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HomeMy WebLinkAbout1989-12-29 Support Documentation Town Council Special Sessionuown o 75 sou4h fron4age road vail, Colorado 81657 (303) 479-2105 office o9 flown manager PUBLIC NOTICE PUBLIC NOTICE IS HEREBY GIVEN that the Town Council of the Town of Vail will hold a Special Meeting to be held on Friday, December 29, 1989, at 3:OU P.M., in the Council Chambers of the Vail Municipal Building, 75 South Frontage Road West, Vail, Colorado. To be considered at this Special Meeting are the following items: 1. Resolution No. 65, Series of 1989, a resolution approving an assignment of a purchase contract for the purchase of Berry Creek 5th Filing; and setting forth details in regard thereto. 2. Ordinance No. 33, Series of 1989, an emergency ordinance approving financing for the purchase of Berry Creek 5th Filing; and setting forth details in regard thereto. 3. Resolution No. 68, Series of 1989, a resolution approving an Intergovernmental Agreement between the Town of Avon, Eagle County, and the Town of Vail, outlining issues such as future public use and financing contingencies for the .Berry Creek 5th Filing and the Miller Ranch; and setting forth details in regard thereto. All members of the public are invited to attend and be heard. TOWN OF VAIL t_~~4. ~~-~,u~nc.cy~,u~ Pamela A. Brandmeyer Mown Clerk RESOLUTION N0. 69 Series of 1989 A RESOLUTION ESTABLISHING A TAX ANTICIPATION NOTE FUND ("TAN FUND") OF THE TOWN OF VAIL; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail in Ordinance No. 33, Series of 1989, issued a tax anticipation note, series 1990, in a principal amount of two million dollars ($2,000,000) dated January 5, 1990 ("note") to be sold to FirstBank of Vail; and WHEREAS, Section 3 of Ordinance No. 33, Series of 1989, provides that "beginning on January 5, 1990 and on the fifteenth day of every month thereafter, general obligation tax receipts or other funds in the amount of one hundred sixty-six thousand six hundred sixty-seven dollars ($166,667.00) together with the accrued interest to the next interest payment date on the tax anticipation note are to be deposited in a 1990 TAN Fund; and WHEREAS, the Town Council now wishes to establish said fund. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO that: 1. A special fund of the Town of Vail to be known as the 1990 TAN Fund is hereby created. 2. Beginning on January 5, 1990, and on the fifteenth day of every month thereafter, general obligation tax receipts or other funds in the amount of one hundred sixty-six thousand six hundred sixty-seven dollars ($166,667.00), together with the accrued interest as specified in the tax anticipation warrant shall be deposited in the 1990 TAN Fund. 3. This Resolution shall take effect immediately upon passage. INTRODUCED, READ, APPROVED AND ADOPTED this day of 1989. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk ~~ - _ RESOLUTION N0. 65 Series of 1989 A RESOLUTION APPROVING AN ASSIGNMENT OF A PURCHASE CONTRACT FOR THE PURCHASE OF BERRY CREEK 5TH FILING; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town Council is aware of the pressing countywide need for recreational facilities and affordable housing; and WHEREAS, the Town Council after considerable investigation and deliberation, believes that the Berry Creek 5th Filing site is an appropriate site for the construction of recreational facilities and employee housing within Eagle County; and WHEREAS, it is also the belief of the Town of Avon and the County of Eagle that the Berry Creek 5th Filing site is appropriate for the development of recreational facilities and affordable housing; and WHEREAS, the Town of Vail, the Town of Avon, and the County of Eagle are in the process of entering into an intergovernmental agreement which would provide that subsequent to any purchase by the Town of Vail of the Berry Creek 5th Filing property, the County will, in the spring of 1990, hold an election which will place the issue of whether or not to increase the countywide mill levy for the construction of recreational facilities and employee housing on the Berry Creek site before the voters of the County of Eagle; and WHEREAS, if the voters of the County of Eagle approve an increase in the mill levy for the construction of recreational facilities and affordable housing, the Town of Vail will convey the Berry Creek 5th Filing property to the County of Eagle for a purchase price equivalent to the amount of money paid by the Town of Vail for Berry Creek 5th Filing and any carrying costs relating to any financing of said purchase; and 6JHEREAS, subsequent to its purchase by the Town of Vail, should the voters of Eagle County fail to approve a mill levy increase for the construction of recreational facilities and affordable housing, the Town of Vail shall retain title to Berry Creek 5th Filing and will enter into an agreement with the Town of Avon and the County of Eagle which would enable them to purchase co-ownership interests in the property; and WHEREAS, it is the belief of the Town Council of the Town of Vail that purchasing Berry Creek 5th Filing would be a benefit to the health, safety, and welfare of the inhabitants of the Town of Vail. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: 1. The assignment of the purchase contract for the purchase of the Berry Creek property from George Gillett to the Town of Vail, Colorado, which is attached hereto as Exhibit A, and incorporated herein, is approved. 2. The Town Manager is directed to take all steps necessary to effect the execution of this assignment. INTRODUCED, READ, APPROVED AND ADOPTED this day of Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk 1989. 0 :?s -2- _ --__-_- .-~~ ~~~r 1'1;~~~ ij!:TTI,~.ii_'H Fi_ ~Ht:;l OF~I~~_E'; TEL hd!=~:-t?~_;,._`~~;_ ~=~'~i~~1 #5°~_~ F'~J_ ., a .G. e DST ~®ce~ber 290 1999 ~RD~NANCE PTo, 33 WI~E,zZF.AB, the Town of Vail, Eac~la County, Colorado (the "Town01), is a municipal corporation, a political subdivision cf the state, a Daody corporate and politic, and a hums rule town under the laws of th® St,at® of Cvl®radv; and Y~"HEr'~7is, the Tcwn Council of Vail has determined that there is a public need both within and outside. the Town for recr®ational facilities gor residents of the Town and public housing facilities for employees of business within the Town; and in~I~~2E~5, the Town is the assignee of a certain option agreer~,ent to purchase real property more particularly described in Exhibit 1# to said aption agreement (the "Property"); and ~~~EAS, th+~ estimated costs of issuing a tax anticipation note and acquiring the Property is approximately $2,p00,000; and ~THEREAS, section 1~Ooa og its home rule charter and Section ~9--b3~141, g.~ g~ao, CeReSe, as amended, provides that the Town may au~horiz~ the issuance of its tax anticipation notes; and WHE~E~s,~in order to acquire the Property for the public purposes oi' recreati®n and low c®st housing facilities as tell as other public purposes and bccaus~ the taxes received by the Town wi11 not be sufficient on Janu$ry 5, 1989, to acquire the Property, it is necessary to issue a tax anticipation note and execute a Deed of `gust securing said notes and G _ -_. - _~'~ r K i 11 . _..1 . ~~: ~-TI,.;,_'H i=i_ ~F=:I,:I ~!r ~ 1 ~:_~'= TEL ~'~I] : _~t l._ `'~1~-' l_1'~i_i: '- C -- w .,, W'HERE'AS, the tax anticipation note ~sha11 be payable frcm cna parc~ant (S~) of the Towns unpledgad two percent (2~) sales tax (the ~'T;ax Receipts") and investments thereon, which funds sha7.i be ~aaid into a special fund to be known as the 1990 tax an'~icipstion note principal and interest fund (the "2590 Tr1P~ Fund"); and w"NEREAS, the Tawn Council has determined and hereby determines that it is in the best interest of the Town and its inhabitants and taxpayers that the Property be acquired by issuing a tax anticipation note; and WHEREAS, the Town's Tax Anticipation Nate, Series 1990, ir. the principal amount of $2,000,000, dated January 5, 1990 (the "NCte") is to be sold to FirstBank of Vail, Vail, Colorado (the "Purchaser") to the best advantage of the Town; and ~r`~iEF.EIoS, the Town Council of the Town has determined that it i5 necessary and advisable to authorize the sale and issuance cf the Nota; THEREFORE, BE IT ORDAINED BY THE TOb~TN COUNCIL OF THE TCWAt OF VAZL, COLORADO: Section 1. That the Town hereby sells to the Purchaser the Note fox $2,OOO,a00. Section 2. That for the purpose of providing funds to acquire the Property and to pay issuance expenses, the Town shall issue it® registered Tax Anticipation Note, Series 1990, in the aggrag~-te principal amount of $2,000,000, dated January 5, 2990, in the denomination of $2,Odb,000, numbered Ft-l, pzayable ir. •: -2- L;~'- -_ __ ~'_.. .1._,, jii 1 ii.~,_'.F1 _ L.-..! _..-. i~_.~'_ ~~L ~._I:___ ~__ i_1~~-~µ _.-1~ rte{ _d= . ^ t o lawuu3. n.aney of the United States of ~~nerica. The Pdot~ bears interest in the amount of ai4,166.57 per month payable en rabruary 5, 195-0, and on the month thereafter until December 5, 1990, with all outstanding principal and remaining interest in th~a amounts of $12,277.78 due in full December 31, 1994. The Vote shall be s~:b~ect to redemption prior to its maturity, in whole, at the option of the Town (91Optional F.edsmptionf0~ on any interest payment data, far the principal amount of the Mote and accrued interest to the redemption date. Section 3. That notice of every redemption shall be given by the T9wn by sending a copy of such notice by registered, cebc.ifiec~, cr direr=class, postage prepaid mail, not more than 21 days nor less tY`~an 14 days prior to the redemption date to the Purchaser. Failure to give ffiuch notice by mailing to the R®gistersd Dwnex' of the Note, or any defect therein, shall not affect the validity of the proceedings for the redemption of the Note, The Plots will cease to bear interest after the specified redemption aat~. Beginning on January 15, 1990, and on the 15th day of every month thereagter, Tax Receipts or other funds in the amount of $1&6,667, together with the accrued int®rest to the next interest payment date, are t0 be deposited in the 1990 TP,N Fund, hereinafter established. After the date fixed for such redemption, the giving of notice and the deposit of funds for redemption shall cause the discontinuation of accrual of interest on th® Note. ~ °3~ _ _ _ _ _ __ _ r. • The principal of thA Note shall be payable at the Tawn or its euc:essa.:, upon ~urrend~r of the Note. Int$rast shall be payable to the owners of record ate of the Record Date by che;:k dra~;n on the Town and railed to the Registered Owner at the addr~~st s~ it appears on th® Note registry b~ioks maintained by the Tawn. The Raccrd Data is the fifth day of the calendar month next preceding any interest payment date. The net effective interest rate on the Note is 8.50 percent, Section 4. That the Note shall be executed in .the name of anc~ on behalf of the Town by the manual or facsimile signature ct tY'.e Mayor, shall bear the seal or a facsimile seal of the Tar~~n, and shall be attested with the manual or facsimile signature of the Town. Clerk tha.reaf. Should any officr~r whose signature o: facsimile Signature appears on the Note cease to be such officer before elelivery of the Note to the purchaser, such signature or~ facsimile signature shall nevertheless be valid anfl sufficient for a-11 purpose. s¢ction 5. following form: That the Note shall be in substantially the' -4-- -- -_~--~'~-''-- =:I 11:_= ?L''Ti!..''H r'.. ~Fii~a JFF?~=E'-' T=~ ''a~- --- ==';-: ~=1'~i1~ #=:~=; _I r;~= {Form sf Registered Nate) tJNIZ'ED STATES 0~ .$MERTC~ STt~TE OF COI~R~~ CpUNTY OF EAt3~,~' '~'4t~TT OF VEIL, GOLORP.00 TAX ANTICiP~,TION NOTE SERIES 1990 Rffigistered Date og ,~~,~ Original ~ Issue R®1 8.50 December 31, 1990 3anuary 5, 199t? RE'CISTERED pWNER: FirstBan}c of Vail PF.I2ICIP~,L COUNT: Two billion Dollars ($2, p00, 0Q0) ^a he Town of Vail, Colorado, in the County og Eagl$ (the "lc~n"), pux~suarit to Section 29®15°101, ~ ~q•, C.R.S., as amended, and Section 10.2 of its hom® rule charter, for value received, hereby acknowledges itself indebted and promises to pay to the Registered pwner specified above, or registered assigns, on the ;~:aturity date Specified above, unless this Note shall ha~~e been caked for prier redemption, upon surrender hereog, the principal sum specified abov®, and to pay to the Registered Owner herecg, interest at the rate specified above, payable February 5, 1990, and the fifth day of each month thereafter until maturity, or en the first business day thereafter if the payment date falls on a weekend or holiday. Both principal of and interest on this Note are p~.yable at the Town, in lawful money of the United States of erica which, at the time of payment, is legal tender fer the payment of publ~,c ar private debts, provided interest ;;gay be paid to the owner of rrecord as of the Record Date by check drawn upon the Town and mailed to the Registered owner at his or her address. as it appears on the Note registry books maintained by the Towne The Record Date is the fifth day of the calendar month ne~:t preceding any interest payment date, This Note is issued by the Town Council of the Town of Vail, Colorado, far the purpose of providing funds far acquisition of th® real property (the ~~Praperty~t), by virtue of and in full conformity with the Constitution of the State of Colorado, Section 29-15@101, e~ ,, Colorado Revised Statutes, as amerid~d, and Section 10x2 of its home rule charter, and all c~thQr laws of the State of Colorado,thereunto enabling; and it is hereby certigied and recited that all requirements of law ha~~e _,~ _ teen fully complied with by the proper officers in issuing this Note. Thai Note sha21 be subject to redemption prior to its maturit~, in whole, at the option of the Town ("optional Redsmpt on") on «ny interest payment date, for the principal amount of the Note and accrued interest to the redemption data. 1t is hereby furthest certified, recited, and warranted tha~~ the total indebtedness of the 'Town, including that of this lr'ota, does not exceed any constitutional or statutory limitation of the State of Colorado; that the Town has established and will maintain sales texas sutriciant to pay the principal oP and interest on thin Note; znd that this Note was duly and lawfully aut:~orized by an ordinance of the Town Council of the Town duly adopted end approved prior to the issuance hereof. Notices of every redemption shall be given by the Town by sending a copy of such notice by registered, certified, ar first class, postage prepaid mail, not more than 21 days nor less than 1~ days prior to the redemption date to the Registered Owner cf the Note which is called for redemption at his or net address as it last appears on the rragistration books kept by the 'Town. Failure to givz such notice by mailing to the Registered Owner of the Note, or any defect therein, shall not affect the validity of the proceedings for the redemption of the Note. Notice having been given in the manner herainbefore provided, the Note shall become.due and payable on the redemption date so designated; and upon pr$sentation thereof at the Town, the Tawn will pay 'the Note. Prior to the date fixed far redemption, Punds sufficient to pay the Note and the accrued interest to the redemption date are to be deposited with the Town. After the data fixed far such red~amption, the giving of notice, and the deposit of funds Pot redemption stall cause the discontinuation of accrual of interest on the Note. The person in whose name the Note shall be reg~.stered, on the registration bat+ks kept by the Town, shall be deemed and regarded as the absolute owner for the purpose of making payment and Pot all other purposes; and payment of or on account of either principal or interest on the Nate shall be made only t~~,. or upon the written order or the Registered owner or his legal r®prRSentative. All such payments shall be valid and effectual to discharge the liability upon the Note to the extent of .the sun or auma so paid. This Note is secured by a first deed of trust on the Property. ,'S - -6- O gN WITNESS 'a~1HHEREaF, the Tawn of Vail, GalOr~da, h~~ ~au~ed this Nc~t~ to be sxacutad in its name by th® manual ~ignatur~ of its ~;ayQr, t:~~ peal a~ the To~+n to b~ ~ffixec9 h$reto, and atte~tsd b}T the d'-~nua1 signature of the 'Town Clerko TOWN OF VAIL, COLOR~,DO ~s E A ~~ Y~Y: Mayon ATTE~Tv 'rowan Cbe~}c ~~ e7W -~--=-- _- r_,. 11 ?L!: TTi:~J,_~i-i F~~= LNi;.i =!FE1i=E'=i TEL ~dL: =~],= ~_= t=:'?!-~`~ r-_ ----.. - - -' F-_ _ _..-_ Section 6. That the Notes, when executed apt px'cvlded by lea, shall be delivered to the Purchaser and the proceeds ds~rivad therefrom. shall be used exclusively for the purposes stated herein. Neither the Purchaser of the Notes nor the owner of tiZe Mate shall ba in any way responsible for the application oP t~±s proceeds of said h'cts by the Town or any o= its officers. s$ction ?. That for the purpose os paying the intsr~ast or. the Nola as the game shall become due, and providing for the p«yment of principal. of the Note, there has been levied by the Toy°n, the Tax ~aeeipts which shall be sufficient to pay the principal of and interest on th~a Note, as the sane become due and payable, respectively. Said Tax Receipts in the monthly amount oP $166,666.b7 plus intarQSt, as set out in Section 2 hereof, when Collected, sh~ll ba hdld by trv Town .gin a special fund hereby created by t1-,s Toca,rt and described as the 1990 TAN Fund, but nothing herein cortair..~d shall be so construed as to prevent the Town from applying any other funds that may be in the treasury of the Town and available far that purpose, to the payment of interest or principal, a:~ the same respectively become due. Moneys in the-1990 TAN Fund shall ba pledged to and used solely for the purposes as set our above so long as any payment is due an the Note. The 1990 TAN Fund moneys may be invested in accordance with the laws of Colorado for hor,:e rule cities and towns, and earnings from such investments may be transferred to the general fund of the Town. Not::ing' heroin is intended ~ require that the monies in the 199G ~~ -8- Q 1•A~N F'~1a7G9 I±1ust b~ segregated fro:a other funds for inv~stman4 gurposeso Sectioza 8. That notwithstanding the foregroinq salsa tax levies, tY.e Town Council of the Town covenants and ag~'ees to mainta;n and enbaxt:e its present x'at~~, tolls, and f~ea, sufficient tQ pay the principal ®f and interest on the Nt?te herein autt:oeized. Moneys in. the 199Q TAN Fund shall be ple~lgad to and used solely for the purpose of paying princip~,1 of and znt¢oest on the dote, so long a~ any payment is due on the Note. Section 9. That the Town co~:enants and agrees that it will, if required by law, rebate to the United States of America excess investr~.2nt earnings as provided in Section 148(f) t}f the Inter:~al Revenue Coda of 1986, as amended, anti regulations to be issusd by the Tr~asux~y I7apartment o Section 10. That the Town agrees that it will comply with Section 9.11 of its Home RuJ.e Charter and the extent applicable the Colorado Looaa Government Audit Law, being Section 29®1-bGl, e ~ ., ~c~l~rad® Revised Statutes, as amendeda Se~:tian blo That the Town covenants and agrees that it wi1~. rake no use of the proceeds of thc~ Nate a.utharized herein or any other funds of veil which might cause such obligations to be arbitrage bonds within the meaning og the Internal REVenue Code of 1986, as amended (the "Code"), and the ~tegulatior~.s proposed _~ and in effect thereunder and under the Int~arnal Revenue Code of 1954, as azaendedo -9- _-_ -_ __ r..~ _141 1L I IL,.. 'h h'I_ LHI: ~.I _;-i-11._~.= ILL f~~{I_i: __L_ `'~[- l_1'~G1.-:} 1'f_J~ i _C ..___.... Section 12. That Vail covenants and agrees that it will take all actian~ that ray ba requires of it (including, without implied liraitatiQr., the tizr,ely filing oP a federal in'ormaticn return with respect to the Note) so that the interest an the :~ot~ will be and remain excluded from gross income far Federal income purposes, and will not take any actions which would adversely aPt'ect Such exclusion. S~actiori 13. That the Tawn hereby designates the Note as a "qualified tax-exempt obligation" for purpasa of paragraph (3) c* Section 265(b) of the Code and covenants that the Note does not constitute a private activity bond as defined in Section ial cf tr~s Code and that not more than $1C,CCC,CCO aggregate principal amount of obligations the interest on which is excludable under section 103(x) of the Coda from grass income for federal income taxes [excluding, however, private activity bondl~, as defined in 5ectiott 141 of the Code other than qualified 501(c) (3) bonds us defined in Section 145 of the Code], including the Note, have bean or shall be issued by the Town, including all subordinate entities of the Town, during the calendar year 1990. section 14. That the Mayor of the Town oQ Vail and the Town Clark shall, and they are hereby authorized and diractr>~d to to}.e all necessary or appropriate action toward the execution 'and delivery og all the documents and such other agreements as may ba necessary or desirable to effectuat® the provisions of this Ordinance and comply with the requirements of the law including a °1G~ first deed of trust bn a ~®rat- approved by fond Counsel and the town ai~terney securing the payment of th® Noteo section 15a That it any portion of this Ordinance shall ~'or any reason be held to be invalid er unenfozceab~,e, the lnvaladbty or urasnforceability of such portion or prevision shall not affect any of the remaining provisions of this Ordinance, the intention being that the same are ®everablee Ssctior~ 16o That after the dote authorised herein is issued and sold and is outstanding, this ordinance shall bs ar,d remain irrepealable until the Note and the interest thereor- shall be fully paid, satis~$ed, and dischargedo Section 170 Thai prior to the dat® of the adoption of th~,s Ordinanc®, the 'y'owxa has not adopted any ordtinaanee oar r~a~olution containing a provision inconsistent with the provisions of this Ordinanceo Section 18e ~y reason of the fact that it is necessary to acquire the property as aeon a~ possible in order t® avoid any cost irtcr~aaaes in connection e~ith purchasing the Property through condemnation, and tak® advantage of low interest rates currently. existing in the market, it is hereby declared that this Ordinance is immediately necessary for the preservation ®f-th® public peace, health, and aagety, Wl~eregoge, this ordinance shall b~ in full force and effect upon adoption at the special meeting of the Town Council on i}ecember 29, 1989, by an affirmative vote of five memb®rs of the Town Council, The Town Council hereby exempts. ~11~ cad ~6S# b060 86ciz0~' ~ ON X31 S3~ I .~~0 f~l~~ ~d H~'P'Ill ~ Q I c ~ ~ ~ T I ~~ 6~ : -6c-J3iI this emergency ordinance dram referendum gurBUant to Section 5.1(b) of the Town Charter. FINALLY ADOPTED AND APPROVED AS AN EMERGENCY ORDINANCE THIS 29TH DAY OF DECEMBER, 1989. (S E A L) ATTEST Town Clerk -12- TGWN QF VAIL, COLORADO gy. Mayor _ ..._ . _ ~©d ~5S# b060 86Zi~aL ~ ON ~~l S~~ I ~~0 ~1d~ ~d H~'~111 ~ Q I z ti . ~ Z I ~~ 6^0 ~ -6~-:7~Q i7n\'ID \:', R0001Pr5 ROC!F,RT r. nu.[. UCr: hl~ Id. ?ICiNTGGFlc RY Hl.f:L'`7 A. Ti3MR RONALD L. ~+'ILC'VX binRN J. ~y'A{~N F. f[ wCNDS' H~ RS.OCK 6A'J7G R. F1N! Town of Vail Attn: Larry Eskwith Town Attorney 75 South Prortage Road Vail, CO 81657 Dear harry: H1LL & Rossir:5, P.G. ATTORNEYS Al' LAM' 100 OLAfii: i'T RE P.T A[)11.D IP: (i 1 X141 £tnHTF. F.N Tl1 :i7Rl; l:l' DR:•f4•'E R, GULURAUO AOCOC-1060 December 29, 1989 TELEPNO}~3 p ;1A 7YA•NIUO TELFGUPIPR ood seG•u~6d i Re: Preliminary Report Concur^.i:tc~ June Creek Ranch Company ~dateY' Ric~hta I discussed this information prev~.ous~.y with' you grid Frith Ji.n hurtz~Phelan. You asked me tv reduce my views to writing, thus, this letter. First, iet me advise you that 1ny remarks are ba;$ed erily on t~ review of tree documents which you provided me unde7C Cov~~ of DecQntber iZ, 1989. Those documents consisted of an ~ippland.~x D to a contract (I did not receive or review,the actual contract); aiz 4ctaber 12, 1989 report from Tipton ~ Kalmbacta concerning the P~iller Ranch; and a series of letters authored by Scott ~alcoiub on behalf of June Creek Ranch Company dated October 13 and 31, 1989; Glenn Porzak on behalf of Vail Associates dated Sepkember 22 and October 17, 1989; and Jim Collins on behalf of Beery CZ'eec Metropolitan District, dated October 2 and 11, 1989. ~ also received a telecopy transmission vn December 28, 1989, consistirq of an undated two-page document entitled 1°Axnendment Pdo, 1 to vacant Land Contract to Buy and Sell Real Estate,oa It is my understanding from Larr~r that a final decision on closing the purchase of the Henry Creek Ranch F'ilinr~ NQ, ~ located within the Berry creek Metropolitan District will ecrur on Friday, December 29, 1989. It is also my undex'~tanc~ixtc,~ t.*aat the property in question is owned by the June Creek Ranch Company and that the Tc~~n or Vail wishes to purchase the same, mhe purpcsn of the purchase will be to construct employee housing and. athletic facilities on the property, I was asked to advise you, concerning the water resourceB availaYyle to tae property b~g~d upon. the documents described above. •D t~t 1. ~_ __ Mr . Larry gage a December Eskwith 29, 1989 1.= _.= rl 1 LL _. r 1_i '_-'~O 11'i.J f r . _ . My belief is trot the June Greek Ranch Cotnp~any hay ®saly oa~c~ mater right which it could convey to the 'Town of Vail f®r any purpose. A4y belief is based upon the statements of tl'~e ~U89~ Creek Ranch Company's attorney, Mr. Holcomb, Vail ~~e~ocfat®a° attorney, Aar. Porzak, and the terms of numbered paragraph ]~ o£ the contract amendment. The water right whica"~ would be available for transfer consists of the second decree fox the I~io~rard Ditch which has an adjudication date of October 3, 1935, beam priority no. 385, and amounts to 5.27 cfs. Yt appears that it might be possible to obtain a total of 58 acre°feet Qf consumptiv® rase from the junior priority of the Howard Ditch. T'Y1~ methodoloc~* fox determining that 58 acre-feet could be obtained ~ro~ the junior decree is adequately described in Mr. S~orza~t°e litter of October 17, 1989, a copy of which is attached hereto. Ttaer+~ is na reason fcr me to redo Mr. Parza}c°s math sinc~a it appears to be correct. According tv ASr. Porzak and Pqr. Holcomb, them are no other water rights that ttie June Creek Ranch Company Mould have available to transfer to the Town; therefore, any determination which you might make concerning the purchase of the property would have to be based upon the understanding that you would abtair. a maximum of 58 acre feet of historic coneuxuptivs use water derived frcm the exercise oi' a relatively junior priority, should you ~iurchase Berry Creek Rz~nch Filing No. 5. There are several caveats which ~rou need to understand in making any deczsion concerning this transaction. 1. The water rigtlt which June Greek Ranch Company owns i~ a second filing or enlargement of the xoward ®itch. when considering ditches that have mere than one water right decreed to them, it is assumed that water is first diverted under the senior priority before it is tax:en under a junior priority. But, as Mr. Porzak describes, the decree for the senior priority of the iioward Uitch contains language of limitation restricting the total acreage which could be irrigated under the senior priority. The assumption made by Mr. Porzak, which I believe to be logical, is that the language of limitation prevents all of the 7~and under the ditch frcm being irrigated by the senior priority. P-ny additional land which is irrigated beyond the senior priority°s limitation would be irrigated using the junior right, which y~au stand to acquire. obviously, you need to understand that the owners of the senior priority (berry Creek Metropolitan Dzstrict and t2:e Singletree nevelopment) might contest the logic of this aS7alysis; however, I believe that it is convittcirig axtd that them is a good chance of successfully asserting a right to the 58 acre-feet of historic consumptive use. ,a~ . 2. The water right which the. June Cree}c Raa~ch Company has available is relatively junior, being junior to both the Shoshone call and the Grand valley/Orchard Mesa call. ~iisGorically, it 1 ~ -'_+~ . _ 1 ~ l_1._ N 1 LL _. `'JJ1=~!'~ i f _ . r . _ . ' I~y c Mr. Larry EsY.with Page 3 December 29, 1989 red pr4ba}aly di•~erted freely because these calls have b~®n elect pay dater released from Green ~Ic~untain Reservoir. ?dt the prssert time, tctere i5 controversy concerning a teeter management technig'ue referred to as the "Orchard ~4esa check.00 ~,s a result of that controversy, Green Mountain Reservoir wae~ depleted this year as the Bureau of Reclamation sought to meet the call of the Grand valley/orchard Mesa rights. Yf the Orchard Mesa check issue is not x'esalved, the opportunity to rely on Green Mountai°~ to permit the continued operation of the junior decree din late summer Tl~onth5 woul~-? be open to question < ~s I describeefl to you, prier to this year (prior to the Orchard Mesa check controversy), the jur-ior decree for the Howard Ditch would have been covered by Green l~launtain releases and there would not have been a problem. taut, if Green Mountain continues to meet the Orchard Mess call without t,? check in operation, there will be insufficient water at the end of many irrigation seasons to cover these depletions which could in turn result in administz'atian of the right and therefore a limitation on the amount of water which wound be available to LYie jur7iar Howard Ditch priority. I also reviewed the letter oP October 11, 1989, fram Jamea Coilirs, attorney for the Berry Creek Metropolitan District, where he cpined that up to ~z acre-feet of consumptive 115 water owned by the Metro District might be assignable to the Barry creek Ranch Filing No. 5, which you are considering purchasing. liis Letter, however, represents only his opinion and does not represent a binding commitment by the Metro District or its >loard at Directors. In order to be on the safe side, it would be necessary to obtain formal action from the Metro District°s Boax-d of Directors to assure yourself that the full 42 acre-feet would be available for use on the property. At a minimum, I ur_ders'cand from you that this land is within the Metro District and that the District would be obligated to serve any development that occurred in the 5th filing, so long as the same was erathin the terms of the master plan far the filing and for the Metro District. Prudence dictates that a resolution of th® Metro District's Board of Directors be obtained before the 'own cf Vail assumes tY:at all 42 acre-root would be available. Because of the press of time, it may be necessary to gamble that Mr. collins° position would be that of the Metropolitan District Berard. At a minimum, some portion of the 42 acre-feet would certainly be available for housing. Jim asked me to give you some thoughts concerning tree amount of water which might be required for a hypothetical development in the 5th filing. The best way to determine hoer much water would be required, compared~o the amount of tester currently available, Mould be to use some rules_,of ~.humb. As an exempla, for employee housing units, if ycu assumed three persons per unit, a total of zoo units and used a relatively censer-vativ~a ~Ir . Larry Page 4 Dec~:mber Eskwith 29, 1989 gdcss use factor of 75 gallons per da~r pez person, you r~enerats a Water demand of approximately 45,000 +~allons per day or 16,Oc~9,0oGi gallons per year. 16,004,004 Gallons per year amount to 50.4 acre-feet; using a relatively Conservative eassu~ptian of 10~ consumptive use, you would ree1uire 5.0~ acre~fe~3t of Consumptive use replacement water in order to operate those ui;i is . ~~erefore, you could expect the Y~etro bistrict wouls~ provide you cith water service and the protection of 5.04 acre- feet of replacement water for the housing unitso For athletic fields or other irrigated areas, you should assume m consumptives use rate of 2.0 acre-feet per acre irrigated and you carp simple multiply the number of acres by 2 to determine host much replacement water you would need to operate the planned facilities. If ycu were successful in acquiring th® consumptive use water rigrits described above (58 acre-feet from the June creek Ranch company and 42 acre-feet from the Metropolitan District), there would be the potential to irrigate up to 4g or 47 acres of~ yields or greenspace (58 ¢ 4Z = loo - 3.04 -~ 1 goy the yym = 94 ~- 2 = 47 acres) . As a cdve$t, let me emphasize that it might be pca~ible to convince other water users and the Water Court that 1.8 acmemfeeL per acre would k~e mvre appropriate; however, the Edwarda Metropolitan District has recently filed Zan application utilir.inc~ the 2.0 acre-feet per acre rule and so prudence would dictates that the larger number be used as a planning figure. Finally, it yc:~u were to construct & gymnasium facility wit:-gout a swimming pool or other large water tan}t, Y would thin}c that using 1-2 acre-feet per year as the consumption wotald be very cease r~ative and protect any planning decisions you made. a would be happy to discuss any of this further with you or to provide further information or opinion by latter, if that is ycur requirement. I hope that the foY'egoing is satisfactory for your immediate purposes. It represents my views based upon the information I have reviewed and is submitted at this time so that you :night meet your time deadline. Thank you very much for the opportunity to wark with you. ~-'~'~ Very t~u~(yours, pavid Wa'Robbins DWR:ncr Enclosures ~ Gc: Tim Kurtz-Phelan {301) r`" •~ ~, . ~O~TI1~ T~C~~e%'~.~ ~ ~~b~~~ sex .ro0 ~.YIOmCyB 2tY ~ t700 L=aar Iacmat. ftim+no C~J20? Suite d00 MAt F4ari Strati 3""a `~"' Bau3dct. C4im'$de SU302 a1v nanA Cocp~ aema CoYx~ ~. cacatr, ate?? ~ lttc{~x7rx i303) ~-5419 Telxopur 444W>~7 Tclcx ~3-d~f~ ~ . J Glenn E. Porsak OctoL~r 27, 2989 Pdola I?yal, esq. Vail Associates, Inc. P.O. Hox ? j Vail, Colorado 8165"7 Dear Nola: ~ ~,`;`~~ OCT ~ ;3 i9~9 ~~ LEG~4L SEPT. s~~; SO fox= tda ~ taao C~?. papa. Tock»w(t.~, ~ ~i "~ ~1~70 Fxyi tra~~ ~~1 -. ~. _ E`. ~: Rased on a review og the October 12, 1.963 engineering (`~ repaz~t from Tipton and KalmbachP %nc. regarding the P~iller Ranch water rights, the October 11, ],989 letter groin James P, -~~: Collins rec~ardinc~ Metro District service to the Harry Creek Fifth Filing, and the relevant water right decrees for the =~~. Ho~~ard Ditch, the follo~ring is a summary of the water rights ~~ which are potentially available to the Miller Ranch and the a~= r:. Ferry Creek Fifth Filing: ±` ~i 112r F.anch. Accor3inq to the Tipton and iialmbac;r. 1 repor4, there is 97 to 122 consumptive acre feet of mater per `; year associated t~ith the following. water rights appurta::ar,4 ~:o ~'' .~ the Igiller Ranch: ~~ -'. ~~ (a) 1.0~ cfs of priority no. 160 og the Howard t~it:;P: ~_~,. {Ditch Nv, 118) decreed fvr irrigation uses with an "~'~ appropriation date of Tune 13, 1s98, and an adjudication rate of AYarch 5, 1901. :L Y ~.. (b) 3a~95 cfs Of priority no. 385 og the Howard Ditct-: (Ditch No. 11E) decreed for irrigation uses ~-ith an ~'-'" r: _~ appropriation date of June 13, 1899, and an adjudication data of October 3, x936. ~ t, ._. ~errj Creek, Fifth Fi],in~. There are potentially two ~r .. sources of water available to the Fifth Filing. They are as '• gollOws: •' d - ~ (a) The June creak Ranch Company reserved 5.~7 og$ of priority no. 385 of ~Ple Howard Ditch from its prior `;'~ ccnveyances to the 5erry cree}~ Metropolitan ®istr~~t and the :. ,ti Y, 1~.. ._. .. 1~. ~ ~.J Adoia Dyffi1, Esq. October 17, 1988 Page 2 Singletree Golf club. According to the augmentation plan decree far the Berry Creek development (Case No. W-39~-9)~, `the June Creek Ranch Company's interest in both priorities 180 and ~&5 og the Ho~+ard Ditch irrigated 106 acres, resulting in an average historic consumptive use eg i6o.9 acre-Zest per year (152 a~;se-feet per irrigated acre). To determine the amount of consumption attributable to priority no. 365, the consumption resulting from the senior priority no. 160 must be subtracted. The original decree fen priority no. 180 indicated that 1 cfs was awarded pas ~6 acres of irrigation. As the June Creek Ranch Company owns 1.36 Cf~ of priority no. 184, it Gan claim the historic use from 68 of the 106 acres historically irrigated, or 103 consumptive acre feet per year. This leaves the balance of approximately 58 consumptive acre feet (160.9 - 103) for the 5'une Creek Rancri ccmpany's interest in priority no. 3s3 of the Hpward Ditch. (b) In addition to the foregoing, by letter dated bctober 11, 1989, James eollins as attorney for the Berry Creek Metropolitan District indicated that the Fifth Filing was expected to utilize 4z consumptive acre-feet per year any: tha°: the District board might be grilling to make such water available to the Fifth Filing. As a Condition aP closing, a commitment should be obtained from the District board confirming that it will make available to the Fifth Filing ~z consumptive acraWfeet of water per year from the augmented water gigrits decreed in W-3999, and the annual cost of such water. Alternatively, a commitment should be obtained from the District to provide domestic water service to the Fifth Filing for the etjuivalent of 298 tanits. ~~ Subject to the below.exCeptions, therm is a total of 197 to 22a consumptive acre-beet cf water pvtentiall.y available to the Miller Ranch and Berry Creek Fifth Filing. By comparison, the Tipton and %+almbach report indicates ttaat approximately 153 Consumptive acre-feet would be rec~aired in cannection with a 90-acre go1P course in the Edwards vicinity. xce~. (a) The decree in Case Ydo. U7«3999 specifies that the lands within tP~e Berry creek Fifth filing oust be permanently removed from agricultural is:rigstion. 'This restriction does not, however, prevent the irrigation of such lands for parks, lawns, golf courses and open space. (b) As specif~d at pages ~ and 7 of the ~'iptan arfd %{almbach report, the original decree for priority no. 180 of v Pdola Dyal, ~ac~. Dctaber 17, 1989 Page 3 the Howard Ditch limited the number of irrigated acre to 15~ gores. 'There is no acreage amount specified in the decr~Q doe pra.rmty no. 385 of the Howard Ditch. Prior augmex-tation p1aT;s involving the interests of other parties in priority nos. 7,SO and 385 of the Howard Ditch have claimed credit dox' the brsigatian of 152.9 acres. i7nless additional corsage can bs assaciated x+ith the ditch enlargement attributed t® pdaority no. 3851. ~ change in use in Pgiller°s intex-est in the Howard Ditch would pctantially be limited to the historic consuapt.ive use of 1.1 acres (154 - 152.9 sates). This would decrease the 97 to 122 consumptive acts°feet estimate oP the Tipton and Kal~^,~bach report to Iess than 2 acre-feet. Recom;^endations. BaseC3 on the foregoing, r,~e make the ~ollowinc3 recommendat~.ans: 1. Raqu:+.re that the sellers of the Milier Ranch and Herry Cx'ebk Fifth Filing provide evidence of record title to their respective interests ir. tha Howard Ditch. 2. Obtain a formal resolution o~ the B®rl-y Creek Hetrapalitan District indicating that it will Ca) provide 4a consumptive acre feet of water per year from the augmented water rights decreed in bd~3999 to the Berry Gge~k Fifth Fiba.r.~:, and at what cost, or {b) alternately pravide c~oraestic water service to the er~uivalent o! 298 units. 3. Have Tip~.on and I{almbach deter~aine if additianz~l acreage can be associated with the ditch enlargement attributed to priority no. 385 of the Howard Ditch. Please da not hesitate to give me a call if you hAdQ cry questions regarding the foregoing. Best wishes, .~~=~~ Glenn ~. Parzak GEP:ar ~~ - . ~C2~~~~~'~ ANA ~~~~f~D ~o~o anuL a. cocsca~t. dnfz@a a. eau~at0 41mOTNV ~. AV3a'f'9!d A~OSa6Y8 a4 dqw, 000 vwtoaa sau>.avpaq. atttr~ e~ @EtNYQq, 696QR~A®® 9Am681 YSs $ tr!a ~ t4 18®x+ de7U•.= 6"Ob'~$ t@@A~ 26.1-A, 4~1.SJn3: IDU2t P~+~•i's MARA fd. R. igOWiRfi k108~R4 G. COLY bctabez° 11', 1959 VYe~ ~El~~~~ ~ b~ k!~y~~~pp. pq:doyl~/~Dyal 4T S.O~~i6 ~d~ ~ro~0-$~,g Va~.l e~BSOCiat,a~~ ~ %r~c e ~eOo SOX ~ Vail, ~olox°ado ~15~s R~ a ~rrd Crack Fifth ~ili~~ Dealt ?tole a Yt i~ ~~ conclu~ian i'xom the ester right~a i'act~ that % ~~~:. been abg o to gatri~r ghat the Berry Cree}c M~tropol~,~an D1~obi~ geceiv~~ 22d acre P~~t of consumptive water rights fir do~te~~C~~ ~~~ 'by an ultimate builci~out wiehin the District ®g i, X73 unity o gt .$~ ~1- farther ~e3i~~ ghat spflro~sir~etely ~~~ (l~o~~ c~~ total) oA the 1a~~5 unit~c wexe ®xpect+d ~~ b~ buiat in the !ii ~:~ gilirg. %t i~ ~y conclu$~.on, then, that `~h® !i$t~ lili~g waa ax~~ct~~q to utxli~s x~o9~ ®~ th® a~~ acre Past o! conffiur~ptiva u~~ mate ~'ighta convey~~ to ferry Creek. Matropol.g,tan D~.atric't, o~- appgoximately 42 acre $e~to .... ~aaae tHs a~.io~ati®n of cater a~ fights is rea? 1- ~ Cla ,. , ~. to be deca,~ed by the perry Creek Matdc~olitan Dst ict B~~aa~~Yo Dirsctoa~$, it is ~}~ belief that the hoard t~ouaa ba quite will;~tt~~ to make available 4a acre Peet ob con~umpti~de u~~ wafter righ;.~ ~'c;r. Borne al ternstiv® use in the gifth gilinq. Thera would be a, a~~ Charred by 4ha District for the use of its ~~~$~~' o-s ~''>A~ ~,•.~;' y.,-C4, fee should be con~idsrr~bly lest than that which ~rCU2d b~ sha;:;~~ for 299 afngle family dwelling units. Wh,iae a13 oP ~.hiac should be v~rafied b~- a ~~t~r ~Ptgifl~t~ix', g am g~asonably congident of the above conclu$iox~, ~ - 12i29i69 12:08 HILL & ROBBINS~ P. C. ~~1 QCT-11-' 69 b1~D 1a:64 'OLL%t~ C~CKf2EL P~ TES Ply: X398 ~g0® P'~3 ~. o. ~~e ~~~~ ®~~g ~~®b~~ bye ~~i~~ ~~~~ ..:~.. . .~~ ~B~g~e ~~~ ~~ ~Cno+~ Ag ~~~ ~u~~t~®n~ ~~8n~~b~e ~ t!®p~ ~t~~~ ~~ ~~~~~~~o ~~~/~~ ~~o ®~~a C~~c®~~~ %,~~~ ~o ~®~~~~~~no ~o~o~o a 122589 Z?0 ASSIGNMENT GF CONTP.ACT THIS ASSIGN:IENT OF CONTEACT (the "Assignt`~ent") is made this day oz becember, 1989, and is by and between GEQRGE ~. GILLETT , ,JR . ( "As s ignpr") ; and THE TOL~'~~ OF VAIL , CQLQRA.Dd ( tY~~e "Assignee") . RECITALS A. Assignor has entered into ths,t certair_ vacant land contract tc buy and sell real estate dated Septe~,ber 5, 1989,./ a,~gnc~F~ nn O~~nhPr 1? - - ~ ~R9 (the "Cai2tr~ct") entered into between June Creek Ranch Company ("Seller") and Assignor- as Purchaser for the purchase and sale of the Property kr~o-wn as Ferry Cree'K Ranch Filing Na, 5 described ire E`.%hibit A attdc~~Lcd hereto and located in the County of Eagle, State of Colorado (the "Property"). B. Assignor desires to asszgn to, and Assignee is willing to accept, an assignment of the Contract ~:pon the terns and conditions set forth herein. All prior negctitians, dis- ^_uSSlanS, a:'id Otie~'S between t~2C' par~7-e5 We~~', rES,'~eGt t0 ti'c assignment of the Contract are merged into this Assigrrmer:t, which alone sets Earth the understanding and agree tent a the parties with respect to the Property, the Contract, ar_d the assi.gr~er.t o~ the Contract. AGREEMENT FOR GOOD AND ~'_4LUAELE MtTTUAL CONS IDERATICN , th e re ce ip t and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Assi nment and Acce tance of Assignment of Contract. Assignor assigns to Assignee a~ of its rig :t., titre, an 7.rLter- es4 tc the Contract and all of its righ* to acquire the Prapert.:- and°~uit°clains to Assignee all of its right, title and interest i.n and to the Property. Assignee agrees to assume and perform all of the obligations of Assignor ur_der the Contract as if ~.ssignee had executed such Contract on the original date thereof, subject to satisfaction of the conditions precedent canCain?r? in, Paragraph 2 hereof by Assignor prior to the closing of the transactions contemplated by the Contract tthe "Closing"), 2. Conditions Precedent to Assi Hoe's Perfar~ance. The obligat~.on of t e Assignee to accept t~ e assignment o t__e Gon- r_ract and to assume and perform all of the ob~l.igations of the Assignor under tree Contract are subject. to the satisfaction: Frier to Closing of the following conditions precedent by Assignor ~~~Gt' ~~1H~ `fPd~iH'..PlI?f'1 ~LJ~Ii-!.3r_.t~;~;3 .~;i=;~~ _~i : ? ~ -_ ~ F;= _t=rT 12?689 220 (which conditions precedent are for the benefit or the Assignee and may, at its option exerc~.sed in writing, be wµived): (a} .he warranties, covenants, agreements, and representa- tions ccr_tained in Paragraph 3 hereof being true, accurate, and complete as of the date hereof and as of the date of Closing, (b) Assignor guaranteeing the obligations of Assignee, in- cluding, without linitaticn, the obligations of Assignee under ::he promiss,orv note referenced in Paragraph 3 of the Contract, if required by Seiler under Paragraph 4(c) of the Addendum to the C~ojntract at or prior to closing under the Contract. d ~ 3. Representations and Warranties of Assi nor. With re-- spec~ ~o the Contract, t e Assignor covenan~s, agrees, waxrants, ar~d regreser_ts as follows (a) Assignor is the Purchaser Lnder the Contract and has not entexed into any agreements whereby he is acting as the nou.inee of or on behalf of any other person or entity in conned t~.cn with such Contract; (b) Attached hereto as Exhibit B iY a true , aceurat'e , and comglete copy of the Contract, together with ail ar»en~menrs and modifications thereto; ' (c) Assignor has and will not enter into with the Seller any ssbsequent modifications or ar~er_dments to the Ccutrs.cts or ar~y other agreements relating to the Property without the prior written ccnserLt of the Assignee; (d) Assignor has not Wade any pledge, transfer, conveyance, or assigr:.mEnt of any of its right, tit1 e, or interest in and to the Contract or the Property; and has the right, Bower, acid authority to make this Assignment , which is its va? id, bir~di ng, ar~d enforceable obligation; and (e) To ~.ts knowledge, no default has occurred under t#:e Contract, and no even.-t exists which, with the passage of time or the giving of r_otice or bath, would constitute a default Lnder the Contract. 4. Termination of Assi nment Pr_or to Closin by Assi nee. If any of t e conaitions race ant o= t is r.ssignm.ent are not 33t1Sf1.Bd, /~,~ i i v ~.~ebann--' s fa;; 1 ~2ra_ to ~~acu+-e a ,dag~ ra ,-f . P r - as Assignee rc.ay determine in its sole and exclusive discretion, Assignee may terminate this Assignment at closing If Assignee so tel^~t1.n2te~ this Assignment, Assignor tkay, in its discretion, elect to perforn the obligations of the Purchaser under *_he Contract. Assignor acknowledges and expressly waities ary claim faz losses, damages, costs, Expenses, including attorrevs' fees, or claims -2- Gt :-~ ~ ? r, H ~ a hd ~ I H'=~ h+ i 31'' I : ~~! i~ ~ 3 h; ~ ~~ ~ .3 iJ i=! ~~ ~ ."' ~ I F==, _ ~. _i 122b89 220 arising out of Assignee's ter'r.inatiar. of tY.is Assignment and the .failure of either Assignor ar rssignee to close under the Co::- tract. 5. Earnest Monev Deaosit. ~ Unon execution of this A_S~=QrmAr_t, Assignee s a pay to Assignor the aJT:ount of the deposit paid by the Assignor to the Se1.Ier pursuant to the Contract, in which event all of the right, title and interest of Assignor in and to the Assignee shall be dee:*~ed assigred to the Assignee. Assignor warrants and represents that it has gai3 tc Seller, as earnest money pursuant to the Contras*_, the total su of $50,ObG.00. The earnest money deposit shah be repaid tot Assignee by Assignor ir: the event Assignee terminates this P_ssignment as provided in Paragraph 4 above. 6. Coaperatior by Ass~nor. Assi~;ncr agrees to cooperate, at no' expense to it'- with Assignee in Assignee's effo3ts to purchase the Property and,."n Assignee's, efforts tc~ cause the ~r'J6i.R PI. C' provider of envz.ronmental reports an tre raperty, ~oadward-Cl-~de Car.sultants (including any additions, revisions, or updates t:~ ~ueh reports, copies cf which Assignor shall provide to counsel for Assignee as soon as received} and the surveyor, A~,pine ,~.Ag7I'I~~ring, Inc., t0 Certl.iy t0 the A~Signee t~3t the Assignee may rely upon such reports and surve~%s as i'f trey w>Yrc? addressed d~.rectly tc the Assignee any: prepa,re:~ far its ez,clusive benefit. Assignor sha:~~. not be required to pay ar~y additional suns it can- n+~ct~.on with such cooperation. and ir: obtair_i ng such cur:serfs t~~ certify such matters to Assignee. 7. Conditions Subsequent to Closing. Assign;ee agrees that, if Assignee purchases the Property pursuant to the Con- tract, the following conditians.shali apply to Assignee's o~-r~er~- ship and use of the Property: {a) Durin any period of time tha Property ws held btu the Assignee, the ~oliowing restrictions shall apply, all of w7hich shall be subordinate to the Deed of Trust to ~irstBank of avail, enccu~.bering the Property: {~.) Ten (IG) acres of the Property or thz adcining :filler Ranch property {the "Miller Ranch") (if acquiri'u by the Assignee), at the sole option of the Assignee, sha11 be developed far employee and/or affordable housing. A. An 2pplication to re4ot~e the Property for employee/affordable housing purposes must be filed with th.e County of Eagle within two (2} years of the closing of the prcp- exty and construction of Employee/affordable housing >~ust be co~~ne:iced within three (3) years of the dlosirg date. $. If C~1]21Tl;?nC°ffieilt Of zoning grid C[~its%T'L1Ctian Gr: ten (IO) acres of the Property or or. a portion of ten (ID) acres -3- `'_~;_ _`~~,~ %it•;~IH';PdI ~I'1 ~I~JiI~~P,i~~~~;3 !,:i=~~~ F;;-. i t _:~_ ~,. =~~rj 122689 220 of the Property, the location of which shall be determined i~ the sole discretion of the Assignee, does not occur wit'rin t?~e tiTe fra3ne set forth. in Paragraph ~7(a)(i)(A) hereof, ten (10) acres located in either the Property or the Nadler Ranch, the location of which shall be determined at the sole option of the Assibree, shall be conveyed by the Assignee >ro Assign.~r at Assignor's option, at na cost to the Assignor. If the land is conveyed to Assignor pursuant to. thi s prov~.sion, such land s;~ali be restric- ted for develcpmer.t as employee/affordable housing as a cove~ar_t running with the lard. (ii) A portion of the Property or a portion. o£ tine ;`filler Ranch, if acquired by the Assignee, shaii be develapec for recreational purposes as Assignee, in its sole discretion, Ina~~ determine to be appropriate. A. Assignee shah fa.le s.r, appiicatian to amend the zoning of the Property to permit recreation,=1 foci"cities within three (3) years of the date of closing and shall coL~ence construcCion of a recreational improvement on a portion ar the Property within. four (4) years of the date of closin5. B. If the Assignee fails to cozn~ence zoning and constrc~ctior_ of recxeatior.al facilities within. the tine frame set north in Paragraph s.~ l,a) (ii) (A) hereof , the Property ~i ll be con- veyed by the Assignee to Assignor, at Assignor's optic~~~, upon: receipt by the Assignee of a payment equal to the purchase price pal.d by the Assignee for the Property, plus an amount equal to all carrying costs (e.g., loan fees, debt service, etc.) relating to any loan obta:.ned by the Assignee for the purpose cf firar.cing the purchase of the Property. (iii.) The conditions set forth in t Paragraph ~(a),~ shall not be deed restrictions and shall not be cove:::ar~4s runn~rg wz4h t'ne .and. They shall be covenants personal to and bi^dirg upon the Assignee only, and the coverar_ts shall survive the closing of the transactions contemplated by this Ass:.gnmer.t any? the Contract. Should the Assignee finance the p~archase of the Property with a lease purchase agreement or with any financirzc mechar_isln that requires the Property to be conveyed or pledged as collateral for the loan, such a conveyance or tease shall be permitted and the applicable financing agreement shall include a provision that there shall be no prepayment persalty and shall permit Assignor tc repay the loan should the Assignee vio'sate ar.y of the use conditions set forth in this Assignment. Zf Assigr~o= repays the loan in its entirety, Assignor shall be entl.tled to acquire tha Property pursuant to the terms ar.d conditions in this Assignment. If Assignor wishes to exercise ar.y option to obtai~^ title to any portion of the Property as set forth above, he shall give written notice of his i::tention to exercise the option. to the Assig:~e2 within thirty (3Q) d3ys of *_re time the optio~^ accrues and shall take all steps necessary to -4- '--t-+,t-'3`1y~ `ipl3iH'=I•!?~~~1~LJi~H~3h•l3~33,3 lli=!~~ GtS~II ~;:_~: F:.' _~3~_ 122689 220 obtain title to the Property within sib {6) months o} the date of the written notice. If Assigr=or fails to proper=y exercise the option within the time periods set forth, he sha11 be barred fOXev~r fron doing so. (~v) The Assignee will be restricted from, selling the Prvpex'ty tc ary private party e rcpt as ma-' he necessary fur the p~~yposes of financing the purchase of the~r~lc rty ?nd extent as. v~ ed in Para ravh 7(a)(vii) in connection with the ~s restrzct~on sna not app? y to any lender ar its successor which acquires 4i t1 e to tine Property through foreclosure or deed-in-lieu of fareclos~.~re, (~} The Assignee is entitled to use the Property; fc:r other publ.c purposes besides recreation and housing sc long. as the conditions of Paragraphs 1(a)(i) and (ii) are fulfilled. {•.~i) Neither the Assignee nor the County shall use tree Property far cor~structian cf an eighteen (18) hale golf course. (vii ) If any pox-tion of the ~z~ .err is oAfex~rd ~o private developers for the constr~~ction of e:~a~.ayee ha~~sing, Vail Associates, Inc. shall have an equal cppaxtur.±ty with all other private developers to submit proposals for such purpose. (b) It is the irtenticn of the County of Eagle to held are election tc place the issue of raising the ~i ll levv in o~-uer t a finance employee housing and recreational facilities an th.e Property before the voters of Pagle County. If this election passes, the County shall be bound to purc?~iase the Property from tr.e Town of Vail. Once title to the Prapert,l is obtained by the County, there shall be na rights of x~ecanve~=a~:ce applied to t~~a Fropetty and the only restrictz.ons whi~cr= eta? 1 . apply to the Property shall be as set forth in Paragraphs '~ ?{ i} ar~d (vim. Assignor shall have the right to approve any lease purchase agreement or other inaneing mechanism which pledges the Property as collateral far an loan ~ i r=ee obtains tc ac wire .,~he Pr,~ Gpe~~r, ~~ , but that approval cannot be ur__easanably 4;~.t= _ e rurtner, tTieloan documer_ts, shall provide thaw should the Assignee be i n default of the 3greemen+~ ir= Parat~rCSah 7 ab~ve~ Assignor can cure the default to prevent the Property :.rom being transferrer to the lender and such n dac~.zments s~.~a11 further provide that Assignee shall have the rig Cs set forth it Paragraph ~ a)(iii) above. -5- ~1=1 ~`~H~~ ihl~iH'=".IT~~~i:1~.;i~H~1i`I~~~~~ i>ii_~i~~ I'~ ~ i ~~I_ ;_,_ _~~ 12289 '' % 0 9. Prohibition Against Recording. This Assignr;~ent shah not be recorded, ard, if this Assignment is recorded in violation of this provision, this Assignment shall be notice to ail inter- ested parties that this Assignment and the provisions hereon have been terminated and that Assignor claims no interest. in the Pxoper//~~ty. X10 . No Joint Ventur+? or Partnershrt p . Pdoth:.ng conta:;.r_ed hereLrt sha11 be deeme or construed by the parties hereto, or by any third party, as creating a relationship of principal an+u agent ar a partnership cr joint venture be*ween the pat-`~.e:= hereto, it being, understood and agreed that the relatiors~-:p between the parties hereto acre saltily that a~ an. Assigr_o*' ar~d Assignee as set forth herein. ~. No Third Part Beneficiaries. This Assigr.>~ent is Entered into so e~.y nor the purpose of er.ablirg Assi..zee tc~ purchase the Property pursuant to the Contract and r~o person az entity, including without lim:~tation the Seller of the Proper~y pursuant to the Contract, sha11 be deemed a third-party benefi- ciary hereunder. ZN W_TNESS WHEREOF, the parties have e~ecated the fore~oin4 kssigr~r~er.t of Contract as os the daJ of December, I9$9. ASSIGNER, GEOR~,E iv . GILLETT , ,7R . ~y: .ichae S. S annon, as Attorney-in-Fact ASSIGNEE: TOWN OF VAIL, a Colprado municipal carporatian ATTEST: By: Its Mayor CITY CLERK -6- ? ~=i1' ~+~~H~~ :ih~1.~iHSt`JI ~I''J ~LJIIH13hJ3~~~~3 lw[~~~= IS ~ i ? 5~=1: FI,- =~~ii e 122b89 220 STATE OF COLORADO ) 5S, COUNTY OF } The foregoing instrument was ackrawledged before me t£~~is day of December, 1989, by M_CI~AEL S. Si~iAIQ1,'4N, as Attorr.ey- ir.-Fact for GEOP.GE N. GILLETT, JR. My cammissian expires: Witness my hs.nd and official seal. (SEAL) Notary u is STATE OF COLORADO ) ss. COUNTY OF ) The faregoing instrument wa. ackrowiedved before my 4his day of December, 1989, by May ar, of the TOw'Iti OF VA;?,, a mu7icipal corpcratian. My coma.-scion expires: Witness my hand and official seal. [SEALI STATE OF COLORADO ) 5S. COUNTY OF ) Notax'y u is The foregoing instrument was acknowledged before me thi4 day of Dece~tber, 1989 , by ~y Clerk, of TOT>,,'N OF VAIL, a municipa corporation, My co~issian expires: Witness my hand and official seal. Notary u zc (SEAL) -7- ~_~~Z~ ' ~==iH~~ ;1f'i 3 i H~i'1 I ~'i'1 ~ ,;l~ I~=~, _ - _- - - f' ~ ~ ~~ ~ 11 I,.j ice' ~~ ~ _ ~ ~ j T ~; _: _ _ i ~ i i .-~.: flown a uai ` 75 sou4h fron4age road vail, Colorado 81657 (303) 479-2100 office o9 mayor December 27, 1989 Jim Douras, CPA P.O. Box 1307 Avon, CO 81620 Dear Jim: Thank you for your letter of concern regarding the Town's selection process for it's audit services. I understand how your perception of bias in the audit services selection may have arisen. To an outside observer, the relationship between McMahon, Armstrong and Associates and the Town of Vail may appear to be overly close due to the previous employment by McMahon of Mr. Steve Thompson. However, I am quite satisfied no favoritism was exhibited in our selection process. In fact, Mr. Thompson initially gave a higher overall rating within the selection process to another firm. The audit screening team also consisted of two other professional Town staff members. In summary, the Town Council's investigation into this matter leads us to believe our audit services bidding process was handled in a professional .manner. I have found no evidence of bias or favoritism in the process or by any staff involved. The staff screening team made a recommendation to Council and the Council made the final decision after lengthy discussion. LETTER TO JIM DOURAS DECEMBER 27, 1989 PAGE 2 You can be assured this audit selection process and all other such processes have been and will continue to be developed in accordance with proper standards, and all bids received will be evaluated fairly. Thank you for your concern and involvement. Sincerely, Kent R. Rose Mayor KRR/ds '~ . Bravo! Colorado at Vail * Beaver Creek is the nation's newest music festival having been organized on December 24, 1987, as a non-profit corporation under the laws of the state of Colorado. The Festival makes its headquarters in the world-class Colorado Rocky Mountain resorts of Vail and Beaver Creek. The specific objectives of Bravo! Colorado are to create an international cultural image in the performing arts for the Vail Valley through the presentation of concerts at its highest level. The Festival successfully completed its first two seasons of great music during the summers of 1988 and 1989 through the presentation of outstanding concerts from classical to jazz, pops to commercial. The schedule was expanded in 1989 though the addition of four orchestra performances with the National Repertory Orchestra accompanying Bravo! Colorado solo artists. Over 9,500 people were served through the Festival concerts in 1989 together with thousands more through radio-sponsored concert. hours. Also continued over the second year was the formation of a community service volunteer organization, the Bravo! Colorado Guild. With its membership of over 150, the Guild provided the Festival with countless hours of detail work involving audience development, marketing, fund raising, and local community visibility. We are indeed proud that our Season Two was truly a success -- artistically, financially, and locally. This result was reached through the combined and coordinated efforts of the Festival's world-class artists, an experienced executive staff, a committed Board of Directors, and the invaluable Guild! Season Three of Bravo! Colorado will be another one of expansion and growth, opening July 13 and continuing through August 12, 1990. The Festival will present twenty- one concerts featuring over forty international solo artists in classical, jazz and bluegrass repertoire and will increase the number of orchestra performances with the addition of the world-class Rochester Philharmonic Orchestra, under the direction of Maestro Mark Elder. Broad and diversified programs from Music Director Ida Kavafian will create a unique series of chamber music, jazz and orchestra presented at the highest standard for residents and visitors alike to the Vail Valley -- summer magic in the Colorado Rockies! 12 ~ 8 9 O MASTERS OF MUSIC CONCERT SERIES JOHN W. GIOVANDO/GENERAL DIRECTOR O IDA KAVAFIAN/ARTISTIC DIRECTOR O P.O. BOX 1288 / VAIL, COLORADO 81658-1288 ® TELEPHONE (303 476-0206 ®505) 984-8548 4 C O L O R A D O ATOVAILoBEAVER CREEK FOR IMMEDIATE RELEASE Media Contacto John W. Giovando (303) 476-0206 MAJOR SYMPHONY JOINS COLORADO'S NEWEST MUSIC FESTIVAL Vail, Colorado--One of the East's major symphony orchestras will venture West for the first time this summer to play with the state's newest music festival, Bravo! Colorado at Vail*Beaver Creek. Bravo! Colorado and- the Vail Valley Foundation today announced that the Rochester Philharmonic Orchestra will perform five concerts as part of a ten-day summer residency in Vail. "We felt that the high level of talent in the Bravo! festival presented a unique opportunity to play to new Western audiences," said Dean Corey, president and chief executive officer of the Rochester Philharmonic. "Our musicians are very excited about working with these fine artists in the beautiful surroundings of the Colorado Rockies. "Among the musical community, the Rochester Philharmonic is considered one of the major orchestras in the country," said violin virtuoso Ida Kavafian, Music Director for Bravo! Colorado. "We are looking fox-ward to showing our Western audiences all that the Rochester has to offer." Kavafian said the concert schedule will "break down the stereotypical categories" of solo, chamber and orchestral musicians, making it unique in Colorado, if not the nation. The five-concert Rochester schedule includes works from the great masters to pops, and classical to contemporary. Bravo! Colorado was born in 1988 completing its second season as a summer musical gathering of the nation's finest soloists and orchestra principals. All Festival artists appear at the invitation of the Music Director, whose responsibilities also include complete programming. O MASTERS OF MUSIC CONCERT SERIES O CV " -~ JOHN W. GIOVANDOIGENERAL DIRECTOR O IDA KAVAFIAN/ARTISTIC DIRECTOR O PO. BOX 1288 I VAIL, COLORADO 81658-1288 O TELEPHONE (303) 476-0206 O (505) 984-8548 In addition to the performances on August 3, 5, 8, 10 and 12 by the Rochester Philharmonic, Bravo! Colorado will present chamber music, jazz, and bluegrass from July 13 through August 12 at Vail and Beaver Creek. "The Rochester Philharmonic presents a wonderful opportunity for the Vail Valley to have a long-term orchestra in residence," said Bob Knous, president of the Vail Valley Foundation. "It helps Vail move from being a resort to being a community." The Orchestra's performances are being presented through the co-operation of Bravo! Colorado, the Vail Valley Foundation, and a major grant from Mrs. Elaine P. Wilson to the Rochester Philharmonic. R 122189nn 22V P~'vIOR.~uDUM T0: Larry Eskwith, Esq. Vail Town Attorney F~?OhI: James L. Kurtz-Phelan and v~ Charles P. Leder RE : Additional Due Diligence RevieY,~ DATE: December 2I, I989 We have completed our review of th° various dCC~.2~1~I7.~s prov_ded us by Vail. Associates in connection with tr.Q proposed acquisition of lerr_y .Creek Filing No. S and!or 1•till~_'r Ranch by the Taws. of Vail. We. submit the following cou:ments and reco~endatiors fcr your consideration. 1. Environmental Reports. Vail Associates had er=g aged t~':,odward-Clyde consultants to perform an environmental audit of both the Lerry Creek and Miller Ranch properties fcr the presence cf hazardous wastes on the properties. Although the site assessment did not result in any evidence of significant environmental ha2ards being present on the property, it did iaer.tify a fact minor places where petro' eum products ware alla~red to run onto the ground, requiring removal of small amounts of contaminated soil. There was n o evidence found that any ground water has been polluted. However, there was not ar~y testing of ground water to verify this conclusion. The site assessment also d~.sclosed the presence of small quantities of asbestos in floor ti~.eS in the main house at Mi?1er Ranch, bv.t found thGt there was no immed=ate danger from friable or flaking asbestos. Any asbestos located in any structures on the properties would. be of concern primarily in connection with remodeling or destruction of those improvements. The other major areas of ccnc.ern raised by the site assessment involve poter_tial contamination from adjacent properties, i.e.; Eagle Valley Texaco, Gaileos Masonry, and Albert's Salvage Yard, all of which are adjacent to parts of tree property ar_d may have caused contamination of the property. However , there is no evidence of any such off-site contarrzir:3tian e~:isting or reaching the property. _ The concerns raised in the site assessment are based an the presence of underground gasoline storage tanks at the Texaco station and the presenc: of unidentified storage barrels at thz junkyard and ma.so::ry operations. As we have previously mentioned to you, the Toam should get a J.etter from the consultants permitting it to rely on this report. ?~"~'' _:". `1f,l~?H'=~hli 31'1 ~IJIIH.3il~;=~3 1~1i~.y~ IGi:~I ti;;, I., _,~r~ 122189 220 2. Ir rovement Location Cextific,~te ("Survey ") for Mi11er Ranch and Berr Creex. We ave prevrous y iscusse same v i.ssf~es raise y t~le survey of the Miller Ranch property. We alto have recommanded that an ALFA-AGSM survey be required. However, in light of the tine frame invclved w~.th the proposQd c?osiro, it is highly unlikely that such a survey could be per_Lormed. Therefore, the improvement locatior_ certificates currerJ.tly available are probably the only surveys which we will have access to. Alt'nough the existing surveys generally are adequate far acquiring large pieces of vacant ground, it is 1.z2poxtar_t to rote that the improvement Iocatior. certificate provided is not an actual. an-ground survey based. upon inspecticn of the property. Thus, the actual size of the property, the actual location of various easements, recorded and unrecorded, a.nd the presence of unrecorded but apparent rights of third parties nay or may not be accurate. However, since the pro~:erty is being bought on a bulk basis and not a square foot ox pe= acre basis, the uncertainty as to the actual size may not be si~,-~:ificant. Also, the fact that there are a number of recorded easements crossing both properties and several apparent easements b1 way of Jeep trails, dirt roads, etc., support the conclusion that those ratters will have to be addressed in conr~ecticn with the Ta-,an`s development of the property, whether or not there are other apparent rights or easements on the property. The Tow-Y'- should anticipate having to deal with eith+?r relocating existing, undedicated roads, rights created by prescriptive easements, disputes aver the exact location of property boundaries and potential adverse possession claims by other parties, in connection with its' use and development of the property. It is riot passible to give any clear estimate of the e~ter_t cr sion~.ficance of these problems, It could be the case that certain prescriptive easements along roads may not be subject to relocation by the City, other than by conde~.nratian, in which event the City's development plans will have to be desibned around such easements or the easements wi.l1 have to be condera~ned. ~itr~in the limitations of the current surveys, and subject to the precautions described above, we offer the Following specific comments on both properties: A_ MILLER RANCH. (I} As discussed in our me>~arandum of December 19, I9~9, the survey snows the gravel road on the property that goes under T-70 to Berry Creek Ranch Filing No. 2 and continues dour to a point where it crosses the Denver & Rio Grande t~'esterr. Railroad right-of-way. That gravel road continues to a residence on the south side of the property and to a bridge across the Eagle River. At that point, it is unclear where the right-of~way goes. However, that road may have beer_ used by a number of property owners, either to the north or south of the Miller Ranch -2- ~•~-^~- 3`'`_'d ;1hJ3iH'3JJI3f'J IJIIH~3t13~~?,3 tJC'~~3 ?G ~T. ~,;_, i= :~31 122189 220 property, giving rise to possible prescriptive easement rights to a number of different persons. In addition, a road known as the Graveyard Road extends off the dixt road to the east to provide access to the Shannon property and ~o the ce-:^etery. That road then becones a Jeep trail that heads north arLd east along the property to a point where it appears to end at the I-70 right-•of-way. (2} Also as previously discussed, the Mi'1er Ranch property is divided into four different parcels, three of which are ar_ the south side of the railroad right-af -way be~;•'een the railroad and the river. Two of the parcels appear to have no connection with ar access to the ? arge parcel. or: the north side of the railroad. Nor do two of the three parcels on the south side have access to each other. Access between the various parcels across the railroad will have to be wor'.~ced out as a condition of the Town's oblz.gation to acquire the. Miller Ranch property. (3) Various ditches and recorded easement: also crisscross the Ma.ller Ranch property, but do not appear to cxe.at*; significant problems for use of the property. There is a Jeep road along the southern part of the property so,~th of the railroad right-of-way in addition to the Je°ep road and gravel rv3dS on the north side. Again, those roads could cr~:ate prescriptive rights in various parties or ire ti:e p~,~blic which ns.y ar may not adversely affect the Taw~n's proposed use of thY property. t~ith respect to possible access from any of the parcels to Highway 6 to the south of the property, the only parcel that appears to have potential access to Highway 6 b~' being contiguous to the Highway is Parcel. B which is a 13 acre parcel adjacent to the southwest portion of the 1~liller Ranch property north of the railroad right-of-way. However, the survey does not locate the highway right-of-way in relation to Parcel B. If the highway is south of the south section lire of Section 4, then Parcel B does rot abutt the highwa,r right-of-way. (4} There is an ow-nership discrepancy on the west side of r_he Miller Ranch property arising from two causes. F~.xst, there is the fact that the fence line between. Miller ranch and Berry Creek Filing Iv'a. 5 did not run along the property Iir_e but bisects the property line. That discrepanc~* creates two triangular pieces of property on the west side o~ Miller Ranch property, one of which the :4iller Ranch property could claim by adverse possession and the other of which the owner of the Berry Creek property could claim by adverse possession. Aga_n, if the Town acquires both parcels, then that issue is net a proble~• Second, one of the triangular pieces en the west side of the Miller Ranch property has a conflict in record or.mership which -3- `^~~_ ~ 3~~H,3 ;1hI3 I H~_~fJ I 3i~i ~ lJ~ i-~~3tt 3~~ 33 :~.1~::~,~ 3 ~~Z~ : ~ I ~;,3 : i ~ =~ 3~I I22I89 220 relates to the title commitment requirement of a deed from Sterner to Gex-c~an. However, my suspicion is that it would be virtually impossible to get a deed execzted to corxect that problem because the Sterner and German deed which gives rise to the title discrepancy was e:secuted ir. 190$. In addition, the poruicn of the Miller Rar.ch property subject to that title defact also is part of the Berry Cree:~c property which is fenced so as to appear to be part of the Miller Ranch property. Taus, iL could we7.l be that the record owners of the rliller Ranch property also have acquired title to the property subject to the record r_itle dispute by adverse possession. B. BERR4' CREEK SURVEY. In addition. to the comments made with respect to the use of an i>~provemert locative certificate rather than a survey and the attendant problems, with respECt to Berry Creek we would also point out the. followzn;: (1) The Berry Creek property is subject to the same boundary disputes desc_i.bed above. {2) The survey contains several recorded easements that are not shown. on the title comlaitme^t. We will hav_ to cles.r that up with the title company. In additiar_, the title Go~itment shows various easements that are nor s~:own on the s~:rvey. Most of those are older reservations ~in original patents or early deeds that >~ay have no signi=igance. {3) The Berry Creek property is Grassed by the main Howard Ditch plus several feeder ditches which may yr ma;T not be a problem, Also the current easements that were recorded fairly recently generally are layed out in such a manner that they would appear to follow road patterns proposed in the '?'UD. { >~ ) southern end of the ~.dverse possession the south side. rightPaf-way which (5) Town of Vail. There are same fence discrepancies along; the property such that the railroad may have some claims tv a small portion of the property on Therz are also portions of the railroad are fenced within the Berry Creek property. The certificate should be certified to the 3. We have not independently, analyzed the associaCed with the property. We have contacted the & Robbins to request the assistance of David Robbins to review and evaluate the water rights situation. review can be completed before the City Council Tuesday. -4- water rights firm of will of that firm Zti'e hope tha t meeting re::t C::1 :_1 ' 3 _)~1,3 ;ihl3 i H~~t.l 131'I ~ l•11 I"3hl 3~~ ~i3 6JG~~ 3 b~=1 ~ ~ , _ _ T = ~~ 3~I 3iJNB CREED RANCH COI+IPA~TY P. O. Box 1640 Vail, Colorado 81657 December 29, 1989 Ron Phillips Town of Vail 75 S. Frontage Road W. Vail, CO 81657 Dear Rono In accordance with our telephone conversation this morning this letter will confirm the following four elements of the Edwards transaction. 1. 0°Parcel B°° as described on the Improvement Location Certificate prepared by Alpine Engineering, Inc. dated December 27, 1989, is to be included in the conveyance at closing at no additional cost to you. 2. You are to acquire, at the closing, a certain right of first refusal with respect to the Miller Ranch. You understand that it is the position of June Creek Ranch Company that the right of first refusal does not apply to the Miller/Buick exchange which is currently under negotiation with Ray and Ruth Miller. 3. You will transfer to us at the closing, in recordable form, definitive rights to an easement to be created across the 5th filing for ingress and egress to serve the Miller Ranch from the Edwards spur road. Such easement shall allow a °1collector status road°° or a lessor status road which will allow the use of the Miller Ranch for its intended purposes under applicable zoning. This easement would be operative only in the event that we acquire the Miller Property and that you decline to in turn acquire that Property from us. 4. It is acceptable to us to close the 5th Filing transaction, including Parcel B, on an all cash basis. Please call if you have any questions. Very Truly Yours, JUNE CREEK RANCH COMPANY Byo Frederick D. Green FDG/cdb OF VAIL 17 VAIL ROAD VAIL, COLORADO 81657 303-476-5686 December 29, 1989 Steve Barwick Town of Vail 75 S. Frontage Road W. Vail, CO 81657 Dear Steve: FirstBank of Vail is pleased to. extend to the Town of Vail a real estate loan commitment for the purpose of purchasing the real property located at Edwards, Colorado also known as The Berry Creek 5th Filing. This loan is to be in the form of a properly executed Promissory Note in the amount of $2,000,000.00, signed by the Town of Vail and secured by a~First Deed of Trust on the above property and improvements. Additionally, this loan commitment is subject to the timely compliance and our approval of the following conditions: 1. Acceptable mortgagee title ins~.zrance for an amount not less than the loan from FirstBank of Vail. 2. Approval by the bank,'or the counsel of the bank, for all legal instruments and documents related to this loan. 3. A tax certificate showing all taxes and special assessments that are due to be paid in full. 4. The rate of interest shall be fixed at 8.50. 5. The maturity date of this loan will be December 31, 1990 and monthly interest payments shall be required. 6. This commitment is not assignable. This loan commitment expires January 10, 1990. If these terms are agreeable, I would appreciate your signing the original of this commitment letter and returning it to me at your earliest convenience. Steve Barwick Town of Vail -2- December 29, 1989 If you have any questions regarding this commitment, please feel free to call me at the bank. S' erely yours, a. Rog A. Behler President RAB/km AGREED AND APPROVED by Town of Vail this day of , 19