond may be reduced as any construction that is required is completed, consistent with the franchise agreement. b. The bond requirements set forth above shall no longer apply upon completion of construction and inspection by the Town as follows: (1) Franchisee shall give notice to the Town at such time as Franchisee has completed the construction. (2) Upon receipt of notice, the Town shall have sixty (60) days to receive a written report from an independent engineer; provided, however, if the Town fails t:o receive such a written report within the sixty (60) days the completion of construction shall be deemed to have taken place, unless the failure -12- to receive such a report is due to unforeseen events, acts of God, or events beyond the reasonable control of the Town. (3) Notwithstanding anything to the contrary, the Town may condition completion of the construction upon receipt of a written report from an independent engineer. The completion of the system upgrade or system rebuild shall not be deemed to have taken place until the independent engineer reports the following: (a) All construction or improvements contemplated by the Franchisee have been completed or otherwise satisfactorily resolved; (b) Satisfactory test results using the technical standards set forth in this franchise agreement at up to ten (10) widely separated subscriber drops selected by the independent engineer and using the following tests: 1) Signal level 2) Hum 3) Bypass responsive system 4) Carrier to noise of system 5) TASO picture quality (2 or better) (c) Compliance with all applicable codes and standards. (d) Carriage of the basic service as available, as set forth in this franchise ordinance. c. All bonds and insurance policies called for herein shall be in a form satisfactory to the Town Attorney. The Town may at any time, if it deems itself insecure, require a Franchisee to provide additional sureties to any and all bonds or to replace existing bonds with new bonds for good and sufficient surety approved by the Town. d. A Franchisee shall, at its sole cost and expense, indemnify and hold harmless the Town, its officials, boards, commissions, agents and employees against any and all claims, suits, causes of action, proceedings, and judgments for damage arising out of the operation of the cable communications system by Franchisee under the franchise. These damages shall include, but not be limited to, penalties arising out of copyright infringements and damages arising out of any failure by Franchisee to secure consent from the owners, authorized distributors or licensees or programs to be delivered by the Franchisee's communications system whether or not any act or omission complained of is authorized, allowed, or prohibited by the franchise. Indemnified expenses shall include, but not be limited to, all out-of-pocket expenses, such as costs and attorneys fees, and shall also include the -13- reasonable value of any services rendered by the Town Attorney or his or her assistants or any employees of the Down. e. No Franchisee shall permit any policy or bond to expire and the Franchisee, not less than thirty (30) days prior to its expiration shall deliver to the Town a substitute renewal or replacement bond or bonds in conformance with the provisions of this ordinance. 18. LETTER OF CREDIT a. The Town may at its discretion require that a Franchisee obtain a letter of credit. When and if the Town should so require, the Franchisee shall deposit with the Town a letter of credit from a financial institution approved by the Town in the amount of fifty thousand dollars ($50,000). The letter of credit may not be revoked or terminated during the term of the franchise except with the written approval of the Town. The form and the content of such letter of credit shall be approved by the Town Attorney. The letter of credit shall be used to insure the faithful performance by 'the Franchisee of all provisions of the franchise and of this ordinance; compliance with all orders, permits, and directions of any agency, commission, board, department, division, or office of the Town having jurisdiction over its acts or defaults under this license; and the payment by the Franchisee of any claims, liens, and taxes due the Town or other municipalities which arise by reason of the construction, operation or maintenance of the system. b. The letter of credit shall be maintained by the Franchisee at .twenty five thousand dollars ($25,000) during the entire term of the franchise as the Town may require, even if funds are drawn against it pursuant to this ordinance. c. The letter of credit shall contain the following endorsement: "It is hereby understood and agreed that this letter of credit may not be cancelled by the surety nor the intention not to renew be stated by the surety until thirty (30) days after the receipt by the Town Attorney, by certified mail, of a written notice of such intention to cancel or not to renew. d. At the Town's option it may draw against the letter of credit for any unpaid liquidated damages, franchise fees, or other amounts owing to it under the franchise which are thirty (30) days or more past due. The Town shall notify the Franchisee in writing at least ten (10) days in advance of drawing upon the letter of credit. 19. LIQUIDATED DAMAGES In the event that the Towri finds the Franchisee is in violation of any material obligation under this ordinance or the franchise, the Town shall notify the -14- Franchisee in writing of such apparent violation and require the Franchisee to cure the default within a reasonable time. The Franchisee shall respond in writing to the notice of violation within ten (10) working days from receipt of such notice setting forth the steps taken to correct or propose to correct the violation. The Town may extend the time for such response upon a showing of just cause by the Franchisee. Franchisee may, within three (3) days of receipt of such notice, notify the Town that there is a dispute as to whether a violation or failure has in fact occurred. Such notice by the Franchisee to the Town shall specify with particularity the matters disputed by the Franchisee and shall stay the running of the above described time. The Town shall hear the Franchisee's dispute at a regularly scheduled meeting within a reasonable period of time. If after hearing the dispute, the claim is upheld by the Town, Franchisee shall have five (5) days from such a determination to remedy the violation or failure. The Town may assess penalties as follows: a. Up to one hundred dollars ($100) per day for construction related violations. b. Up to fifty dollars ($50) per day for recurring violations. c. Up to five hundred dollars ($500) for other violations. The penalties set forth herein are in addition to all other rights of the Town whether reserved by this franchise ordinance or authorized by law and no action, proceeding or exercise of a right with respect to such penalty shall affect any other right the Town may have. 20. FORFEITURE AND TERMINATION a. In addition to all other rights and powers retained by the Town under this ordinance and any franchise issued pursuant thereto, the Town reserves the right to forfeit and terminate the franchise and all rights and privileges of the Franchisee in the event of substantial breach of its terms and conditions. A substantial breach by the Franchisee shall include, but shall not be limited to, the following: 1) An uncured violation of any material provision of this ordinance or franchise issued thereunder, or any material rule, order, regulation, or determination of the Town made pursuant thereto; 2) An attempt to evade any material provision of the franchise or practice of any fraud or deceit upon the cable communications system customers and subscribers or upon the Town; -15- 3) Failure to begin or substantially complete any system construction or system extension as set forth in the franchise; 4) Failure to provide the mix, quality, and level of services promised in the application or specified in the franchise or a reasonable substitute therefor; 5) Failure to restore service after ten (10) consecutive days of interrupted service except when approval of such interruption is obtained from the Town; 6) Material misrepresentation of fact in the application for, or during negotiation relating to, the franchise; 7) Failure to provide surety and indemnity as required by the franchise or~ this chapter. b. Heritage shall have no liability to the Town, nor shall the Town have the right to terminate or revoke this franchise or invoke penalties in accordance with Section 19 of the Cable Ordinance as a result of any failure of Heritage to perform, or delay by Heritage in the performance of, its obligations hereunder (other than to pay the franchise fee and other payments required by this Agreement) if such failure or delay is caused by factors beyond the control of Heritage, including without limitation, any flood or other Act of God, laws, regulations, rules or orders of any governmental agency, sabotage, strikes, lockouts or job actions, failure or delay in transportation or the unavailability of any product or material necessary to the performance hereof; provided that Heritage has exercised all due care to prevent the occurrence of such events which are reasonably foreseeable, including without limitation, actively pursuing alternative products, materials and means of transportation. In the event that delay in performance or failure to perform affects only part of Heritage's capacity to perform, then Heritage shall perform to the extent it is reasonably able to do so. Heritage agrees that the excuse for nonperformance under this Section shall last only so long as the act which-excuses performance under this Section shall continue without interruption. In correcting any causes of nonperformance and in effecting any partial performance, Heritage shall take all necessary corrective actions as expeditiously as possible. c. The Town shall make a written demand by certified mail that the Franchisee comply with any such provision, rule, order or determination under or pursuant to the franchise. If a violation of the franchise continues for a period of thirty (30) days following such written demand without written proof that the -16- corrective action has not been taken or is being actively and expeditiously pursued, the Town may consider terminating the franchise; provided, however, a written notice thereof shall be given to the Franchisee at least fifteen (15) days in advance and the Franchisee must be given an opportunity to appear before the Council to present its arguments. Should the Town determine, following the public hearing, that the violation by the Franchisee was the fault of the Franchisee and within the Franchisee's control, the Town may, by resolution, declare that the franchise be forfeited and terminated; provided, however, the Town may in its discretion, provide an opportunity for the Franchisee to remedy the violation and come into compliance with the franchise and this ordinance so as to avoid the termination. 21. INSOLVENCY The franchise granted hereunder may be terminated prior to its expiration if the Town Council finds that Franchisee becomes insolvent, unable or unwilling to pay its debts as they become due, files a petition for relief under any state or federal bankruptcy, reorganization, insolvency or similar law (or any such petition is filed against the Franchisee and is not dismissed without sixty (60) days), is adjudged as bankrupt, assigns all or a substantial part of its assets for the benefit of its creditors, all or part of Franchisee's facilities are sold under an instrument to secure a debt, or a receiver is appointed with respect to all or a substantial part of the Franchisee's assets or stock. 22. REMOVAL OF CABLE COMMUNICATIONS SYSTEM In the event this franchise agreement expires, is revoked or otherwise terminated, Heritage shall remove at its own expense all designated portions of the cable communications system from all streets and public ways within the Town. In removing its plant, structures and equipment, Heritage shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways in as good a condition as that prevailing prior to Heritage's removal of its equipment and appliances without affecting the electrical or telephone or other utility lines, wires, pipes or attachments. The Town may inspect and approve the condition of the public ways, cables, wires, attachments and poles after removal. The liability, indemnity and insurance as provided herein and in the Vail cable television ordinance shall continue in full force and effect during the period of removal and until full compliance by Heritage with the terms and conditions of this paragraph and this ordinance. In the event of a failure by Heritage to complete any work required by this franchise agreement or the Vail cable television ordinance, or any other work -17- required by Town law or ordinance within the time as may be established and to the satisfaction of the Town, the Town may cause such work to be done. Heritage shall reimburse the Town the costs thereof within thirty (30) days after receipt of an itemized list of such costs. 23. SUBSCRIBER FEES AND RATES a. The initial fees to be charged to subscribers for all services including installation fee and other one time charges shall be specified in any franchise agreement issued pursuant hereto. b. Those fees and charges which are subject to regulation by the Town in accordance with Federal law shall not be increased without prior approval of the Town. c. In order to obtain Town approval for rate increases, the Franchisee shall file a revised schedule of rates with the Town at least ninety (90) days in advance of a proposed rate increase Subscribers shall be notified of the proposed increases within ten (10) days of notice to the Town. This filing shall specify the rates or fees to be increased and associated regulations which may affect charges to the subscribers and the justifications for said increases and charges. The Franchisee shall promptly submit any additional supporting information requested by the Town. d. Within thirty (30) days of the rate increase filing, the Town shall schedule a public meeting before thf~ Council to hear subscriber and Franchisee comment on the proposed increase. f=ollowing the public meeting, the Council shall determine whether or not to grant the proposed increase or a portion thereof prior to the expiration of said ninety (90) day period. e. Rates shall be just and reasonable, considering the Franchisee's costs, including a reasonble rate on investment over the remaining term of the franchise, and shall not give any undue or unreasonable preference or advantage to any subscriber or class of subscribers. f. Rates and charges may be reduced at any time without prior Town approval, provided that the reductions do not result in rates which are unreasonably discriminatory to any subscriber or class of subscribers. Where temporary reductions acre put into effect for promotional purposes for a specified time period, a return to the permanent rate shall not be considered a rate increase for the purpose of this Chapter. The Town shall be notified of all reductions in rates whether permanent or temporary. -18- g. Rates and charges not subject to regulation by the Town under Federal law or regulation may be changed by the Franchisee following a minimum of thirty (30) days prior notice to the Town and a minimum of thirty (30) days prior notice to all subscribers of basic service. 24. REPORTS a. Annual Report No later than one hundred twenty (120) days after the end of the each Franchisee's fiscal years, the Franchisee shall file a written report with the Town which shall include: 1) A summary of the previous calendar year's activities and development of the system, including but not limited to, services begun or dropped, number of subscribers, including gains and losses, homes past, and miles of cable distribution plants and service. 2) A financial statement certified by an officer of Heritage including a statement of income, a balance sheet, and a statement of sources and applications of funds. The statement shall include notes that specify all significant accounting policies and practices upon which it is based, including, but not limited to, depreciation rates and methodology, overhead and interest system cost allocation methods, and basis for interest expense. A summary shall be provided comparing the current year with the three previous years. The statement shall contain a summary of the payments. 3) An annual summary of complaints received. 4) An annual projection of plans for the future. 5) An annual report of the company. 6) A current annual statement of cost of construction by component category. 7) An ownership report, indicating all persons, who at any time during the preceding year directly controlled or benefited from an interest in the franchise of five (5) percent or more of the Grantee. 8) A copy of all the Franchisee's rules and regulations applicable to subscribers and users of the cable communications system. b. Additional Reports The Franchisee shall prepare and furnish to the Town at the times and in the form prescribed, such additional reports with respect to its operation, as may be reasonably necessary and appropriate to the performance of any of the rights, -19- functions or duties of the Town in connection with this ordinance or the franchise agreement. 25. RECORDS REQUIRED a. Mandatory Records The Franchisee shall at all times maintain: 1) A record of all complaints received during the term of the franchise. 2) A full and complete set of plans, records and "as built" maps showing the exact location of all cable television system equipment installed or in use in the Town, exclusive of subscriber service drops. b. Inspection by Town Upon reasonable noticE~ to the Franchisee, the Town shall have the right to inspect all property, maps, and records relating to the cable operations at any time during normal business hours. All records required by the Town for such inspection shall be made available within the Town of Vail, Colorado, within a reasonable time after the request. 26. FILINGS The Franchisee shall mail or deliver a copy of all filings it makes with State and Federal agencies to the Town Clerk. Said copy shall be mailed or delivered on the filing date. 27. SERVICE CALLS AND COMPLAINT PROCEDURES a. During the term of the cable franchise, the Franchisee shall maintain an office in the Town or in the vicinity thereof which subscribers within the franchise area may telephone without incurring toll charges. Except in the event of catastrophic failure, no subscriber's complaint shall remain without investigation by the Franchisee for more than a twenty-four (24) hour period. The Franchisee will provide the Town with a name, address and telephone number of the person who will act as the Franchisee's agent to receive complaints regarding quality of service, equipment malfunctions and similar matters. The local office shall be open to receive inquiries or complaints from subscribers during normal business .hours, and in no event less than 9:00 a.m. to 5:00 p.m. Monday through Friday excluding legal holidays. All employees of the Franchisee whose employment relates to the operation or maintenance of the system shall be required to carry an identification card and present same to any subscriber upon request when entering the premises of such subscriber for the purpose of providing service or otherwise. The Franchisee shall provide the means to accept complaint calls twenty-four (24) hours a day, seven (7) -20- days a week. Accurate records shall be kept by the Franchisee summarizing the nature, extent, time and date by which the complaint was resolved or sought to be resolved. The Franchisee shall promptly furnish each present or future subscriber with a letter of instruction explaining the importance and the manner of reporting complaints and rules and regulations ,governing the obligations of the Franchisee to respond to subscriber complaints. Calls or letters involving complaints about billing and programming will be handled immediately whenever possible. A written complaint will be retained for two (2) years, including a summary reply. The complaint filed shall be available for periodic inspection by the Town. b. Should a subscriber have an unresolved complaint regarding the quality of the cable television service, equipment malfunctions, or other pertinent matters, the subscriber shall be entitled to meet jointly with the Town Manager or his authorized representative and the Franchisee System Manager to fully discuss in an attempt to resolve such matters, provided, that prior to such meeting, the subscriber shall clearly state in writing the specific nature, frequency and extent of the alleged problem and the dates on which the problem has occurred. This written complaint shall be filed with the Town Manager, who shall forward a copy of such complaint to the Franchisee System Manager. Franchisee shall then have five (5) days after receiving the complaint within which to assess the problem and file a written response with the Town Manager stating specifically what has been done to correct the problem. If the subscriber remains unsatisfied after following this procedure he may then request that such a meeting with the Town Manager or his authorized representative and Franchisee System Manager be held. When there have been similar complaints made or where there exists other evidence which in the judgment of the Town cast doubt on the reliability or quality of cable service, the Town shall have the right and authority to require the Franchisee to test, analyze and report on the performance of the system. The Franchisee shall fully cooperate with the Town in performing such testing and shall prepare results in a report, if requested, within thirty (30) days after notice. Such report shall include the following information: 1) The nature of the complaint or problem which precipitated the tests. 2) What system component was tested. 3) The equipment used and procedures employed in testing. 4) The method, if any, in which the complaint or problem was resolved. -21- 5) Any other information pertinent to said tests and analysis which may be required. Where there are recurring service problems, the Town may require that tests be supervised by a qualified independent professional engineer not on the permanent staff of the Franchisee. The engineer shall sign all records of special tests and forward to the Town such records with a report interpreting the results of the tests and recommending actions to be taken. The costs of said engineer's serv-ices shall be the sole obligation of the Franchisee. c, In the event that total service to any subscriber is interrupted for twenty-four (24) or more consecutive hours, except in circumstances for which advance consent to the interruption is obtained from the Town, the Franchisee shall provide a one-thirtieth (1/30) pro rata rebate of the monthly fees to affected subscribers upon the subscriber's request for each twenty-four (24) hour period, or portion thereof, that service is interrupted. For purposes of computing the time of interrupted total service, such time shall begin when a complaint for interrupted service is received by the Franchisee ar when the Franchisee has actual or constructive notice of the interruption. 28. SERVICE TO SUBSCRIBERS A Franchisee shall provide all the following services to subscribers: a. A basic subscriber television service tier which consists, at minimum, of any legally required must carry signals an information and weather channel and at least one (1) public educational and governmental access channel. b. The Franchisee shall provide leased access channels to the extent required by Federal law. c. A Franchisee shall provide equipment directly or through grants for local program production by all cable users for live and video tape presentation over the cable television system. The Franchisee shall have no control over the content of access programs. Any public access channel shall be made available to any member of the public on a first come, first served, nondiscriminatory basis. 29. LEASED ACCESS They Franchisee shall make channels available for leased or commercial use as specified in the franchise agreement consistent with Federal law. 30. PUBLIC DROPS The Franchisee shall provide without charge within the franchise area one drop activated for basic subscriber cable television service to each fire station, -22- public school, police station, public library, municipal building and other such buildings used for public purposes. 31. LOCK OUT DEVICE The Franchisee shall provide, for sale or lease, upon request, a lockout device for use by a subscriber. Such device shall be capable of restricting the reception of any channel. The lockout device should be made available to all subscribers requesting it and the charge and availability of this device shall be made a part of the rate schedule. 32. PROTECTION OF SUBSCRIBER PRIVACY Franchisee shall protect the Town's privacy consistent with the provision of 47 U.S.C. 631, as amended. 33. CONSTRUCTION AND INSTALLATION WORK a. The Town shall have the right but not the obligation to inspect all construction and installation work performed by the Franchisee subject to this Chapter as it shall find necessary to insure compliance with the governing ordinances and the franchise. b. All construction, installation, and maintenance must comply with all Town ordinances including all uniform codes adopted by the Town and all state and local regulations and good and accepted industry practices. 34. LOCATION OF STRUCTURES, LINES AND EQUIPMENT a. The Franchisee shall utilize existing conduits and other facilities whenever possible, and sha"I1 not construct or install any new, different or additional conduits or other facilities whether on public property or on privately owned property until approval of the property owner or appropriate governmental authority is obtained. However, the location and installation of any conduit, or other facility by a Franchisee shall not create a vested interest, and such structures, or facilities shall be removed, replaced, or modified by a Franchisee at its own expense whenever the Council or other governmental authority determines that the public interest so necessitates. b. All transmission and distribution structures, lines and equipment installed by the Franchisee within the Town shall be .located so as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, alleys or other public ways or places and where they will not interfere with any gas, electric, telephone, water or other preexisting utility facility. -23- c. All such fixtures in any street or public way shall be placed in full accordance with the standards set forth in the Municipal Code of the Town of Vail. d. Cable shall be installed underground at Franchisee's expense. Previously installed aerial cable sf~all be placed underground in concert with other utilities when both the telephone and electrical utilities convert from aerial to underground construction. Franchisee shall place cable underground in newly platted areas in concert with both the telephone and electric utilities unless this requirement is waived by the Town. Equipment shall not be stored on Town right-of- way. A preconstruction conference with the property owners will be completed prior to commencing any underground construction, and the Town shall assist and cooperate in such conferE~nces if necessary. All soil, earth, sod or improvements disturbed by the installation shall be replaced and restored to their original condition. Patching of highways, roads and driveways will be completed in accordance with the specifications promulgated by, and subject to inspection and approval by, Town, County or State engineers, as appropriate. 35. REPLACEMENT OF PAVING The Franchisee at its own cost and expense and in a manner approved by the Town shall replace and restore all paving, sidewalks, driveways or surface of any street or alley or public way disturbed, in as good a condition as before the work was commenced and shall maintain the restoration in an improved condition for a period of one (1) year. Failure of the Franchisee to replace or restore such paving, sidewalk, driveway, or street surface within forty eight (48) hours after completion of work shall authorize the Town to cause the proper restoration to be made at the Franchisee's expense. 36. ALTERATION OF STREETS BY TOWN If the Town shall lawfully decide to alter or change the grade of any street, alley, or other public way, the Franchisee, upon reasonable notice by the Town, shall, in a timely manner as requested by the Town, remove and relocate its poles, wires, cables, underground conduits, and other facilities at its ,own expense. If other utilities are compensated, Franchisee shall be entitled to the same compensation. 37. TRIMMING TREES A Franchisee shall have the authority to trim trees upon an overhanging of streets, alleys, sidewalks, and public places of the Town so as to prevent the branches of such trees from coming into contact with wires and cables and other -24- television conductors and fixtures~of the Franchisee. The Town may require all trimming to be done under its supervision and direction and at the expense of the Franchisee. 38. TEMPORARY MOVE OF CABLES A Franchisee shall on the request of any person holding a valid house moving permit, temporarily raise or lower its wires or cables to permit the moving of buildings or other large projects. The expense of such temporary raising or lowering of wires shall be paid by the person making the request, and the Franchisee shall have the authority to require such payment in advance. The Franchisee shall be given not less than forty eight (48) hours advance notice to arrange for such temporary wire changes. 39. REFUNDS AND SERVICE TERMINATIONS a. A Franchisee shall establish and conform to the following policy regarding refunds to subscribers and users: If the Franchisee collects a deposit or advance charge on any service or equipment requested by a subscriber or user, the Franchisee shall provide such service or equipment within thirty (30) days of the collection of the deposit or charge or the Franchisee shall refund such deposit or charge within five (5) business days thereafter. Any converter security deposit collected by the Franchisee shall be returned to the subscriber twenty-four (24) months after the installation of such converter, or upon termination of service by the subscriber and return of such converter undamaged with allowance for reasonable wear and tear and payment of any outstanding balance due and payable, whichever occurs first. If and when the Franchisee collects deposits from its subscribers, it shall pay interest on any deposit required of the subscriber at the agreed rate in effect from time to time minus two (2) percentage points. The Franchisee may elect to pay such interest in the form of credits to subscriber accounts. Nothing in this Section shall be construed: 1) To relieve a Franchisee of any responsibility it may have under separately executed contracts or agreements with its subscribers or users; 2} As limiting a Franchisee's liability for damages, if any, which may be imposed under the franchise for the violation or breach of any provisions thereof; or 3) To limit the Franchisee's liability for damages, if any, because of its failure to provide the service for which deposit or charge was made. b. The following requirements shall apply to subscriber disconnection: -25- 1) There shall be i1o charge for disconnection of any installation, service or outlet. All cable communications equipment shall be removed within a reasonable time from a subscriber's property upon the subscriber's request, such time not to exceed thirty (30) days from the date of request. Franchisee may charge for adding or deleting channels at the subscriber's request. 2) If any subscriber fails to pay a properly due monthly subscriber's fee, or any other properly due fee or charge, the Franchisee may disconnect the subscriber's service; provided, however, that such disconnection shall not be effected until thirty (30) days after the due date of the monthly subscriber fee or charges and shall include a minimum five (5) days written notice to the subscriber of the intent to disconnect. After disconnection, upon payment in full of all proper fees or charges, including the payment of any reconnection charge, the Franchisee shall promptly reinstate the service. 40. SERVICE AREA They Franchisee shall offer full cable television service to all areas of the Town unless specifically authorized to serve a lesser area. A franchise issued in accordance with this Ordinance shall require that all dwelling units within the franchise territory be offered service on the same terms and conditions; provided, however, multiple family dwelling complexes, apartments, or condominiums may be served on a master-bill basis; and further, service to motels, hotels, hospitals, and similar businesses or institutions may be offered on terms and conditions different from single residence subscribers. In the event that subsequent to the issuance of a franchise the Town annexes additional territory, a Franchisee shall extend its cable television services into the annexed area within a reasonable time of a request by the Town to do so. Such reasonable time shall not be less than nine (9) months. 41. CONTINUITY OF SERVICE a. Where a Franchisee rebuilds, modifies, or sells its system, it shall ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. b. As long as it is entii:led to revenues from the operation of the cable system, a Franchisee shall maintain continuity of service during any temporary transition in the franchise, including but not limited to, the following circumstances: -26- 1) Revocation of the franchise. 2) Nonrenewal of the franchise. 3) Transfer of the cable system to the Town or another entity. 42. TRANSITIONAL OPERATION In the event a Franchisee continues to operate the system in a transitional period, with Town acquiescence, following the expansion, termination of the franchise, it shall be bound by all t obligations of the franchise as if it were in full force terminating Franchisee shall cooperate with the Town and in maintaining and transferring service responsibility. 43. PERIODIC REEVALUATION AND RENEGOTIATIONS a. Since the field of cable communications is revocation, or other ~e terms, conditions, and and effect. The any subsequent Franchisee rapidly evolving and many technological, regulatory, financial, marketing, legal, competitive, and other changes are likely to occur during a franchise term, a degree of flexibility is needed in order to achieve and maintain a modern and efficient cable communications system that adequately serves the public. To this end, the Town with cooperative assistance from a Franchisee, shall periodically reevaluate the system operation and negotiate appropriate franchise changes. b. The Town shall reevaluate the Franchisee's cable operations and service three (3) years following the award date of the franchise and every three (3) years thereafter for the life of the franchise. The Franchisee shall cooperate with the Town in such evaluation and provide information as may be necessary for the evaluation. c. Following the public release of a reevaluation report, the Town and the Franchisee shall meet to discuss the reevaluation and possible means of improving service to the public. At that time, the parties shall negotiate any changes in the franchise that may be necessary or desirable. Upon request of the Town, Franchisee shall, no earlier than ninety (90} days and no later than thirty (30) days prior to a review and evaluation session, conduct a written survey of subscribers. Each questionnaire shall be prepared and constructed in good faith so as to provide measurements of subscribers preferences and satisfaction for: 1) Programming offered by Franchisee at the time the survey is conducted. 2) Programming generally available to cable subscribers nationally but not offered by Franchisee at the time the service is conducted. 3) Maintenance and subscriber complaint practices. _2~_ . As a part of the review and evaluation session, Franchisee shall report in writing what steps it may be taking to implement the findings of the survey. d. The Town and the Franchisee may meet at other times to discuss and negotiate possible changes to the franchise pursuant to an agenda agreed to in advance by both parties. Such special sessions are intended to provide a mechanism for effecting franchise changes necessitated by major events affecting cable communications, such as state or federal legislation, new or revised state or federal regulations, or an extraordinary change in circumstances. 44. THEFT OF SERVICES AND TAMPERING a. No person, whether or not a subscriber of the cable television system may intentionally or knowingly damaye or cause to be damaged any wire, cable, conduit, equipment or apparatus of t;he Franchisee or commit any act within intent to cause such damage, or to tap, remove, or tamper with or otherwise connect or maintain any wire or device to a wire, cable, conduit, equipment and apparatus or appurtenances of the Franchisee with the intent to obtain and maintain a signal or impulse from the cable system without authorization from or compensation to the Franchisee, or to obtain and maintain cable television or other communications service with the intent to cheat or defraud Franchisee of any lawful charge to which it is entitled. b. Any person convicted of violating any provision of this Section is subject to a fine of not more than five hundred dollars ($500) for each offense. 45. RENEGOTIATION If any court of competent jurisdiction, the FCC or any state regulatory body rules, decisions or other action determines prior to the commencement of system construction, that any material provision of this Ordinance or any franchise granted pursuant thereto, is invalid or unenforceable, then in such event, the Town shall retain the right to renegotiate any franchise entered into prior to any such rule, decision or other action. For the purpose of this section, "Commencement of System Construction" shall mean the first day that physical construction, including but not limited to, the placing of cable on poles or underground, actually begins. 46. SEVERABILITY If any provision, section, subsection, sentence, clause or phrase of this Ordinance is, for any reason held to be unconstitutional, void or invalid or for any reason unenforceable, the validity of the remaining portions of this Ordinance shall not be affected thereby, it being the intent of the Town Council in adopting and approving this Ordinance then no portion hereof or provision or regulation contained _28_ herein shall become inoperative or fail by reason of any unconstitutionality or invalidity of any other portion, provision or regulation and all provisions of this Ordinance are declared to be severable. INTRODUCED, READ AND APPROVED ON FIRST READING THIS day of 1989, and a public hearing shall be held on this Ordinance on the day of 1989 at 7:30 p.m. in the Council Chambers of the Vail Municipal Building, Vail, Colorado. Ordered published in full this day of 1989. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk INTRODUCED, READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this day of . 1989. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk -29- ORDINANCE N0. 19 Series of 1989 AN ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE TO HERITAGE CABLEVISION TO CONSTRUCT, RECONSTRUCT, OPERATE, AND MAINTAIN A CABLE COMMUNICATIONS SYSTEM WITHIN THE TOWN OF VAIL PURSUANT TO AND SUBJECT TO THE PROVISIONS OF ORDINANCE N0. 18, SERIES OF 1989. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. Pursuant to Ordinance No. 18, Series of 1989, the franchise agreement between the Town of Vail, Colorado and Heritage Cablevision, attached hereto as Exhibit A, and made a part hereof by reference, is hereby authorized and approved, and the Town Manager is hereby authorized and directed to execute said franchise agreement on behalf of the Town. Section 2. If any part, section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance; and the Town Council hereby declares it would have passed this Ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Town Council hereby finds, determines and declares that this Ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. Section 4. The repeal or the repeal and reenactment of any provision of the Municipal Code of the Town of Vail as provided in this Ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceedings as commenced under or by virtue of the provision repealed or repealed and reenacted. The repeal of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. a INTRODUCED, READ AND APPROVED ON FIRST READING this day of 1989, and a public hearing shall be held on this Ordinance on the day of 1989, at 7:30 p.m. in the Council Chambers of the Vail Municipal Building, Vail, Colorado. Ordered published in full this day of 1989. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk INTRODUCED, READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this day of 1989. -2- 6 l HERITAGE CABLEVISION and TOWN OF VAIL FRANCHISE AGREEMENT TABLE OF CONTENTS PARAGRAPH TITLE PAGE NO. 1. Grant of Franchise 1 2. Representations and Warranties of Heritage 2 3. Effective Date of Franchise; Effect upon Existing Franchise 2 4. Term 3 5. Franchise Non-Exclusive 3 6. Cable Television Ordinance Incorporated 4 7. Definitions q 8. Service Area 5 9. System Design and Capacity 7 10. Right of Inspection 11 11. System Services 11 12. Access and Institutional Services 12 13. General Provisions 13 14. Subscriber Rights and Complaints 15 15. Privacy Policies 15 16. Franchise Renewal 15 17. Transfer of Ownership or Control 15 18. Police Powers 17 19. Franchise Fee 17 20. Rates and Charges lg 21. Insurance lg 22. Cooperation lg HERITAGE CABLEVISION and TOWN OF VAIL FRANCHISE AGREEMENT TABLE OF CONTENTS (page 2) PARAGRAPH TITLE PAGE N0. 23. Waiver 19 24. Cumulation of Remedies 19 25. Compliance with Federal, State, and Local Laws 19 26. Notices 20 27. Captions 20 28. Company shall Hold Town Harmless 20 29. Time is of the Essence 20 30. Construction of Agreement 20 31. No Joint Venture Z1 32. Entire Agreement 21 33. Severability 21 HERITAGE CABLEVISION and TOWN OF VAIL FRANCHISE AGREEMENT This agreement is made and entered into on lggg by and between the TOWN OF VAIL, Colorado, a Colorado municipal corporation ("the Town") and CABLEVISION VI, INC. D/B/A HERITAGE CABLEVISION ("Heritage"). WHEREAS, the Town is authorized to grant one or more non-exclusive, revocable franchises to construct, reconstruct, operate and maintain a cable television system within the Town; and WHEREAS, the Town has received a request for renewal of the existing franchise from Heritage; and WHEREAS, the Town, after public hearings and due evaluation, has determined that it is in the best interest of the Town and its residents to renew the franchise of Heritage. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein the parties do mutually agree as follows: 1. GRANT OF FRANCHISE A. Heritage is hereby granted, subject to the terms and conditions of this franchise agreement, and the franchise ordinance, the right, privilege and authority to construct, operate, maintain and reconstruct a cable television system within the streets, alleys, easements or such easements as are broad enough to allow the installation of cable television facilities, and public ways of the Town. Heritage shall provide a modern and uniform Town-wide cable communications system to the residents and institutions of the Town in accordance with this franchise agreement. B. This franchise is subject to Chapter of the Town of Vail Municipal Code and other ordinance provisions now in effect or hereinafter made effective. Nothing in this agreement .shall be deemed to waive the requirements of the various codes and ordinances of the Town regarding permits, fees to be paid, or manner of construction. C. For the purpose of operating and maintaining a cable television system in the Town, Heritage may erect, install, construct, repair, replace, reconstruct, and retain over, under, or upon the public streets, available easements, alleys and ways within the Town, such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable television system in conformance with the Town's specifications. Prior to any construction or alteration, however, Heritage shall file plans with the appropriate Town agencies and utility companies and receive written approval before proceeding. D. Upon receipt of any notice to the effect that Heritage is required to comply with laws or regulations inconsistent with the provisions of this franchise, or upon a determination that any provision hereof is for any reason invalid, the Town shall have the right to modify or amend any section or sections of this franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of this franchise. 2. REPRESENTATIONS AND WARRANTIES OF HERITAGE A. Heritage represents and warrants that it shall comply with all provisions of the franchise; B. Heritage represents and warrants that neither it nor its representatives or agents have committed any illegal acts or engaged in any wrongful conduct contrary to, or in violation of any federal, state or local law or regulation in connection with the obtaining of this franchise; C. Heritage represents and warrants that it is a corporation licensed to do business in Colorado and has full right and authority to enter into and fully perform the franchise; D. Heritage represents and warrants that all corporate action required to authorize the acceptance of the franchise and execution and delivery of this agreement and all other documents to be executed and/or delivered by Heritage pursuant to the franchise and to authorize the performance by Heritage of all of its obligations under the franchise, and all such other documents to be executed and/or delivered by Heritage have been validly and duly acted on and are in force and effect; E. Heritage represents and warrants that the franchise and all other documents executed and/or delivered by Heritage have been duly accepted and executed; F. Heritage represents and warrants that it has carefully read the terms and conditians of the franchise and accepts the obligations imposed by the terms and conditions of the franchise. 3. EFFECTIVE DATE OF FRANCHISE; EFFECT UPON EXISTING FRANCHISE A. Heritage shall have thirty (30) days from the date of adoption of this ordinance to accept the grant of a franchise by executing the franchise agreement. Such acceptance by Heritage shall be deemed the grant of this franchise for all -2- purposes and immediately upon the taking affect of this franchise agreement, the prior franchise granted to Heritage or their predecessor in interest on 19 by the passage of Ordinance No. shall be superseded and have no further force and effect; provided however, vested rights relating to billings and the Town's rights to accrue and collect franchise fees shall not be affected thereby; and provided, further, that any criminal proceedings commenced under or pursuant to said franchise shall in no manner be affected. In the event acceptance does not take place within thirty (30) days or such other time as the Town might allow, this franchise shall be null and void. B. Upon acceptance of this franchise, Heritage shall be bound by all the terms and conditions contained herein. Heritage shall provide all services and offerings specifically set forth herein to provide cable television services within the Town. C. With its acceptance, Heritage also shall deliver to the Town a certified resolution of Heritage evidencing its power and authority to accept the franchise. Such document shall also describe officers authorized to accept on behalf of Heritage. D. With its acceptance, Heritage shall also pay all costs and expenses, including attorneys fees, incurred by the Town in connection with the renewal process. The Town shall provide an itemized statement to Heritage. Costs or expenses of the Town not identified at that time shall be paid promptly by Heritage upon receipt of an itemized statement from the Town. It is the intent of the Town and Heritage that the Town be reimbursed for all costs and expenses, including attorneys fees, in connection with the granting of the franchise including any subsequent expenses due to delays or litigation pertaining to the grant of the franchise. This fee shall be dollars ($ ), and shall be in addition to the franchise fee or any other payments required hereunder. E. With its acceptance, Heritage shall also deliver any security deposit, letter of credit, insurance certificates, performance bonds, and equipment grant required herein. 4. TERM The franchise granted hereunder shall be for a term of five (5) years from 5. FRANCHISE NON-EXCLUSIVE This franchise shall not be construed as any limitations upon the right of the Town to grant to other persons, rights, privileges, or authorities similar to -3- the rights, privileges and authorities herein set forth, in the same or other streets, alleys, or public ways or public places. The Town specifically reserves the right to grant at any time during the term of this agreement or renewal thereof, if any, such additional franchises on the same or similar terms, for any cable television system as it deems appropriate. 6. CABLE TELEVISION ORDINANCE INCORPORATED All terms, conditions, and provisions of the Town of Vail cable television ordinance shall be deemed to be embodied in this franchise agreement, and the express terms of the ordinance shall prevail over conflicting or inconsistent provisions of this franchise agreement. 7. DEFINITIONS The following words and phrases, when used in this agreement, shall, for the purpose hereof have the meanings ascribed to them in this Section. A. "Cable communications system" or system shall mean a facility consisting of a set of transmission paths and associated signal generation, and reception and control equipment, under common ownership and control, that distributes or is designed to distribute to public subscribers cable television services, institutional services, or other communications services, but such terms shall not include: 1) A facility or combination of facilities that serves only to retransmit the television signals of one or more television broadcast signals; 2) A facility or combination of facilities that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities use any public right-of-way; 3) A facility of a common carrier which is subject, in whole or in part to the provisions of Title II of the Communications Act of 1934, as amended; except that such facility shall be considered a cable system [other than for the purposes of 47 U.S.C. 541(c)] to the extent such facility is used and the transmission of video programming directly to subscribers; or 4) Any facilities of an electric utility used solely for operating its electric utility system. B. "Channel" shall mean a six (6) megahertz (MHz) frequency band which is capable of carrying either one (1) standard video signal, a number of audio, digital or other non-video signals, or some combination of such signals. C. "Downstream" shall mean signals originating at the head end or hub and transmitted to subscribers. -4- D. "Earth station" shall mean equipment used to receive signals from or transmit signals to a communications satellite. E. "Franchise grant ordinance" shall mean the ordinance granting a franchise to a Grantee. F. "Head end" shall mean the facility, including antennas and associated electronics which receives, controls, and switches the electronic information transmitted over the cable communications system. G. "Residential service" shall mean any service delivered by the cable communications system principally to subscribers in their dwelling units. H. "School" shall mean any duly accredited non-profit educational institution, including primary and secondary schools, colleges and universities, both public and private. I. "State-of-the-art" shall mean any cable communications system, components, or equipment accepted and used in the cable communications industry which is the most modern and advanced equipment generally accepted and used in the cable communications industry. J. "Wire tapping" shall mean the unauthorized reception of a communications signal. K. "Two-way" shall mean the simultaneous transmission of upstream and downstream signals through a cable communications system. 8. SERVICE AREA A. Line Extension Heritage shall offer cable television service to all areas of the Town in accordance with the following line extension policy. In the city limits of the Town as they stand on 1989, Heritage shall, provide service to any dwelling unit or commercial subscriber that is served by the existing system and in other areas where there are at least thirty (30) residential dwelling units or commercial units per mile of cable plant. In other areas annexed to the Town or developed after 1989, Heritage shall provide service to any new dwelling unit or commercial subscriber where there are at least twenty (20) dwelling units or commercial units per proposed additional cable plant mile. Further, in other areas with less than thirty (30) dwelling units or commercial units per proposed cable plant mile, Heritage shall offer a cost-sharing arrangement with residents. -5- Heritage's share (set herein as per subscriber) shall be recalculated annually and based upon then-current costs for labor and materials. Residents desiring cable television services shall contribute the remaining costs for line extensions to provide services to their dwelling units. The Town and Heritage shall derive future contribution amounts based on average annual costs for thirty (30) homes per mile, it being understood that the costs for underground not be the same. Any contribution-in-aid of construction provided by a subscriber pursuant to this Section shall be promptly refunded to such subscriber without interest if, and at such time as, such subscriber's premises is served by system distribution lines which pass at least forty (40) occupied dwelling units per linear mile of cable plant; provided, however, that no such refund need be made if the date on which such refund should be due is more than five (5) years from the date Heritage initially provided service to such subscriber. At the time such contribution-in-aid is accepted, Heritage shall notify, in writing, each such subscriber from whom such contribution-in-aid is accepted that the amount paid by the subscriber as contribution-in-aid is refundable under the terms and conditions hereof. Heritage shall obtain acknowledgment, in writing, from each such subscriber that the notification has been given, along with the address to which such reimbursement shall be made. It shall be the responsibility of each subscriber to keep Heritage informed, in writing, of the current address of the subscriber to which reimbursement should be mailed, and Heritage will be deemed to be in compliance with this section, by mailing, certified mail, return receipt requested, the reimbursement to the subscriber at the last address furnished by the subscriber. If such reimbursement is returned to Heritage as undeliverable, the reimbursement shall belong to Heritage. B. Heritage shall provide service to all annexed areas of the Town within nine (9) months of obtaining easements and appropriate permits. Heritage shall make every reasonable effort to obtain easements within three (3) months after the effective date of such annexation. If easements are unavailable due to circumstances beyond the control of Heritage, Heritage shall make every reasonable effort to find an alternative route to provide cable television service. Heritage shall report periodically to the Town on its progress in providing service to annexed areas of the Town. -6- 9. SYSTEM DESIGN AND CAPACITY A. Present System Overview Heritage will maintain the existing cable communication system as a state-of-the-art system. Parties understand and agree that at the time of this franchise that system consists of a residential network with a capacity of three- hundred (300) MHz. The present system is currently capable of carrying thirty-six (36) channels and there are currently thirty-one (31) activated channels. The broad categories are video and other services as set forth in Exhibit A. The current system transmits all basic channels unscrambled so that they are available to cable-ready TU sets and video cassette recorders without the need for a converter. BTSC standard stereo shall be broadcast on all those channels as indicated in Exhibit A attached hereto and made a part hereof. B. Community Information Service Heritage shall provide a community information service channel to be used exclusively by the Town. Heritage shall provide to the Town, free of charge, one (1) Texscan SG-EBN character generator with two (2) remote keyboards with a minimum of fifty-eight (58) page memory and color graphics, and a video switching capability to enable the playing of video tapes. Said equipment shall be located in such public buildings as may be designated by the Town with ability to transmit signals to the head end. The equipment will be installed by Heritage and remain the property of Heritage, and all maintenance, except that required because of gross neglect or intentional injury by the Town shall be responsibility of Heritage, provided that the equipment is delivered and picked up at Heritage's repair facility. The community information channel and the equipment referred to above shall be provided within six (6) months from the date this contract is executed. C. Public Educational and Governmental Access In addition to the community service channel, Heritage shall provide, at no cost to the users, at least one (1) specially designated channel available for governmental, educational and public access. In the event that said specially designated access channel is in use by the general public, local educational authorities and local governmental units during seventy-five (75) percent of the weekdays (Monday through Friday) for seventy-five (75) percent of the time for six (6) consecutive weeks for non-character generated programming using film, video or live telecasting, and the Town makes a demand for use of an additional channel for access, Heritage shall have six (6) months in which to make available one (1) more specially designated access channel. -7- D. Technical Standards The minimum technical standards shall be the minimum standards set forth by the Federal Communications Commission in their rules, as amended from time to time, or any rules that supersede such rules. Regardless of the technical standards that may be applicable the system shall be capable of providing to subscribers video and aural signals of consistently good quality. Should the FCC cease to prE~empt the Town's authority to set technical standards, the minimum technical standards shall be as follows: 1) Heritage shall construct the system in accordance with the technical specifications in Exhibit C and performance standards set forth herein using materials of good and durable quality. All work involved in construction, installation, maintenance and repair of the system shall be performed in a safe, thorough and reliable manner. 2) The system shall be maintained in accordance with the highest accepted standards of the industry 'to the end that the subscriber may receive the highest and most desirable form of service. a) The system shall be capable of passing the entire VHF and FM spectrum, and it shall have the further capability of converting UHF for the distribution to subscribers on the VHF band. b) The system shall be capable of transmitting and passing the entire spectrum of color television signals without material degradation of color, fidelity and intelligence. c) The system shall be designed and capable of twenty-four (24) hours per day continuous operation. d) The system shall be capable of and will produce a picture upon any subscriber's standard production television screen in black and white or color (provided the subscriber's television set is capable of producing a color picture) that is undistorted and free from ghost images and accompanied by proper sound, assuming the subscriber's television set is in good repair, and that the television broadcast signal transmission is satisfactory. In any event, the picture produced shall be as good as the state-of-the-art and the off-the-air signal received permit. e) The system shall transmit or distribute signals of adequate strength to produce good pictures with good sound in all television receivers of all subscribers without causing cross modulation in the cables or interference with other electrical or electronic systems. -8- f) Heritage shall not allow its cable or other operations to interfere with the television reception of persons not served by Heritage, nor shall the system interfere with, obstruct or hinder in any manner the operation of the various utilities serving the residents of the Town. g) Heritage shall continue, throughout the term of this franchise, to maintain the technical standards and quality of service set forth in this ordinance. 3) In addition to the FCC required annual proof of performance testing, the Town may require periodic tests of the technical performance of the system to enforce full compliance with the FCC's minimum technical specifications and performance standards as set forth in Exhibit C attached to this ordinance. The reasonable cost of said test shall be paid by Heritage. Heritage shall not be responsible for the cost of testing which occurs more frequently than once a year. 4) The system shall be installed and maintained in such a manner so as not to unreasonably interfere with police, fire and other licensed radio communications, noncable television reception, lawful use of citizen band, ham radios and other lawful communications media. E. Satellite Earth Station The system configuration shall include satellite earth station capability to receive signals simultaneously from all operational U.S. domestic satellites carrying at least four (4) non-duplicated non-premium cable entertainment services. Heritage shall provide a sufficient number of earth stations to receive signals from all operational U.S. communications satellites that generally carry programs available to cable systems throughout the life of the franchise. F. Capacity for Interactive Residential Services The cable communications system shall have the capacity for interactive residential services including, but not limited to, security alarm monitoring, home shopping, energy management, video techs, subscriber polling, video games, meter reading, and one way or interactive education. The cable system shall also have the capability for providing shop at home and electronic banking services. All customer equipment necessary for such services such as addressable interactive converters, home terminals and home detectors shall be provided to subscribers by Heritage in accordance with established and uniform rate schedules. G. Standby Power Heritage shall provide standby power generating capacity at the cable communications system control center and at major trunk line locations. Heritage -9- shall maintain standby power systems supplies, rated for at least four (4) hours duration, throughout the distribution networks. H. Frequency Availability Heritage shall use its best efforts to assure the availability of appropriate frequencies to be used on the cable communications system. Heritage shall at ali times during the term of the franchise comply with all rules and regulations promulgated by the FCC regarding frequency usage and cable television system requirements. I. Addressable Capability The cable communications system shall be addressable with capability for users to acquire signal security for selected channels and subchannels through techniques such as signal scrambling or encoding. The addressable features shall be activated at: such time as services are provided. J. Technological Improvements to System 1) Heritage shall have a continuing obligation to improve and expand the system consistent with changes and developments in the cable communications industry, the public interest, prudent business judgment and reasonable economic considerations. 2) In the event that either (i) Heritage, its parent companies or affiliates have installed technological improvements in at least 25 percent of the other cable television systems owned by Heritage, its parent companies or affiliates, or (ii) at least 25 percent of the cable television franchisees or cable television license or permit holders in cities in the State of Colorado with populations in the range between 8,000 and 20,000 have cable television systems which increase channel capacity or bidirectional capacity, provide improvements in technical performance, provide for interconnection or provide other substantial improvements over that provided to the Town in this franchise, then Heritage shall make said improvements available to the Town system subscribers. Heritage shall promptly notify the Town Manager of the occurrence of either such event. 3) If the Town Council determines that either of the events described in Subsection 2 have occurred, then the Town Attorney shall send written notice thereof to Heritage specifying (i) the particular improvements so required, and (ii) the date by which such improvements shall be completed, which shall not be unreasonable taking into account the estimated time actually necessary to install such improvements. -10- K. Emergency Override Commencing January 1, 1990, the system shall include an "emergency alert" capability which will permit the Mayor or the Mayor's designated representative in the event of an emergency affecting the public health, safety or welfare to interrupt signals distributed over the system by Heritage and override the audio of all channels or allow for video crawl over all such channels, in either case for the purpose of delivering messages necessitated by such emergency. The Town Council in consultation with the Mayor and Heritage shall establish rules and regulations governing the exercise of power by the Mayor pursuant to this Section. 10. RIGHT OF INSPECTION The Town shall, at its own expense, have the right, but not the obligation, to inspect all construction and installation work performed (subject to the provisions of this franchise) and shall make such tests as it shall find necessary to determine compliance with the terms of this agreement and other pertinent provisions of the law; provided, however, that the Town shall be permitted to charge Heritage its usual and customary fees for the inspection of construction in public rights-of-way; and provided, further, that such inspection and tests shall not materially interfere with the provision of subscriber services. Any delays in construction due to the inspection shall not be reason for default. The Town shall also have the right, but not the obligation, to have all construction and installation work performed (subject to the provisions of this franchise) reviewed by an independent engineer: to determine whether all construction or improvements are in compliance with the franchise; all technical standards are being met; and there is compliance with all applicable Town codes and standards. If such testing indicates that the system does not meet all required technical standards, Heritage shall bear the expense for such testing. 11. SYSTEM SERVICES A. Initial Residential Subscribers Services and Programming Attachment A which is incorporated herein by reference describes the composition of the basic service tier and other services which Heritage shall initially provide. In accordance with the Cable Act, Heritage shall, for the term of the franchise, maintain the mix, quality and level of programming set forth in Attachment A. However, Heritage agrees that it shall, at all times during the term of the franchise, provide one (1) national public radio station to subscribers if any national public radio signal reaches the Vail Valley or is available by satellite. -11- B. Leased Access Channels Heritage shall offer leased access channel capacity at such terms and conditions and rates as may be negotiated with each lessee subject to the requirements of Section 612 of the Cable Act of 1984 (47 U.S.C., Section 612) as amended. 12. ACCESS AND INSTITUTIONAL SERVICES In order to develop local programming, Heritage hereby agrees to provide the following: A. Local Programming Production Equipment as set forth in Attachment 6 hereof or Comparable Equipment Further, Heritage shall contribute to the Town, for the purchase of additional local programming production equipment, an amount not to exceed forty thousand dollars ($40,000) per year for any two (2) years during the term of this franchise for a total sum not to exceed eighty thousand dollars ($80,000). The equipment to be purchased shall be specified in writing to Heritage by the Town. All equipment so provided shall be new and of the type and brand specified or its equal. All local programming equipment shall remain the property of Heritage but shall be made available for the use of the public, governmental and educational entities, and individuals at no cost pursuant to such rules and regulations as may be promulgated in accordance with paragraph B hereof. All such public access production equipment shall be maintained by Heritage and shall. be fully replaced with comparable state-ofthe-art equipment as necessary or upon reasonable request of the Town based on obsolescence or usability. B. Production Studio Heritage shall maintain the existing public access production studio (or one similar) containing the equipment specified in Attachment B hereof. Heritage shall adopt business hours which shall provide for use of the studio during weekdays, weekends and evening hours up to a total of forty (40) hours per week. Heritage shall establish rules, if necessary and with the approval of the Town, to ensure that the studio is available equitably to Heritage and governmental, educational and public sectors. Heritage may contract with Vail Community Cable TV Corp. or any successor thereof to manage studio. The public access channels shall be available on a first come, first served basis at no charge to any individual, association, or organization desiring to utilize them; provided, however, that Heritage may deny the right to use such facilities for commercial purposes. -12- C. Staffing and Training Heritage shall provide adequate staffing for the access studio and for training of the public in the use of production equipment. Heritage shall from time to time conduct workshops to train community and access users in television production techniques and equipment. D. Access Rules All rules and regulations as may be necessary or desirable relating to the availability of production equipment for use by the public and governmental and educational entities, studio availability and hours of studio availability and channel availability and programming time shall be promulgated by the Town in cooperation with Heritage. 13. GENERAL PROVISIONS The following provisions shall be applicable to the existing cable communications system and to any rebuilt system as contemplated herein upon the effective date of this franchise agreement and shall be applicable throughout the life of the franchise. A. Parental Control Devices Heritage shall provide subscribers upon request the ability to lock out such channels as they may desire. B. Underground Cable New cable shall be installed underground at Heritage's cost. Previously installed aerial cable shall be placed underground in concert, and on a cost sharing basis, with affected utilities, when such utilities are converted from aerial to underground construction; provided, however, that Heritage is given reasonable prior notice of such underground placement. A preconstruction conference with the property owners will be completed prior to commencing any underground construction, and the Town shall assist and cooperate in such conferences if necessary. All soil, earth, sod or improvements disturbed by the installation shall be replaced and restored to their original condition. Patching of highways, roads and driveways will be completed in accordance with the specifications promulgated by, and subject to inspection and approval by, Town, County or State engineers, as appropriate. C. Minimum Interference All transmission lines, equipment and structures shall be installed and located so as to cause minimum interference with all rights and reasonable convenience of property owners and at all times kept and maintained in a safe and -13- adequate condition, and in good order and repair. Heritage shall, at all times, employ necessary and reasonable care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisances to the public. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public and as detailed in the manual on uniform traffic control devices. D. Notice of Shutdown At least twelve (12) hours before any planned shutdown Heritage shall give notice on all channels when possible of maintenance or major equipment changeouts which require loss of service to five (5) or more customers. E. Free Service Calls Heritage shall not charge for any service call whether or not the call is system related; provided, however, a charge may be made if the service call is the result of repeated abuse of the equipment or cable by the subscriber. F. Employee Identification Heritage shall provide a standard identification document to all employees including employees of subcontractors who will be in contact with the public. Such documents shall include a telephone number which can be used to verify identification. In addition, Heritage shall use its best efforts to clearly identify all personnel, vehicles and other major equipment that are operating under the authority of Heritage. G. Converters With the existing cable communications system and upon any rebuild thereof, Heritage shall utilize state-of-the-art signal security. Furthermore, Heritage shall, to the extent feasible, construct the system and install equipment which permits the full utilization of cable ready television receivers by subscribers to avoid converter usage, where possible. H. Local Origination Heritage is encouraged to provide local origination programming of a cultural, recreational, athletic, or civic nature. I. Service to Government Heritage shall provide upon request a reasonable number of free drops not to exceed four (4) per building to all government buildings and schools which are passed by the cable plant. -14- 14. SUBSCRIBER RIGHTS AND COMPLAINTS A. At the time an installation or service agreement is to be signed, Heritage shall furnish to each subscriber a written statement that clearly sets forth the following: 1. A complete schedule of rates, fees, charges, and the terms and conditions of service currently applicable to the type of installation and service offered. 2. A complete statement of the subscriber's right to privacy in conformance with Federal or State law. 3. Information concerning the procedures for making inquiries or complaints. 4. The address and telephone number of the Heritage office responsible for handling complaints. B. The business office of Heritage shall have a locally listed telephone number, and at a minimum, be open for business eight (8) hours a day on weekdays and have a sufficient number of lines so that the office is reasonably accessible by telephone and telephone lines are not continuously busy. Heritage business offices shall be located within the Town of Vail boundaries or within a distance of ten (10) miles from the Town of Vail boundaries. C. All complaints shall be handled in accordance with the procedures set forth in the Town of Vail cable ordinance. 15. PRIVACY POLICIES Heritage shall endeavor to operate its business in such a way as to give effect to the privacy rights of each subscriber and user in accordance with the Vail cable television ordinance, the requirements set forth herein and other applicable federal, state and local laws and regulations. 16. FRANCHISE RENEWAL This franchise may be renewed by the Town in accordance with the provisions of the Town of Vail franchise ordinance and applicable law. 17. TRANSFER OF OWNERSHIP OR CONTROL A. The franchise granted herein is a privilege which is personal to Heritage and to its parent company, TCI, Inc. Except as provided in subsection d of this Section, neither the franchise, this agreement, nor any rights or obligations of Heritage pursuant to this agreement or in the system shall be assigned, transferred, pledged, leased, sublet, or mortgaged in any manner, in whole or in part, to any person, nor shall title thereto, either legal or equitable, or any -15- right or inierest therein, pass to or vest in any person, nor shall any change in control or ownership in any twelve-month period of a least ten percent (10%) of the total outstanding securities of Heritage or TCI, Inc. occur, either by acts of Heritage or by TCI, Inc., by operation of law, or otherwise. Any such action completed without the prior consent of the Town shall be null and void. The grant or waiver of any one or more of such consents shall not render unnecessary any subsequent consent or consents, nor shall the grant of any such consent constitute a waiver of arty other rights of the Town pursuant to this agreement. B. Heritage shall promptly notify the Town of any proposed action requiring the consent of the Town pursuant to subsection a, by submitting to the Town Manager, with a copy to the Town Attorney, a petition requesting the approval of the Town. The petition shall fully describe the proposed action and such additional supporting information as the Town Manager or Town Attorney may require in order to review or evaluate the proposed action. Upon review of the petition, the Town Manager shall submit the petition to the Town Council together with a recommendation for action on the petition. C. After receipt of the petition for consent, the Town Council shall schedule a public hearing on the petition. For the purpose of determining whether it will grant its consent, the Town Council may inquire into: (i) the qualifications of any proposed assignee, transferee, lessee, sublessee or person acquiring the system in any manner, including without limitation, its legal; financial and technical abilities, (ii) all matters relevant to whether such person will adhere to applicable provisions of this agreement, (iii) all matters relevant to the public interest in the transfer, and (iv) all other relevant matters. Heritage shall provide all requested assistance to the Town in connection with such inquiry and, as appropriate, shall secure the cooperation and assistance of all persons involved in said action. D. Notwithstanding the prohibition of subsection a of this Section 23: 1) Section 23 shall not prohibit, nor require prior approval with respect to, any security interest or mortgage, solely for financial purposes unrelated to a change of control of Heritage or TCI, Inc., provided that each such security interest or mortgage shall be subject to the rights of the Town pursuant to this agreement or applicable law, and no sale or other disposition pursuant to any such security interest or mortgage shall be permitted except upon consent of the Town pursuant to paragraph (ii); and -16- 2) Section 23 shall not prohibit any transfer of which the Town was notified in accordance with subsection b of this section and to which the Town has given its written approval, expressed by ordinance passed by the Town Council. E. In deciding whether to approve any proposed transfer under this Section 23, the Town Council may consider any or all of the factors set forth in subsection c of this Section 23, and whether the requirements of the franchise should be upgraded in order to satisfy cable-related community needs, taking into account the cost of satisfying such needs. The Town Council may condition its approval of any such transfer upon a commitment to satisfy such cable-related community needs, taking into account the cost thereof, and upon other appropriate terms, to satisfy its legitimate concerns as to the factors identified in subsection c of this Section. 18. POLICE POWERS In accepting this franchise, Heritage acknowledges that its rights hereunder are subject to the police powers of the Town to adopt and enforce general ordinances necessary to the safety and welfare of the public and it agrees to comply with all applicable general laws and ordinances enacted by the Town pursuant to such power. Any conflict between the provisions of this franchise agreement and any other present or future lawful exercise of the Town's police power shall be resolved in favor of the latter, except that any such exercise that is not a general application of the jurisdiction or applies exclusively to Heritage or cable communications system which contains provisions inconsistent with this agreement shall prevail only if, upon such exercise, the Town finds that an emergency exists constituting a danger to health, safety, property, or general welfare or such exercise is mandated by law. 19. FRANCHISE FEE A. Annual Franchise Payment Heritage shall pay to the Town five (5) percent of its annual gross revenues during the period of its operation under the franchise, pursuant to the provisions of the Town of Vail cable television ordinance. If during the term of this agreement, any court, agency or other authority of competent jurisdiction takes any action or makes any direct declaration that adversely affects the amount of the franchise fee payable to the Town as set forth in this Section, the Town and Heritage shall enter into negotiations to amend this franchise agreement to make the Town whole in a manner consistent with said action or declaration by restoring the -17- Town to a position equivalent to that which had held prior to said action or declaration to the extent allowed by law. B. Payments due the Town under this provision shall be computed at the end of each quarter year for that quarter year. Payments shall be due and payable for each quarter or a portion of a quarter year to the Town sixty (60) days after the close of that quarter or a portion of a quarter year. Each payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the Town. C. No acceptance of any payment by the Town shall be construed as a release or as an accord and satisfaction of any claim the Town may have for further or additional sums payable as a franchise fee or for the performance of any other obligation of Heritage. D. The Town agrees that two percent (2%) of the annual gross revenues paid to the Town in accordance with this paragraph 19 shall be utilized for local public access purposes. 20. RATES AND CHARGES A. Initial Rates Heritage initial rates and charges, contained in Attachment hereto shall be applied fairly and uniformly to all subscribers in the Town. B. Rate Regulation 1) Rate regulation may apply to the extent that Heritage is not exempt from local rate regulation by preemption of state or federal law. To the extent that state or federal law or regulation may now, or as the same may hereafter be amended, authorize the Town to regulate the rate for any particular service tiers, service packages, equipment or any other services provided by Heritage, the procedures for processing rate increases as set forth in the Town of Vail cable television ordinance shall apply. Heritage shall comply with all notice requirements set forth in the Town of Vail cable television ordinance relating to rate increases and decreases. 2) Heritage and the Town hereby agree that, as of the effective date of this agreement, the Town of Vail is a market which is not subject to effective competition as defined by FCC regulations promulgated in furtherance of Section 623(b) of Cable Communications Policy Act of 1984 (the Act). Consequently, Heritage and the Town agree that the Town shall have the right to regulate the rates charged subscribers for basic cable served pursuant to Section 623(b) of the Act. -18- 21. INSURANCE Certificates or policies evidencing insurance in the amounts required by the Vail cable television ordinance shall be provided by Heritage and shall be filed in the Office of the Town Clerk. Insurance shall cover acts by Heritage, its employees, agents, subcontractors or any other person acting on behalf of Heritage. 22. COOPERATION The parties recognize that it is in their best interest for the cable communications system to be operated as efficiently as possible and for any required rebuilding of the system to occur in accordance with the requirements and schedule as set forth in this agreement. To achieve this, the parties agree to cooperate with each other in accordance with the terms and provisions of this franchise agreement. Should either party believe that the other is not acting kindly or reasonably in accordance with the applicable regulations and procedures in responding to a request for action, that party shall notify the agents designated for that purpose by the other. The agent will use its best effort to facilitate the particular action requested. 23. WAIVER The failure of the Town at any time to require performance by Heritage of any provision hereof shall in no way affect the right of the Town hereafter to enforce the same. Under no circumstances shall the waiver of the Town of any breach or 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. 24. CUMULATION OF REMEDIES The rights and remedies reserved to the Town by this franchise agreement are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the Town may have with respect to the subject matter of this franchise agreement, and a waiver thereof at any time shall have no effect on the enforcement of such rights or remedies at a future time. 25. COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS Heritage, its employees, and agents shall be familiar with all federal, state, local and municipal laws, ordinances, rules and regulations which in any manner affect those engaged or employed in the work, or the materials or equipment used in or upon the work or in any way affect the work and no plea of misunderstanding will be considered upon account of the ignorance thereof. Heritage's contractors, employees and agents shall comply with all applicable federal, state and local laws, rules and regulations issued thereto and Heritage -19- shall indemnify the Town against any loss, liability, or damage occasioned by reason of its violation of this Section. Heritage shall maintain and install its wires, cables, fixtures, and other equipment in compliance with all applicable federal, state, and 1oca1 law, and in such a manner so as not to interfere with any installation of the Town's other cable franchises or utilities. 26. NOTICES All notices from Heritage to the Town pursuant to this agreement shall be sent to 75 South Frontage Road, Vail, Colorado 81657. Heritage shall maintain a local office and telephone number for the conduct of matters related to the franchise. All notices to Heritage shall be sent to Heritage Cablevision, 2195 Ingersoll Ave., Des Moines, Iowa 50312, Attn: Legal Department. 27. CAPTIONS Captions to Sections throughout this agreement are solely to facilitate the reading and reference to Sections and provisions of the agreement. Such captions shall not affect the meaning or interpretation of the agreement. 28. COMPANY SHALL HOLD TOWN HARMLESS Heritage shall save and keep the Town and its officials, boards, commissions, agents and employees free and harmless from any loss, expense or damage to person or' property arising out of or resulting from any provision or requirement of the franchise or exercising its rights or performing its duties under this franchise. 29. TIME IS OF THE ESSENCE Whenever this franchise agreement sets forth any time for any act to be performed by e-ither of the parties, such time shall be deemed to be of the essence of this agreement. 30. CONSTRUCTION OF AGREEMENT This agreement shall be governed, construed and enforced in accordance with the laws of the State of Colorado, except that the parties' respective rights and obligations hereunder shall be subject to any applicable provisions of the Cable Communications Policy Act of 1984, as now existing or as the same may be from time to time hereinafter amended, and the applicable provisions of the Communications Act of 1934 as hereinafter amended, any applicable rules, regulations and orders of the Federal Communications Commission and any applicable rules, regulations, legislation or orders of any other public body having jurisdiction over the subject matter hereof. -20- Exhibit A ~ - L---S,~erving°Jail, Avon, Minturn, Eagle-Vail, EdZ~ards, Singletree, Homestead, Lake Creek ~ Arrowhead. Cliariaael Service I'rogramaning 2 KWGN Denver, Channel 2, Independene Station 3 CBN Cable Broadcast Network will entertain, inform and inspire the whole Family. 3 TMC The Movie Channel (in Beavee Creek only). 4 KCNC Denvee, NBC Affiliate.** ~ ' 5 WTBS Aelanta Superseation, WTBS, is round the clock action for the whole family. 6 KRMA Denver, Public Broadcasting Station~~' 7 KMGH Denver, CBS Affiliate*~ 8 WGN Chicago Superstation, WGN, brings the excitement of the "Windy City" right to your home. 9 KUSA Denver, ABC Affiliate** 10 ESPN The total sports network. 11 CNN Cable News Network gives you news when it happens from where it happens. i 12 LOCAL The visitor's guide eo ehe Vail Valley, 6:00 to 10:00 a.m. and 3:00 to 8:00 p.m. in season only (hours subject to change). 12 CVN Cable Value Network, home shopping (between visitor's guide). 13 K-CITE Local weather, news and information with K-Cite as background music. 14 USA USA presents sports, women's & children's features plus drama, films and documentaries. 15 MTV 24 hour rock videos plus exclusive interviews, contests & concert information. 16 ~ NICK Nickelodeon has programming for children designed to be fun and educational 17 FNN . Financial News Network brings you straight talk on national and international money matters from financial experts (M-F daytime). 17 AMC Ameeican Movie Classics features Hollywood's best films and brightest stars with a different theme every night (evenings and weekends). 18 CNN Headline News gives the latest news in a flash with concise 30-minute segments 19 DISC . The Discovery Channel expands your horizons with programs devoted to science, eechnology, naeure and human adventure. 20 LIFETIME Especially for women! Exercise, nuerition plus news and tips to help organize your day. 21 KDVR Arts and eneertainmene features dance, music, theatre, opera, art and literature. 22 ARTS Denver, Channel 31, Fox Independent , 23 C-SPAN II ~ Live U.S. Senate coverage (this will share with public access). *25 HBO. Home Box Office brings you recene blockbuster hits from Hollywood plus exclusive eneertainmene and superstar concerts, sports from Wimbledon tennis eo championship boxing, and children's shows like Fraggle Rock n~t.~~ *26 CINEMAX Over 50 movies a month featuring hies from the past and presene. l;amily movies ae convenient times, adult orieneed movies later in the evening, plus a variety of concerts and comedy specials." X27 DISNEY The Disney Channel provides family entertainment from the company whose name stands for quality. Programming includes ~ Disney movies , fantasy animation, educational series and new and original programming. *28 o SHOWTIME Showtime makes excitement with ae least ten exclusive features including recene and classic movies, Broadway hits, family & adult features, original comedies, dramas and much more. X29 TMC The Movie Channel features all movies, all the time, with a differene movie every night. Uncue, uninterrupted with a film for every Baste. 30 C-SPAN I See live, gavel-to-gavel coverage of the U.S. House of Representatives. 32 KREG Glenwood Springs . *Premium Services, not included with basic service. *~Thesc stations are in stereo for people with stereo T.V.'s. b Exhibit B EGIIJ T F'I'1E~IT T I~IVEIUTORY AIJGUi~T 1908 F'r-zp~~red by E{r-i an f~i~,l 1 S"fl.Ji) T 0 cnr~rrroi._ FiuOM ._. .. ... _, ., ._ '_ ~:::1 ~ i '~ a ::, ~ :i is . I~ I:": (~: L. • '~, L ._~I''I !„i• ,: Il•i(i I I.I.I lt_. 4..J (•il L.:I i•:a l'" _I (_'~.. es?I•' L~k:111!r:'h :.i: i_i:a i'. I :.... I...., ,... ...., .. ,~ .. ~. I,..I .I ... .. .. .L _..I .1. '~..!J. I'll ., .. 1_!. !_.i.l lt' Lj':..!!. I_!...11':.::1 ' I ._ l.. !' l..l ~~_. ~. I!':: .I. i:l l:' ).:t :!. _: 4.: i.~ l_1I' I'- ". 1... .i. ~::J I' ~ ..] I ._ ... ....i .~'~.! ~ _.. II ~ 'Yl:j~; `: '". f:7 ..7 ~..! • I::. I •I :1. ~' :L L..I I.a I..... I", ... ! 1..:. . I ..:.. i l .l .. 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I..J F•. ~"l w ...~.. !! .. l.!I", .L ~.~ ':• ct "t~_::'C:l\',-;' 1-~n_lCi'1~°i ,J _'t('"h;':a 546:31"F ."r.C:i-.li.%'L'j'I,V ~)I!r-r°I'11zt~>E='!"~ r!', _ ~.1- 1 _ ~° Y ~ CGKS GURF' DENT z,;~' 5-22-d9 ~ 3~01P~1 Exhibit C S7$T)~M STANDARDS AND SPIJCYFICATIONS The following System Standards and sp©cifications paraphrase Section 75 Subpart K of the RuleB of th® Federal CommuniCatinr.g Commissiono ~s sucho it is the int®nt of the parties to this Franchise Agr®®ment to interpret th® following in conformance with the enforcement policies of the FCC on tk'.e date of this Franchise Agr®emento system design sp@cificationss ~o Th® system will b® designed and electronic eq~aipr^.an~: s®lected. The performance of thas® will be equal to or better ::arr. the gollowinc~s to Visual carrier grequency 1.a5 MHz + aS kxz above low®r boundary of chann®1, if no converter is usec'., and ¢ ~~0 lt~iz if converter ie used. a. Aural carrier frequency, X05 MHz + 1 kHx above visual carri®r fr®qu®ncyo S. Visual signal level across~a t®rminating impadanc:a matching th® int®rnal impedance of the cabl® syst~:~ as viewed from th® ~ubscx'a,bez' terminals shall not ?~3892740U~1522UJd~GG~2~~;z::~.:'~'~ ; be less than the follov~inq appropriate valuee %nteraal Impedanc® 75 ohms Visual Signal Let-el ' ~, mildivoit X00 ohms 2 millivoltb ~o Visua$ signal level on each channel shall not ~,a~-y more than ~a decibels within any a4 hour' periaci aaui shall be maintained withine Q:,, _.-- • Y~OGBS CORP DEPT ; 5-22-89 ; 3~02PM ; "''38927400--15220085~~0294'5~',;;;o •. p~ . y~~ ~: ae 3 d®cibels ®f th® visual eignal level of ary visual carrier within 6 Mxz nominal f r9que:~Ca separations, and bo l~ d®cib®ls of the visual signal level on sa~r ®th®~ chann®1; and •oo ~ maximum lev®l such that eignal degradation due t® overload in the subscsiber~s receiv®r dose not occuro, 30 aural signal rms voltage shall be maintained between 13 and l~ dec~.bels below associated viEUad. signal level, 6o Visual eignal level beak variation caused by undesired 1®w fr®qu®ncy disturbances chum or rep®t~tive transi®nt)~generated within the system, or by inadequat® low ~r~cgu®ncy response, Shall not exceed 5 P®rcent of the visual signal level. 90 channel fr®queney response shall be within a rang~~ ®f ¢~ d®cibels for all frequencie® within O o 7~ Zi:i:~ and ~5 Mx2 ;:,®f visual frequ®ncy abov® lower boundary frequency of cable channclo.. ~o .~®r grade ~ eignalso rati® of visual signal level to system noise grad of visual signal levels to any and®sir®d ce~channel television signal operatinc~ on prop®r offset assignment shall not b® leas th$n 35 deofbel~o phis ~ecguir®m®nt is applicable to each signal which $s delivered by a cable televisieai system to subscgib®rs within the predicted Grads :~ Y~DG&S CORP DEPT 90 5-22-d9 ~ 3~03P1~ ~ "^388274GG-+15220005000254~92'~'+:a c Copt®ur for thaj girst picked up Gontouro Ratio of visual of any coher®nt ~6 decibelso signal, or each signal which i3 ~rithin its predicted grade s signal level to the rme •ampJ.it::;:a disturbances shall not be leas t.•~:: l00 germinal isolation provided each subscriber sh,~le not be lase than 1S decibels, but in any event shall be sufficient to prevent r®flection9 caubcd by span circuited or short circuited subscriber terminals from producing visible picture impaiame~;t at any other subscriber t®rminalo 11o System radiation from a cable t®levision system shall be limited as follower Radiation %imit• Distanc~® Frequenci®e (microvolts/aneter) (feet) LTp to &~ including 5~ MHO 15 l00 From ~b=216 ~~ 20 10 Cver 216 ~iki~ l5 100 120 5e30 NdH~ Return (upetream)o . Ao wbth th® total cyst®m in op®ration an~.RFZ ingrco~ Best will be made to ®nsure that the~carrine tc noise signals (C/Id) will be better than 30 db aaci ca'oss modulation of Ices than ~30dbo 90 ill construction practices and procedures will comply with national, state, and local codes e::d ' ®perating standardso 5-22-89 ~ 3~03PM ~ G38927400~15C20085000i5a`19~i`~';~P ~o All highway/railr®ad crossings clearance wi9m comply with th® national, state, and local code3 and operating etandardso system design, atrand~ and ®lgctronic maps wel). bo in accordance with th® ~stional cable television Associati®n standard 003®0668 ag revised. ~~ ~ ®perating temperature range of the system will b~~ between =~0 to +1~0 ~. ~o T®chnical standards will be in accordance with; c:~,: not limiged to, the following: to Federal Communications Rules Part 76 as amended, Cable Television service and sp®ci~ically, subpart K Technical standards, ~o Paragraph 76,601 Ferformnnc® Taste Paragraph 75,6os Paragraph 76m60s Paragraph 76.616 bands 108®136 any Paragraph 760611 aer®nautical and Technical standards ~eagurements Operation in th® freque:cy ~ 2~5p~00 MHz Operation near certa{n marina emergency frequercie~ Paragraph 76a61~ gnterference from a cable systems pr®vided, however, that there shoved be c®n~inual monitoring for interference from a cable television system. Any inter- fer®nce or suspected interference will be investigated and corrected immediately upon DG&S GORP DEP~I n9, ~ . 5-22-89 ~ 3 ~ 04PM ~ "~~89'274G0-+1 ~22Gud5~~~0u25~.'~ ~c"~ ; ~: ~. t' t discovery aa~cA notification. Dccu~entation o~ any interference and corrective action taken will become part of the record maizitu:;.nE:: for the FCCo paragraph 760617 Responsibility for raceives•~ generated interference paragraph 9S Cable T®1ev~.aion Ralay ServicF: r~~ a L TO: Town Council and Public Art Task Force FROM: Community Development Department DATE: July 18, 1989 SUBJECTo Art in Public Places Programo Final approval Attached to this memo is the final Town of Vail Art in Public Places Program. The following changes have been made to the document: Pg. 2, Chapter II, A. 3. Pg. 3, Chapter II, B. 9. Pg. 3, Chapter II, C. 5. Pg. 5, Chapter III, D. Pg. 6, Chapter III, H. Pg. 9, Chapter VI, B. Pg. 9, Chapter VI, C. 4. Pg. 13, Chapter VII, C. 1. c. Pg. 13, Chapter VII, C. 2. Pg. 13, Chapter VII, C. 3. Pg. 14, Chapter VII, C. 4., Pg. 14, Chapter VII, D. 1. Pg. 15, Chapter VII, D. 5. Pg. 16, Chapter VII, E. 3. Pg. 27, Chapter VIII, F. Pg. 27, Chapter VIII, G. Pg. 28, Chapter VIII, I. These changes incorporate recommendations made by the Town Council, Design Review Board, and Planning and Environmental Commission. a .f':ji_.~: i'. I The staff would like to emphasize that no specific funds are being requested for this program at this time. However, the Council should understand that at least one planner's staff time and one secretary's time will be required to administer the program. When an artwork is proposed, the project sponsors may request the Town to contribute in some way towards the project. As an example, an artwork sponsor may request that the Town actually errect the artwork or provide the base for the artwork. In these instances, the staff and applicant would come to the Council with the funding request. The Board may also develop a concept for a project which could be funded with public money. If the program evolves into a full Art in Public Places Program, future funds will be necessary for staffing and project implementation. Below is a summary of how the Arts Coordinator, Art in Public Places Board, and Town Council will be involved in the project: TOWN COUNCIL ROLE Initial Involvement: The Council would approve the AIPP guidelines and a staff person to allow the Art in Public Places Board to review proposed public artwork. Also, one council member would serve on the AIPP Board. The Council's primary role will be to ensure that the guidelines are followed by the Art in Public Places Board and Coordinator. Future: The Town Council could actually be involved in approving the project process for commissioning artwork as outlined by the AIPP Program. ART IN PUBLIC PLACES BOARD ROLE Initial Involvement: The Board will review artwork proposed for public sites according to Section VIII A & B, Page 20. The Board will meet on an ad hoc basis when projects are proposed for public sites. It is hoped that the Board will want to meet more frequently in order to work on funding future projects. It is intended that the Art in Public Places Board be a "working board" that develops ideas for funding and ways to support artists and public art projects in the community. Future: The Art in Public Places Board would implement the process as approved by the Town Council for commissioning artwork. This process is described in Section VIII C, Page 23. PLANNER ROLE Initial Involvement: A staff planner would be assigned to work with the Art in Public Places Boardo Staff°s role is to advise project proponents on proposals for review by the Art in Public Places Board in a way that is intended to encourage public art in the community> The planner's role would be very similar to how the planning staff presently handles Design Review Board projectso Futuree In the future, it may be necessary to allow for a separate half-time or full-time position if the Council determines it is worthwhile to pursue a comprehensive Art in Public Places Programs The next step with this project is to appoint the Arts Board, if the resolution is approved, the staff will proceed with a public notice requesting that people apply for the AIPP Boardo y o i `i Town of Vail Art in Public Places Program July 1989 PUBLIC ART TASK FORCE Tom Briner Helen Ginsberg Arne Hansen Pam Hopkins Fitzhugh Scott Gary Swetish Bev Trout Kathy Warren .-. a t Q ,1 VAIL ART IN PUBLIC PLACES PROGRAM POLICIES AND GUIDELINES TABLE OF CONTENTS Page I. PURPOSE OF THE VAIL ART IN PUBLIC PLACES PROGRAM .1 II. A DEFINITIO N OF PUBLIC ART . . . . . . , .2 III. VAIL ART IN PUBLIC PLACES COLLECTION POLICIES. ,4 IV. VAIL ART IN PUBLIC PLACES INSTALLATION AND MAINTENANCE POLICIES . , , , 7 V. VAIL ART IN PUBLIC PLACES RELOCATION POLICIES. .8 VI. VAIL ART IN PUBLIC PLACES DEACCESSIONING POLICIES. .9 VII. ADMINISTRAT ION OF THE VAIL ART IN PUBLIC PLACES PROGRAM . . . . . . . . .11 VIII. VAIL ART IN PUBLIC PLACES REVIEW PROCEDURES .20 IX. VAIL ART IN PUBLIC PLACES PROJECT SELECTION CRITERIA. .29 I. PURPOSE OF THE VAIL ART IN PUBLIC PLACES PROGRAM The program is intended to evolve in a way that reflects a broad range of community input and involves artists and art professionals. Specific objectives of the Arts in Public Places Program are to: A. Establish a public art program that is unique to Vail and therefore has a primary responsibility to the community. B. Enhance the beauty of the Vail community by placing quality visual art in highly accessible and visible public places for residents and guests to enjoy. C. Develop a diverse, high quality public art collection. The overall program shall strive for diversity in style, scale, media and artists. Exploratory types of work as well as established art forms shall be encouraged. D. Provide an effective process for selecting, purchasing, commissioning, placing, and maintaining public art projects that represent the best in aesthetic and technical quality. E. Create a framework for a sustained effort to develop public art in the Vail community. F. Develop a strong public education effort in order to stimulate discussion and understanding about the visual arts. G. Provide a public art development process that encourages and is supportive to artists who wish to work in the public realm. H. Encourage support for and inclusion of public art projects in private sector development. There will always be varying opinions on what a public art project contributes to the community. Different opinions of an artwork are encouraged. This variety of interpretations is perhaps what distinguishes public art as a challenging art form that encourages public interaction. 1 .~ ~ S II. A DEFINITION OF PTJBLIC ART A. Public art or Art in Public Places defined in its broadest sense is any original creation of visual art 1) that is acquired with public monies, or a combination of public/private funding; 2) that is donated or loaned to the Town's Art in Public Places Program; 3) that is a privately sponsored artwork that is proposed to be located on publicly owned land. The public art may be: 1. temporary or permanent, 2. located inside or outside of a public building, 3. located outside on public land or on private land if an agreement for using the land for the public art is obtained from the private property owner. B. For the purpose of the Art in Public Places Program, works of public art may include but are not limited to the following: 1. Sculpture: in the round, bas-relief, mobile, kinetic, and electronic, in any material or combination of materials. 2. Painting: all media, including portable and permanently affixed works. 3. Mural: A mural is defined as a painted scene, figure, or decorative design not including written trade or place names or advertising messages. 4. Graphic Arts: printmaking and drawing. 5. Mosaics: A picture or design made by setting small pieces of material in mortar. 6. Photography, film and video 7. Crafts: in clay, fiber and textiles, wood, metal, plastics, glass, and other materials; both functional and nonfunctional. 8. Mixed media: any combination of forms or media, including collage. 2 . t~. 'L," ..'fin. ~ .: ac 9. Fountains: an artifically created jet or stream of water that is incorporated into a man-made or natural setting to enhance sculpture. 10. Earth works and environmental installations: that are site specific C. For the purpose of further definition, the following elements are not considered works of art under the Art in Public Places Program: 1. Directional elements, signage, or color coding except where these elements are an integral part of the work of art. 2. Objects which are mass produced in a standard design, such as playground equipment, benches, drinking fountains, and light fixtures. 3. Reproductions, by mechanical or other means, of original works of art, except in cases of film, video, photography, printmaking, sculpture editions or other media arts. 4. Decorative, ornamental, or functional elements which are designed to be part of the architecture unless designed by an artist or that are part of a collaborative design team process in which architects, landscape architects and/or other designers collaborate with artists on an artwork project. 5. Landscape architecture, fountains that do not include artwork and landscape gardening except where these elements are designed by the artist and are an integral part of the work of art. 6. Artwork which serves as advertising for a business (such as a mural depicting services of the business). This type of commercial art is considered to be advertising and is reviewed as signage by the Design Review Board. 7. Temporary or permanent artwork that is privately sponsored and located on private land. 8. Artwork that is displayed in booths as a part of an arts festival such as the Vail Valley Arts Festival. 3 III:. VAIL ART IN PUBLIC PLACES COLLECTION POLICIES A. INTENT OF POLICIES It is in the interest of the Vail community to acquire only works of art that will be appreciated by the community now and in the future. The intent of this program is to enable the community to possess a collection of works of art in public places which is educational, attractive to residents and visitors, and of an overall aesthetic quality equal to the excellent international reputation the Town enjoys as a resort. This policy is intended to guide the AIPP Board in the acquisition of public art and to provide for the community's general understanding of the Vail Art in Public Places Program. B. APPLICABILITY OF POLICY This policy applies to all works of art presently owned by the Town of Vail and future artwork acquired by the AIPP Board either through purchase, commission, gift or loan. Works of art presently commissioned by the Town of Vail may be relocated or deaccessioned according to the AIPP policies. C. COLLECTING LIMITATIONS 1. Works of art will not be accepted or otherwise acquired for the community collection unless the following conditions are met: a. The artworks are relevant to and consistent with the purpose and artwork criteria of the AIPP program. b. The community can provide for the exhibition, protection, maintenance and preservation of the objects under reasonable conditions that ensure their availability to the public and are in keeping with professionally accepted standards. c. The artworks shall have permanency in the collection as long as they retain their physical integrity, their identity, and their authenticity, and as long as they remain useful for the purposes of the community. 4 d. A legal instrument of conveyance, setting forth an adequate description of the artwork involved and the precise conditions of transfer, will accompany all gifts and purchases and will be kept on file at the Town of Vail Municipal Building. In the case of purchases, commissions and conditional gifts, this document must be signed by the seller, artist or donor and by an authorized Town representative; in the case of unconditional gifts, it need be signed only by the donor. e. Title to all artworks acquired for the collection should be obtained free and clear, without restrictions as to use or future disposition. If artworks are accepted with restrictions or limitations, the conditions shall be stated clearly in an instrument of conveyance, and shall be made part. of the accession records for the artworks, and shall be strictly observed by the artist and the AIPP Board. D. E. F. REQUIREMENT FOR COMMUNITY INPUT FOR AIPP COMMISSIONED OR DIRECT PURCHASE PROJECTS. Public art often significantly alters public places by becoming a major new presence in the environment. Informed debate among community members will be fostered through the AIPP program. Specifically, AIPP commissioned or direct purchase projects shall be presented and discussed at at least one public meeting in which open participation of the community is encouraged. ARTIST(S) RIGHTS The Board will do its utmost to maintain the intended character and appearance of works of art acquired for public exhibition in order to uphold the artist(s)' concept. Questions of copyright, installation, maintenance, and deaccessioning will be considered in any contract to acquire an artwork. ARTWORK LOANED TO THE COLLECTION Acceptance of loaned artwork to the collection by the Art in Public Places Board will be subject to all of the provisions pertaining to acquisitions except the purchase price. In addition, such loans will be evaluated against the costs and risks associated with proposed length of loan and benefit to the community. 5 ~,: ~.,~, :~~s G. ARTWORK LOANED FROM THE COLLECTION Agreements to loan artwork from the may be entered into with tax-exempt such loans are approved by the AIPP Council and allowed in the contract The time period for the loan shall in the loan agreement. H. TEMPORARY ARTWORK EXHIBITIONS AIPP collection institutions if Board and Town with the artist. ~e clearly stated Temporary artwork is considered to be artwork that is proposed for a site for a time period not to exceed 30 days. Temporary special exhibitions of AIPP sponsored works of art will be reviewed by the Art in Public Places Board in consultation with appropriate Town departments such as Public Works, Fire, Community Development, Recreation and/or Police. However, a temporary artwork may be approved by an executive committee made up of the AIPP chairperson, Town Council AIPP representative, and one AIPP representative at large in consultation with appropriate Town of Vail Departments for a period of time not to exceed 30 days. The executive committee may determine it is inappropriate to review a project using the executive review. If so desired, the executive committee may determine the proposal must be reviewed by the AIPP Board. The AIPP coordinator shall inform the AIPP Board and Town Council of the executive decision at the next regularly scheduled AIPP meeting and next regularly scheduled Town Council worksession. I. PUBLIC DISCLOSURE 1. This statement of policy and related procedures will be made available to donors or other persons upon requested. 2. The AIPP Board will make available the identity and description of collection materials acquired and deaccessioned. All other facts pertaining to the circumstances of acquistition, relocation and deaccession will be adaequately documented in the AIPP's records of the collection. J. REVISIONS AND INTERPRETATIONS OF COLLECTION POLICY Any revisions of formal interpretations of this collection policy shall be made in the.form of addenda to the policy in order to provide continuing documentation of such changes. Amendments to policies shall be reviewed by the Town Council and reviewed by resolution. 6 IV. VAIL ART IN PUBLIC PLACES INSTALLATION AND MAINTENANCE P[1T.TC`TRC A. Works of selected art may be placed in, on, or about any public place or, by agreement with the owner of any private property with substantial public exposure in and around the Town of Vail. Works of art owned by the Town may also be loaned for exhibition elsewhere, upon such terms and conditions as deemed necessary by the Art in Public Places Board and Town Council. B. No work of art financed or installed either wholly, or in part with, Town funds or with grants procured by the Town shall be installed on privately owned property without a written agreement between the Town and the owner specifying the proprietary interests in the work of art and specifying other provisions deemed necessary or desirable by the Town attorney. C. Installation, repair, alteration, and refinishing of art in public places shall be done in consultation with the artist whenever feasible. In the event repair of work is required, the responsible artist(s) shall be notified and given the opportunity to do the repair for a reasonable fee after the warranty period. If the artist is unable to repair the artwork within a reasonable time period, the Town shall be free to arrange for the repair work as the Town deems appropriate. 7 ' ~ .. ~ ~ i.•Y-.n, ti~~. try - f,. V. VAIL ART IN PUBLIC PLACES RELOCATION POLICIES A. The AIPP Board may consider relocating an artwork to a new site within the Town of Vail. Artworks may be relocated upon a majority vote of approval of the AIPP Board and approval by the Town Council. B. Before relocating any artwork, the AIPP Board shall comply with all terms and conditions relating to relocation which are found in the acquisition contract or any other agreements which may exist between the artist and the Town. C. Criteria for relocating a work of art may include, but are not limited to the following factors: 1. The artwork's condition or security cannot be maintained. 2. The artwork endangers public safety. 3. Significant changes in the use, character, or design of the site have occurred which affect the integrity of the work. 4. The artwork would be enhanced in the opinion of the AIPP Board if sited in a new manner that would improve the public's ability to appreciate the artwork. 8 VI. VAIL ART IN PUBLIC PLACES DEACCESSIONING POLICIES A. Artworks in the collection will be retained permanently if they continue to be relevant and useful to the purposes and activities of the collection and if they can be properly exhibited, preserved and used. Deaccessioning of objects may be considered when these conditions no longer prevail or in the interest of improving the collection. B. Artworks in the collection will be deaccessioned only upon the recommendation of a majority vote of the Art in Public Places Board and approval by the Vail Town Council. C. In considering the disposistion of deaccessioned artworks, the AIPP Board should consider the following: 1. The manner of disposition is in the best interests of the Town, the public it serves, the public trust it represents in owning the collection, and the scholarly or cultural communities to which the artwork may be important. 2. Preference shall be given to placing the artwork, through gift, exchange or sale, in a tax-exempt public institution wherein the artwork may serve the purpose for which it was acquired initially by the AIPP Board. If artworks are offered for sale elsewhere, preference shall be given for sale at an advertised public auction or to the public marketplace in a manner that will best protect the interests, objectives and legal status of the collection. 3. Artworks will not be given or sold privately to Town of Vail employees, AIPP Board members, jury members, members of the Town Council, or to their representatives. 4. All monies gained from the disposition of deaccessioned artworks shall be placed in a purchase fund to be used for acquisitions of artwork. D. Before deaccessioning any artwork from the AIPP collection, the AIPP Board shall comply with all terms and conditions relating to deaccessioning which are found in the acquisition contract or any other agreements which may exist between the artist(s) and the Town. 9 E. Criteria for deaccessioning a work .of art may include but are not limited to the following factors: 1. The artwork's condition or security cannot be maintained. 2. The artwork requires excessive maintenance or has faults of design or workmanship and repair or remedy is impractical or unfeasible. 3. The artwork has been damaged and repair is impractical or unfeasible. 4. The artwork endangers public safety. 5. Significant changes in the use, character, or design of the site have occurred which affect the integrity of the work. 6. Significant adverse public reaction toward the artwork has continued unabated over a five year period. 7. The authenticity of the artwork is questionable. 8. It is desired to replace the artwork with a more appropriate work by the same artist. 10 -. -. VII. ADMINISTRATION OF THE VAIL ART IN PUBLIC PLACES PROGRAM A. DUTIES AND FUNCTIONS OF THE AIPP BOARD 1. Implements the AIPP policies and selection procedures as set forth in this document. This specifically includes designing the appropriate selection process for public art projects, appointing selection panels for specific projects, and approving the final selection of artist or artists for a project. 2.. Acquires public art by purchase, donation, or other means for Vail's permanent Art in Public Places collection. 3. Oversees the maintenance and preservation of art works displayed in public areas. 4. Develops a public art master plan which defines sites that are appropriate for public art and may also address the general artistic concept for each site. 5. Assists the Art in Public Places coordinator in obtaining grants to fund public art projects. 6. Promotes public art through a public education program that will further community appreciation and understanding of the visual arts. 7. Publicizes Art in Public Places projects and recognizes the artist(s) involved with the project. 8. Oversees the maintenance of detailed records of Art in Public Places projects in order to document project development. 9. Evaluates the Arts in Public Places program annually and sets program goals on a five year basis. B. DUTIES AND FUNCTIONS OF THE AIPP COORDINATOR The Art in Public Places Coordinator shall be responsible for assisting the AIPP Board in administering and managing the Vail Art in Public Places Program. The AIPP Coordinator serves as a non-voting staff person to the AIPP Board. 11 Responsibilities include: 1. Administers all AIPP projects to ensure that projects meet the requirements of the Vail AIPP Guidelines and specific project prospectus. 2. Present: potential projects to the AIPP Board for their review. 3. Guides the AIPP Board in the development of the project prospectus and selection jury. 4. Oversees AIPP projects to ensure the artwork is erected per the approval of the AIPP Board. 5. Researches and writes grants for proposed AIPP projects. 6. Coordinates all publicity, communication, and public meetings for the AIPP program. 7. Coordinates AIPP Board meeting agendas and ensures that accurate meeting minutes are maintained. 8. Manages the advertising and appointment of AIPP Board members per the AIPP guidelines. 9. Serves as the AIPP Board's liaison to Town Council, Planning and Environmental Commmission and Design Review Board as well as other Town Departments and community organizations. 10. Documents the AIPP Board's evaluation of the AIPP program annually and writes AIPP Board's program goals on a 5 year basis. 11. Maintains records on all existing AIPP projects that include site plans, design drawings, models, slides of the artworks, minutes of AIPP meetings related to the project, background on the art:ist(s), names of the parties involved with the project, records of any legal conditions on the work (copyright, relocation issues) . 12. Maintains records of the conditions and circumstances under which artworks are acquired, relocated, or deaccessioned. 13. Informs the AIPP Board of developments in Public Art Programs and keeps the AIPP Board up to date on new information related to AIPP programs. 12 14. Assists the AIPP-Board in any special project work such as the development of an Art in Public Places Master Plan. C. AIPP BOARD MEMBERSHIP 1. Number The board shall consist of seven voting members appointed by the Vail Town Council: a. Four members at large b. One Town Council member c. One Planning and Environmental Commission member d. One Design Review Board member 2. Qualifications The Board will be made up of members who have demonstrated expertise in architecture, art criticism, art education, art history, fine arts, graphic arts, interior design, landscape architecture, town planning/community development, or other art/design related backgrounds not specifically mentioned, or who have demonstrated a strong interest in the visual arts and/or civic improvement. Board members shall be one of the following for at least one yearn a. a resident of the Town of Vail and/or b. owner of property within the Town of Vail and/or c. an owner of a business within the Town of Vail 3. Term The four at-large members shall serve for periods of three years each, except that the initial terms of two such members shall expire two years from the date of appointment, and the initial terms of two such members shall expire three years after the date of appointment. The appointed Town Council member, PEC member, and DRB member shall serve for two year terms. 13 Any member appointed to fill a vacancy shall serve the remainder of the unexpired term. All members shall be eligible for reappointment. 4. Vacancy A vacancy on the AIPP Board shall occur whenever a member. of the Board is removed by the Town Council, dies, becomes incapacitated and unable to perfarm his/her duties for a period of sixty days, resigns, ceases to meet the qualifications for AIPP Board membership outlined in this document, or is convicted of a felony. Whenever a vacancy occurs, the Art in Public Places Coordinator shall promptly advertise for applicants to fill such vacancy. The Vail Town Council shall appoint members to the Art in Public Places Board. D. AIPP BOARD MEETING CONDUCT 1. Chair, Vice Chair The AIPP Board shall select its own chair and vice chair from among its members. The chair shall not be a Town Council, DRB, or PEC representative. The chair, or in his/her absenceY the vice chair, shall be the presiding officer of its meetings. In the absence of both the chair and vice-chair, the members present shall appoint a member to serve as acting chair at the meeting. 2. Attendance at meetings Absence from three consecutive regular meetings, or a total of four regular meetings in any calendar year, without justifiable cause, as determined by the Town Council, shall constitute grounds for removal from office. 3. Regular Meetings Meetings may be held at the Municipal Building on any day of the month at such place as may be determined from time to time by the Board, and set forth in the minutes. At such meetings, the Board shall consider all matters properly brought before the Board as set forth on the agenda. 4. Notification The AIPP Coordinator shall publish the meeting 14 ;... date and agenda in a local Vail newspaper of no less than 7 days prior to the date of each meeting. 5. Special Meetings. Special meetings may be called at the request of the Chair of the AIPP Board or a majority of the Board members. The special meetings shall meet the requirements outlined in Section 2.04.040 of the Town of Vail Municipal Code. 6. Open Meetings All meetings of the Board shall be conducted in accordance with the provisions of Colorado law pertaining to public meetings. 7. Documentation of the AIPP's Board Meetings The AIPP coordinator shall be responsible for keeping accurate recordings and minutes of Board meetings. The AIPP Board shall review the minutes for their accuracy. The Board must approve the minutes by a majority of its members. E. AIPP BOARD VOTING 1. uorum The quorum for the conduct of business at any meeting shall be four voting members of the Board. No action shall be taken in the absence of a quorum, except to adjourn the meeting to a subsequent date. 2. Manner of Voting In all matters coming before the Board, the affirmative vote of a majority of those present shall be the action of the Board, provided that a quorum is present. A tie vote is a negative or denial action. 3. Appointment of Special Committees The Board may establish special committees as may be necessary for the conduct of the business of the Board. The Board shall appoint members of special committees. All members of the Board shall be entitled to attend meetings of committees created by the Board. The AIPP Board shall establish an executive committee for the 15 prupose of handling executive decisions as described in Section III H. Temporary Artwork Exhibitions. The executive committee shall be made up of the AIPP chairperson, Town Council representative and one AIPP member at large. 4. Conflict of Interest In the event any member shall have a financial interest of any kind in a matter before the Board, h.e/she shall disclose his/her interest to the Board. The member shall not vote or give opinions or recommendations on the matter under consideration. F. SELECTION JURY 1. Appointment of Selection Jury The AIPP Board may choose to appoint a jury to review artwork. Juries are required for all permanent commissioned or direct purchase AIPP projects. 2. The size of the jury is determined by the AIPP Board. Jury members shall serve the Art in Public Places be removed by the Art in The Art in Public Places as the nonvoting resource selection jury and shall project management. at the discretion of Board and members may Public Places Board. coordinator shall serve person for each be responsible for The jury shall include but is not limited to: a. one professional artist; b. one visual arts professional which may include an artist, art historian, museum curator, or arts coordinator; c. one community lay person interested in the project; d. one person who either lives or works in close proximity to the proposed site for the artwork; e. one AIPP Board member. Additional jurors may be chosen for the jury if appropriate. As an example, jurors may be added 16 who are art educators, lay citizens interested in the arts, art patrons, art critics, architects, landscape architects and designers. 3. Jury Advisors The jury may solicit comments and advice from individuals whose comments the jury may find helpful in the development of the project concept and actual selection of a particular artwork. It shall be especially important for the jury to seek comment from those persons who because of the location of their residence or business will be in frequent contact with the artwork selected. Advisors. do not vote. 4. Consultants to the Jury Occasionally professional consultants may be needed to advise and/or assist the jury with specific projects for such purposes as: a. Professional appraisal of art work b. Performance of feasibility studies, specific to execution of proposed art works c. Packing and shipping of art works d. Review of engineering specifications e. Conservation and maintenance f. Collection documentations g. Installation design h. Presentation assistance i. Landscape architecture design 5. Jury Voting Rights Each juror has one vote and no juror has the right of veto. If a consensus cannot be reached by the jury, then the majority vote carries the decision. The jury has the right to make no selection if there is no proposal judged to be of sufficient merit. 6. Documentation of the Jury's Decision-Ma}cinq Process and Accession of the Artwork 17 The AIPP Coordinator shall be responsible for keeping accurate records and minutes of the decision-making process and criteria used to select each AIPP project. The Jury shall review these records for their accuracy. The Jury must approve the records by a majority of its members. After approval, the records-are presented to the AIPP Board for their approval or denial. 7. Conflict of Interest Concerning Any of the Review Bodies Any artist selected to serve on the Selection Jury is precluded from having his/her work considered for inclusion in the same project during his/her term of service. Persons other than artists who would receive financial gains from the selection of work are ineligible for jury appointment (gallery owners, brokers, artists' representatives, etc.) on a project by project basis. 8. Jury Member Representatives File The Arts in Public Places Board shall maintain a file of potential representatives for selection juries. This file shall contain the professional qualifications of each potential representative and a current resume. Individuals wishing inclusion in this file should submit a resume to the Arts in Public Places Board for consideration. G. ARTIST'S RESPONSIBILITY If selected to create an AIPP sponsored project, the artist shall: 1. Execute and complete the work in a timely and professional manner and transfer title of an existing work of art to the Town. 2. Maintain a close working relationship with the AIPP Board, jury, AIPP coordinator and community, including participation in public meetings related to the art proposal. 3. Return to the Board for review and approval should any significant change occur in the scope, material, design or siting of the artwork. The coordinator shall monitor the process of the completion of the artwork and if 18 .. ~ -. ~~ he or she determines that a significant change has occurred in the project, the coordinator shall require the artist to return to the Board for review and approval of such change. 4. Be responsible for all phases of the design and execution of the work, including installation, unless otherwise stipulated in the contract. 5. Warrant that the design or work being submitted is an original product of his/her own creative effort. 6. Guarantee and maintain the work from defects of material or workmanship for a period of time mutually acceptable to the Town and artist. 7. Adhere to the conditions of the AIPP contract as entered into by the artist and AIPP Board on behalf of the Town of Vail. 19 VIII.VAIL ART IN PUBLIC PLACES REVIEW PROCEDURES A. AIPP DESIGN APPROVAL AND REVIEW PHILOSOPHY No AIPP sponsored artwork shall be erected, removed, or altered without the prior review and approval of the Art in Public Places Board. The review process is based on the premise that Art in Public Places' projects should reflect professional judgement and a sensitivity t.o the interests of the public. The process is designed to be as streamlined as possible to encourage public art while still allowing for community involvement in the project. B. GIFTS OF ARTWORK OR PRIVATELY SPONSORED ARTWORK PROPOSED FOR A PUBLICLY OWNED SITE 1. Pre-application Conference: Prior to the formal filing of an application, the applicant is encouraged to meet with the Art in Public Places coordinator to obtain information and assistance concerning the review process. Topics of discussion may include, but not be limited to: a. The purpose of the Art in Public Places Program b. Review procedures for Art in Public Places gifts and donations c. The type of artwork and proposed site for the project d. Conditions of the gift as well as any copyright or deaccessioning requirements e. Submittal requirements 2. Submittal Requirements: The project proponent shall submit the following material to the Art in Public Places coordinator, unless the coordinator determines that some of the following material may be excluded: a. A completed application form b. A written description of the proposal which includes background on the artist and details on the specific artwork to include material, colors, media, dimensions and supporting structure. c. Photograph, model, or drawing of the specific artwork. 20 d. Any conditions of the gift e. The applicant may propose the project for a specific site. The applicant may also propose to have a rotating display of artwork on a permanent site. The following information may also be required but may not be necessary for every project: 1) Site Plan 2) Survey 3) Title report, Schedule A and B 4) Landscape Plan 5) Lighting 6) Photos of the proposed site 7) Land owner's approval 8) Preliminary budget for the project to address installation costs, identification plaque, maintenance requirements for artwork and site, insurance costs 9) Site preparation costs including grading, landscaping, seating, lighting and signage. 3. Staff/Board Procedure The Art in Public Places coordinator shall check the submittal for its completeness. The Art in Public Places coordinator may require any additional information from the applicant as may be necessary for complete and proper review of the proposal. If the application is found to be in compliance with the Art in Public Places submittal requirements, the project shall be placed upon the agenda of the next appropriately scheduled Art in Public Places. If the application is found not to be in compliance with applicable submittal requirements, the application and materials shall be returned to the applicant with an explanation of the Art in Public Places coordinator's findings. The AIPP Coordinator shall also submit the project to the appropriate Town of Vail departments so that the following factors may be reviewed: Public Safety, interior and exterior vehicular and pedestrian traffic patterns, impacts on operational functions of the Town such as snowplowing and traffic control, environmental impacts and planning issues. a. The Art in Public Places Board shall review the application and supporting material, 21 and if the project is found to comply with the policies and the criteria of the AIPP Program, the Art in Public Places Board may approve the project. Once the AIPP Board has voted to give final approval to an artwork, the AIPP Coordinator shall inform the Town Council and Town Manager of the AIPP Board's final decision in writing or in a presentation at a public meeting within 10 days of the AIPP decision on the artwork. If additional items are needed to determine if it is appropriate to approve the project, the Art in Public Places Board may table the project until the next scheduled meeting. If the project is tabled, the Board shall specify the conditions and additional and/or modified materials which must be submitted by the applicant to the Art in Public Places Board, including any change in the submittal. The applicant may also table the application to a future meeting for any reason. b. If the project is found to conflict with the policies and criteria of this chapter, the Board shall disapprove the proposal. Any disapproval shall be in writing and shall specifically describe the policies and criteria with which the project does not meet and the manner of noncompliance. c. The Art in Public Places Board shall have 30 days to consider and approve or deny an application. The time for action may be extended at the request of the applicant. d. If changes in the proposal are requested, the Board shall approve, disapprove, or request further changes within 30 days of the meeting at which the Art in Public Places Board receives the changes unless an extension is agreed to by the applicant. e. The applicant or authorized representative of the applicant shall be present at the Art in Public Places Board meeting. f. The AIPP Board may appoint a jury to review a specific project if deemed appropriate. Jury procedures shall be followed as outlined in Section VII F. 22 C. COMMISSIONED OR DIRECT PURCHASE ARTWORK THAT IS SPONSORED BY TOWN OF VAIL FUNDS THROUGH THE ART IN PUBLIC PLACES PROGRAM 1. Submittal Requirements: The Art in Public Places Board and coordinator shall be responsible for developing proposals for commissioned or direct purchase Art in Public Places projects. Members of the public may suggest appropriate projects, however, the AIPP Board and coordinator are primarily responsible for developing the preliminary project prospectus. The AIPP Board and coordinator shall also be responsible for developing the selection process and public participation component for each project. The project prospectus will consider the following points: a. Project concept b. Type of competition if applicable 1) Open Competition: The project is advertised and all interested artists may submit preliminary ideas for proposals. No fees are paid to artists for their initial proposal submissionst however, a small number of finalists may be selected to submit detailed maquettes for the project for which they shall be paid an appropriate fee determined by the AIPP; or 2) Limited Competition: A selected number of artists are invited to submit proposals. An appropriate fee shall be allocated for the artists' participation as determined by the AIPP Board; or 3) Invitation: One artist is invited to submit a proposal for which he/she shall be paid an appropriate proposal fee as determined by the AIPP Board. c. Eligibility d. Site description explaining in detail any special design constraints related to the site 23 e. The selection process f. The selection criteria g. Jury membership: The number of members and names of jury members shall be listed h. Public participation process and responsibilities of the artist in public hearings and informal community meetings i. Application materials to be submitted such as site plan, elevations, models, etc. j. Budget: Define overall project budget and eligible and ineligible expenditures including site work, lighting, signage, insurance, etc. k. Payment plan to the artist(s) 1. Dedication/publicity responsibilities of the artist m. Allowed signage for identification of the artist and artwork n. Project schedule for decision making and completion o. Contact person p. Notification of action on proposals q. Copyright/Deaccessioning requirements r. A list of appropriate jury advisors shall be provided s. A list of pre-screening panel members shall be provided if the pre-screening panel is part of the process t. A list of appropriate consultants shall be provided if deemed necessary by the coordinator or AIPP Board u. Determine the role of Design Review Board if the artwork is part of a municipal construction project that must also be reviewed by the Design Review Board 24 _~_ ,• The AIPP Board and coordinator may work on the development of a project prospectus at informal work sessions as well as regularly scheduled meetings. The AIPP Coordinator shall also submit the project to the appropriate Town of Vail departments so that the following factors may be reviewed: Public safety, interior and exterior vehicular and pedestrian traffic patterns, impacts on operational functions of the Town such as snowplowing and traffic control, environmental impacts and planning issues. 2. Staff/Board Procedure a. Once the Art in Public Places Board has established the written project prospectus, the coordinator shall place the project prospectus on the agenda of the next appropriately scheduled Art in Public Places Board meeting. The AIPP Board shall review the written project prospectus at a regularly scheduled meeting. Once the Art in Public Places Board approves the project prospectus, the coordinator shall present the project prospectus, the coordinator shall present the project prospectus to the Town Council for their approval or denial of the project prospectus and any associated funding required for the project. After the Town Council has approved the project prospectus and associated funding required for .the project, the Art in Public Places Board shall implement the project as approved by the Town Council. D. RELOCATION OF EXISTING AIPP OWNED ARTWORK 1. Submittal Requirements The AIPP Board or concerned citizen may initiate a request to relocate an artwork. The Coordinator is responsible for compiling a summary report that lists all the background information on the artwork, any special legal conditions which relate to the artwork, artists' rights, information on the new location for the artwork, property owner's approval for the new location, time frame for relocating the artwork, 25 _. _ .., P .,. '4 and a review by the Town Attorney outlining any legal issues related to the request. 2. Staff/Board Procedure The AIPP Coordinator will schedule the proposal on the agenda for the next appropriately scheduled AIPP Board meeting. The AIPP Board will review the proposal with respect to policies and criteria in this chapter to determine if relocation is appropriate for the artwork. The decision to relocate a project must be approved by a majority of the AIPP Board members. Once the AIPP Board has voted to give final approval. to the relocation of an artwork, the AIPP Coordinator shall present the proposal to the Town Council for final approval within 10 days of the AIPP decision. Once the Town Council has approved the relocation of the artwork, the AIPP Coordinator, the AIPP Board and the Town attorney are responsible for implementing the relocation of the artwork. E. DEACCESSIONING AIPP OWNED ARTWORK 1. Submittal Requirements The AIPF Board, or a concerned citizen may initiate a request to deaccession an artwork. The AIPF Coordinator shall be responsible for compiling a summary report which reviews how the artwork was acquired, conditions of acquisition, artists' rights, and a review from the Town Attorney identifying legal issues related to deaccessioning the particular artwork. 2. Staff/Board Procedures Once the. written summary relating to the artwork has been. completed by the Coordinator, the Coordinator will place the deaccessioning proposal on the agenda of a regularly scheduled AIPP Board meeting. The AIPP Board will review the proposal with respect to policies and criteria in this chapter to determine if the deaccession of the artwork is appropriate. The decision to deaccess an artwork must be approved by a majority of the AIPP Board members. 26 } Once the AIPP Board has voted to give final approval to the deaccessioning of an artwork, the AIPP Coordinator shall present the proposal to the Town Council for final approval within 10 days of the AIPP decision. Once the Town Council has approved the deaccession of an artwork, the AIPP Coordinator, the AIPP Board, and Town Attorney are responsible for implementing the deaccession of the artwork. F. CONCEPTUAL REVIEW OF AN ARTWORK PROPOSAL The applicant may wish to have a conceptual review of his/her proposal by the AIPP Board. A conceptual review gives the applicant the opporunity to discuss a proposal with the AIPP Board. The AIPP coordinator shall schedule the conceptual review request on the agenda of the next appropriately scheduled AIPP meeting. There are no submittal requirements for a conceptual review. The AIPP Board shall not vote on a conceptual presentation, G. TOWN COUNCIL REVIEW OF THE AIPP BOARD'S DECISION ON AN ARTWORK 1. Once the AIPP Coordinator has informed the Town Council and Town Manager of the AIPP Board's decision on an artwork at the next scheduled Town Council worksession following the AIPP Board meeting, the Council may determine it is appropriate to review the AIPP Board's decision at a regularly scheduled Council evening meeting by a majority vote of Council members present at the work session. 2. The Council shall schedule the review within 30 days of their vote to review the AIPP Board's decision with a possible 30 day extension if the Council finds that there is insufficient information. 3. The Council, in considering the AIPP's decisi n on the artwork, may overturn the decision if they find the review procedures and criteria of the AIPP Program have been violated. 27 H. ART IN PUBLIC PLACES REVIEW FEE The Town Council shall set a fee schedule, sufficient to cover the cost of Town staff time, and incidental expenses to artwork proposals. I. LAPSE OF AIPP PROJECT APPROVAL Approval of an artwork as prescribed by this chapter shall lapse and shall become void one year following the date of final approval of the project unless prior to the expiration of one year, the proposed artwork construction is commenced and diligently pursued toward completion. However, if there have been no revisions or amendments to the AIPP guidelines which would alter the conditions under which the approval was give, the AIPP Board may extend the period of approval for additional one year periods. 2 8 .. a IX. VAIL ART IN PUBLIC PLACES PROJECT SELECTION CRITERIA A. SITE SELECTION CRITERIA 1. Prior to selecting a site for an artwork, the Art in Public Places Board and/or selection jury, shall take into consideration the following factors: a. The visibility of the site by the general public b. Public safety c. Interior and exterior vehicular and pedestrian traffic patterns d. Relationship of proposed site to existing or future architectural features and to natural features e. Facility for users and/or interaction of users with proposed artwork f. Future development plans for the area g. Site design, including landscaping, drainage, grading, lighting and seating considerations h. Relationship of proposed art work to existing artworks within the site vicinity i. Environmental impact such as noise and light associated with the artwork j. Public accessibility to the art work, particularly handicap access k. Impacts on adjacent property owners' views 1. Impacts on operational functions (snowplowing, etc.) of the Town B. ARTWORK CRITERIA The AIPP Board and/or selection jury shall use the following criteria when reviewing an artwork. The AIPP Board may include additional criteria for a specific project. 29 1. 2. 3. 4. 5. Quality and Innovation The consideration of highest priority is the inherent artistic excellence and innovation of the artwork. Timelessness Each artwork should be viewed as a long term acquisition that should have relevance aesthetically to the community in future years. Due to the high visibility of public art by residents and guests who frequent public places, artworks should be selected that reflect enduring artistic quality. Compatibility With Site Works of art should be compatible in style, scale, material, form, and content with their surroundings, and should form an overall relationship with the site. Permanence Works of art shall have structural and surface soundness, and be resistant to theft, vandalism, weathering. Artwork shall not require excessive maintenance or repair costs. Artworks that require expensive and/or continual maintenance are discouraged. Public Safety Artwork shall not create inordinate safety problems or liability problems for the general public or Town of Vail. 30 ,. ._ .,~ RESOLUTION NO. 26 Series of 1989 A RESOLUTION CREATING A TEMPORARY TOWN OF VAIL ART IN PUBLIC PLACES BOARD AND ADOPTING THE ART IN PUBLIC PLACES PROGRAM. WHEREAS, in accordance with Article 8 of the Town Charter, the Town Council has the power to appoint advisory boards and commissions; and WHEREAS, Town Council is of the opinion that it will benefit the welfare of the Town of Vail to establish a board and process for reviewing artwork proposed for public sites or artwork that is sponsored by Town of Vail Art in Public Places funding by the formation of a temporary Art in Public Places Board whose purpose is to administer the Art in Public Places Program; and WHEREAS, the Art in Public Places Program is established to provide an effective process for selecting, purchasing, commissioning, placing, and maintaining public art projects that represent the best in aesthetic and technical quality; and NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THATe 1. Creation There is hereby created by the Town Council a temporary Art in Public Places Board, in accordance with Chapter 8 of the Town Charter composed of seven members who shall act in accordance with the Charter, Art in Public Places Program, and the direction of the Town Council, and the ordinances of the Town. 2. Term of Existence of Art in Public Places Board The Art in Public Places Board shall exist for a period of two (2) years unless said period is shortened or extended by the Town Council. 3. Members The temporary Art in Public Places Board shall consist of seven (7) voting members appointed by the Vail Town Council. The seven (7) members shall include four (4) members at large, one (1) Town Council member, one (1) Planning and Environmental Commission member, and one (1) Design Review Board member. 'The Board will be made up of members who have demonstrated expertise in architecture, art criticism, art education, art history, fine arts, graphic arts, interior design, landscape architecture, town planning/community development, or other art/design related backgrounds not specifically mentioned, or who have demonstrated a strong interest in the visual arts and/or civic improvement. The Board members shall be one of the following for at least one year: A. A resident of the Town of Vail and/or; B. Owner of property within the Town of Vail and/or; C. An owner of a business within the Town of Vail. The term of service for each Art in Public Places Board member shall be for two years. If the AIPP Board is continued beyond two years, three of the appointed at large representatives shall have terms that extend one additional year. All members shall serve at the will of the Town Council and shall be subject to removal by the Town Council for inefficiency, neg]_ect of duty, failure to attend meetings, malfeasance in office, or any other reason the Town Council deems proper. 4. Vacancies Vacancies on the Art: in Public Places Board shall occur whenever a member of the Board is removed by the Town Council, dies, becomes incapacitated and unable to preform his/her duties for a period of sixty (60) days, resigns, creases to meet the qualifications for Art in Public Places Board membership outlined in the Art in Public Places Program, ar is convicted of a felony. Whenever a vacancy occurs, the Art in Public Places Coordinator shall promptly advertise for applicants to fill such vacancy. The Vail Town Council shall appoint members to the Art in Public Places Board. The Art in Public Places Board shall select its own chair and vice chair from among its members. The chair shall not be a Town Council, Design Review Board, or Planning and Environmental Commission representative. 5. Purpose The purpose of the Art in Public Places Board shall be to implement the Art in Public Places Program. sr" 4, 6. The Vail Town Council hereby adopts the Art in Public Places Program for a period of two (2) years from the date of appointment of the Art in Public Places Board. INTRODUCED, READ, APPROVED AND ADOPTED this day of , 1989. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 28 Series of 1989 A RESOLUTION DESIGNATING Shearson Lehman Hutton, Inc., 6400 Texas Commerce Tower, Houston, Texas 77002 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Shearson Lehman Hutton as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Shearson Lehman Hutton is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Shearson Lehman Hutton. When an account with Shearson Lehman Hutton is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTESTa Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 29 Series of 1989 A RESOLUTION DESIGNATING Underwood, Neuhaus and Company, P. O. Box 4522, Houston, Texas 77251 AS A DEPOSITORY 'FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Underwood, Neuhaus and Company as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Underwood, Neuhaus and Company is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Underwood, Neuhaus and Company. When an account with Underwood, Neuhaus and Company is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this Kent Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 30 Series of 1989 A RESOLUTION DESIGNATING Eastern Savings Bank, 11350 McCormick Road, Executive Plaza Two, Suite 200, Hunt Valley, MD, 21031 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Eastern Savings BAnk as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Eastern Savings BAnk is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Eastern Savings BAnk. When an account with Eastern Savings BAnk is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 31 Series of 1989 A RESOLUTION DESIGNATING Kislak National Bank, 13490 N. W. Seventh Ave., North Miami, FL 33168 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Kislak National Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Kislak National Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Kislak National Bank. When an account with Kislak National Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 32 Series of 1989 A RESOLUTION DESIGNATING Republic National Bank, 2020 Central Ave., Phoenix, AZ, 85004 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Republic National Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Republic National Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Republic National Bank. When an account with Republic National Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTESTe Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 33 Series of 1989 A RESOLUTION DESIGNATING Standard Pacific Savings and Loan, 4590 MaCarthur Blvd., Suite 125, Newport Beach, 92660 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Standard Pacific Savings and Loan as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Standard Pacific Savings and Loan is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Standard Pacific Saving: and Loan. When an account with Standard Pacific Savings and Loan is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this Kent Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk RESOLITION NO. 34 Series of 1989 A RESOLUTION DESIGNATING Century Bank of Suffolk, 460 Broadway, Chelsea, MA 02150 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town laas the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Century Bank of Suffolk as a depository for funds of the Town> NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Century Bank of Suffolk is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are herek~y authorized to open any deposit or checking accounts in the name of the Town of Vail at Century Bank of Suffol};. When an account with Century Bank of Suffolk is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this Kent Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 35 _ Series of 1989 A RESOLUTION DES:CGNATING Century Bank and Trust, P. O. Box 1~i0, Somerville, MA, 02145 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND TH[E STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Century Bank and Trust as a depository far funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Century Bank and Trust is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Cor-troller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Century Bank and Trust. When an account with Century Bank and Trust is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this Kent Rose, Mayor ATTESTa Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 36 Series of 1989 A RESOLUTION DESIGNATING Brentwood Square Savings and Loan, 11661 San Vicente, Suite 500, Los Angeles, CA, 90049 AS A DEPOSITORY FOR THE FUNDS OF TH:E TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Brentwood Square Savings and Loan as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Co]_orado, as follows: 1. Brentwood Square Savings and Loan is hereby designated as a depository for the fonds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Brentwood Square Saving: and Loan. When an account with Brentwood Square Savings and Loan is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTROLIUCED, READ, APPROVED AND ADOPTED this ATTEST: Eent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 37 Series of 1989 A RESOLUTION DESIG:I~ATING Trustcorp Bank, Box 10099, Toledo, OH, 43699 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town washes to designate Trustcorp Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Trustcorp Bank is hereby designated as a depository for the fund: of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Trustcorp Bank. When an account with Trustcorp Bank is liquidated, a check shall be made to t:he Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTESTe I~ent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLtTION NO. 38 Series of 1989 A RESOLUTION DESIGNATING Columbia National Bank, 2001 Willshii-e Blvd., Santa Monica, CA, 90403 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED I3Y THE CHARTER OF THE TOWN, ITS ORDINANCES, ANI) THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Columbia National Bank as a depo:~itory for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Columbia National Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Columbia National Bank. When an account with Columbia National Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTESTe Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 39 Series of 1989 A RESOLUTION DESIGNATING First Cheshire Bank, 15 Main Street, Keene, NH, 03431 AS A DEPOSITORY FOR TH:E FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND TH]E STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town washes to designate First Cheshire Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. First Cheshire Bank is hereby designated as a depository for the fund: of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at First Cheshire Bank. When an account with First Cheshire Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 40 Series of 1989 A RESOLUTION DESIc;NATING Sunwest Bank, 535 East First Street, Tustin, CA, 92680 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND TH:E STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutio:rzs as depositories for funds of the Town and WHEREAS, the Town wishes to designate Sunwest Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Co:orado, as fo:Llows: 1. Sunwest Bank is ]Zereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are herek>y authorized to open any deposit or checking accounts in the name of the Town of Vail at Sunwest Bank. When an account with Sunwest Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: .Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 41 Series of 1989 A RESOLUTION DES:LGNATING Pioneer Federal Savings and Loan, ]?. O. Box C-9000, Chester, VA, 23831 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED ELY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Pioneer Federal Savings and Loan as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Pioneer Federal Savings anal Loan is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, 'the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Conitroller of the Town of Vail, or his successor, are hereby authorized 'to open any deposit or checking accounts in the name of the Town of Vail at Pioneer Federal Savings and Loan. When an account with Pioneer Federal Savings and Loan is liquidated, a check shall be made to the Town of Vail and mailed to 75 S . Frontage Road, Vail, Colorado 81657. 3. This Resolution. shall take effect immediately. upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this Kent Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 42 Series of 1989 A RESOLUTION DESIGNATING Fidelity Federal Savings Bank, P. O. Box 29450, Richmond, VA, 23229 AS A DEPOSI7CORY FOR THE FUNDS OF THE TOWN AS PERMITTED F3Y THE CHARTER OF THE TOWN, ITS ORDINANCES, ANI) THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Fidelity Federal Savings Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Co]_orado, as follows: 1. Fidelity Federal Savings Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of t:he Town of Vail at Fidelity Federal Savings Bank. When an account with Fidelity Federal Savings Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Co]_orado 81657. 3. This Resolution. shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this _ ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 43 Series of 1989 A RESOLUTION DESIG]~TATING St. Edmonds Savings and Loan, 2001 S. 23 Street, Philadelphia, PA 19145 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, ANI) THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate St. Edmonds Savings and Loan as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. St. Edmonds Savings and Loan is hereby designated - as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at St. Edmonds Savings and Loan. When an account with St. Edmonds Savings and Loan is liquidated, a check shall be made to the Town of Vail and mailed to 75 S . Frontage Road, Vail, Colorado 81E~57. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLi;fTION NO. 44 Series of 1989 A RESOLUTION DESIGNATING Monadnock Bank, P. O. Box 308, Jaffrey, NH, 03452 AS A DEPOSITORY FOR THE FUNDS OF T~[E TOWN AS PERMITTED BY THE CHARTER OF THE TOW]K, ITS ORDINANCES, AND THE STATUTES OF THE STp-TE OF COLORADO WHEREAS, the Town kias the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Monadnock Bank as a depository for funcis of the Towri. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Monadnock Bank is hereby designated as a depository for the fund; of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Monadnock Bank. When an account with Monadnock Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolutior- shall take effect immediately upon its passage. INTROL-UCED, READ, APPROVED AND ADOPTED this ]Kent Rose, Mayor ATTESTa Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 45 Series of 1989 A RESOLUTION DESIC~NATING East Bank NA, 235 Canal Street, New York, New York, 10013 AS A DEPOSITORY FOR TL:(E FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF 7.'HE TOWN, ITS ORDINANCES, AND TH:E STATUTES OF THE STATE OF CGLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate East Bank NA as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Co_orado, as follows: 1. East Bank NA is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at East Bank NA. When an account with East Bank NA is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontages Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTROL)UCED, READ, APPROVED AND ADOPTED this Kent Rose, Mayor ATTESTo Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 46 Series of 1989 A RESOLUTION DESIGNATING Charter Bank for Savings, P. O. Box 15069, Sante Fe, New Mexico, 87506 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCF~S, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town Yias the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Charter Bank for Savings as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Charter Bank for Savings is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are herek~y authorized to open any deposit or checking accounts in the name of the Town of Vail at Charter Bank for Savings. When an account with Charter Bank for Savings is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this Kent Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk ~2ESOLUTION NO. 47 Series of 1989 A RESOLUTION DESIGNATING Bay Loan and Investment Bank, 414 Main Street, East Greenich, Rhode Is:Land, 02818 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town ]nas.the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Bay Loan and Investment Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Bay Loan and Investment Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Bay Loan and Investment: Bank. When an account with Bay , Loan and Investment Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Z'own Clerk RESOLUTION NO, 48 Series of 1989 A RESOLUTION DESIGNATING Coast Bank, P. O. Box 3628, Long Beach, CA, 90802 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town ]Zas the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Coast Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Coast Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of 'Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are herek~y authorized to open any deposit or checking accounts in the name of the Town of Vail at Coast Bank. When an account with Coast Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. .This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 49 Series of 1989 A RESOLUTION DESIGNATING Mission Viejo National Bank, 2630 La Alameda, Suite 200, Mission Viejo, CA, 92691 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town ]Zas the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Mission Viejo National.Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Mission Viejo National Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Mission Viejo National Bank. When an account with Mission Viejo National Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, 'T'own Clerk RESOLUTION NO. 50 Series of 1989 A RESOLUTION DESIGNATING Souhegon National Bank, 26 Nashua Street, Milford, NH, 03055 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF' THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town. wishes to designate Souhegon National Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Souhegon National Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Souhegon National Bank. When an account with Souhegon National Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Z'own Clerk RESOLUTION NO. 51 Series of 1989 A RESOLUTION DESIGNATING Center Bank, 60 N. Main Street, Waterberry, CT AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Center Bank as a depository for funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Center Bank is riereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at Center Bank. When an account with Center Bank is liquidated, a check sha]_1 be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 52 Series of 1989 A RESOLUTION DESIGNATING First Capital Bank, P. O. Box 528, Concord, NH, 03301 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF' THE STATE OF COLORADO WHEREAS, the Town has the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate First Capital Bank as a depository fo:r funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. First Capital Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are hereby authorized to open any deposit or checking accounts in the name of the Town of Vail at First Capital Bank. When an account with First Capital Bank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk RESOLUTION NO. 53 Series of 1989 A RESOLUTION DESIGNATING Security Pacific State Bank, 1422 Culver Dr., Irvine, CA, 92714 AS A DEPOSITORY FOR THE FUNDS OF THE TOWN AS PERMITTED BY THE CHARTER OF THE TOWN, ITS ORDINANCES, AND THE STATUTES OF THE STATE OF COLORADO WHEREAS, the Town lzas the power to designate banks or financial institutions as depositories for funds of the Town and WHEREAS, the Town wishes to designate Security Pacific State Bank as a depository for. funds of the Town. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Vail, Colorado, as follows: 1. Security Pacific: State Bank is hereby designated as a depository for the funds of the Town of Vail. 2. Charles Wick, the Director of Administrative Services of the Town of 'Vail, or his successor, and Steve Thompson, Financial Controller of the Town of Vail, or his successor, are herek>y authorized to open any deposit or checking accounts in the name of the Town of Vail at Security Pacific StatE. Bank. When an account with Security Pacific State I3ank is liquidated, a check shall be made to the Town of Vail and mailed to 75 S. Frontage Road, Vail, Colorado 81657. 3. This Resolution shall take effect immediately upon its passage. INTRODUCED, READ, APPROVED AND ADOPTED this ATTEST: Kent Rose, Mayor Pamela A. Brandmeyer, Town Clerk i 4 ~~~ 1 .;~ i989 DISTRICT COURT, COUNTY OF EAGLE, STATE OF COLORADO Case No. 88CV328 ORDER IN JUDGMENT CRAIG HOLZFASTER, d/b/a BEST WESTERN VAIL GLO LODGE, Plaintiff, vs. TOWN OF VAIL, a Colorado Municipal Corporation, Defendant. This is an appeal bz-ought pursuant to Rule 106(a)(4), C.R.C.P. The Plaintiff, Craig Holzfaster, is appealing the decision of the Town Council of the Torn of Vail issued at a regular Town Council meeting on May 17, 19E~8, denying the Plaintiff a variance from the Town of Vail sign code regulations. On March 2, 1988, tree Plaintiff filed an application for a sign variance. The Plaintiff is the owner of a lodge located in the LionsHead area of the Towr.~ of Vail called the Best Western Vail Glo Lodge. The Plaintiff', in effect, requested relief from three provisions of the Vail sign code: He wished to place a fifty-four (.54) square foot sign on an exterior wall of the Vail Glo Lodge, and this entailed relief from a section of the Vail Municipal Code which provides that no wall sign shall exceed a size of greater than twenty (20) square feet. The Plaintiff wished to place the wall sign on an exterior wall of the Vail Glo Lodge approximately thirty-five (35) feet above grade. The Vail sign code provides that no part of a wall sign such as the Plaintiff°s shall extend above twenty-five (25) feet from the existing grade, The Plaintiff wished. to place a freestanding sign at approximately ten (10) feet above grade. The Vail sign code provides that no freestanding sign shall be more than eight (8) feet above existing grade. The Town of Vail sign variance procedure requires two (2) hearings, The first hearing is before the Town°s Design Review Board. Within twenty (20) days of the closing of the public hearing, i f the Design Review Board "may recommend approval of the application as submitted, or may recommend approval of the application subject to such modifications or conditions as it deems necessary to accom- plish the purpose (of the zoning code), or the Board may recommend denial o:f the application." The criteria for approval of a variance is set forth in 16.36.070 of Chapter 16.36 of the Vail Municipal Code which is attached hereto as Exhibit A. Section 16.36.070 clearly places the burden of proving physical hardship on the applicant and sets forth several criteria the applicant must meet before a variance can be granted. The ordinance provides in Section :16.36.080 that the recommendation of the Design Review Board shall be promptly transmitted to the Town Council. There is then a second hearing before the Town Council to review the recom- mendation of the Design Review Board and then either approve, modify, or deny the application. The Plaintiff°s hearing before the Design Review Board was held on April 20, 1988. After the hearing, the Design Review Board voted unanimously to recommend a denial of the Plaintiff's variance request to the Town Council. The recommendation was forwarded to the Town Council, and on May 17, 1988, at a regular Town Council meeting, after a full hearing at which the Plaintiff was present and represented by counsel, the Town Council unanimously voted to deny the variance request. 'The Court has read the transcript of the hearing before the Town Council. The evidence presented would have allowed the Council to grant the variance or to deny the variance. Thus, it was within the discretion of the Council to deny the variance. The Court dei~ermines that Council did not exceed its jurisdiction or abuse its discretion. (The Court agrees with Plaintiff's attorney that the record is incomplete. However, the result would be the same if the record were complete.) The Court also determines that the ordinance in issue is not vague or overbroad. This case is dismissed with prejudice. Dated this 12th day of July 1989. BY THE COURT: ' ~~~~ JUDGE -2- ' ~ ~~ ~; '' a ;t Exh:ibit A Clhapter 16.36 !i'AItIANCES Sections: 16.36.010 purpose-Limitations. 16.36.020 Applicatioai. 16.36.030 IFee. fl 6.36.040 1$earing. 16.36.050 Notice of hearing. 16.36.060 Action on application. 16.36.070 Criteria for approval. fl 6.36.080 Town council action. VARIANCES 16.36.010 purpose-Limitations. A. In order to prevent or to lessen such practical difficulties and unnecessary physical hardships inconsistent with the objectives of this title., variances from the regulations may be granted. A practical difficulty or unnecessary physical hardship may result from the size, shape, or dimensions ~f a structure, or the location of the structure, from topographic or physical conditions on the site or in the immediate vicinity, or from other physical limitations, street locations, or traffic conditions in the immediate vicinity. Cost or inconvenience to the applicant of strict or literal compliance with a regulation shall not be a reason for granting a variance. 13. A variance may be granted with respect to any regulation contained in this title. (Ord. 4(1975) § 2(L)(1): Ord. 9(1973) § 17(1).) 16.36.020 Application. Application for a variance shall be made upon a form provided by the administrator. The variance application shall include the application for a sign permit and shall also state the applicant's reasons for requesting variance in accordance with the criteria set forth in Section 16.36.070. (Ord. 4(1975) § 2(L)(2): Ord. 9(1973) § 17(2).) a59 "' ~ I S1GNS 16.36.030 Fee. The town council shall :yet a variance fee sufficient to cover the cost of town staff time and other expenses incidental to the review of the application. The fee shall be paid at the time of application and shall not be refundable. (Ord. 4(1975) § 2(L)(3): Ord. 9(1973) § 17(3).) 16.36.040 Hearing. Upon receipt of a variance application, the administrator shall set a date for hearing before the design review board. (Ord. 4(1975) § 2(L)(4): Ord. 9(1973) § 17(4).) 16.36.050 Notice of hearing. Not less than fifteen days prior to the date set for the hearing, the administrator shall cause a copy of a notice of the time and place of the hearing to be published once in a newspaper of general circulation in the county. (Ord. 4(1975) § 2(L)(5): Ord. 9(1973) § 17(5).) 16.36.060 Action on application. Within twenty days of the closing of a public hearing on a variance application, the design review board shall act on the application. The board may recommend approval of the application as submitted, or may recommend approval of the application subject to such modifications or conditions as it deems necessary to accomplish the purpose of this title, or the board may recommend denial of the application. A variance may be revocable or may be granted for a limited time period. (Ord. 4(1975) § 2(L)(6): Ord. 9(1973) § 17(6).) 16.36.070 Criteria for approval. Before the board acts on a variance application, the applicant must prove physical hardship, and the board must find that: A. There are special circumstances or conditions applying to tl~c land; buildings, topography, vegetation, sign structures 260 ... _. f _ L VARIAN('ES or otl~cr matter<~ on adjacent lots or within the adjacent right-ot=way, which would substantially restrict the effectiveness of the sign in question; provided, however, that such special circumstances or conditions are unique to the particular business or enterprise to wliicl~ the applicant desires to draw attention, and do not apply generally to all businesses or enterprises; )3. 'That such special circumstances were not created by the applicant or anyone in privy to the applicant; ('. That tl~e granting; of the variance will be in general harmony witl- tl~e purposes of this title, and will trot be materially detrimental to the persons residing or working in the vicinity, to adjacent property, to the neiglihorhood, or to tl~e public welfare: in general; D. The variance applied for does not depart from the provisions of this title any more than is required to ide~itify the applicant's business or use; E. Suclt other factors and criteria as t11e design review board ~ deems applicable to the proposed variance. (Ord. 4(1975) § 2(L)1;7): Ord. 9(1973) § 17(7).) 16.36.080 Town council action. The recommendation of the design rwiew board shall be promptly transmitted to the applicant and to the town council. At its next regularly scheduled meeting following receipt of the recommendation of 1:he design review board or as promptly as practicable at a subsequent regular meeting of wliicli the applicant is given written notice, the town council shall hold a hearing to review the recommendation of the board, and shall either approve the application as submitted, approve the application subject to such modifications or conditions as it . deems necessary to accomplish the purpose of this title, or deny the application. If thE; council deems insufficient information is adduced at the hearing to provide the basis for a sound decision, it shall continue the hearing to one or more subsequent meetings. The council shall render a decision on tl~e appeal within sixty days after the final hearing, unless additional time is required for good cause, and serve a copy of its decision on ttie applicant by mail to the applicant's last known address. (Ord. 4(1975) § 2(L)(8): Ord. 9(1973) § 17(8). j 261 CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing Order was placed in the U.S. Mails, postage prepaid and affixed, this 12th day of July 1989, addressed to: HUGH R. WARDER Attorney at Law P.O. Box 1738 Glenwood Springs, CO 81602 LAWRENCE A. ESKWITH Attorney at Law 75 South Frontage Road Vail, CO 81657 ~,~ S. I~CL~-~,~, Carol S. Martin BROWNSTEIN HYATT FARBER & MADDEN A PROFESSIONAL CORPORATION NORMAN BROW NSTEIN JACK N. HYATT STEVEN W. FARBER MARK F. LEONARD KENNETH M. ROBINS JOHN W. MADDEN III JAMES S. MANOEL EDWARD N. BARAD STEPHEN W. ARENT DOUGLAS M. TISDALE KENNETH R. BENNINGTON JOHN R. CALL 'k OF COUNSEL STEVEN M. SOMMERS THOMAS L.ST RICKLANO HARLAN 5. ABRAHAMS ANN B. RILEY RONALD B. MER RI LL LYNDA A. MCN EIVE LISA HOLSTEIN LAURA JEAN CH RISTMAN RONALD A. MILZER STEVEN C. OEM BY ANDREW W. LOEWI CHARLES B. WHITE ATTORNEYS AT LAW TWENTY-SECOND FLOOR 410 SEVENTEENTH STREET DENVER,COLORADO 80202-4468 TELEPHONE (303) 534-6335 TELECOPIER (303) 623-1956 TELEC:OPIER (303) 893-6607 ROBERT W. NICHOLS WAYNE F. FORMAN WAYNE H. HYKAN BRUCE A.JAM ES MARK J. RICHAR DSON ** GARY C. FLYNN L. LOUISE ROMERO-ATWOOD DOUGLAS 5. ANTONOFF STANLEY L. GARNETT PETER T. ECKSTROM MICHAEL R. McGINN15 OON NA J. GILLIE MICHAEL J. STERNICK STEVEN J. COFFIN WILLIAM D. MULCAHY COLE FINEGAN GARY M. REIFF MARGARET E. PORFIDO LISA HOGAN **ADMITTED IN CALIFORNIA ONLY LOS ANGELES, CALIFO RNIA OFFICE TELEPH ONE(213) 286-0870 17une 29, 1989 Lawrence A. Eskwith, Esq. Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Fee Agreement Dear Larry: You have asked us, and we have agreed, to act as legal counsel for the Town of Vail (the "Town") in connection with a lawsuit against Lodge Properties, Inc., et al., in U.S. District Court, Civil Action No. 89-F-1098. We have not been retained to represent the Town generally or in connection with any other matter. The purpose of this letter is ~to summarize and confirm the terms and conditions of our understanding and agreement concerning this firm's representation of the Town of Vail. Our firm desires to render to our clients, to the best of our ability, legal services of excellent quality and also to have our clients know and believe that we are doing so. In further- ance of those ends, we believe it is essential to have a fee arrangement which is fair 'to our clients and to us. The amount of any fee is determined by us at periodic intervals as the services are rendered, based on the time and labor devoted, the skill rlequired, the ability of the lawyer performing the services, t:he amount involved, the results obtained, the time limitations, and the degree to which the representation precludes other representation. You should be specifically aware of the fact that time charges accrue -- and are :recorded daily -- for all the time spent on your matter, including the time involved in telephone calls, conferences, travel, court appearances, research and investigation, drafting letters and pleadings, and preparing memoranda, briefs, and other documents. BRO4INSTEIPd HYATT FARBEF & MADDEN Lawrence A. Eskwith, Esq. June 29, 1989 Page 2 Our hourly rates (the "base fee") are computed upon the following, subject to modification by the factors listed above. The hourly rates for attorneys who may work on this case are: Kenneth R. Bennington, Thomas L. Strickland, Charles B. White $190.00 Andrew W. Loewi, Robert W. Nichols $170.00 Stanley L. Garnett, Michael Sternick $150.00 William D. Mulcahy, Lisa A. Hogan, Bruce A. James, Gary C. Flynn, Wayne F. Forman $140.00 Cole Finegan $130.00 Steven J. Coffin, Peter T. Eckstrom, Margaret E. Porfido $110.00 Law Clerks $ 85.00 Senior Legal Assistants $ 75.00 Legal Assistants $ 60.00 These rates may be modified over time. Our monthly state- ments to you will reflect the rates in effect at the time the service was performed. We do not ordinarily notify clients in advance of changes in rates. In addition to charging fees, we also charge for costs incurred by us in connection with the rendering of legal ser- vices. Charges for long distance telephone calls, telecopy charges, copying, printing, postage, and deliveries made by in-house staff are covered by an administrative fee equal to 3.70 of the legal fees charged. This is in lieu of itemizing those expenses. If there are additional fees, such as, but not limited to, filing fees, service of process fees, transcript and deposi- tion fees, travel, meals, hotel accommodations, expert witnesses, or investigative fees, those will be billed separately. We may require that you make arrangements for payment of such items directly to the party providing those services or that you advance to us the estimated amount for such items prior to our making arrangements with the party providing those services. We render periodic (usually on a monthly basis) statements, disclosing for that period 'the daily itemized records of the services rendered and the fee, the nature and amount of any DRO~dN5TEI2d HYATT FAF.BER & MADDEN Lawrence A. Eskwith, Esq. June 29, 1989 Page 3 costs, the previous balance and payments received. In the event any statement is not paid in full within twenty (20) days of the date the statement is prepared, we expressly reserve the right to suspend performing any services and to withdraw promptly from any matters. By your acceptance of this letter, you expressly agree to such suspension of services and if we then represent you in any pending litigation, you expressly agree to such prompt with- drawal from all pending litigation and will not oppose or contest or challenge such withdrawal in any way. If necessary, you will be responsible for any costs of collection, including reasonable attorneys' fees, on all outstanding balances which remain unpaid. You shall at all times have the right to terminate our firm's services upon written notice to that effect. In addition to our rights in the event of non-payment of fees or costs as set forth above, our firm sha1:1 at all times have the right to termi- nate our services upon wril~ten notice to that effect in the event that you fail to cooperate with us in any reasonable request or that we determine in our reasonable discretion that to continue our services to you would be unethical, inappropriate, or impractical. It is anticipated than Wayne Forman and I will perform most of the work on this matter.. We reserve, however, the right to assign other lawyers in our firm to reps°esent you if, in our reasonable judgment, that becomes necessary. Services rendered prior to your signing this letter are subject to the terms hereof. You have agreed to our_ joint representation of the Lodge Tower Condominium Association in this matter, and the Association has also consented to this arrangement. Our fees and expenses incurred for all work directly related t:o this case subsequent to your verbal authorization t:o proceed on June 21 will be divided equally between the Town and the Association and billed separately to each client. Neither client will be liable for fees or expenses billed to the other. If the foregoing terms and conditions accurately summarize and confirm your understanding of our attorney-client relation- ship, please indicate your approval and acceptance by having an authorized representative of the Town of Vail sign and return BROFINST'EIN HYATT F~RBER & MADDEN Lawrence A. Eskwith, Esq. June 29, 1989 Page 4 this letter. I enclose a c:opy for you to sign and retain with your records. V¢ry truly yours, / ' L~ ;~ ~G-~farles B. White 1989. ACCEPTED AND AGREED TC> this da.y of TOWN OF VAIL By: _ Title. REC'~ JUL - 3 1989 BROWNSTEIN HYATT FARBER & MADDEN A PROFESSIONAL CORPORATION NORMAN BROWNST EIN STEVEN M. SOMMERS ROBERT W. NICHOLS WAYNE F FORMAN JACK N. HYATT THOMAS L. STRIC KLAND ATTORNEYS AT LAW WAYNE H. HYKAN BRUCE A.JAMES STEVEN W. FARBER HARLAN 5. ABRAHAMS TWENTY-SECOND FLOOR MARK J. RIC HARDSON *# GARY C. FLYNN MARK F. LEONARD ANN B. RILEY L. LOUISE ROMERO-ATWOOD DOUGLAS 5. ANTONOFF KENNETH M. ROBINS RONALD B. MER RILL 410 SEVENTEENTH STREET STANLEY L.GARN ETT PETER T. EC KSTROM JOHN W. MADDEN III LYN DA A. MCN EIVE DENVER, COLORADO 80202-4468 MIC HAEL R. MtGIN NIS DONNA J. GILLIE JAMES S. MANDEL LISA HOLSTEIN MICHAEL J. STER NICK STEVEN J. COFFIN EDWARD N. BA RAD LAURA JEAN CH RISTMAN WILLIAM D. MULCAHY COLE FIN EGAN STEPHEN W. ARENT * RONALD A. MILZER TELEF~HON E (303) 534-6335 GARY M. REIFF MARGARET E. PORFIDO DOUGLAS M. TISDALE STEVEN C. DEMBY TELEC:O PIER (303) 623-1956 LISA HOGAN KENNETH R. BEN NINGTON ANDREW W. LOE WI JOHN R. CALL CHARLES B. WHITE * TELECO PIER (303) 893-6607 **ADMITTED IN CALIFORNIA ONLY 'I`OF COUNSEL LOS ANGELES, CALIFORNIA OFFICE TELEPHONE (213) 286-0870 Tune 29, 1989 Lawrence A. Eskwith, Esq. Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Fee Agreement Dear Larry: You have asked us, anti we have agreed, to act as legal counsel for the Town of Vail (the "Town") in connection with a lawsuit against Lodge PropE;rties, Inc., et al., in U.S. District Court, Civil Action No. 89--F-1098. We have not been retained to represent the Town general]_y or in connection with any other matter. The purpose of this letter is to summarize and confirm the terms and conditions of: our understanding and agreement concerning this firm's reps~esentation of the Town of Vail. Our firm desires to rE;nder to our clients, to the best of our ability, legal services of excellent quality and also to have our clients know and believe that we are doing so. In further- ance of those ends, we believe it is essential to have a fee arrangement which is fair t:o our clients and to us. The amount of any fee is determined. by us at periodic intervals as the services are rendered, based on the time and labor devoted, the skill rE~quired, the ability of the lawyer performing the services, tree amount involved, the results obtained, the time limitations, and the degree to which the representation precludes other representation. You should be specifically aware of the fact that time charges accrue -- and are s~ecorded daily -- for all the time spent on your matter, including the time involved in telephone calls, conferences, travel, court appearances, research and investigation, drafting letters and pleadings, and preparing memoranda, briefs, and othE:r documents. BROWNSTEIi7 HYATT FARBER & MADDEN Lawrence A. Eskwith, Esq. June 29, 1989 Page 2 Our hourly rates (the "base fee") are computed upon the following, subject to modi:Eication by the factors listed above. The hourly rates for attorneys who may work on this case are: Kenneth R. Bennington, Thomas L. Strickland, Charles B. White $190.00 Andrew W. Loewi, ~2obert W. Nichols $170.00 Stanley L. Garnett:, Michael Sternick $150.00 William D. Mulcahy, Lisa A. Hoq_an, Bruce A. James, Gary C. Flynn, Wayne F. Forman $140.00 Cole Finegan $130.00 Steven J. Coffin, Peter T. Eckstrom, Margaret E. Porfid~.o $110.00 Law Clerks $ 85.00 Senior Legal Assistants --_ $ 75.00 Legal Assistants $ 60.00 These rates may be modified over time. Our monthly state- ments to you will reflect the rates in effect at the time the service was performed. We do not ordinarily notify clients in advance of changes in rates. In addition to charging fees, we also charge for costs incurred by us in connection with the rendering of legal ser- vices. Charges for long distance telephone calls, telecopy charges, copying, printing, postage, and deliveries made by in-house staff are covered :by an administrative fee equal to 3.7% of the legal fees charged. This is in lieu of itemizing those expenses. If there are additional fees, such as, but not limited to, filing fees, service of process fees, transcript and deposi- tion fees, travel, meals, hotel accommodations, expert witnesses, or investigative fees, thosca will be billed separately. We may require that you make arrangements for payment of such items directly to the party providing those services or that you advance to us the estimated amount for such items prior to our making arrangements with thc~ party providing those services. We render periodic (usually on a monthly basis) statements, disclosing for that period the daily itemized records of the services rendered and the fE;e, the nature and amount of any - BROWNSTEIN HYATT FARBER & MADDEN Lawrence A. Eskwith, Esq. June 29, 1989 Page 3 costs, the previous balance and payments received. In the event any statement is not paid in full within twenty (20) days of the date the statement is prepared, we expressly reserve the right to suspend performing any services and to withdraw promptly from any matters. By your acceptance of this letter, you expressly agree to such suspension of services and if we then represent you in any pending litigation, you expressly agree to such prompt with- drawal from all pending litigation and will not oppose or contest or challenge such withdrawal in any way. If necessary, you will be responsible for any costs of collection, including reasonable attorneys' fees, on all outstanding balances which remain unpaid. You shall at all times have the right to terminate our firm's services upon written notice to that effect. In addition to our rights in the event of non-payment of fees or costs as set forth above, our firm shall at all times have the right to termi- nate our services upon written notice to that effect in the event that you fail to cooperate with us in any reasonable request or that we determine in our reasonable discretion that to continue our services to you would be unethical, inappropriate, or impractical. It is anticipated that= Wayne Forman and I will perform most of the work on this matter,. We reserve, however, the right to assign other lawyers in our firm to represent you if, in our reasonable judgment, that becomes necessary. Services rendered prior to your signing this letter are subject to the terms hereof. You have agreed to our joint representation of the Lodge Tower Condominium Association in this matter, and the Association has also consented to this arrangement. Our fees and expenses incurred for all work directly related to this case subsequent to your verbal authorization t:o proceed on June 21 will be divided equally between the Town ar.~d the Association and billed separately to each client. Neither client will be liable for fees or expenses billed to the other. If the foregoing terms and conditions accurately summarize and confirm your understanding of our attorney-client relation- ship, please indicate your approval and acceptance by having an authorized representative of the Town of Vail sign and return Y BROWNSTEIN HYATT FARBER & MADDEN ' Lawrence A. Eskwith, Esq. June 29, 1989 Page 4 this letter. I enclose a copy for you to sign and retain with your records. V truly yours, `tom arles B. White ACCEPTED AND AGREED TO this day of 1989. ' TOWN OF V;~IL By: Title: ~\ 4 ~$G ~EC~ JUL g ~~ ..S ~ ~ S` ~~ ,~,.< F -) C ~I ~ ~ C~ o~~~ `~~ (I ~, ~J ~~/ ~ '% _. L` 1 j\TU V~. ~ :;~ '} '~C'l-t~~l l.~' 1 I L, ~ °Z'L- j l G ,, ~ ~..~? Lam- `~ ~ G`- ffff ~~ \ `J~7L1 C~ ~~ L _.. '~ ...._ ,,F ~Z~ ~ - F / ~ ~~ ~ ~ ~~ ~Q ~ ~ ~ /' f% tea,, !~ 2.r-f ~<.t~t_-y ~~ ~ r ~li ~ ~C.~~~~ ,::' ~-~ i _,~~~, ` ~ :. `~ ~_~-c~~% ._C~-cam ~ ~ i /n / ~. ~, r.'i ~% ~ ~ i% ;i i .~~ i ~/~ i r ~"' to~~ oT~as 75 south frontage road REVISED 6-27-89 vail, Colorado 81657 (303) 479-2136 T0: VAIL COUNCILMEMBERS FROM: PAM BRANDMEYE~~ DATE: 11JULY89 RE: COMMITTEE/TASK FORCE AP]?OINTMENTS I have attempted to gather all committees/task forces to which Council members have been appointed or for which they've volunteered. It is my understanding that all assignments run to the next Regular Municipal Election, November 21, 1989. If you note I have left something out, please contact me as soon as possible so I may complete this list accurately. COMMITTEE/TASK FORCE COUNCILMEMBERS 1. Swimming Pool/Aquatic Center 2, NWCCOG John Slevin Kent Rose Tom Steinberg, alternate 3. CAST 4. TV Translator 5. VMRD/Council Committee 6, Cemetery 7, Parking/Transportation 8, VRA Kent Rose Tom Steinberg, alternate Mike Cacioppo Eric Affeldt Tom Steinberg John Slevin Merv Lapin John Slevin Kent Rose Eric Affeldt 9. Art in Public Places Tom Steinberg ~~~T~ OF COLOR~00 EXECUTIVE CHAMBERS pe coo 136 State Capitol ~~0 ~~ ~~~9~ Denver. Colorado 80203-1792 -. ,, r. ~ ~~"'`> O Phone (303) SS6-2471 ~'~~ ~UL 1 ~ 189 ~* ~. `~° '` s~~y * ~ 7876 ° Roy Romer Governor July 6, 1989 Ron Phillips Manager of the Town of Vail 75 S. Frontage Road W Vail, CO 81657 Dear Mr. Phillips: Please. find enclosed a tentative schedule for the Dome on the Range trip to Eagle, Garfield and Pitkin Counties on July 26 - 27, 1989. If you have any questions, please contact me at 866-2226. Sincerely, Craig Mackey Governor's Office .~ qn ~~ JUL ~ 01989 'TENTATIVE SCHEDULE DOME ON THE RANGE EAGLE, GAf2FIELD and PITKIN COUNTIES ;July 26 - 27, 1989 Wednesday, July 26, 1989 6:45 a.m. Wheels up - Denver 7:45 a.m. Arrive Rifle 7:45 - 8:00 a.m. Met by elected officials - briefing on Rifle airport/industrial park expansion 8:00 - 8:15 a.m. Drive to site of new I-70 Welcome Center (Rifle) 8:15 - 8:45 a.m. Coffee and donuts with elected officials from Garfield County. Briefing on Welcome Center 8:45 - 9:15 a.m. Drive to Parachute 9:15 - 9:45 a.m. Visit Unocal refinery. Briefing on state of shale industry 9:45 - 10:00 a.m. Drive to Battlement Mesa 10:00 - 10:30 a.m. Drive thru and briefing on Battlement Mesa housing development 10:30 - 11:10 a.m. Drive to Rifle (Correctional Facility) 11:10 - 11:40 a.m. State Correctional Facility i1:40 - 12:00 a.m. Drive to Silt 12:00 a.m. - 12:45 p.m. Livestock sale barn and cafe -- talk to ranchers 12:45 - 1:00 p.m. Drive to New Castle 1:00 - 1:15 p.m. New Castle recycling program 1:15 - 2:15 p.m. Drive to Basalt (lunch in van) 2:15 - 2:45 p.m. Meet with fishing guides/DOW personnel. Fly fishing in Frying Pan River 2:45 p.m. Met by Pitkin County officials 2:45 - 3:15 p.m. Drive to Aspen 3:15 - 3:45 p.m. View Smuggler Mt. Superfund site with county and Aspen officials 3:45 - 4:00 p.m. Drive to Snowmass Village 4:00 - 4:45 p.m. Anderson Ranch Arts Center. Tour of property and reception with Aspen/Snow- mass arts community 4:45 - 5:30 p.m. Drive to Glenwood Springs 5:30 - 6:30 p.m. Down time 6:30 - 8:30 p.m. Public forum/picnic in park - Glenwood Lodging Glenwood Springs Thursday, July 27, 1989 7:00 - 7:15 a.m. Drive to Carbondale 7:15 - 8:30 a.m. Roaring Fork Valley Forum. Discussion of housing and transportation in RFV 8:30 - 8:45 a.m. Drive to Glenwood Springs 8:45 - 9:15 a.m. Garfield County Drug Free meeting (teams from Rifle, Glenwood, and Carbondale) 9:15 - 9:45 a.m. Drive to Glenwood Canyon. (view site of Highway 82, Glenwood Springs bypass) 9:45 - 10:15 a.m. I-70, Glenwood Canyon construction update 10:15 - 10:45 a.m. Drive to Gypsum 10:45 - 11:00 a.m. New drywall plant site 11:00 - 11:15 a.m. Drive to Eagle County Airport 11:15 - 11:45 a.m. Briefing on airport expansion AND National Guard High Altitude Training Center 11:45 - 12:00 p.m. Drive to Eagle (briefing on downtown improvements, etc.) 12:00 - 1:30 p.m. Public Forum/Lunch at Tourist Information Center/ Museum .. `. 1:30 - 2:00 p.m. 2:00 - 2:15 p.m. 2:15 - 2:30 p.m. 2:30 - 2:45 p.m. 2:45 - 3:00 p.m. 3:00 - 4:00 p.m. 4:00 - 4:30 p.m. 4:30 - 5:15 Drive to Avon Avon highways/railroad separations (view with Avon officials and county commissioners) Travel to Dowd Junction/Minturn Discuss highway improvements with Minturn/Avon/county officials Travel to Red Cliff Town Meeting in Red Cliff Drive to Leadville Fly Leadville to Centennial REC'C J U L 1 1 1~8~ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 89-F-1098 LODGE TOWER CONDOMINIUM ASSOCIATION and TOWN OF VAIL, Plaintiffs, v. LODGE PROPERTIES, INC.; WESTERN LAND EXCHANGE COMPANY; CLAYTON YEUTTER, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTiJRE; F. DALE ROBERTSON, CHIEF, UN:CTED STATES FOREST SERVICE; GARY E. CARGILL, REGIONAL FORESTER, ROCRY MOUNTAIN REGION, UNITED STAVES FOREST SERVICE; MANUAL LUJAN, JR., SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR; DELOS C. JAMISON, DIRECTOR, BUREAU OF LAND MANAGEMENT, UNITED STATES DEPARTMENT OF THE INTERIOR; and NEIL F. MORCK, STATE DIRECTOI.~, BUREAU OF LAND MANAGEMENT,- ' Defendants. FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATOR'i~ AND INJUNCTIVE RELIEF Plaintiffs Lodge Tower Condominium Association (the "Association") and Town of V<~il ("Town"), by and through their attorneys, bring this action against defendants Lodge Properties, Inc. ("LPI"); Western Land E:KChange Company ("Western Land"); Clayton Yeutter, Secretary, United States Department of Agriculture ("Secretary"); F. Dale Robertson, Chief, United States Forest Service ("Chief"); Gary E. Cargill, Regional Forester, Rocky Mountain Region, United States Forest Service ("Regional Forester"); Manua:L Lujan, Jr., Secretary, United States D®partaaent of the Interior ("Interior Secretary"); Delos C. J~-ison, Director, Bureau of Land Management, United States D®partment of the Interior ("Director"); and Neil F. Morck, State Director, Bureau of Land Management ("State Director"). The federal defendants are joined in their official capacities. This action concerns th~a approval by the U.S. Forest Service ("USFS") and the Secretary of a proposed land exchange with Western Land, acting as agent for LPI, involving 2.07 acres of federal land in Eagle County, Colorado described as follows: Sec. 8, Lot 2, T. 5 S., R. 80 W., 6th P.M. (the "Lodge Parcel"). The Lodge Parcel is adjacent to a condominium building owned by members of the Association and within the municipal boundaries of the Town. The actions of the defendants which are the subject of the complaint include: (1) a violation of the land exchange requirements of the Federal Land Policy and Management Act, 43 U.S.C. Section 1716 ("FLPMA"), and the General Exchange Act, 16 U.S.C. Section 485, that: (a) the public interest be well served by making the land exchange; (b) the federal land involved in the exchange be proper for transfer out of federal ownership; and (c) the values of the lands to be exchanged be equal; (2) a violation of Forest Service regulations and guide- lines, decisions of the Chief, and the Uniform Appraisal Standards for Federal Land Acquisitions governing the manner in which the Lodge Parcel must be appraised; (3) a violation by the USFS of the National Environmental Policy Act, 42 U.S.C. Sections 4321 et seg., in the approval of the exchange and the relocation of a road on the Lodge Parcel; (4) a violation of the subdivision regulations of the Town and 43 U.S.C. Section 1718 by contracting for the conveyance of, and conveying, a subdivided parcel of land without obtaining prior subdivision approval; (5) a violation of Forest Service regulations and guide- lines and decisions of the Chief governing the manner of pro- cessing of USFS land exchanges; (6) a denial of the plaintiffs' right to administrative review of the decision approving the land exchange; (7} a violation of an administrative stay order prohibiting closing of the exchange; (8) an unlawful request for and issuance of a patent to the Lodge Parcel by the USFS and Bureau of Land Management ("BLM"), respectively; and (9) an unlawful termination of the Town's special use permit for a bike path on the Lodge Parcel. Plaintiffs seek, inter alia, a declaration that the approval of the exchange by the .USFS and the Secretary and issuance of a patent to the Lodge Parcel by the BLM was unlawful and an order rescinding the transaction and a mandatory injunction requiring reconveyance of the Lodge Parcel to the United States. AMENDCDM.CBW [LSCA\OlA] -2- In support of their complaint, the plaintiffs state as follows: PARTIES 1. The Lodge Tower Condominium Association is an unincor- porated association of the owners of the 42 condominium units in the Lodge Tower condominium building in Vail, Colorado. The Association represents the individual interests of all the condo- minium owners. The Lodge Tower building is owned by the Association and its members and is located on land leased from LPI which is immediately adjacent to the Lodge Parcel. The Association and its members will be injured by the Regional Forester's decision to approve relocation of an existing road on the Lodge Parcel to an alignment immediately adjacent and paral- lel to the Lodge Tower building. The members of the Association presently enjoy the scenic, recreational, and wildlife values of the Lodge Parcel, hike, ski, and park their vehicles on that Parcel, and have access across that Parcel to the Vail Ski Area. The Lodge Tower building was constructed, and condominium units therein purchased by members of the Association, in reliance on. the fact that the adjacent National Forest land would not be available for commercial development. The development of the Lodge Parcel by LPI would adversely affect these interests of the Association and its members and materially reduce the market value of the Lodge Tower condominiums. Conveyance of the Lodge Parcel at an appraised value which is a fraction of the value at which it should be appraised under USFS regulations and appraisal instructions may also materially reduce the market value of the Lodge Tower condominiums and adversely affect the property tax base in the Town to the detriment of the members of the Association and other residents of the Town and Eagle County. 2. The Town of Vail is a Colorado municipal corporation located in Eagle County, Colorado. The Town annexed the Lodge Parcel in 1980. The Town exercises zoning and land use juris- diction over this Parcel and would become responsible for the provision of certain municipal services to that Parcel if it were developed. The agreement between the USFS and LPI to convey the Lodge Page®1 to LPI violates the Town's subdivision regulations. Developm®nt of this Parcel would be inconsistent with the Town's existing lead use plan and would adversely affect environmental values within the Town and in the surrounding area. The Town receives revenues from the ad valorem taxation of real property within the Town's municipal boundaries. Conveyance of the Lodge Parcel at an appraised value which is a fraction of the value at which it should be appraised under USFS regulations and appraisal instructions may materially reduce the market value of real property owned by citizens of the Town and could adversely affect -3- AMENDCOA7. CB1q (LSCA\OlA] both the existing and future property tax base in the Town to the detriment of the Town and its residents. 3. Lodge Properties, Inc. is a corporation organized and existing under the laws of the State of Colorado. LPI is the real party in interest in the Lodge Parcel land exchange and is a party to an exchange agreement with the United States relating to the Lodge Parcel. 4. Western Land Exchange Company is a corporation organized and existing under the laws of the State of Colorado. Western Land acted as the named proponent of the Lodge Parcel land exchange as agent for LPI and was an intervenor in the administrative appeal proceedings before the USFS. 5. Clayton Yeutter is Secretary of the United States Department of Agriculture. The headquarters of the Department are located in Washington, D.C. 6. F. Dale Robertson is Chief of the USFS, an agency of the Department of Agriculture with its headquarters in Washington, D.C. 7. Gary E. Cargill is Regional Forester, Rocky Mountain Region, USFS. Mr. Cargill is a line officer of the USFS with responsibility for management of USFS land within the Rocky Mountain Region, which includes Colorado. The Regional Forester's office is located in Lakewood, Colorado. 8. Manual Lujan, Jr. is Secretary of the United States Department of the Interior. The headquarters of the Department are located in Washington, D.C. 9. Delos C. Jamison is Director of the Bureau of Land Management ("BLM"), an agency of the United States Department of the Interior, with its headquarters in Washington, D.C. The BLM is responsible for issuing patents to federal land which is approved for exchange by the USFS. Mr. Jamison maintains his office in Washington, D.C. 10. Neil F. Morck is the State Director of the BLM. Mr. Morck's office is located in Lakewood, Colorado. JURISDICTION, VENUE, AND REVIEWABILITY 11. This Court has subject matter jurisdiction over this action under 28 U.S.C. Section 1331. 12. Venue is proper in this district pursuant to 28 U.S.C. Sections 1391(b) and (e). -4- AMENDCOM.CBW [LSCA\OIAJ 13. The- actions of the federal defendants in this case are reviewable under 5 U.S.C. Sections 701 et sea. STATEMENT OF FACTS 14. On January 31, 1986, the Regional Forester issued a Decision Notice and Finding of No Significant Impact for the Vail land exchange proposal by Western Land on behalf of LPI. This proposal included an enlarged Lodge Parcel, together with certain other land. Administrative appeals of this decision were filed by the Town, Action Vail, Irlc., and Emmet Mossman and David Cooper in accordance with Forrest Service administrative review regulations. These appeals were assigned NFS No. 1528. By letter dated May 19, 1986, the January 31, 1986 decision was withdrawn by the Regional Forester before any decision was made on the merits of the appeal by the Chief. 15. The environmental assessment for this land exchange proposal was supplemented and a new Decision Notice was issued on June 19, 1986. This decision was again appealed by the Town and Emmet Mossman and David Cooper and assigned NFS Nos. 1680, 1681, and 1693. By Decision dated April 29, 1987, the Chief ruled in favor of the appellants and remanded the land exchange proposal to the Regional Forester on the basis, inter alia, that the appraisals of the lands involved in the exchange had not been obtained and that the decision was, therefore, premature. The Chief directed the Regional Forester to secure approved appraisals of the properties involved before making a decision on whether to proceed with the proposed land exchange. The Deputy Assistant Secretary stated by letter dated May 4, 1987, that he would not review that decision. 16. Appraisals of the parcels involved in this exchange proposal were secured and approved by the Regional Forester on September 17, 1987. On September 23, 1987, a Decision Notice and Finding of No Significant Impact for the Vail land exchange proposal was issued. This C~ecision was appealed by the Town and Emmet Mossman and David Cooper. These appeals were assigned NFS Nos. 2126 and 2135. On November 23, 1987, Western Land requested intervenor status in these appeals, which request was granted by the Chief. On January 27, 1988, the Association filed a request to inter®®ne in these appeals, which request was granted on February gg, 1988. 17. On May il, 1988, while these appeals were pending, LPI and the USFS executed an Exchange Agreement providing for the exchange of federal land, including the Lodge Parcel, for certain offered non-federal land within Eagle County.- This agreement was expressly "made subject to favorable resolution of any admini- strative appeal" of the Regional Forester's September 17, 1987 decision. It set forth certain terms concerning the identity of -S- AMENDCOM.CBW [LSCA\OIAJ the estates to be conveyed, their appraised value, cash equali- zation required to meet the equal value requirements of the statute, encumbrances, easements, and patent reservations which reflected the exchange proposal as it existed at the time of the Regional Forester's September 17, 1987 Decision Notice. 18. On June 16, 1988, the Reviewing Officer, Associate Deputy Chief Larry Henson, issued a decision on the merits of the administrative appeals of the Regional Forester's June 19, 1986 and September 23, 1987 decisions. The decision to proceed with the land exchange was affirmed in part and reversed in part. The Associate Deputy Chief specifically ruled in favor of the Appellants on their challenge to the valuation of the Lodge Parcel and remanded the exchange proposal to the Regional Forester for reappraisal of the Lodge Parcel "as though in private ownership, not government ownership. The zoning should be addressed as if it were the same as existing and/or potential zoning of nearby similar or adjoining private properties." The Parcel was required to be appraised subject to a reservation for ditches and canals established under the authority of the United States. The Deputy Assistant Secretary stated by letter dated July 25, 1988 that he would not review that decision. 19. On June 23, 1988, the Regional Forester and certain members of his staff participated in a conference telephone call with the Acting Director of Lands of the USFS and certain of his staff to discuss the manner of proceeding under the Associate Deputy Chief's June 16, 1988 remand decision. None of the Appellants participated in that call or was provided with any notice of the contents thereof until March 15, 1989. In this conference call, as documented in a contemporaneous memorandum to the Regional Forester by his staff, the Acting Director of Lands stated in part that "the federal land estate to be appraised must be as though in private ownership free and clear of encumbrances other than reservations by the United States or other ownership interests, and with zoning in place and/or potential zoning the same as existing and/or potential zoning of similar nearby or adjoining private properties." The Regional Forester was informed that a reservation for an existing Forest Development Road No. 710 across this property could be made, notwithstanding the terms of the June 16, 1988 Decision Notice. In addition,- the Regional Forester was advised that the appraised values of th® offered non-federal land were frozen by a May 11, 1988 Exchange Agreement which was executed by LPI and the USFS while the appeal of the September 17, 1987 Decision Notice was pending. The Acting Director of Lands instructed the Regional Forester to appraise the Lodge Parcel as of the original date of value, May 15, 1987, in accordance with written appraisal instructions to be prepared by the Regional Review Appraiser. -6- AMENDCOM.CBW (LSCA\OIAJ 20. Written appraisal instructions for the Lodge Parcel were prepared by the Regional Review Appraiser on July 8, 1988, and appra~ed by the Chief Appraiser of the USFS on July 20, 1988. These instructions required the Lodge Parcel to be appraised subject to two easements for public access, "provided, however, that, upon agreement by the Forest Service, that Lodge Properties, Inc., shall have the right to relocate said access easements at the Lodge's sole expense." These instructions also stated that the Lodge Parcel must be appraised as if zoning and potential zoning is similar to that existing on adjacent or nearby similar properties. That is, the appraisal should consider that such zoning is already a fact, rather than con- sidering time and expense would be necessary to accomplish such zoning. The parcels are to be appraised as if in private owner- ship. No consideration should be given to the Town of Vail's zoning ordinance per- taining to "open space" zoning of National Forest land. While this may be described in the "factual" section of the report, all references to this ordinance and to the political attitude toward conversion of such zoning of National Forest land should be deleted from the "analyses and conclusions" section of the revised appraisal reports. 21. On October 31, 1988, the Regional Review Appraiser issued amended instructions for appraisal of the Lodge Parcel which removed the requirement fr prior USFS approval of relocation of the reserved easements for public access. These instructions stated that: The landowner shall have the right to relocate said access easements, at the land- owner's expense, provided such relocation does not interfere with the government's or the public's use of the roads. In additioxa0 the amended appraisal instructions directed the appraises go utilize a "Forest Service hypothetical location" for relocation of the road, and to utilize a cost estimate for relocation which had been developed by a Forest Service engineer. 22. At some point prior to the October 31, 1988 revised appraisal instructions, the Regional Forester "determined that the public interest would best be served by allowing relocation of the roads within the boundaries of the Lodge Parcel without reserving the right to approve such relocation." This decision by the Regional Forester was necessary because of Forest Service -7- AMENDCOM.CBW [LSCA\D1A] Handbook 5409_12 Section 3.15 (6), which states that, in appraising federal land, the appraiser must "treat approval [required. for a different land usej by the Secretary, or the Secretary's representative, as if the approval would not be granted." The relocation of this road could not, therefore, be considered in the appraisal process without a prior Forest Service decision authorizing relocation. That decision was made by the Regional Forester and incorporated in the Regional Appraiser's October 31, 1988 amended appraisal instructions without consideration of alternatives to that action, the impact of road relocation on the Lodge Tower condominium building, the Town of Vail, or the environment, or documentation in an environmental assessment, environmental impact statement, or other environmental review document. 23. At a subsequent point prior to the October 31, 1988 amended appraisal instructions, a Forest Service engineer prepared a development plan for the relocation of the existing Mill Creek Forest Development Road No. 710 from its present location on the Lodge Parcel to a new location immediately adjacent and parallel to the Lodge Tower condominium building, and provided estimates of the cost of effecting this relocation. This document noted a number of issues which had not been addressed, including "concern for reduced parking" and "road proximity to building." This document was not provided to any of the parties to the administrative appeal until March 15, 1989. 24. A revised appraisal report for the Lodge Parcel was prepared by Raymond C. Hart on November 1, 1988, on behalf of Western Land. This appraisal was based on a reduction iri size of the Lodge Parcel from its original 2.5 acres to "2.07 +\-" acres. The appraiser assumed a highest and best use of the Lodge Parcel for primary/secondary residential uses, with a maximum develop- ment potential of two single-family homes. This development of the property was premised on relocation of the existing Mill Creek Road (Forest Service Development Road No. 710), as specified by the Forest Service engineer. The appraiser noted "the impacts of the road use, noise, dust, vibration, etc." on a prospective luxury hotel to be built on the Lodge Parcel, but did not discuss the impact of road use on the existing Lodge Tower condominium building. As a result of these stated impacts of use of the Mill Creek Road, together with other factors, the appraiser concluded that development of a hotel on this parcel would not be economically feasible. The appraiser selected Primary/Secondary Residential as the appropriate zoning for the Lodge Parcel, although it is currently zoned open space by the Town of Vail, and did not evaluate the potential zoning of this property under the adjacent Commercial Core 1 or nearby High Density Multi-Family zoning districts, notwithstanding the requirements of the USFS appraisal instructions. The basis for this selection of zoning was the AMENDCOM. CB1U [LSCA\OlA] -8- appraiser's statement that "there is no evidence of a reasonable probability that the Town of Vail would zone the subject parcel in the Comatercial Core 1 district." The appraiser made no mention og the High Density Multiple Family zoning district, which exists across a publir, road from the Lodge Parcel. The appraiser did not assign to the Lodge Parcel the higher zoning of adjacent and nearby similar private properties because of his perception of political opposition within the Town to the development of National Forest land, notwithstanding the express requirements of the appraisal instructions that this factor not be considered. This appraisal report was submitted to the Regional Review Appraiser for his approval. On November 2, 1988, the Regional Review Appraiser issued his appraisal review report approving a value of $915,000.00 for the Lodge Parcel. This valuation was based on the Review Appraiser's decision that two single-family units could be constructed on the Lodge Parcel if the Mill Creek Road were relocated as spec:Lfied by the USFS engineering report, and his specific instructions to the appraiser to utilize this assumed use of the Parcel. 25. On November 8, 1988, the Regional Forester issued a Decision Notice and Finding of No Significant Impact approving an exchange of 385 acres of of:Eered non-federal land in the Eagle's Nest Wilderness Area in exchange for the 2.07-acre Lodge Parcel. The decision required LPI to equalize the values of the offered and selected properties by payment of $145,000.00 in cash to the United ;States. This Decision Notice was based on the original environmental assessment for the exchange proposal, without fur- ther analysis of alternativEas to or environmental and economic consequences of the proposed action. The decision was subject to several conditions, including: (a) "The land exchange proponent shall execute an agreement with Vail Associates, Inc., permittee for the Vail Ski Area, which ensures that future development of the Parcel will not materially interfere with current Ski Area operations and in which Vail Associates, Inc. agrees to relinquish all special use permits covering any part or all of the Parcel;" (b) ~a patent reservation for public access on the existing Mill Cre~~ Road (Forest Service Development Road No. 710), "provid®~, however, that Locige Properties, Inc., shall have the right to relocate said access easements at the Lodge's sole expense, provided such relocation does nat interfere with use of the road by the United StatE:s or the public;" (c) A similar reservai~ion and right of relocation for access on an existing road i.o ski area facilities at One Vail Place; and -9- AMENDCDkl. C8W (LSCA\DlA] (d) termihation or waiver of special use permits affecting the Lodge Parcel held by several parties, including the Town, and execution.. of easements "granting rights similar to uses currently authorizec$.by said permits." 26. The June 19, 1986, September 23, 19.87, and November 8, 1988 decisions were based on an environmental assessment of the proposed land exchange which was prepared in 1986 and has not since been supplemented or amended. This environmental assess- ment was premised on: (a) "an assumed hotel expansion on the 2.5-acre Lodge Parcel [which) would have social and economic consequences in the Town of Vail;" (b) existing uses of the Lodge Parcel under a ski area permit to Vail Associates, a bike path permit to the Town of Vail, access to One Vail Place, and a permit to Holy Cross Electric Association for electric power transmission lines with no discussion of the existing Mill Creek Road (Forest Service Development Road No. 710) or any potential relocation thereof; (c) public input based on meetings held in 1984 and 1985, on the basis of Western Land's initial proposal to "add approxi- mately 100 hotel rooms and an unknown number of single family residences to the area;" . (d) certain effects on air pollution, assuming that the Town of Vail's ordinance regulating. fireplaces in hotel rooms would be in effect; (e) certain effects on ski area operations, assuming that an agreement between LPI and Vail Associates, the owner of the Vail Ski Area, was enforceable; (f) a "significant positive benefit" of development of a 100-room hotel expansion on the economy and tax base of the Town of Vail, which would help meet the needs documented in a 1983 management consultant report that the Town of Vail required additional hotel accommodations to effectively market its ser- vices and meet the needs associated with a proposed ski area expansion; and (g) an offset against taxes lost to Eagle County "by taxes in thousands of dollars to the Town of Vail" due to the develop- ability of the Lodge Parcel. 27. The Regional Forester's November 8, 1988 decision was. appealed by the Town, the Association, and Emmet Mossman and David Cooper in accordance with Forest Service administrative review regulations. These administrative appeals were assigned NFS Nos. 3070, 3089, and 3093 by the Reviewing Officer, Associate -10- AMENDCOM.CBW [LSCA\OlA] Deputy Chief Larry Henson. On December 20, 1988, Western Land requested intervenor status in these appeals. This request was granted by the Reviewing Officer on January 30, 1989, notwith- standing th® written objection by the Association that LPI; rather tYx~mm idestern Land, was the real party in interest in the exchange proposal. 28. On December 7, 1988, the Association requested that any action implementing the Regional Forester's November 8, 1988 decision be stayed in accordance with 36 CFR Section 211.18(h) (52 Fed. Reg. 23178, June 18, 1987). By letter dated December 22, 1988, the Reviewing Officer granted the Association's request for stay "to the extent that the deeds not be exchanged until we have ruled on the merits of your appeal." This ruling did not address or purport to alter the provisions of 36 CFR Section 211.18(h)(4)(i) that "a stay shall remain in effect for ten days after a decision on the merits." 29. A hearing was held before the Reviewing Officer in Washington, D.C. on April 25, 1988, at which each of the Appellants and the Intervenor participated in person or through counsel. 30. Notwithstanding th~a pendency of the administrative appeal of the Regional Forester's November 8, 1988 decision, the Regional Forester and his staff proceeded to process the land exchange proposal with LPI. On May 12, 1989, the Regional Forester and LPI executed an amendment to the May 11, 1988 Exchange Agreement, altering the value of the federal 1'and and the amount of cash equalization payment, amending the patent reservations to be made at closing, and changing the legal description of the Lodge Parcel. On May 30, 1989, the Regional Attorney of the U.S. Department of Agriculture Office of General Counsel issued a title opinion addressing the exchange. 31. On June 2, 1989, the Regional Director of Lands requested the State Director to issue a patent to the Lodge Parcel. In this letter, the Director of Lands stated that: "We certify that this National Forest system exchange involving the land described below meets 'the requirements of law and regula- tions," notwithstanding the fact that the exchange was still subject to ara administrative appeal to the Chief. 32. ~® patent to the :Lodge Parcel was issued by the BLM on June 23, 1989, prior to a final decision by the Secretary on the plaintiffs' administrative appeal. The patent was "subject to" "those rights of use as have been granted by Annual Special Use Permit to the Town of Vail on April 26, 1976," but provided that such right of use would "continue through December 31, 1989, and shall have no force and effect thereafter." -11- AMENDCOM.CBW [LSCA\OlA) 33. Prior to June 16, 1989, a set of escrow instructions for the closing of the exchange were executed by the Regional Director of Lands of the USFS, LPI, Janise 0. Sterrett, Valorie Olsen, and the Title Company of Eagle County, Inc. d/b/a Eagle County Titl® Corporation ("Title Company"). These instructions required the Title Company to act as escrow agent and to hold the patent to the Lodge Parcel, warranty deeds to the offered non- federal lands, easements, funds, and certain other documents relating to the exchange and to disburse the funds and record the appropriate documents immediately upon request of the parties. The patent to the Lodge Parcel was delivered to the escrow agent on June 23, 1.989. 34. On June 16, 1989, Associate Deputy Chief Henson issued his decision denying each of the administrative appeals of the Regional Forester's November 8, 1988 decision to proceed with this land exchange. Although this decision stated that a written statement of the reasons for denial was enclosed, none of the Appellants received a written explanation for the denial until, at the request of counsel for the Association, that document was telecopied on June 22, 1989. 35. On June 25, 1989, at approximately 8:00 p.m., counsel for the plaintiffs provided notice by telephone to James S. Bailey, Jr., counsel for LPI, that the plaintiffs would file this action on June 26, 1989, and seek a temporary restraining order against the closing of the Lodge Parcel land exchange. This notice was provided in accordance with Fed. R. Civ. P. 65(b). 36. On June 26, 1989, at approximately 8:15 a.m., counsel for the plaintiffs provided notice by telephone to Jerry Atencio, Assistant U.S. Attorney, that the plaintiffs would file this action on June 26, 1989, and seek a temporary restraining order against the closing of the Lodge Parcel land exchange. This notice was provided in accordance with Fed. R. Civ. P. 65(b). 37. Upon learning of the plaintiffs' intention to file this action, LPI and the federal defendants requested the Title Company to record the patent to the Lodge Parcel and the warranty deeds to the offered non-federal lands and to disburse the funds in its escrow account. The patent to the Lodge Parcel was recorded after the plaintiffs' complaint and motion for temporary restraining order had been filed: 38. On June 26, 1989, at approximately 11:00 a.m., a hearing was held on plaintiffs' motion for temporary restraining order against closing of the Lodge Parcel land exchange. The Court declined to enter this order upon representations.by the defendants that the patent to the Lodge Parcel had been recorded prior to the hearing. AMENOCOM. CBIV [LSCA\OIA] -12- 39. The Chief notified the plaintiffs by letter dated June 28, 1989 and mailed on July 3, 1989 that the Acting Assistant: Secretary declinecl to review the June 16, 1989 decision of the Associate Deputy Chief in accordance with 36 CFR Section 2~g2.18(f)(4) on June 26, 1989. The plaintiffs have exhausted all administrative; remedies available to them in con- nection with this land exchange. FIRST CLAIM FOR RELIEF THE LODGE PARCEL LAND EXCHANGE IS NOT IN THE PUBLIC INTEREST 40. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-39 above. 41. The Federal Land Policy and Management Act of 1976, 43 U.S.C. Section 1716(a), allows the Secretary to exchange land within the National Forest ~iystem only where the Secretary "determines that the public interest will be well served by making that exchange," and requires the Secretary to "give full consideration to better federal land management and the needs of state and local people, including needs for lands for the economy, community expansion, recreation areas, food, fiber, minerals, and fish and wildlife and the Secretary finds that the values and the objectives which federal lands or interests to be conveyed may serve if retrained in federal owner- ship are not more than the values of the non-federal lands or interests and the public objectives they could serve if acquired." 42. The General Exchange Act, 16 U.S.C. Section 485, authorizes an exchange of land by the Secretary only "when the public interests will be benefitted thereby." 42. 36 CFR Section 254.3 requires the USFS to make "a finding that the exchange will not result in a decrease in public values or the ability to meet NFS management objectives." Section 254.3(a)(1)(iv) requires the Forest Service to exchange only "lands that are suitable for elimination from the NFS." 44. Members of the Association, residents of the Town, and visitogo`the Vail Ski Arena appreciate and rely on the natural, undevelop.®d characteristics of the White River National Forest. The locale eaconomy depends on offering a high-quality outdoor recreational experience to visitors to the Vail Ski Area and the Town of Vail. The conveyance of undeveloped National Forest land to LPI will adversely affect the values which are essential to. residents of and visitors to the Vail Valley. 45. The Lodge Parcel :serves important public functions which are more appropriately managed by the Forest Service than a -13- AMENDC~1. CBW [LSCA\OlA] private landowner. A portion of the Lodge Parcel is currently subject to a special use permit for the Vail Ski Area, and is available for recreational skiing use by the public. According to the November 8, 1988 Decision Notice, a special use permit is also held by the Town of Vail for a bike path which is used by Town residents during the non-winter months. During the ski season, this property serves as an important, and visually attractive, access route fs~om portions of the Town of Vail to the base facilities of the Vail Ski Area. These public uses of the property are best maintained and managed by the USFS, and will be jeopardized by conveyance of the property to a private developer such as LPI. 46. Petitions opposing the exchange of the Lodge Parcel by the Forest Service have been signed by approximately 1,600 resi- dents of and visitors to th.e Town of Vail. 47. The Lodge Parcel is not "proper for transfer out of federal ownership" as required by 43 U.S.C. Section 1716(b), and the public interest would not be well served by making this land exchange. SECOND CLAIM FOR RELIEF THE VALUES OF THE LODGE PARCEL AND THE OFFERED NON-FEDERAL LAND ARE NOT EQUAL 48. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-47 above. 49. The Federal Land Policy and Management Act of 1976, 43 U.S.C. Section 1716(b), requires that the values of lands exchanged by the Secretary either shall be equal, or if they are not equal, the values shall be equalized by the payment of money to the grantor or to the Secretary concerned as the circumstances require so long as payment does not exceed 25 per centum of the total value of the lands or interests transferred out of Federal owner- ship. The Secretary concerned shall try to reduce the amount of the payment of money to as small an amount as possible. 50. The General Exchange Act, 16 U.S.C. Section 485, allows the Secretary to accept title to private lands and requires that, "in exchange therefor the Secretary of the Interior may patent not to exceed an equal value of such National Forest land ,. ." -14- AMEN000M.CBW [LSCA\OlA] 51. 36 CFR Section 254.7 and other Forest Service regula- tions and guidelines set forth detailed requirements and appraisal standards for the determination of values of the lands which arsti proposed for an exchange. An essential requirement for the appraisal of federal land is that the land be appraised as though it were in private ownership, without consideration of any factors related to its ownership by the United States. The Uniform Appraisal Standards for Federal Land Acquisitions, Section A-1 (1973) states that "no consideration should be given in the appraisal to any special value of the property to the owner not directly reflected in the market value." Forest Service Handbook Section 5409.12, Section 1.12(1) requires appraisers to "estimate market value of the property - land, improvements, or interest in land - as if privately owned regardless of present owners:hip." Forest Service Handbook Section 5409.12, Section 1.33(d) states that: In those areas where federal lands have been zoned by the local government, consider the zoning restriction only if the history of the controlling agencies shows maintenance of such zoning on private lands. Ask how the property would be zoned if it were in private ownership. 52. The November 1, 1988 Hart reappraisal of the Lodge Parcel violates these requirements as well as the express appraisal instructions prepared by the Regional Appraiser and the Chief Appraiser of the USFS. Appraiser Hart selected the Primary/Secondary Residential zoning district, rather than the adjacent Commercial Core 1 or High Density Multi-Family dis- tricts, precisely because of his perception of political opposition in the Town of Vail to the rezoning of National Forest land. In attempting to justify the Hart appraisal, the Regional Forester stated that: Given the circumstances surrounding the Lodge Parcel and the NFS~ lands purportedly annexed by the Town of Vail, including the policy statement in the Vail Land Use Plan . primary/secondary residential is the most reasonably probable zoning of the Lodge Parcel. (Emphasia added). 53. Appraiser Hart's assumptions as to zoning and highest and best use of the Lodge Parcel, his appraisal methodology, the comparable sales, assumed desvelopment costs, and documentation of his conclusions as to value are legally insufficient to comply with USFS and accepted indu:ctry standards for appraisal of undeveloped land. -15- P.MENDCOM.CBW [LSCA\OlA] 54. As part of the administrative review process, the Town of Vail commissioned and provided to Associate Deputy Chief Henson aa~appraisal of the Lodge Parcel by C. Hugh Bishop, MAI, which was prepared solely on the basis of the appraisal instructions and amended appraisal instructions which had been prepared by the Regional Review Appraiser and the USFS Chief Appraiser for this land exchange. Based on those instructions and the limiting conditions set forth in the appraisal, Mr. Bishop concluded that the value of the Lodge Parcel was $4,260,000. In accordance with the appraisal instructions, the Bishop appraisal did not consider obstacles to zoning and development of this Parcel which were a result of any local attitudes or Town policy statements related specifically to development of National Forest land. 55. The defendants have failed to comply with the requirements of law that the value of the Lodge Parcel and the offered non-federal land be equal. THIRD CLAIM FOR RELIEF THE APPROVAL OF THE LODGE PARCEL EXCHANGE VIOLATED THE NATIONAL ENVIRONMENTAL POLICY ACT 56. The plaintiffs repeat and reallege as if fully set forth Yierein the allegations of paragraphs 1-55 above. 57. The National Environmental Policy Act, 42 U.S.C. Sections 4321, et s_e~c. ("NEPA") and related Council on Environmental Quality and USFS regulations and administrative guidelines require that an environmental assessment ("EA") and/or environmental impact statement ("EIS") be prepared prior to approval of a land exchange. 58. The EA which was prepared for the land exchange proposal in connection with the Regional Forester's June 19, 1986 Decision Notice is legally insufficient to support the Regional Forester's decision authorizing relocation of the Mill Creek Road (Forest Service Development Road No. 710) and the conveyance of the 2.07-acre Lodge Parcel. No such decisions could be made in the absence of a supplemental EA and/or EIS which address the exchange proposal as it then existed, including the specific conditions of approval. 59. The Regional Forester's decision authorizing relocation of the existing Mill Creek Road (Forest Service Development Road No. 710) without any discussion or documentation of alternatives to such relocation, alternative road alignments, and the economic and environmental consequences of such relocation, violated NEPA, Council on Environmental Quality regulations, and Forest Service -16- AMENDCOhI. CBW [LSCA\OlA] regulations governing environmental analysis of road development and relocation within the National Forest system. 60. The EA for the Lodge Parcel land exchange failed to consider ~•reasonable range of alternatives to that exchange as required by NEPA, Council on. Environmental Quality regulations, and Forest Service regulations and guidelines for environmental assessments. In particular, the Regional Forester was required to consider alternative means of acquiring or protecting the 385-acre parcel of private land in the Eagle's Nest Wilderness Area, such as purchase or condemnation of fee title or a conser- vation easement and exchange for another parcel or parcels of National Forest land which were suitable for disposition. 61. The EA for the Lodge Parcel land exchange failed to consider the cumulative effects of the Regional Forester's future land exchange and land adjustment program in the White River National Forest as required by NEPA, Council on Environmental Quality regulations, and Forest Service regulations and guide- lines governing environmental analysis. The IISFS has adopted a land classification plan which identifies several other parcels for disposal which are contiguous to the Town. However, the EA for this land exchange failed to address the exchange in the context of other planned or reasonable foreseeable land exchanges and other land classification adjustments in Vail Valley. 62. The EA for the Lodge Parcel land exchange failed to consider important economic and environmental impacts of the exchange, including, but not. limited to, effects on traffic congestion, air pollution, availability of municipal services, geologic hazards, availability of parking, water quality, water availability, availability of employee housing, and the open space acquisition program of the Town. The limited discussion of impacts in the EA assumes development of a hotel on the Lodge Parcel and regulation as such by the Town, although the November 8, 1988 Decision Notice is premised on single-family residential use of this Parcel. The EA failed to identify and discuss significant consequences of the exchange and anticipated mitigation measures, improperly relying on the assumption that other governmental entities would take necessary action. 63. The Regional Forester failed to provide for meaningful public r~ie~a of the land exchange proposal and the supplemental EA whicYxtaas developed to support the June 19, 1986 decision. The Regional Forester failed. to provide adequate public involve- ment as required by the Chief's April 29, 1987 decision, NEPA, Council on Environmental Quality regulations, and Forest Service regulations and guidelines governing public involvement in the_ land exchange process.. AMENDCDkl. C8W (LSCA\OlA] -17- FOURTH CLAIM FOR RELIEF T8$ EXCHANGE AGREEMENT BETWEEN LPI AND THE USFS AND CONVEYANCE OF THE LODGE PARCEL VIOLATE THE TOWN'S SUBDIVISION REGULATIONS 64. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-63 above. 65. Title 17 of the Vail Municipal Code, entitled "Subdivisions," makes it unlawful to: transfer, sell, lease, or agree to sell or lease, any lot, ti:act, parcel, site, separate interest (including a leasehold interest), interest in common condominium interest, timeshare estate, fractional fee, or time- share license, or any other division within a subdivision within the town until such sub- division has been approved in writing by the zoning administrai:or, PEC and/or the council (whichever is applicable) and a plat thereof recorded in the Office of the Eagle County clerk and recorder:. Section 17.04.020(A). An exception is made for a written agreement to sell or lease which is expressly conditioned upon full compliance by the seller with the subdivision regulations of the Town under certain conditions. 66. Section 17.04.010(E) provides that, in addition to all remedies provided by law, the Town shall be authorized to enforce its subdivision regulations by, inter alia, an action for injunction, mandamus, abatement, or other appropriate action or proceeding to enjoin any subdivider from selling, agreeing to sell or offering to sell, or otherwise convey, before full com- pliance with the provisions of the chapter, any parceled land or other interest which sale (or] conveyance would constitute a sub- division. 67. Section 17.08.210{A)(1) defines "subdivision" or "subdivided land" as: 74 tract of land which is divided into two (2) or more lots, tracts, parcels, sites, separate interests (including leasehold interests), interests in common, or other division for the purpose, whether immediate or future, of transfer of ownership, or for building or other development, or for street use by reference to such subdivision or recorded plat thereof. -18- AMENDCOM.CBW [LSCA\OIA~ 68. The 'Lodge Parcel 'was annexed to the Town of Vail in 1980. Thy division of the 2.07-acre Lodge Parcel from the remainder of the White River National Forest falls within the Town's subdivision regulations. Neither the United States nor the exchange proponent has applied to the Town for subdivision approval as required by the regulations. 69. Section 701(8)(6) of the Federal Land Policy and Management Act of 1976, codified as a note to 43 U.S.C. Section 1701, states that nothing in the Act shall be construed as limiting or restricting 'the power and authority of the United States or as a limitation u~oon any State criminal statute or upon the police power of the respective States, or as derogating the authority of a local police officer in the performance of hi;a duties, or as depriving any State or political subdivision thereof of any right it may ]nave to exercise civil and criminal jurisdicition on the national resource lands; oar as amending, limiting, or infringing the existing laws providing grants of lands to the sttates . 70. Section 208 of FL]?MA, 43 U.S.C. Section 1718, governs the issuance of patents by 1~he Secretary of the Interior as part of any land disposal authorized by the Act. This section pro- vides that a conveyance of :Lands by the Secretary "shall not exempt the grantee from compliance with applicable Federal or State law or State land use plans;" and ghat "the Secretary shall not make conveyances of pub:Lic lands containing terms and con- ditions which would, at the time of the conveyance, constitute a violation of any law or regulation pursuant to State and local land use plans, or programs,." 71. The May 11, 1988 exchange agreement between LPI and the United States, as amended on May 12, 1989, violates the Town's subdivision ordinances. 72. The issuance of a patent to the Lodge Parcel and the conveyance of that Parcel to LPI without compliance with the Town's subdivision regulations are direct violations of the requirements of those regulations and 43 U.S.C. Section 1718. -19- AMENDCOM.CBW [LSCA\OlA] FIFTH CLAIM FOR RELIEF THE USFS HAS VIOLATED ITS REGULATIONS AND GUIDELINES FOR PROCESSING LAND EXCHANGES 73.. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-72 above. 74., Forest Service Handbook 5409.13 - Land Acquisition Handbook Section 37 states that: An exchange agreement is a contract between a non-federal party and the Forest Service that takes effect after signing the decision on the exchange and after obtaining approval of the appraisals. An exchange agreement commits both parties to accept as final the approved appraised values, and no further updating of appraisals is necessary. 75. Forest Service Manual Section 5430.43-5 provides that: Exchange agreements are binding on both parties provided that it is possible to convey acceptable title, that no loss or damage occurs to either property, and that the decision to complete the exchange is upheld by the Reviewing Officer, if appealed, and by the appropriate Congressional commit- tees. 76. One purpose of an exchange agreement is to "lock in" the appraised values of the offered non-federal land and selected federal land so that no further updating of appraisals is required. Forest Service Manual Section 5430.43-5(c); FSH 5409.13, Section 32 (15). Unless fixed by an exchange agree- ment, an appraised value is only valid for one year from the date of the appraisal. Forest Service Manual Section 5413.1(2). 77. The Chief and the Regional Forester improperly considered the May 11, 1988 Exchange Agreement with LPI to fix the value of the offered non-federal land, notwithstanding the fact that4'~that agreement was expressly subject to favorable resolutiolc~ of the pending administrative appeal, which in fact resulted in a remand to reappraise the Lodge Parcel. As of the June 16, 1988 Decision Notice, no binding agreement between the United States and LPI existed which could maintain the value of the offered land as of its May 15, 1987 valuation date. The USFS was required to reappraise the offered non-federal land after the one-year expiration of the appraisal therefor in order to make a proper determination of equal value as required by law. -20- AMEN000M.CBW [LSCA\OlA] SIXTH CLAIM FOR RELIEF DENIAL OF RIGHT' OF ADMINISTRATIVE REVIEW 78. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-77 above. 79. 36 C.F.R. Section 254.10(4) provides that rig~~ts of appeal pursuant to Forest S~arvice administrative review regula- tions apply to decisions approving land exchanges. 80. 36 C.F.R. Section 211.18(f)(4) states that "appeal decisions by the Chief may :be implemented if the Secretary, within ten days of receipt, does not exercise discretionary review." 81. Forest Service Handbook 5409.1:3 - Land Acquisition Handbook Section 38.4 prohibits conveyance of federal land in a land exchange "before completion of congressional oversight and resolution of any appeals." 82. Forest Service Handbook 5409.13 - Land Acquisition Handbook Section 38.42 requires the Regional Forester to request issuance of a patent for a :land exchange by the BLM and to "certify that the National ]?orest exchange involving the land described below meets the requirements of law and regulations." 83. The June 2, 1989 certification by the Regional Director of Lands of the USFS that the Lodge Parcel exchange "meets the requirements of law and regulations was false, in violation of 36 C.F.R. Sections 211.18(f)(4;) and 254.10(4) and FSH 5409.13 Sections 38.4 and 38.42, intended to deprive the plaintiffs of their rights under USFS adm:nistrative review regulations, and intended to induce the BLM i.o issue a patent to the Lodge Parcel before the requirements of 43 U.S.C. Sections 1716 and 1718 had been satisfied. SEVENTH CLAIM FOR RELIEF VIOLATION OF ADMINISTRATIVE STAY ORDER 84. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-83 above. 85. The June 2, 1989 z:equest for issuance of patent and certification by the Regional Director of Lands of the USFS that the Lodge Parcel exchange "meets the requirements of laws and regulations," the delivery of the patent to the Lodge Parcel to the Title Company, and the authorization to record the same -21- AMENDCONI. CBIW [LSCA\OIA) violated the Associate Deputy Chief's December 22, 1988 stay order and 36 C.F.R. Section 211.18(h)(4)(i). EIGHTH CLAIM FOR RELIEF UNLAWFUL ISSUANCE OF PATENT 86. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-85 above. 87. Under 43 U.S.C. Section 1718, the Interior Secretary (and hi:a designees, the Director and State Director) may issue a patent for federal land in a land exchange only "after any dis- posal authorized by this Act" and subject to the provisions of 43 U.S.C. Section 1716(b). 88. 43 C.F.R. Section 1862.4 requires the BLM to issue a patent for lands in the National Forest System only upon notifi- cation by the Forest Service that the claim to the subject lands will not be contested. 89. The June 23, 1989 issuance of a patent to the Lodge Parcel by the BLM was in violation of 43 U.S.C. Sections 1716 and 1718, and 43 C.F.R. Section 1862.4. NINTH CLAIM FOR RELIEF UNLAWFUL TERMINATION OF SPECIAL USE PERMIT 90. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-89 above. 91. The patent to the Lodge Parcel which was issued by the BLM on June 23, 1989 was "subject to those rights of use as have been granted by Annual. Special Use Permit to the Town of Vail on April 26, 1976.. Such rights of use under each such Special Use Permit shall continue through December 31, 1989, and shall have no force and ef~`ect thereafter." 92. On June 23, 1989, the Title Company mailed the Town a proposed easement from LPI to the Town and a Partial Surrender and Relincpsishment of Special Use Permit whereby the Town was requested to relinquish all right, title and interest in a special use permit for a bike path affecting the Lodge Parcel. The proposed easement allows LPI "in its sole discretion to relocate said bike path on the subject property or with. Forest. Service: approval to relocate said bike path on to other land covered by the Permit; and in the event of such relocation on to such other land covered by the Permit, then all rights of the Grantee hereunder shall cease and terminate." Said easement -22- AMENDCOM.CBW [LSCA\OlA] further requires the Grantee: to maintain and operate the bike path "so as to permit maximum use and enjoyment of the Subject Property bg Grantor, its successors and assigns." 93. 43 U.S.C. Section 1766 requires "due notice" to the holder of a right of way prior to termination of that right of way by the USFS. 94. FSH 5409.13 - Landl Acquisition Handbook Section 31.8(7) requires the USFS to protect: the interests of holders of special use permits affected by an exchange of federal lands and to ensure the acceptance and ex:ecut:ion of documents relating to the effect of a land exchange or.~ the holder's interests before closing the land exchange. 95. Forest Service Mar.~ual Section 5430.3(6) requires the USFS to "avoid the disposal of National Forest System lands occupied under permits or easements unless the non-Federal owner and the permittee reach agrE:ement on the disposition of the existing use." No such agreement has been reached with respect to the Town's special use permit. 96. The decision by tY~e USFS to terminate the Town's special use permit on the Lodge Parcel, the terms of the patent reservation relating to sucks permit, and the provisions of the easement offered to the Towrl by LPI are arbitrary and capricious, not in the public interest, and violate the Town's rights under 43 U.S.C. Section 1766 and USFS regulations and guidelines governing special use permits and land exchanges. TENTH CLAIM FOR RELIEF DECLARATORY JUDGMENT 97. The plaintiffs repeat and reallege as if fully set forth herein the allegation:> of paragraphs 1-96 above. 98. An actual controvearsy exists between the plaintiffs and defendants concerning the lawfulness of the Lodge Parcel land exchange, the federal defendants' compliance with FLPMA, the General Exchange Act, NEPA, and implementing regulations and guidelin®~,.and the application of the Town's subdivision regula- tions t® th® Exchange Agreement and the conveyance of the Lodge Parcel. 99. A declaration by this Court of the parties' respective rights and obligations is nE:cessary to resolve this controversy. 100. The plaintiffs are; entitled to a declaration of their. rights and the legal obligations of the cefendants pursuant to 28 -23- AMENDCOM. C81Y [LSCA\OlA] U.S.C. Section 2201, and to further necessary or proper relief in accordance with 28 U.S.C. Section 2202. ELEVENTH CLAIM FOR RELIEF DECLARATION OF TRUST AND MANDATORY INJUNCTION 101. The plaintiffs repeat and reallege as if fully set forth herein the allegations of paragraphs 1-100 above. 102. The violation by the federal defendants of NEPA, FLPMA, the General Exchange Act, implementing regulations and guide- lines, and the Town of Vail Subdivision Regulations, the loss of public use on and federal jurisdiction over the Lodge Parcel, and the potential development of that Parcel, have resulted and will result in immediate and irreparable injury to the plaintiffs. 103. By virtue of the unlawful approval of the land exchange by the USFS and issuance of a patent by the BLM, the Lodge Parcel is subject to a trust for the benefit of the United States. 104. The plaintiffs have no adequate remedy at law for the unlawful actions of the defendants described herein. 105. The plaintiffs are entitled to preliminary and per- manent injunctive relief. WHEREFORE, plaintiffs respectfully pray that the Court grant the following relief: A. Enter judgment declaring that the approval by the Regionall Forester, Chief, and Secretary of the disposal by exchange of the Lodge Parcel was arbitrary and capricious, con- trary t:o the public interest, in violation of the requirements of FLPMA and the General Exchange Act, in violation of NEPA, and inconsistent with Forest Service regulations and guidelines governing the processing of land exchanges; B. Enter judgment declaring that the USFS request for issuance of a patent for the Lodge Parcel, delivery of that patent to the Title Company, and authorization for recording the patent violated USFS administrative review regulations, USFS regulations-and guidelines governing land exchanges, and the terms of an administrative stay order; C. Enter judgment declaring that the issuance of a patent to the Lodge Parcel by the BLM violated 43 U.S.C. Sections 1716 and 1718 and 43 C.F.R. Section 1862.4; D. Enter judgment declaring that the May 11,.1988 Exchange Agreement between the USFS and LPI, as amended on May 12, 1989, -24- AMENDCOM.CBW [LSCA\OlA] and the conveyance of the Lodge Parcel to LPI, violated the Town's subdivision regulations and 43 U.S.C. Section 1718; E. Enter: (1) an order rescinding the land exchange, voiding the patent to the Loclge Parcel, and imposing a trust on the Lodge Parcel for the benefit of the United States; (2) a preliminary injunction again:;t development of the Lodge Parcel or any other action which would affect the Court's power to grant effective relief to the plaintiffs or the exercise of its equitable discretion to rescind the excharge; and (3) a mandatory injunction directing that then Lodge Parcel be reconveyed to the United States; F. Award the plaintiffs their costs and attorneys' fees in accordance with law, including, but not limited to, the Equal Access to Justice Act, 28 U.:>.C. Section 2412; and G. Grant such other relief as the Court may deem just and proper. -25- AMENDCDM.CB~ (LSCA\OlA] Dated: ;duly 10, 1989. BROWNSTEIN HYATT FARBER & MADDEN Charles B. White Wayne F. Forman 410 Seventeenth Street, 22nd Floor Denver, Colorado 80202 (303) 534-6335 Attorneys for plaintiffs, Lodge Tower Condominium Association and Town of Vail - and - Lawrence A. Eskwith Town Attorney, Town of Vail 75 South Frontage Road Vail, Colorado 81657 Address of plaintiffs: Lodge Tower Condominium Association 200 Vail Road Vail, Colorado 81657 Town of Vail 75 South Frontage Road Vail, Colorado 81657 -26- AMENDCDM.CBW (LSCA\OlA) CERTIFICATE OF SERVICE The uaid®rsigned hereby certifies that a true and correct copy of t$® foregoing FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF has been served this 10th day of July, 1989, by deposii~ing the same in the United States mail, first class postage prepaid, addressed as follows: James W. Winchester, Esq. Assistant United Si:ates Attorney 1200 Byron C. Rogers Federal Building 1961 Stout Street, Drawer 3615 Denver, Colorado 80294 Randall M. Livingsiton, Esq. CALKINS, KRAMER, G1~IMSHAW & HARKING 1700 Lincoln Street, Suite 3800 Denver, Colorado 80203 ~„a ~ P /~3 diY1 TOWN OF MAIL MEMORANDUM TOs Ron Phillips Council Members FROMS Steve Thompson DATEo July 13, 1989 REe Investment Report Enclosed is the Investment Report with balances as of June 30 0 19890 The balance of the portfolio at June 30, 1989 was $12e4 million which is $104 million less than at: the end of Mayo It is normal for the portfolio to decrease in June because of debt service payments due June lsta The portfolio balance at June 30th was 29% more than at the same: time last yearn For the second consecutive month we have seen interest rates drop dramaticallyo The average rate earned on an overnight repo has dropped from 9030% to 9x00%o This change in interest rates supports our recent decision to extend our maturitieso Since our last reports we purchased $891,000 of certificates of deposits with an average yield at 9e01% and average maturity date of 374 days and $500,000 of FHLB discount notes with an average yield of 8049% and a maturity date of 127 daysa We are: currently in the process of evaluating the purchase of some GNMA securities with our bond reserve money with an average life of three to five yearso Please let me know if you have any questionso CC% Charl1e Wlck Town of Vail, Colorado Investment Report Summary of Accounts and Investments For the Month Ending June 30, 1989 Funds For Reserve Balances Percentage Percentage Operating ------------ Funds * ------------ 6/30/89 ------------ of Total ------------ Allowed --------- Money Market Accounts (see page 1) Commercial Banks 5856,674 5233,571 $1,090,245 8.75% 50% Colorado Investment Pools 511,531 ---- 511,531 ------------ 0.09% ------ 100% Total ------------ 5868,205 ------------ -------- 5233,571 ----------- 51,101,776 ------------- 8.84% ------ Commercial Savings & Banks - Loans -- ---- Certificates of Deposit (see page --- ------- 2) ----- - Eagle County Institutions 5210,992 5200,000 510,992 5210,992 1.69% Other Colorado Institutions 599,000 599,000 599,000 0.79% National Institutions 51,485,000 51,584,000 52,376,000 5693,000 - - 53,069,000 --- 24.64% - --- Total ----------- 51,794,992 ----------- 51,584,000 ------------- 52,576,000 -- ------ - 5802,992 ---- ------ 53,378,992 - - 27.12% 100% Percentage of Portfolio in Savings & Loans 12.72% 25% U.S. Government Securities (see page 3) Repurchase Agreements 53,000,000 5717,000 53,717,000 29.84% 75% Treasury Notes 5680,000 5680,000 5.46% 100% GNMA's 5188,496 5188,496 1.51% 100% U.S. Savings Bonds 516,884 516,884 0.14% 100% Federal Agency Discount Notes 53,374,184 53,374,184 27.09% 100% Total ------------------------ 56,579,564 51,397,000 ------------------------- ------------------------ ------------ 57,976,564 ------------ ------------ ------ 64.04% ------ ------ Total Portfolio Maturing Within 12 Months Maturing Within 24 Months Maturing After 24 Months * 52,433,563 is reserves that the Town does not have: access to for operations 510,023,769 52,433,563 512,457,332 100.00% ------------------------------------ ------- ------------------------------------- ------- 510,581,952 84.95% 51,341,000 10.76% 5534,380 - 4.29% - ----- ------- 512,457,332 ------------- ------------- - ----- 100.00% ------- ------- 7/6/89 slml invsm906 Money Market Accounts as of June 30, 1989 --For the Month of June-- Account Institution Balances Type of Accounts High Low Average 6/30/89 ------------------------- ----------------------------------------------- First Bank of Vail - Operating Interest 8.940% 8.080% 8.560% Balance 52,569,473 $605,039 $1,224,522 $780,098 First Bank of Vail - Insurance Interest 8.940% 8.080% 8.560% Balance ________________________________ 5211,222 Colorado Trust (Investment Pool) Interest 9.440% Balance 511,531 Central Bank of Denver Reserve Accounts Interest 5.000% Balance 522,349 Central Bank of Denver Operating Account Interest 8.805% Balance 576,576 --------------- 1,101,776 --------------- --------------- 7/5/89 SLML INVMN1906 Page 1 Certificates of Deposit as of June 30, 1989 Bank Name, Location Days to Rates Purchase Maturity Maturity Maturity lns Coupon Yield Date Date a t Purchase Value First American Bank, Boston Mass FDIC 10.000% 10.000% 12-Nov-87 12-Wov-90 1096 $99,000 Vail National Bank FDIC 8.750% 8.750% 04-Apr-89 04-~4pr-90 365 $10,992 FDIC 9.250% 9.250% 03-Jan-89 03-Jan-90 365 5100,000 FDIC 9.250% 9.250% 26-Jan-89 26-Jan-90 365 5100,000 Centr al Bank of Denver Reserved Funds FDIC 8.400% 8.400% 05-Oct-88 05-Oct-89 365 599,000 Coral Coast Savings Bank, Boynton Beach Florida FSLIC 10.250% 10.250% 30-Mar-89 27-Sep-89 181 599,000 First Federal of the Carolinas, High Point North Carolina FSLIC 10.250% 10.250% 30-Mar-89 30-Mar-90 365 599,000 Inves tors of Florida Savings Bank, N. Miami Beach Florida FSLIC 10.250% 10.250% 30-Mar-89 26-Sep-89 180 599,000 First ate Financial, Orlando Florida FSLIC 10.498% 10.498% 31-Mar-89 02-Apr-90 367 599,000 Farmers State Bank, Denton Montana FDIC 10.000% 10.000% 04-Apr-89 05-Jul-89 92 599,000 Bank of Horton, Horton Kansas FDIC 10.500% 10.500% 12-Apr-89 10-Oct-89 181 599,000 Hawthorne Savings and Loan Association, Oceanside California FSLIC 9.750% 9.750% 18-Apr-89 30-Nov-89 226 599,000 First Nat ional Ba nk of Glens Falls, G lens Falls New York FDIC 9.750% 9.750% 18-Apr-89 30-Nov-89 226 599,000 Exeter Ba nking Company, Ne u Hampshire FDIC 9.900% 9.900% 18-Apr-89 30-Nov-89 226 599,000 San Anton io Feder al Saving s Bank, Wes laco Texas FSLIC 10.500% 10.500% 03-Apr-89 03-Apr-90 365 599,000 Security Savings and Loan, Chicago Il linois FSLIC 9.950% 9,950% 18-Apr-89 18-Apr-90 365 599,000 Midstate Savings and Loan Associaton, Baltimore Maryland FSLIC 10.100% 10,100% 21-Apr-89 18-Oct-90 545 599,000 First Sav ings and Loan, Be verly Hills California Reserved Funds FSLIC 10.250% 10.250% 10-Apr-89 03•Jun-91 784 599,000 Franklin Bank, Me nlo Park California FDIC 10.00% 10.00% 17-Apr-89 16••Oct-89 182 599,000 Sterling Savings and Loan, Irvine Cal ifornia Reserved funds FSLIC 10.250% 10.250% 10-Apr-89 02•~Dec-91 966 599,000 51,893,992 Page 2 Continued Certificates of Deposit Continued as of June 30, 1989 Bank Name, Location Days to Rates Purchase Maturity Maturity Maturity Ins Coupon Yield Date Date ---------- at Purchase -------------- Value ----------- ------------------------------------- Brentwood Square Savings and Loan, Los Angeles California Res erved Funds FSLIC 10.250% 10.250% 09-May-89 O8-May-91 729 599,000 First Chesire Bank, Keene New Hampshire FDIC 10.100% 10.100% 15-May-89 14-May-90 364 $99,000 Trustcorp Bank, Toledo Ohio FDIC 9.750% 9.750% 12-May-89 14-May-90 367 $99,000 St. Edmond's Savings and Loan Association, Philadelphia Pennsylvania FSLIC 10.250% 10.250% 05-May-89 05-Nov-90 549 599,000 Columbia National Bank, Santa Monica California FDIC 10.000% 10.000% 16-May-89 1_'r-Sep-89 120 $99,000 Monadnock Bank, Jaffrey Neu Hampshire FDIC 10.000% 10.000% 12-May-89 14-May-90 367 599,000 Fidelity Federal Savings Bank, Richmond Virginia FSLIC 10.000% 10.000% 05-May-89 07-May-90 367 599,000 Pioneer Federal Savings and Loan Association, Hopewill Virginia FSLIC 9.6001 9.600% 17-May-89 17-Jul-89 61 599,000 Eastern Savings Bank, Hunt Valley Maryland FSLIC 9.750% 9.750% 17-May-89 30-Nov-89 197 599,000 Sunwest: Bank, Tus tin California FDIC 9.875% 9.875% 17-May-89 17-Jul-89 61 599,000 Kislak National B ank, North Miami Florida FDIC 9.700% 9.700% 25-May-89 25-May-90 365 $99,000 Standard Pacific Savings and Loan, Newport California Reserved Funds FSLIC 9.625% 9.625% 26-May-89 28-May-91 732 599,000 Century Bank and Trust, Somerville Massachusetts Reserved Funds FDIC 9.450% 9.450% 26-May-89 2b-Nov-90 549 599,000 Century Bank of Suffolk, Suffolk Massachusetts Reserved Funds FDIC 4.450% 9.450% 30-May-89 29-Nov-90 548 599,000 Republic National Bank, Phoenix Arizona Reserved Funds FDIC 9.500% 9.500% 30-May-89 29-Nov-90 548 599,000 Avg Yiel d 9.890% 53,378,992 Avg Days to Maturity 300 7/5/89 slml invcd906 Page 2 Government Securities as of June 30, 1989 ***Treasury Notes*** Years to Rates Purchase Maturity Maturity Years to Par Coupon ------ -- Yield Date -- - - Date ----- at Purchase --------- - Maturity --------- -- Value ------------ - -------- 8.875% --------- 7.470% - ------ - 11-Mar-86 ----- 15-Feb-96 -- 9.94 - 6.63 $230,000 8.875% 9.067' 02-Dec-88 30-Nov-90 1.99 '1.42 5250,000 9.375% 9.630% 28-Feb-89 28-Feb-91 2.00 1.67 $200,000 Average Maturity Years 3.24 $680,000 Average Yield 8.69% _ ____________ ***Repurchase Agreements*** Average Purchase Maturity Par Institution Yield ---- ----- --- - Date - Date Value --- --- - ------ Central Bank 8.740% ---------- 12-Oct-88 ---------------------- Open ------------------------- 5717,000 Prudential Bache 9.320% 20-Dec-88 Open 53,000,000 $3,717,000 ***GNMA~S*** Years to Estimated Purchase Maturity Maturity Years to Principal Pool ------------ Coupon ----------- Yield - Date - Date at Purchase Maturity Outstanding 5803 - 8.000% ---- --- 8.480% ---------- 14-Nov-86 ----------- 15-Oct-05 ------------ 19.10 ----------- 16.00 ------------- $45,472 13003 8.000% 9.500% 24-Oct-86 15-Oct-O6 20.20 17.00 570,402 14659 8.000% 9.200% 24-Oct-86 15-Jan-07 21.20 18.00 $72,622 Avg Yield 9.138% 5188,496 ***U.S. Savings Bonds*** Years to Issue Maturity Maturity Years to Book Maturity Series Yield Date Date at Purchase Maturity Value Value ------ ------------------------------------------------------------------------------- EE 7.170% 01-Oct-86 01-Oct-96 10.00 7.26 $16,884 $30,000 ------------------------ ------------------------ ***Federal Agency Discount Notes*** Days to Purchase Maturity Maturity Days to Book Maturity - Yield --------- Date - Date at Purchase Maturity Value Value FHLB 10.353% ----------- 03-Apr-89 ---------- 30-Nov-89 ------------ 241.00 ------------ 153.00 ------------ $233,816 ----------- $250,000 FHLB 10.069% 05-Apr-89 01-Dec-89 240.00 154.00 5234,300 5250,000 FHLB 9.851% 19-Apr-89 20-Oct-89 184.00 112.00 5238,168 5250,000 FHLB 9.940% 20-Apr-89 26-Oct-89 189.00 118.00 5950,965 $1,000,000 FHLB 9.981% 03-Mar-89 23-Aug-89 173.00 54,00 5238,707 $250,000 FHLB 9.350% 25-May-89 25-Aug-89 92.00 56,00 5250,000 5250,000 FHLB 9.400% 25-May-89 25-May-90 365.00 329.00 5500,000 5500,000 FHLB 9.373% 17-May-89 22-Sep-89 128.00 84,00 5484,089 5500,000 FHLB 9.422% 17-May-89 18-Aug-89 93.00 49,00 - 5244,139 ------------ $250,000 ----------- $3,374,184 53,500,000 Average Maturity Days 123 _ ____________ ___________ Average Yield 9.73% Total 57,976,564 7/5/89 slml invtr906 Page 3 E IInNK IIIIUWN Onlcr AOnnESA 41H DISIRIG 7. E.Ol OR A00 1424 LGNGW011rH RVII OING JUL 1 4 1989 VV11S1lINOtON. DF. 20515 fOMRIII ttF nN 1207) 225-4675 WAY$ AND ME/1NS OISIRICT Ofllf ES' ®Y4~~~~~~ ®~ ~~,e ~tl~~~ ~~~~~ 101537TH AVFNVE CGUnr 4 J tl CUItF 101A ~~Oll~f' Of ~1ZC~11'C~CiltiDil~lr'f~ ~tif3~)111~t011, ~~ 20a 15 May 30, 1989 Allen D. Miller President Natural Energy P.O. Box 567 Resources Company Palmer Lake, CO 80133 Dear Dave: GnEflr Y, CO 80634 1,10,1) 352-4112 311 S ~~^wES. ROOM 203 Eonr COn IN<, CEI R!)SI1 13031 49;1 9 132 243 f OSF OrFICE RNIEmNc I,A .h INIA CO R 1050 (7 191 384-73 70 31 i E E't AnE AvE four MURf.AN, f.0 fl0701 (303) 867-R 909 ADAMS ANO ARAFAII tIE C.GUNtIES (303) 466-3443 Thank you for your letter requesting a Congressional investigation of the Environmental Impact Statement for th.e Two ForY.s Project. I appreciate your taking the time to come back to Washington recently to give a presentation on alternatives to Two Forks. As you know, Environmental Protection Agency Administrator William Reilly has initiated a veto of the permit for Two Forks Dam. The Army Corps of Engineers and the Metropolitan Water Providers now have until July 14 to consult with EPA and propose ctlanges in the scope of the project or increase the environmental mitigation measures. Administrator Reilly has indicated that during this process alternatives to the Two Forks proposal will be investigated. It appears that in light of the EPA's review of the Two Forks Project and alternative projects that a Congressional review is unnecessary. Again, halafc you for contacting me. ~~ Sine' e~:~,, ~, ~' a'" •~' ~- June 16, 1989 ~.>-~ Hank, Tviany thanks for your last night's telephone .~1~ k Brown call. Appreciated the 40 minute opportunity to / Member of Congress give a firsthand account why the Two lorks EIS is an unlawful decision document. Also, t welcome H B/ja c your offer to encourage Colorado water experts to take a fair look at the superior, but "overlooked", City-Farm and Union Parlc (Gunnison) alternatives being developed for Metro Denver by the City of Thornton and Arapahoe County. ~~ NATURAL ENERGY RESOURCES COMPANY ~~~w~A~~~AAe ., e ae~ P. O. Box 567 Palmer Lake, Colorado 80133 (719) 481-2003 FAX (719) 481-4013 June 15, 1989 Senator Bill Armstrong, 1'Vashington, D.C. 20510 Representative Hank Brown, Washington, D.C. 20515 Representative Joel Hefley, Washington, D.C. 20515 Representative Dan Schaefer, Washington, D.C. 20515 Dear Senator Armstrong and Representatives Brown, Hefley, and Schaefer: Your public support of Denver's controversial Ttao forks Dam is based primarily on two false technical arguments: 1. _Threat To Agriculture Colorado State University sources are being misquoted when you say that 50,000 acres of Northern Colorado land will be dried up for urban areas, if Tcao Forks is not built. The City of Thornton's 1986 purchase of irrigated farn~s is often cited as your main case in point. However, information from Thornton and CSU confirms that this conclusion is erroneous. Thornton's innovative City-Farm Recycling Project is being aided by CSU water experts, because it i.s specifically designed to return 60,000 acre feet (100%) of irrigation water to the farms after it is first used by Northern Metro Denver. It should be noted that Thornton's ongoing City-Farm Project was illegally ignored by the Corps in its 1~IS Water Supply Analysis. The real Western water story is that modern techniques have improved irrigation efficiency by at least 10/ in recent years. This savings more than doubles the amount of water that could be allocated for urban use via normal marketing forces without adversE~ly impacting Colorado's agriculture. CSU water engineers and economists generally agree with the above assessment. 2. Losses To Down River States You accept Denver's contention that Two forks is necessary to save Colorado's entitled water from being lost to down river states. However, Two forks and its related follow on transmountain diversion projects are all designed to take more water from the currently over-depleted Upper Colorado Basin tributaries. Meanwhile, the untapped, but "overlooked", Gunnison Basin is losing almost a million acre feet of Colorado entitled water to Arizona and California. Arapahoe County's advanced Union Park Reservoir alternative for Metro Denver is specifically designed to economically help Colorado correct its serious unbalanced water usage. in addition, Union Park's high altitude, off river Gunnison reservoir will provide needed drought protection for Colorado's river envirorurients on both slopes. The Gunnison's surplus water was illegally ignored in the EIS to protect Metro Denver's 50 year investment in its outmoded Two Forks Project. Suggest a re-evaluation of your public position on Two forks before these technical errors become even rrpre political and damaging to Colorado's national enviro-economic image. Sirlc rely D. (Dave) Mil er, President ADM/bm cc: Pres. Bush, U.S. Congressional Delegates, LPA, Colorado Legislators. 4 the USI3R the value of Union ]?ark's dry year releases to the Gunnison as an offset against the water borrowed {to meet UVWU11's water exchange agreement. A third option is to negotiate for a portion of the above 7,000 acre-feet allowance for future stream depletions from conditional water rights. }•lith one or more of these options, a tot<~1 of 80,000 acre feet average annual yield is reasonably divertable from Union Park to augment metro Denver's existing reservoirs during the critical dro~.rght periods. 'I`}le Corps' computer simulations have confirmed that this Grmnison drought insurance water would increase the safe yield of rletro benver's existing system by about 110,000 acre-feet. fl~~la3q.dar l•?-~/cfi~3 /~iJtnric .1i~/Iav psi;d fj'F~es~'.S >io ty/o/- Pvr7c ~SE'SEI"-'0/r wllh /~lo~~lE•d /~-/eases (/,her OP ri~4m Plant /: no -~_._ --- - ~ ~ June 1~k9 itch - --... _. __.. FPn ~ - ----- ~ --~ -- _. ... ... ------ ---- -__- - - I------. _. ..-'---- N,aln„~ z„r~ol~, Fee ----- ...... ...._. _ .. .. .... -- -.. .. -'-~-- - -- ~----------° -'-I --... _....... .-j----~- ~ ~---- - sao ._ -- -...--- -.. .------ ~--~- -~ -- ~- ----- -~.. _. - -- -~~---------- +--- ti - I - ' X400 ~ - -- - -- - -- ---- -- - - - - - , ' ~` I `' I I , i roo - -- ~ --- - - - -- - II -~ . - _ . _.. -~- -.. - f ' I 1 ~a 11 Rc%sse Ste. fy,`-~.~ r ~ I J 10 ~------ ---- -- - ~ -- -- - - - - - - /oo .. y `~ ~~ ~ ~~ .. I . ~ ~ r ~ _ ~~ t ~ ~ ~~ ~~~. ;~: .. :~~ aNrJrN~i.7J.1s O J q J _ ~ s-,~ .! {~ _J .: A. _~~,... `- ~-t'p J~-' P~_, ji: ,,J; ~ J, J •~ p /977 /97B /979 /9 tin /9 A/ /992 -- 1983 /98A 0 NOTE: The authors of this paper are professional engineers and retired United States Bureau of Reclamation executives with extensive experience in Western water matters. Since 1982 they have been working to optimize the water and power potential of the Union Park/'T'aylor Park area, as consultants for the Natural Energy Resources Company, P.0. Box 567, Palmer Laker CO. 80133; (719)481-2003. Arapahoe County has o~,med the Union Park project since August of 1988, and the City of Gunnison, Town of Parker, and Castlewood Water District are the initial participants. 3 3. The published Gunnison Tunnel diversions were used to be indicative of future demands under similar inflow conditions. 4. Additions and/or reductions to UVWUA credits for water borrowed or repaid to Blue Mesa Reservoir were made to assure compliance with the existing water exchange agreement. 5. The uppermost 31,300 acre-feet of storage capacity in Taylor Park Reservoir was assumed transferred to Union Park Reservoir to provide the vacated capacity for exclusive flood control purposes. 6. A ir<~ter conservation pool of 50,000 acre-feet was maintained in Union Park Reservoir with separate accounting for inflow and releases. 7. Minimum releases from Taylor Reservoir were 50 c.f.s. for the months of October through April and 100 c.f.s. for the months of May through Sept. Mont=hly release rates were generally above these minimums in years during or i-ollowing periods of below normal runoff. 8. Priority of ownership of water pumped from Taylor Park to Union Park Reservoir was: (1) filling UVW[JA transferred storage right (maximum 31,300 A.F.); (2) filling and or refilling the conservation pool (maximum 50,000 A.F.); (3} water for pump-generating purposes; and (4) water for Union Park Reservoir oti~mership. 9, Water to fulfill release requirements for irrigation, water exchange or minimum flow was taken first from the 31,300 A.F. pool in Union Park Reservoir and secondly from Taylor Park storage. This mode of operation significantly reduces the ti,rater level fluctuation in Taylor Park Reservoir. 10. Future stream depletions from existing conditional decrees were assumed to reduce the project w<~ter supply only during months of required irrigation releases from Taylor Park Reservoir. The maximum amount of future stream depletion ~,ras calculated as 10/ of the historic gain from Taylor Par]{ to the Gunnison Tunnel. Related F'r_oject Benefits Page 1'1-2 of the Black and Veatch Report entitled "Union Park Pumped Storage Project - Feasibility Study" and dated March, 1985 discussed. other benefits for the Union Park Water Supply Project. The release of water for supplementing the Black Canyon minimum in-stream flows will benefit the doz,mstream environment and power generation. Transferring 31,300 acre-feet of the UVWCJA storage right to the proposed Union Park Reservoir leaves about 26,000 acre-feet of usable flood control capacity in Taylor Park Reservoir. The potential power benefits from a pumpback storage feature are still applicable. The 4,000 acre Union Park Resen~oir also provides fishing and recreational benefits for the Upper Gunnison area. In addition, these same benefits in the existing Taylor Park Reservoir are enhanced by less fluctuation in water levels and rates of water release (see following Histogram). Water Yield for consumptive Use Purposes The above discussed data shows an average annual input into Union park storage of 72,800 acre-feet. This represents the amount of water that can be used by metro. Denver/East Slope for consumptive use purposes. This amount can be increased by adjusting Union Park's percentage contribution to the anticipated Blac}t Canyon minimum flow requirements. Another option for supplementing the yield is to negotiate with 2 near-term or long-term uses. In a year of below normal runoff, such as occurred in 1977, the historic release of water, 81,600 acre-feet, could be increased to about 100,000 acre-feet. These two examples show ho~•i the additional storage can be used to store - for future or other uses - water in years of normal or above normal runoff while still maintaining a supply of water in storage to supplement the releases from Taylor Park Reservoir in years of below normal inflow. A recent report by the Colorado Water Resources and Power Development Authority identified a requirement for supplemental water supply to satisfy meeting in-stream flow needs of the Gunnison River through the Black Canyon Recreational Area. This need was about 60,000 acre-feet in the year 1977. About 40°o of that need or 23,700 acre-feet was a part: of the 99,700 acre-feet release that could be made from Taylor Park Reservoir in the year such as 1977. Hydrologic Studies The previously mentioned amounts of water for inflow, pumping, and releases from Taylor Park Reservoir were extracted from a hydrologic study made for the eight year period 1977 through 1984. While this period is shorter than desired, it: is felt that it provides a reasonably accurate projection of water supply yields and uses. The average inflow to Taylor Park Reservoir for the period is 145,900 acre-feet which is near the accepted long term average. Additional water supply amounts are summarized in the following Table: Average llnnual Water Supply and Utilization 1lmounts for Historic and Optimum Plan Operations (1,0~ AF Units) historic Optimum Plan Operations Operations Total Water Supply 1. Inflow to Taylor Park Reservoir. 145.9 145.9 2. Net Inflow to Union Park Res.(I~ottis Cr.) - 7.5 3. Supply for Release to Taylor River Below Dam or Pumping to Union Park Reservoir 145.9 153.4 dater Utilization 4. Amount Released Under Exchange Agreement 24.1 26.3 4a. Exchange Water Credits Lost (9.9) (2.0) 4b. Water Used by UVW[IA (14.2) (17.3) 4c. Water Used by Other Rights - (7,0) 5. Amount Released from Storage Right 15.0 10.9 '6. Amount of Irrigation Season Ini-low Used 13.0 11.8 7. Other Releases for Minimum Flows, Etc. 39.9 22.2 8. Amount Released for Black Canyon Min. Flows - g.2 9. Amount Released for Other Rights - 1.2 10. Total Amount of Water Utilization 92.0 80.6 11. Water Supply Available for Development 53.9 72.8 Hydrology Study Criteria The following summarizes the criteria used in the previously mentioned studies: 1. Published monthly releases and reservoir contents of Taylor Park Reservoir were used to calculate monthly reservoir inflow amounts. 2. The stream sectional gains from Taylor Park Reservoir to the UVWUA Gunnison '1'~~nnel diversion were calculated from published records. July 1989 UNION PARK PLAN FOR OPTIlK[7M DEVELOPMF.~Tr OF TAYLOR RIVER TER RESOURCES by Dale B. Raitt, P. E. and Abner W. Watts, P. E. o is Colorado is currently losing almost a million acre-feet of its entitled water to Arizona and California via the untapped, but overlooked, Gunnison Basin. This document. briefly explains how approximately 8°6 of these lost waters can be economically used for Metro Denver's growth, while providing balanced drought protection for Colorado's major river environments on both slopes. The plan involves construction of a low cost, million acre-feet reservoir at the high altitude, off-river, Union Park site in the Upper Gunnison Basin's Taylor river drainage. High tech reversible pump-generators will pump surplus :Flood waters from the existing Taylor Park Reservoir into Union Park's natural, sage covered bowl. During the critical dry periods, water .is released via gravity conduit and siphon to augment the South Platte, Arkansas, and Gunnison River flows. The Corps of Engineers has confirmed that an average annual diversion of 80,000 acre-feet can increase the safe yield of Denver's existing reservoir system by at least 140,000 acre-feet (40°6 more than Two Forks). Because of this unpresented nearly 2 for 1 multiplier effect, the unit cost of Union Park's safe yield increase will be approximately one-half that of the proposed Two Forks Dam alternative. The Water Supply Situation The long-term average annual inflow to the existing Taylor Park Reservoir, located about 30 miles northeast of Gunnison, Colorado, is over 140,000 acre-feet. During the eight year period from 1977 to 1984 the annual inflow to the reservoir fluctuated from 62,500 acre-feet in 1977 to 233,700 acre-feet in 1984. The below normal runoff in 1977 resulted in a water supply stlortage for the Uncompahgre Valley Water Users Association (UVWUA). The UVWUA purchased 45,000 acre-feet of water from the U. S. Bureau of Reclamation (USBR) in that year. The UVWUA has one of the earliest water rights and has adjudicated rights to about 250 of the flow of the Gunnison River at their tunnel diversion above the I31ack Canyon Recreational Urea. The UVWUA has a storage x-ight to 111,300 acre-feet in the existing Taylor Park Reservoir, but has utilized only a portion of that right in recent years. Since the implementation and operation of the "Storage Exchange Agreement" a large portion of the IJVW[JA needs for late irrigation water has been met by releases from the downstream USBR Blue riesa Reservoir. An accounting of such quantities of water has been made, and during the following non-irrigation months the UVWUA is expected to repay such amounts of water by releases from Taylor Park Reservoir. The storage exchange agreement has accomplished one of the intended objectives; namely, to reduce and "smooth--out" the late irrigation season releases from Taylor Park Reservoir. However, the agreement has become an obstacle to the full use of the UVWUA storage right as well as the total development and use of the inflow to Taylor Park Reservoir. The Plan The previously mentioned obstacle can be largely overcome by constructing a large new water storage reservoir adjacent to the existing Taylor Park Reservoir and interconnecting the two facilities. The potential Union Park Reservoir with a plus or minus orre million acre-feet of capacity interconnected to the existing Taylor Park Reservoir by a 70 MW pump-generating plant and associated waterways provides an excellent solution. In a repetition of runoff such as water year 1984 the historic release of 224,900 acre-feet would be reduced to 51,800 acre-feet by pumping over 170,000 acre-feet from Taylor Park Reservoir into Union Park Reservoir where the water would be stored for either B L A C K& V E A T C H Natural Energy Resources Company 2 B~V Project 112b3 Mr. Dave Miller July 3, 1989 If you have any questions about the FERC order or the Licensing status of the project, please call Davicl Lefebvre at (913) 339-2164. Very truly yours, BLACK & VEATCH ~~ ~ ~ ~ John R. Stack dm1 Enclosure B LAC K & V E A T C H ENGINEERS-ARCHITECTS Natural Energy Resources Company Rocky Point Pumped Storage Project Licensing Status Natural Energy Resources Company 3855 Highway 105 West Palmer Lake, Colorado 80133 Attention: Mr. Dave Miller Gentlemen: TEL. 19131 339-2000 1500 MEADOW LAKE PARKWAY MAILING ADDRESS PO. BOX NO. 8405 KANSAS CITY, MISSOURI 64114 B&V Project 11263 B&V File 32.0206 July 3, 1989 Enclosed is a copy of the Commission's decision granting our appeal on the license application. The decision essentially states that the agencies waived the requirement that we complete various studies before filing the license application, Our license application has now been docketed by FERC. The FERC staff has been directed to prepare a letter listing the issues which must be resolved prior to the application being formally accepted. The staff has invited us to meet with them to discuss what issues remain unresolved and our proposed schedule for addressing such issues. While the appeal was pending, we have completed most of the studies men- tioned in the original FERC letter. With [he docketing of the application, we will reinitiate agency consultations on the results of these studies. It is anticipated that the license application will be accepted this year. Issuance of the FERC license is expected to take at least another 18 to 24 months because FERC will prepare an Environmental Impact Statement for the project:. The docketing of the license application is a major licensing milestone for the project. We will keep you informed of our endeavors to attract addi- tional financing to the project. 2 Park and Rocky Point water right decrees. The court date is set for this August. Ho~aever, Arapahoe and Auro:ra are now concurrently negotiating an agreement to jointly develop these surplus Gunnison waters. L9e believe Union Park's environmental and technical advantages will ultimately prevail as the water supply project for all of Metro Denver, when Two Forks is no longer a viable alternative. As you know, NECO has been conducting an aggressive national letter campaign to compare the superior, but overlooked, Union Park project to the controversial Two Forks Dam project. We are hopeful this effort, coupled with national environmental resistance, will help sustain the Bush Administration's pending Two Forks veto. Financial Position Although NECO's water and power projects have had excellent potential since our fowzding ~.n 1982, we have always been somewhat undercapitalized for the magnitude of these major private development efforts. When the new board took over in I~=cember 1985, we were virtually out of capital and financial prospects. Fortunately, our contractors had enough confidence in NECO's potential and new board members to risk their own development funds to continue the critical permitting process. With this financial arrangement for permitting, NECO has been able to cover its minimum essential operating expenses by borrowing from NECO board members Dale Raitt, Ab bdatts, and myself. About 40% of these advances were reimbursed when we closed on the Union Park sale to Arapahoe County. However, since then we have continued to carry our compensation until we get some additional revenue into the company. Since early 1986, our total office and compensation expenses have been running about $5,000 per month, or about one-fourth that of the previous board. Future Outlook In discussing NECO's prospects with stockholders, the most frequently asked question is, "what is my stock worth"? Since we all have restricted stock with no market, there is really no way to give a good answer. About all we can say for .sure is that major water and power projects are highly complex, and have a triad of financial, legal, political and environmental thickets to overcome. In fact, the permitting process has become so difficult, many of the major utilities have encouraged the national trend toward having less cumbersome private companies carry the load during the high risk, early development stage. Private development companies are also starting to serve as power and water wholesalers to public utilities under long term contracts. The personal commitments of your board members are probably best indicators of our optimism for the company's prospects. In fact, the primary reason I am devoting most of my time and financial resources to NECO is because of the strong belief that our projects are in the public's interest, and will eventually prevail on their merits. Technically and environmentally, we have the best products. However, it will still take a great deal of constructive effort to win out over the outmoded concepts of the entrenched establishments. Our best advice is to consider your stock as a long-term investment that still has high .risk and potentially high rewards. Meanwhile, your board is actively searching for a way to recover at least some of our investment in the shorter term. You can be assured that your board will continue in the good old American way to strive for maximum results front our limited resources. S' ~ errly, ~/ QAwP~ Al:Len D. (Dave) Miller, President ~i/bm NATURAL ENERGY RESOURCES COMPANY P. O. Box 567 Palmer lake, Colorado 80133 (719) 481-2003 FAX (719) 481-4013 July 7, 1989 Dear NDCX) Stockholders: The following is a brief status report on our company's Upper Gunnison Basin power and water projects. Rocky Point Pumped Storage Project I am pleased to report that the Federal Energy Regulatory Commission (FERC) has granted our appeal on the Rocky Point License Application. During this 22 month appeal time, our contractors have completed most of the studies mentioned in FERC's September 1987 rejection of our application. Our appeal was successful because the deficiencies were caused primarily by new study requirements of other governmental agencies that could not be properly addressed before the application filing deadline. Although there is considerable risk in the early stages of any major construction project, Rocky Point's 1,000 megawatt potential is probably best demonstrated by the fact that our highly respected contractor partners have contributed well over $2 million to this licensing effort. With the removal of the "appeal cloud", our contractors are now in a much better position to arrange the additional $3 million estimated to complete the highly complex local, state, and federal licensing process. Black and Veatch, Ebasco Services, and Harrison Western are optimistic about Rocky Point, because their engineering and financial analyses in NECO's 7 volume FERC License Application indicates Rocky Point will probably be the world's most efficient, non-polluting peak power operation. This Gunnison project's total financing cost in 1995 dollars is estimated to be $950.4 million. For the first 30 years of the project's life, the savings in regional power costs is estimated to be $11.3 billion. This potential savings has a 1987 present worth value of $970 million. Governmental agency consultations have been going well. Because of our contractor's high risks and commitment to funding all of the permitting costs, they are now almost equal partners with NECO on Rocky Point. Your board of directors k~elieves this is a positive arrangement, as it gives these international firms a powerful incentive to achieve success for both IVECO stockholders and the power using public. Union Park Water Sup ly Project As indicated at last December's stockholder meeting, we sold our Union Park Project to Arapahoe County last August for $2.2 million. The initial $150,000 payment has been allocated to cover our minimum essential legal. work and operating expenses. Most of the remainder is due with interest wYien the water rights are perfected and at time of construction financing. Although NECO and its contractors believe Union Park is substantially superior to the other alternatives for Metro Denver and Colorado, the financial, legal, and political realities dictated that we sell to a major user at that time for a bargain price. In spite of political pressure from Metro Denver's Two Forks Dam proponents, Arapahoe is aggressively pursuing Union Park's water rights and development. Arapahoe and NECO are also jointly taking civil action in Gunnison District Court against the City of Aurora and one of our founders, who improperly sold his competing Collegiate Range idea to Aurora in 1986, without our knowledge or consent. The Collegiate concept has serious operational and environmental conflicts with the more senior Union C~~ _ ~Cc° C ~. .~,~ ~,~~~~ G~ ~~ ~' ~~ ~~ ~v~1°~ag ~~~~~,'~ ~i 7/r8 PROTEST TOWN OF VAIL, COLORADO BOOTI~i CREEK LOCAL %PgPROVE1KEfl~TT%~~Dp%-STR CT Names (s) of affected property owner(s) s ~J~-~ ~ -• S ~ ~~ Mailing address of property owner(s) s ~z ~y ~;,~ Address of affected propert;Yo ~ I ~,o !~o-~~" ff ~=A-(,~S C`~• Legal description of affe/~cted propertya Vl~ ~~~ 2 ,~~ "v / .~ 1 ~+ O~ f %(e~e), the affected property owner(s), do hereby wish to protest the creation of the Town of Vail, Colorado, Eooth Creek Local %mpro~ement District, and state that I(we) oppose said district and the inclusion of our property in said districto Sign thgs , day of - , 1989° Property Owner(s)o _ / ~ (if sided by an agent or other _ ~ ~~-.._ authorized person, include _ ~-. evidence of said authog•ity or _ agency D ~S ~,,, Return this g~rotest toa Town Manager, 75 South Frontage Road, Vail, Colorado, 816570 ~- '_ • r ~ ~-~.-~- ~ ,~.~-mot ,~-~ ~ ,Ge ~,, ~ ~ / /~ ~~Ir1 ~enture~ Into Box 1797 ©Vail, Colorado 81658 Douglas J. Sterkel President ~;ayo7• Faul Johnston mown of Nail Vail, Colorado 016~~:s Dear fir: The purpose of this letter is to members of the Vail mown Council as relates to the funding request interchange. ®~ ®~® Alpine Standard Div. Alpine Ventures Inc. Vail and Steamboat Springs, Colo. 'late : (~CtO~oer ~j, 1'.%;`~~~ Sub j . :r-70 ... z~"a.il - 1 provide ~Tou anti t~;ith an ui~-date for ~~~ork~ on t_:e the oth~?~ Oil m~" n0~ 1t1Gr'i ubjFct !?ccordin~ to your schedule, ~Tcu v:~ill be revie;r,in~ this ~re,jecr during- the regular work session on October 7s 1900. It is requested that the contents of this letter. plus those in to attachment be earnestly considered. at that time. The attachment referred to is a copy of a letter I ~~rot~; ;,o i~iayor Kod Slifer in April of 1984 on this same subject. ~; co~?ce~r~ls. and m~,~ position were clearly stated in that letter a.nd the=,- raise not chant/red. In fact, the only change at all is that -ost of my recommendations on pa:~.~e 2s " xhibit C" have peen i.;~pler::er.te^, I am not sayinJ that these changes were made as a result of ~:~~ letters but I am saying that they resulted in a drastic i;:.prove°;~ent in the traffic flow at this intersection, copy of the letter written to i<~r, Olifer was sent to the Veil Trail which subsequently ~>ublished its' contents in the ''_'rails' April 20s 1gB4 edition. hs a results I received several telephone calls from people who agreed with me and urged I~e to hold r.~sT position and that I could count on their support, '..his same message has been conveyed to me during personal conversations t-iith numerous businessmen and customers alike at my place of business, even to the extent of assistance in getting a petition circulated -and signed, • .~ AMERICAN SKl CLASSIC VAIL d ltEAV ER CR EEC ®FFIC1i4L SERV6CE STi4TI®IV -z- 4 I respectfully submit to you that it is not in my char~~ctc~r t;, have that type or any type of confrontation with ~,rou, ~ r< ':~.~,.-or, or with the Vail Town Council. Cn the contrary, it is ot~i' sincere desire to work with you in any and every v,~atr to ~rrlve at an equitable solution e ';'e are not opposed to the enf~ance~:Fr.t and beautification of the village entrance, rather vre feel iY is of utmost importance and are v:illin~ •to offer some solution: , as follows: 10 ) If more prouerty is required to i~~~prove t~:e traffic flow at this intersection, possibl~,r v;e could ~cn ate a portion of the Vail :^moco site if that vrere necessarye 20 ) The VVI rro ject currently is stalled e ~~'re :_i~oco site needs to be improved for the entrance tc ce improved, ror an example, if the propert ~ z~rhere the present town offices are located would be r_eec:ed to build an east-bound off-ramp to kee:o the traffic out of the main interchange, possibly ;ae coup • donate all or part of ~;he Amoco site to the town under some equitable arrangement for the relocatior. of the town offices to the Amoco siteo This building; along with the water fountain and rock r~arden entrance proposed in a previous plan ;•jould cert~:.i_~l~yr beautify the entrance as well as blend v;ith an-; future VVI proposal, 30) Lastly, if the proposed ramps are constructed, our sug,?estio~ for a compromise is that the current ramps be lest opene Unless this is done, v:e see no way that the proble:rl vrill be solved simpl:~ b~~ relocating the rampso Thank you for your time and your consideration, Yours truly, . ~ ~? ~ Curvy Sterkel ~~ , .. ,_ II ntres ~nco Sox 1797 o Vail, Colorado 81658 Cony Sterkel Presiden4 I~iayor Paul Johnston Town of Vail Vai19 Colorado 81657 ~~~ Alpine Standard Div. Alpine Ventures Inc. Vail ~ Steamboat Springs, Colo. January 159 195 llear Siro .~s you may know9 I wrote a letter to former 1''Iayor Rod Slifer on April 169 1984 outlining my concerns-re-~arding the proposed short term and long term solutions proposed by Centennial ,~;ngineering to the traffic problems at the 4-Way stopo Since that time9 we have gone through another Holiday~-Seasono ':7hile it is still fresh in our mind 9 I want to take this opportunity to thank i,he Vail Traffic Control Personnel and the Vail Police Department for an outstano.ing job of traffic control through new innovationso Although Vail was fortunate to experience record crowds9 the - traffic congestion at the 4-Pray stop, in my view9 was drastically reduced o Again 9 cong:radulations and Thanks o • ------ -Yo>~-r - - - ~ - ~ - - -- - _. --- ~ --_--- . - 9---- - - -- - - • ~ ._ _ . . Cuny Sterkel _. ` cc o The Vail Trail - ----:_r __t=T.._:-_--_---- --- =_--- AMERICAN CFF/C/AL SEf~V1CE STATIOnI ~owo ~ 75 south frontage road a vail, Colorado 81Ei57 ~ (303) 476-7000 office of the mayor April 18, 1984 Mr. Cuny Sterkel Alpine Ventures Inc. P.O. Box 1797 Vail, CO 81658 Dear Cuny: Thank you for your letter and proposed ;solutions to the 4-way stop issue. The Vail Town Council appreciates the time and energy you have put into this complicated matter acid we will certainly consider your comments as we review the many alternatives relative to traffic congestion issue. Sincerely yours, ~~~ /.~- Rodne E. Slifer Mayor ~ ~~~ tors On~a Box 197 o Vail, Colorado 81658 Cunt' Stericel G President ~ / I~:ayor od Slifer Tow of Vail mil, Colorado 81657 Dear Sir: i ~~ Alpine Standard Div. Alpine Ventures Inc. Vail ~ Steamboat Springs, Colo. April 16, 1984 Ttle purpose of this letter is to address the issues end the controversy of the now infamous Va_i_1 4-way stop and to submit rn3E recommendation for asolution, ~s operator of the Alpine Standard service station for gore than ten years9 I have taken more than a casual interest in the traffic at this intersection, After having read the "'i~!al Report: I-70/Nail reap>ibility Study" which was submit Lea to you b~~ Centennial Engineering in T~Iarch9 1984, I wish to a.dcise you that I strongly disagree with both their short term anC long term solutions, In my opinion9 the co:lgestion problems at the .4-way Ito;, have been blown completel~r out of proportion, There has noL peen a serious traffic problem here since the 1983-84 Christ~;,as to lJew Years- holiday rush9 and I don'-t care what we do, ~•:e :sill never ever solve that oneo The big problems-anticipates for Presidents' weekend arld for the Sk:i Chasaic--never--mate='icl-zed;--- Soy basicallya we are talking about traffic slowdown what occurs only 30 to 40 days der year and, of those daysfl only during _ _____ a couple of peak rush hours in the morning and afternocn, I use this intersection every day of the-year and often several times per dayo The longest I have ever had to wait to get from I-70~down to and .through the 4-way is 10-minutes and generally ~_-__ this is when the town is directing traffico This i_s_ not to - __ __ criticize the Police Department, for I have all the respect in the world for them9 but it is the nature of that particular intersection that, when the police direct traffic9 the natural stop-and-go 9 the intez'weaving n the meshing of traffic =10~•: is interrupted and the coingestion becomes worse, ,~". AMERICAN SKI CI~ISSIC W IL 6 EE •VER C0.EE\ ®F'~IC/AL SEF~IIIC~ STi4 T101V -2- I believe traffic light control would cause the same pro;~le:~s ~:.s Human traffic control, In additions the study states t^at ''vehicle delay would be increased during periods of light traffic" with the instal .anon o traffic signalso Eecau~e of these facts and my dE~sire for Vail to retain its' unique::ess <:nd high quality images I am opposed to traffic li~;ritsa I~•:y solution to the traffic slowdown is simple and ine3.pensi ve o 1=lease refer to the i~hree attached exhibits: Exhibit A - Eefore the present stop sign barrier was install for traffic entering the 4-way from t?^e norths there were two lanes of traffic into the inter- sect;iono The left lane traffic had the option of t;uuning left or going straight into bail Roaclo The right lane traffic could turn right or ~;o into Vail Road, If both lanes decided to go into one lane Vail Roads t:~e traffic ai ternat and this was not a problemo Exhibit B - ?~7her~ the present. stop sign was installeds all traffic that wanted to turn left or go strai~'nt into Vail Road was reduced to one lanes ':.hen this; was dones the traffic for the first time ever backed all the way up the westbound cff ra:-n and quite a distance back on I-?0 proper, It is true at this time a right hand turn lane was added which should have helpedo ~-ioweverfl during, the heavy snow periods the approach lane eras clogged Edith snow ands as a results all traffic coming into the 4-way had to funnel into one lanes so the right hand turn~lane was of no valu Exhibit C - I propose that the present entry from the I-7C underpass to the 4-way stop be wideneds that two stop signs be installed and that the Eastbound off ramp be. divided _into two lanes-,----`Fhb- widening would allow three lanes of traffic to come into the 4~ways one lane for right turn traffic and the other two lanes for straight ahead and left turno A stop sign should be installed where the north frontage road enters the intersections similar to the one at East Vaila This will give .the 'traffic exiting westbound a much safer and easier entrance o Traffic coming under I-70 towards the 4-way should be required to stop throiugh the installation of a stop sign at the base of the eastbound offrampe This would allow for ~~.n even distribution of traffic coming into the ~~-way, I,astlys the two lanes on the .eastbounc exit ramp would provide for maximum efficier.c~- _~ the right 'sand turn lane at the 4-way, ;c it/ i~ nows one cannot even get to the right turn lane until all she other traffic. clearso -3- Fallowing are some additinal comments concerninf; the study: 10) The study recommends the installation of illuminated signs for the Fast and ,•lest Vail interchanges, statin=- these are the best routes to ski parking;, ',;`Mile I believe natural ditTersion of local traffic and buses: ~t these interchanges is soody it is my opinion are are coins: our guests a disservice by asking them to drive 2 ~.0 4 miles of frontage road which is definitely more hazardous than I--70e Furtherfl if we encoura•e visitors to exit at Last Vail if their ultimate destination is Lionshead9 we have aggravated the problemo I believe we must bring our guests into Vail via the main interchange9 thus placing them at the closest proxirr.it~r of their ultimate destinationo If my recommendation for the interchange i.s put into effect9 we then have the capability o:f dispersing them lefty right or straight ahead quickl;y and efficiently, 20) The study also states that the most "significant improve- ment realized from any of the long term alternatives would be the removal of the existing eastbound ranp exit from the main interchange," The solution then would be to construct a new ramp at the VA shop, I am firmly opposed to t]zis plan for the following reasonso ao) This does not solve a problem, just moves it to a new location: bo) In order to construct the ramp at the VA shop9 30 ~to 40 large evergreen trees would be either partially or totally destroyedo co ) ;~ihen the VVI project was being considered, ore of 1~he main concerns of the town council was that nothing be done to ruin or distort the entrance to Vail and the view of the village and the ski slopes which our guests presently enjoy, In my opinion, an off ramp at the VA shop does just that and does not represent the qua7! ity entrance we want for our visitorso Thank- you -for-youur consideration of this proposal o Yours t rul c~-~ Cuny St~rkel 0 ~ o _G 9 .~ s' ,~ . ~ ~~~~ + ~ t ~. `~ ° r 4 .~ ~~ _ ~° ~ ~ ~ -~-~ ~ w__..~.~.__....._..._.. ._.. ~_ ___._'_ _...___ ~,,,.__,._,,.~, ~` ~y ~~® ~ ~ rr . +-~ ~~ ID 0 ~~ ice. a __. _ .. ......... .._... _ _ _ .~ , s ~~...... _ __....~._~~,.,~ e ~~. o~ o~. '~. _. _~,.,.~ h ~ ~ ~ ~~ ~, k. ~~~ .. °-.. '~ ~... .~ .., ~~-~ .----- ___________....__- - _ _ ..._- ---__... _... ° ~ ~ ~ ~ V ~~` ~~` -- ti -.. _--- y ~' . _ ..............._.._ - - -~j --._.~.__.._.__._ _-_._w-~--- . __-~ - - ~~....._..~. ~~,._. .~~-_ r~,-~- ~^ m~ ~~ ~ ~a _ G ~ 9 .~ ' ~/ p- ~}S ~• ~i0~ ~~ ~~ ~ ~~ ~~~~ ~~~ ~ ~ -` r' ~ :~ .~ ~®~ f d ~. 'O1_ ~~~ ~ fiXF+B~9~ ~~ _~~ .o ~. r_. ~~~ ..;~ ~` ~ ~. ~. ®~.~,~ ~y _ _..._ ..~__..~.____.. _.__. ~~ ^.~..___ ____._ ~v a ~~ ~.--~,°~ ~,.,,,. - T ~',d. r'` ~-.: p'- ~`;~ ~~ 75 south frontage road vail, cotorado 81657 (303) 476-7000 office of the town manager July 17, 1989 Mr. Richard Gustafson Chairman Eagle County Board of CommissionE~rs P. 0. Box 850 Eagle, Colorado 81631 Dear Dick: V~L19~9 The Vail Town Council has asked me to write to let you know the Town of Vail will not be petitioning the Court for exclusion from the proposed Eagle County Metropolitan District for a television translator system and mosquito control program. Due to a public vote taken in the Town of Vail early last week which favored the district, the Town Council has taken formal action to not ask to be withdrawn from the district boundaries. Si ric el , l~~r/ Roridall U. Phillips Town Manager RVP/bsc cc: Vail Town Council ~; _. ~s _ ~z. t' .;~'~ 75 south frontage road vail, Colorado 81657 (303) 476-7000 office of the town manager July 17, 1989 The Honorable William L. Jones District Judge P. 0. Sox 597 Eagle, Colorado 81631 Dear Judge Jones: ~T~L 199 The Vail Town Council has asked me to write to let you know the Town of Vail will not be petitioning the Court for exclusion from the proposed Eagle County Metropolitan District for a television translator system and mosquito control program. Due to a public vote taken in the Town of Vail early last week which favored the district, the Town Council has taken formal action to not ask to be withdrawn from the district boundaries. Since e y, ~~ Rondall V. Phillips Town Manager RUP/bsc cc: Vail Town Council TODD S. WILSON .: JUL ~ 8 ~$~ 855 S. RIDGE ROAD LAKE FOREST, IL 60045 J w~. / 3. / g fl ~ j ~ /,< ~.«,t,E" ~'Y.-,emu-*-~--~--~ ~_,(i-~(`?_`"G%, ~7 ~c~'L`^i_ '722 ~~nG~~ LcT' Ls~s+ Si~7"r-•~i~L G_- r~.a~Z~~"L .~.^+cJ ~..^ ~'/..~'~~a .. ~f.Zry~ ~.~~.-G-~C G '' _. Cn:....._<-.,. ~[-,-'-~rr~'.,+' G-~~ ..~7G 'T'_"~L ~.GLr.7T~-- 1 J Y! T T~~-,.C cam"' ~~..-~,-,.,-G.~ l ~~ Z-~L.~-! r'~:~......,~Z ..A:ey 7jc.v'1- G'4-- .--~' t~-t.,c-.Z `~"~ GC.'`••~~C ~%s-Wr~ ~ ~-j Lc. (~"""1 G, /~~ '~J'~j'~ ~C'yy7~-~~~,r.~.~ t.i~r [r>. ~~t (/ ' ~~ ~~.>~ L/ ~"Y ~r ..~k /~-.~-w,--~-~.r ~'~/ ~`L.M.- w ~~f ot~.-~~o,.. /iii-t L-Zu--i"- :~:- J c• ~ ~~~~ ti-C~.-«LdLY' i...'~~G`1Z'~L ~ :/L_ ~~.ty~r L.-~W q (j(~ 2^t?~ ~2~C-Li c7z.. ~ ,..-fib, ~,- rL,-~c~z~z.~~"l c.-c-x-c-Zi ~-~'-7 TLva~ »-•.+.~i ~~~~~f L" D~~ s~ /~~~~.~ c.~L,2 ~ 'L~~y~~.~4~ G°.~.C,,,~:.ti. '~`'L` l~i~~~ /' c~ ~ Cam-/ ,'~~ ~i' ,2-~"~-~-c~ :,J, ~~'2~Q..ZaC.L;.~~~~!-- ,~--2~~-~+"~ C_.'-~e~L f.4~ C~-c.~~ I ~ ~ ~~ C~f~ , ~-- f ~ \ ~ ~ {! (~~~~ ~ ~ f `, n ~ i /`~ I ~~~ ~ ~~~~ ~~ ~~' .z Cam' ;~ ) ~-~ ~o ~ ~ 0 ~, ?~ ,~~ ~> ~~~~~ ~~ ~~6~Q~F~ ,; . July 10, 1989 The Town Council and Planning Commission Vail, Colorado Dear Member: Please include us in the group against the proposed pedestrian walkway from the Covered Bridge to the Lionshead connection. Our reasoning: 1. A decrease in the very rninimal amount of grass within the town. 2. The present enjoyment of~ both sides of the creek as a place of natural beauty, grasp; and flowers and not people, people, people. 3. The privacy and setting that was promised to us when we purchased our property in 1981. 4. The disregard of the opinions and interests of the condominium owners (as well as hotel and business owners), who have invested and continue to invest their time, energy, money and continuity in Vail. We spend a great deal of time in Vail and your concern is for the person who uses the Village once or twice a year and gives little back to it. This letter could continue for paF;es, but you have read most of the other reasons in the latest issues of the Vail Trail and Vail Daily. If you haven't, I will be happy to send ;you copies: We hope you are listenting. We appreciate that you are trying to do what is best for Vail, but some times one sees things differently after sharing others concerns. Sin ly, Tren and Bette C m~ pbe Village Center Building C, Unit 1H ,-UL 1 7 ~S9 WILLIAM N. ~RND STEPHANIE A. SICK 565 SHERIDAN ROAD WINNETK,4, ILLINOIS 60093 July 14, 1989 To the Vail Town Council: We have been owners in Village Center since 1977, and strongly oppose the path from Bridge Street to Vail Road. This is a small, but very beautiful. area, that would be destroyed by the proposed path. Everyone would lose. The view from the park across the creek would be significantly degradfed. Townpeople and visitors would lose the most beautiful photo spot in Vail. Increased traffic would kill one of the few peaceful spots left in the town. Village Center owners have contributed greatly to the enhancement of the beauty and utility of this area for all. Most of the landscaping, including trees, walls, benches and plantings, were done by Village Center, with the belief that the "green belt" would remain. To violate this trust would be a disincentive to all future such investments by owners. The Town Council, Planning and Environmental Commission and Design Review Hoard have done an excellent job of avoiding overdevelopment of the core of the village. Please continue to do so by opposing the proposed path. Sincerely, Bill and Stephanie Sick DON~4LD P. ROSS, JR. JUL ~ ! X89 1297 VAIL VALLEY DRIVE VAIL., COLORADO 81657 July 14, 1989 Mr. Ron Phillips Town of Vail 75 S. Frontage Road Vail, Co 81657 Dear Mr. Phillips: I write this letter a:s owner of Condominium 1-F, Vail Vil- lage Center, located along Gore Creek. I would like to express my absolute opposition to the proposed path which apparently would be constructed along the creek on the Northern side. In the twenty years treat my family has been coming to Vail, we have seen endless construction gobbling up the land, sometimes for the good, but more frequently for the worse. Gore Creek is surely the main focus of beauty for the Town of Vail, and already there are many accesses whereby the public may view the stream as well as walk along it. The proposed new path would further detract from the natural beeauty of the stream, adding more man- made features at the expen~:e of nature's. If this appeal has any weight in helping to repeal this project, I would be most gratified. Thank you very much fo:r taking the time to read this letter. In the hope of a favorable response, I am Sincerely yours, 6-~`, \~ Donald P. Ross, Jr. cc: Craig Grantlund ~ ~ IVVUCCO(i FLIER ~~~~~ JULY 4 Volume I Number 3 t'~ertlix@st Col®rad® C®uaeil of Gu~ernnreals July, 1929 I~~~I®I~ I~ A~A~ R~~~~°~ IN ~~P~~ The Region 12 Aviation Technir~l Advisory Committee met at Sardy Field in Aspen an June 29th. This was the group's third meeting with representation from thEr Colorado Aeronautical Board, Bill Haight; United Er.press, Bob Claussen; Continental Express, Bill Reynolds; Walker Field in Grand Junction, Corinne Nystrund; and the National Guard's Colorado High Altitude Tra{Wing facility in Eagle, Colorado, James Owens. Our Region 12 airports were represented by Dan Reynolds of Eagle Count;r Airport, George Singer of Yampa Valley F.egional Airport, and Brad Christopher of Sardy Field. ~~r. Bill Haight is a member of the Colorado Aeronautical Board of the Division oP Aviation created by HB 1250. The seven•member Colorado Aeronautical Board, appointed by the Governor, is comprised of two Eastern Slope members, two ~reStern Slope members, one member representing a statewide association of airport managers, one member representing a statewide association of pilots, and one member familiar wish, and supportive of, the State's aviation issues, interests, and ancerns. Bill is one of our Western Slope representatives, the other bein~r David Leinsdorf of Crested Butte. The General Assembly, in enacting HB 1250, acknowledged the need to promote general aviation anil to improve those facilities that serve general aviation. With this declaration, the Division of Aviation vas ~seatecl with funding of the Division c~,rnir,g from a four cfnts per gallon tax on fuel dispensed at public use airports:.: SInCE the CG1Grddo AeTOnallilCal Board }'iaS jUsl appGllltetf a director, plans are to begin goal•setting within the next few weeks. The r=olorado Aeronautical Board will liohl its next public meeting July lfi, 142?, in Grand Junction. For information regarding the Region 12 Aviation Technical Advisory Committee, please contact Darcy Lystlund at 1`1WCc~cjG, (:jr,:jj b68.5~45. EA~L~ C®UNTY' AIRP®R°TD ~~~DY FIEI~1~ ~®ST AIRSH~~S Both Eagle County Airport and Sardy Field in Aspen hosted airshows over the July dth weekend. Eagle County hosted the 2nd Annual Wings for Independence Airshow, featuring both static and flying warbirds, as well as civilian aerobatia aircraft. The highlights of this airshow were numerous •• the highspeed aerobafic team of "Team America", flying '~Jarchelti F•260's, Roger l•Iardesiy's Northrop F-5A with a climb rate of lU,()00 feet per minute, and performances by classic warbirds P-5l l~iustang and P•~S Lighting. July 2nd saw Aspen Airshow 'S9 hosted by Sardy Field. This airshow had it all too •• aerobatia, classic warbirds, and static displays. But, that wasn't all Filot Craig Hosking and his highly modified Pitts SZB performed the world's only inverted takeoff and landing! Hope everyone will be able to attend at least one oY these two events in '~~Ct! ~~°P.~TEWII~E W,ATEI~ 1)II.EARI~A~ POI~IIIVI °T~ ~E I~EI~I) IN ®G~°~~ER. :several N yVCCGG members feel that there now may be an opportunity to move beyond the traditional approach to water resource management inward a collaborative r~nsensus•building process. Therefore, a ~rlatet Forum is being planned for Grtpbar to determine whether other organizations and indivi Duals may be inlet?sled in investigating different decision•making approaches. A list is being compiled of possible participants represen+ing the broadest range of ureter interests. several of these pat+icipants are interested in being ro•rAnvenors of this 'tl ater Forum. Contact Barbara Gteen at N'IICCOG, ('.U3) f~f,$• 1445, for further information. c c ~a MOFFA'T COUNTY'S CRAIG AIRPORT INCLUDED IN REGION 12 FACILITIES INVENTORY At the request of the Moffat County Commissioners, the Craig .Airport will be included in Region 12's facilitieslland•use ir,veniory being done by NWCCOG under a grant from the Federal Aviation Administration. Although Moffat County is in the Region 11 planning area, Craig's proximity to the Yampa Valley Regional Airport and Moffat County's involvement in the Yampa Valley Airport make the Craig Airport a logical addition to the inventory. As repotted in the April, 19x9, Nr~lCCC~G FLYER. the facilities( land•u.se inventory has begun, with completion anticipated in early fall. Please call Darcy Lystlund at NWCCGG with any questions or comments. PRC)-BID PROGRAIVI, The NWCCOG has arranged for a Contract Specialist from the L-niversity of Colorado Business Advancement Centers (CU•BAC) PRO•BID Program to present information on flow to do business with the Federal Government and large ~~mpanies. The FRO•BID Frogram assists companies in evaluating their ability to bid cnmpPiitively for contracts wish Federal :~gen~~es and large cmmpanies, and then helps businesses to identify potential selling opportunities. C~ncs an opportunity has been identified, the Contract :?pe~7alisi tan assist the business in completing the response to the offer and guide ahem through the completion of the c~niract, Those t-~ttsinesses inf?rested in this potential market can rnntact John Hess al (.;t~:) 663.5445 to arrange a meeting with the Contract Specialist. The data of July 26th, 19E9, has been leniatively targeted for the Contract Specialist Io meet with interested btitsinesses in the Region.• NW CCC)G SECURES GRANT FOR WATER QUALITY • PROTECT, Milk and Alkali Creeks contribute tons of sediment annually to the Eagle River, reducing the trout population ~~U`/e and ct,ntributing to impacts from salt and sediment all the way to the Colorado River. NWCCOG has applied for, and received, a S5U,000 grant an behalf of the Eagle River Council, which ~vill be used to sisnificantly reduce These impacts. Through COOpeIailUn with Eagie C,auniy, the Eagle River Council, Ttout Unlin-,ited,• Bureau of Land i~tar,agemtnt, Uiviion of ti'dildlife, loi~l Boy ~ccuts, and many other concerned groups, a series of sediment retention structures wiil be wnstruded throughout the Milk and Alkali Creeks drainages. These structures will act to slaw 11'ie erosion from established gullies, catch sediment before it reaches the Eagle River, and prornaie a new riparian area along the creeks where heavy gully erosion currently exists, 'Mork has already begun on the construction of two large rock drop structures. Tons of rock for these and other structures were flown in by the Alabama National Guard skycrain helicopters as a joint training erercise and service project. NEW DUES STRUCTURE IViAY BE FORTHCOMING A strategy agreed upon at the May 25th NVJCCOG Retreat was an evaluation by staff of iha current ti-tues structure, wish passible recAmmendations for changes. During the June 29th Board of Dueclots meeting heid in Granby, a short report was presented outlining possible dues restructuring formulas. Aiihough lenlative, these formula changes v,•ere looked upon favorably by the members present. Final review and approval tot any dues structure change will ba undertaken ai the July 7th Board of Directors meeting, w,hick will be held in Sleamlaoat springs. a _ The State Office of Ewnomic Development has recently received additional funding for their su~:~pssful small business development course, "Colorado Leading Edge; ~~ Program Fur Developing Business". Previously known as the Fast Track Program, these funds will be used to replicate the all•day business seminar and Intensive follow•up training at six sites throughout Colorado. It is anticipated that the Central Mountain Region will be one of the first sites where training will be offered. In order to implement the program, matching funds must be raised from the private sector. The progrann will focus on entrepreneurs with existing or statt•u~;p businesses, targeting women and minorities. For more information, contact the Women's Business Office at (303) S92.3S40. ff you have questions about starting and operating a small business, contact the Small Business totl•free hotline number at 1.000.323.77°~. The annual Solar Workshop offered by Appropriate Technology Associates wit! be held July 10.21. The workshop was developed by the Solar Retrofit staff a.t the Colorado Mountain College. The courSE is titled "Fhotovoltaics Intensive Hands•On Workshop" and will provide instruction on designing (1st week) and installing (opt(onal 2nd week) standalone remote solar electric systems. For more information, contact Appropriate Technology Associates (ATA), 410 Garfield Avenue, Carbondale, Colorado S1623, (303) 963.2682. ~~~~~~ July 2A Jobs fat Colorado's Future regional meeting In Steamboat Springs July 26 Governor's Dome on the Range, Earle and Pitkin Counties July 27 NWCCOG Board of Directors meeting in Steamboat Springs August 7 Colorado Day (NWCCOG offices will be closed) August 11 QIQ meetin; in Silverthorne August t5 Census Bureau representative meeting with regional town and county officials in Silverthorne August 22-23 Impacting Hearings in Burlington August 2~ NWCCOG Board .of Directors meeting in Walden August 25 Mining Town Seminar in Paonia August 24-30 Governor's Dome on the Range, Summit County Sept. 21=22 Planning Commissioner's Conference in Copper P~dountain For further information on the rneetin~s and events listed above, call the NWCCOG oftfc~e at (303) 668.5445. _ ~. Northwest Colorado Council of Governments 409 Main, Suite 209 P.O. Box 739 ___.. __ _ _.._ Frisco, CO 80443 _., Ron Phillips, M9r• Town of Vail ~5 S, Frontage Rd. W• Vail, CO 81657 0 0 Gov. Romer and Cabinet E a lie C; ount ___ _ _ _ _ ~ Y Public lFo~un1 Juhr 27, 1989 12:00 a 1:30 p.m. Ross E. Cha~:~bers 1Vlemorial Park Im Eagle BRING A BR®WN BAG LUNCH -DRINKS PROVIDED