HomeMy WebLinkAbout2013-12-17 Agenda and Support Documentation Town Council Evening SessionVAIL TOWN COUNCIL
EVENING SESSION AGENDA
VAIL TOWN COUNCIL CHAMBERS
75 S. Frontage Road W.
Vail, CO 81657
6:00 P.M., DECEMBER 17, 2013
NOTE: Times of items are approximate, subject to change, and cannot
be relied upon to determine at what time Council will consider
an item.
1. ITEM/TOPIC: Citizen Participation (15 min. )
2.
ITEM/TOPIC: Consent Agenda:
1) Resolution No. 10, Series of 2013 - Colorado Water Plan
(5 min.)
3.
ITEM/TOPIC: Town Managers Report:
1) Construction Use Tax Update;
2) Vail Recreation District Operating Agreement with Walking Mountains;
(15 min.)
PRESENTER(S): Stan Zemler
4.
ITEM/TOPIC: Appointment of CSE and VLMDAC members (10 min.)
PRESENTER(S): Pam Brandmeyer
ACTION REQUESTED OF COUNCIL: Council interviewed all interested
applicants at the work session earlier in the day. Staff requests that the
Council vote and appoint five members to the CSE and four members to the
VLMDAC.
BACKGROUND: See information from work session of December 3, 2013.
STAFF RECOMMENDATION: Staff requests Council appoint five members
to the CSE and four members to the VLMDAC for two year terms each, from
January 1, 2014 to December 31, 2015.
5.
ITEM/TOPIC: Retail Marijuana Policy Discussion (45 min. )
PRESENTER(S): George Ruther and Matt Mire
ACTION REQUESTED OF COUNCIL: Provide staff with direction.
BACKGROUND: As you are aware, the Town adopted a temporary ban on
retail marijuana establishments, which expires on January 21, 2014. For
your convenience, attached is our June 12, 2013 memorandum, discussing
in detail the retail marijuana legislation adopted earlier this year.
6. ITEM/TOPIC: Vail Village Townhouse Zone District Discussion (20 min.)
PRESENTER(S): Jonathan Spence 12/17/2013
ACTION REQUESTED OF COUNCIL: The Community Development
Department requests that the Vail Town Council instruct Town Staff on
moving forward with the Vail Village Townhouse Zone District
implementation.
BACKGROUND: The Vail Town Council instructed the Town Staff to initiate
a rezoning process upon the adoption of the Vail Village Townhouse (VVT)
District. The Community Development Department has reached out to
owners of properties identified as being eligible for rezoning pursuant to the
purpose statement of the zone district. In doing so, staff has discovered that
support for the rezoning effort is not universal.
STAFF RECOMMENDATION: Please see Section VI of the staff
memorandum.
7.
ITEM/TOPIC: Second reading of Ordinance No. 22, Series 2013, an
ordinance making budget adjustments to the Town of Vail General Fund,
Capital Projects Fund, Real Estate Transfer Tax Fund and Dispatch
Services Fund (5 min.)
PRESENTER(S): Kathleen Halloran
ACTION REQUESTED OF COUNCIL: Approve or approve with
amendments Ordinance No. 22, Series 2013
BACKGROUND: Please see attached memo
STAFF RECOMMENDATION: Approve or approve with amendments
Ordinance No. 22, Series 2013
8.
ITEM/TOPIC: Second reading of Ordinance No. 23, Series of 2013,
Commercial Ski Storage, an ordinance extending a temporary moratorium
on the processing and approval of all business and land use applications for
private ski club uses within the Town. (5 min. )
PRESENTER(S): George Ruther
ACTION REQUESTED OF COUNCIL: Approve, Approve with Conditions or
Deny Ordinance No. 23, Series of 2013.
BACKGROUND: The continuation of a moratorium on the operation of, and
the processing and approval of all business and land use applications for
private ski clubs will allow the Staff, Town Attorney, Council and the
Community, to assess whether such uses are in the best interest of the
public health, safety and welfare.
On December 3, 2013, Vail Town Council approved Ordinance No. 23,
Series of 2013, with one modification. The modification amended the
extension of the moratoium for 90 days to March 17, 2014 instead of June
17, 2014.
STAFF RECOMMENDATION: Approve, Approve with Conditions or Deny
Ordinance No. 23, Series of 2013.
To allow the expiration of the moratorium to coincide with a futture Vail Town
Council meeting date, staff recommends the moratorium be extended to
Tuesday, March 19, 2014. 12/17/2013
9.
ITEM/TOPIC: Second reading of Ordinance No. 24, Series of 2013, An
Ordinance Granting a Non-Exclusive Franchise Service Company of
Colorado Regarding the Provision of Natural Gas Service in the Town. See
attached staff memorandum and draft franchise agreement. (10 min. )
PRESENTER(S): Matt Mire
ACTION REQUESTED OF COUNCIL: Approve, Approve with Conditions or
Deny Ordinance No. 24, Series of 2013.
BACKGROUND: The current franchise agreement between the Town and
Public Service Company of Colorado expires on January 31, 2014. For the
Public Service Company of Colorado to continue to provide gas service in
the Town, it needs a franchise from the Town. See attached staff
memoradum and draft franchise agreement
STAFF RECOMMENDATION: Approve, Approve with Conditions or Deny
Ordinance No. 24, Series of 2013.
10. ITEM/TOPIC: Adjournment (8:10 p.m.)
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Citizen Participation
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Consent Agenda:
1) Resolution No. 10, Series of 2013 - Colorado Water Plan
ATTACHMENTS:
Resolution No. 10 Series of 2013
12/17/2013
Resolution No. 10, Series of 2013
RESOLUTION NO. 10
Series of 2013
A Resolution Endorsing The West Slope Principles and Adopting the Eagle River
Basin Principles for the Colorado Water Plan; and Setting Forth Details in Regard
Thereto.
WHEREAS, the Town of Vail (the “Town”) in the County of Eagle and State of
Colorado is a home rule municipal corporation duly organized and existing under laws
of the State of Colorado and the Vail Town Charter;
WHEREAS, the Town receives water services from the Eagle River Water & Sanitation
District (the “District”), which is authorized and empowered to supply water for domestic
and other public and private purposes;
WHEREAS, the Town benefits from District planning that has provided efficient,
effective, and reliable water to the District’s service area, ranging from East Vail to
Wolcott, through development of the public water system, including water rights, storage
and treatment facilities;
WHEREAS, the Governor of the State of Colorado issued executive order D 2013-
005, directing “the Colorado Water Conservation Board to commence work on the
Colorado Water Plan” in May 2013;
WHEREAS, according to the executive order, “Colorado’s water policy must reflect
its water values,” including a “productive economy,” efficient water infrastructure
“promoting smart land use,” and a “strong environment that includes healthy
watersheds, rivers and streams, and wildlife;”
WHEREAS, the west slope headwaters are the source of much of the water supply
for the front range as well as an epicenter of Colorado’s recreation economy and wildlife
resources;
WHEREAS, local governments, water districts, watershed groups, basin
roundtables, and other west slope water leaders have a deep understanding of the
relationship between water resource development and the healthy watersheds, rivers
and streams, and wildlife;
WHEREAS, west slope organizations have been engaged in land use and water
planning both locally and with Front Range water interests for many years and desire
that this experience inform the Colorado Water Plan process;
WHEREAS, Eagle River basin water providers have led cross-basin negotiations
that have protected local rivers and streams, thereby providing for municipal water
supply, recreational uses, environmental flows, and healthy watersheds;
12/17/2013
Resolution No. 10, Series of 2013
WHEREAS, Eagle River basin water providers developed principles to assure the
certainty of existing and planned future water supply;
WHEREAS, the Town and District are members of the Northwest Colorado Council
of Governments’ Water Quality/Quantity Committee which developed the West Slope
Principles in collaboration with members of the west slope Basin Roundtables and the
communities they represent;
WHEREAS, the Vail Town Council supports these principles and believes that the
Governor and the Colorado Water Conservation Board should adhere to these
principles in preparing the Colorado Water Plan.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO THAT:
Section 1. The Council hereby endorses the West Slope Principles and adopts the
Eagle River Basin Principles for the Colorado Water Plan in the same form attached
hereto as Exhibit A and Exhibit B.
Section 2. This Resolution shall take effect immediately upon its passage.
INTRODUCED, PASSED, AND ADOPTED at a regular meeting of the Town Council
of the Town of Vail held this 17th day of December 2013.
______________________________________
Andrew P. Daly, Mayor
ATTEST:
_____________________________________
Tammy Nagel, Acting Town Clerk
12/17/2013
1
West Slope Principles for the Colorado Water Plan
1. Solutions in the Colorado Water Plan (CWP) to supply water for growth and
development in one part of the state should not over -ride land use plans and
regulations adopted by local governments in the part of the state from which water
will be taken. 1,2,3,4,5,6,7
1.1 No new water supply projects or major changes in operation of existing projects
should be planned unless agreed to by the county, conservancy district, and
conservation district in the area from which water would be diverted. 1,3,5,6,7
1.2 The CWP must take into account pending projects, water supply plans,
comprehensive land use plans, local regulatory authority, water quality plans
(208 Plans), watershed plans, multi-party water agreements and related
documents adopted by local governments in the area from which water would
be taken. 1,2,3,4,5,6,7
1.3 Both the legislative basis and the legal impact of local government regulatory
tools adopted to mitigate impacts of water projects should be recognized and
protected. 3,6,7
1.4 The CWP should never elevate the agricultural interests in one part of the state
over the agricultural interests in another part of the state to meet the demands
of Front Range development. Agriculture is an important segment of the state’s
economy as a whole. Agriculture provides food independence, open space,
wildlife habitat, cultural value, and economic activity wherever it is located.
1.5 Any new supply projects taking water from one area of the stat e to another
should include funding for “compensatory projects” to serve the area from
which the water is taken. 7
2. The CWP should protect and not threaten the economic, environmental, and social
well-being of the west slope. 1,2,3,5,6
2.1 The cornerstones of the west slope's economy are tourism, recreation,
agriculture, and resource development, all of which are highly dependent upon
water to be successful. The CWP should not facilitate additional diversions that
could threaten the region’s environmental, social and economic well-being. 1,2,3,6
2.2 To educate the public about existing conditions on the west slope, the CWP
should identify the location and amounts of water that are already diverted
every year from the west slope to the east slope, and discuss the historic and
current consequences of those diversions. 1,2,3,6,9
12/17/2013
2
2.3 The state should not facilitate, politically, financially, or legally, any new water
supply projects from the Colorado, Yampa/White or Gunnison River Basins to the
Front Range without the consent of the county, conservancy district, and
conservation district in the basin of origin, and unless impacts are avoided and
mitigation is provided. 1,2,3,6 7
2.4 New supply projects that involve storage on the west slope must make a
significant amount of water available to west slope water uses. New supply
projects that involve storage of west slope water in an east slope storage project
must provide compensatory storage to protect existing and future west slope
water uses, as well as the environmental and non-consumptive needs of the
basin of origin. 7
2.5 The CWP must protect investments in public water and wastewater facilities by
ensuring that costs to upgrade and operate these facilities do not increase
because of Front Range water projects.5
2.6 The CWP must afford recreational in-channel diversions and CWCB instream
flows the same status as other water rights that are protected under Colorado
law. 3,6 Other west slope non-consumptive water needs must be factored into
the CWP.
2.7 Water quality protection efforts of the west slope must be respected and
enhanced by the CWP. 4,5,6
2.8 The historic use of west slope agricultural water rights provides a river flow
regime that is relied upon by all west slope users and must be maintained. 8
3. The CWP should identify a process and requirements for each basin to exhaust
available water supply within its own basin before planning diversions from another
area of the state. 1,2,3,7
3.1 Transmountain diversion water should be re-used to extinction to the extent
allowed by law, before any proposed new supply development focuses on
further west slope water supply. 1,2,3,6,7
3.2 Re-allocation of existing supplies in areas that need more water should be
evaluated (e.g. rotational fallowing, changing to new uses, deficit irrigation).1,3,6,7
3.3 Front range infrastructure and water should be shared to meet future demands
(e.g. WISE). Laws and regulations that improve such sharing should be
considered.
3.4 New Front Range in-basin projects should be pursued to fully utilize in-basin
supplies (e.g. Chatfield Reallocation, SDS, Arkansas Conduit, indirect and direct
12/17/2013
3
re-use, gravel pit storage projects), including maintaining and enhancing existing
storage facilities. The CWP should encourage and facilitate dredging to keep
capacity, and streamline efforts to enlarge storage by dredging when practical .3,6
3.5 The CWP should promote mechanisms to reduce demand through agricultural or
municipal efficiency/conservation, land use and smart growth policies that
further water conservation, and controls on water usage. 3,6,7 Under no
circumstances should agriculture be penalized for switching to more efficient
water use methods.
3.6 The CWP should reject proposals for water to supply new development when
and where there are insufficient water resources available to support them
under all hydrologic conditions without creating risks for other water users. 1,3,6,7
Any new supply projects that rely on diversions from the west slope should be
developed within the existing water rights system and not afforded special
status.
3.7 Front Range areas with present and future projected water shortages should
pursue collectively financing projects that provide water resources to their areas.
4. The CWP should outline mechanisms to mitigate the risk of potential Compact
curtailment of the Colorado River. For example, the CWP should adopt low-risk legal
and hydrologic assumptions related to Colorado’s obligations under the Colorado
River Compact and the Upper Colorado River Basin Compact in order to minimize the
risk of curtailment on existing uses of Colorado River basin water.7
4.1 There is disagreement on how much, if any, additional consumptive use water is
available from the Colorado River. Because of justifiable reliance and financial
investment, existing uses and users should be protected and not put at risk by
new development.
4.2 The facilities and methodologies for protecting existing users from a compact
curtailment, as well as for mitigation, must be in place prior to any new project
or methodology that would take additional water out of the Colorado River
Basin.
4.3 The CWP must disclose that fully developing the state's Colorado River compact
entitlement will increase the chance of a compact curtailment that would impact
existing users.
4.4 New projects in the Colorado River Basin should be supported and approved, if
at all, only on conditions that will allow diversion and storage at times and in
amounts that will not increase the risk of compact curtailment of other post -
Compact water rights.
12/17/2013
4
5. The State should not assume a role as a proponent of a water project until the State
regulatory process has been completed and the project has been agreed to by the
impacted counties, conservancy districts and conservation districts in the area from
which water would be diverted.
The above principles are taken from many sources of earlier water principles around the state. The numbers in the above
principles indicate in which documents a similar principle may be found, including:
1 Colorado 58 Water Principles. In approximately 1999, 58 Colorado Counties, signed onto these Water Principles, which were
passed as a House Resolution as well.
2 Colorado River Water Conservation District Policy Statement: Existing Transmountain Diversions, Adopted July 15, 2008,
readopted July 2011. http://www.crwcd.org/media/uploads/20110719-policies_TMD_Existing_Projects.pdf
3 Colorado River Water Conservation District Policy Statement: Transmountain Diversions, adopted March 16, 2000, revised
and readopted July 2011. http://www.crwcd.org/media/uploads/20110719-policies_TMDs.pdf
4 Colorado River Water Conservation District Policy Statement: Water Quality, adopted July 2010.
http://www.crwcd.org/media/uploads/20100720_policy_water_quality.pdf
5 NWCCOG Water Quality/ Quantity Committee Policies, readopted November 2012.
6 2012 NWCCOG Regional Water Quality Management Plan (208 Plan).
http://nwccog.org/docs/wss/rwqmp_2012/Vol%201_Policy%20Plan%202012%20208%20Plan.pdf
7 Colorado Basin Roundtable Vision Statement (Nov. 2010).
8 Orchard Mesa Check Case, 91CW247, Water Division No. 5.
9 i.e. Senate Document No. 80, Windy Gap Project, Windy Gap Firming Project, Colorado River Cooperative Agreement
12/17/2013
62092
EAGLE RIVER BASIN PRINCIPLES
for the Colorado Water Plan
1. Introduction. Local water districts, cities and towns, individual water users, and area
water conservation and conservancy districts are the entities and individuals that own, use and develop
water rights for municipal, domestic, agricultural, industrial, and recreation uses on the west slope of
Colorado. As evidenced by the recent historic Colorado River Cooperative Agreement between Denver
Water and the west slope of Colorado, these are the parties that know their needs, the area and
regional water supplies, and what cooperative water plans and agreements are possible. It is essential
that any state based water plan not attempt to supplant the role of west slope water users or seek to
supersede constitutionally based Colorado water law, 1041 and local land use permit authority, water
supply plans or pre-existing agreements between water rights owners. To assure Colorado’s water
future, the State should: assist with funding of water supply projects needed to meet locally-determined
needs; support a healthy west slope (and state-wide) economy by protecting watersheds, stream flows
and water quality; and abide by local land use and water plans.
2. Future Transmountain Diversions. Any future transmountain diversions from the Eagle
River basin must comply with the express terms of the Eagle River Memorandum of Understanding with
Colorado Springs and Aurora, the settlement with Denver Water in Case Nos. 02CW125 and
07CW126, the Colorado River Cooperative Agreement with Denver Water, Eagle County 1041 permit
authority and regulations, and the Colorado water right priority system under the State Constitution.
Pursuant to the foregoing agreements, any future transmountain diversion projects must result in net
benefits to the Eagle River Basin.
3. Compact Calls. Any Colorado River compact call must comply with and be administered
according to Colorado’s constitutionally based priority system and the existing transmountain diversions
of the Northern Colorado Water Conservancy District, Denver, Colorado Springs and Englewood must
be subject to and comply with the terms of Senate Document 80, the Blue River Decree, and the
decree for the Windy Gap Project.
4. Water Leadership. Leadership on any regional water plans that affect the Eagle River
basin should come from the local water providers, the Eagle Park Reservoir Company, which owns and
controls the largest storage facilities and water rights used in the Eagle River basin, and water rights
owners who depend on water to support the recreational economy, such as the Vail and Beaver Creek
ski areas. Any state or regional water plan must be acceptable to these entities. Additionally, Eagle
County and local municipalities (the towns of Vail, Avon, Minturn, Red Cliff, Eagle, and Gypsum) are
important stakeholders in water issues, and as such are represented on the Colorado Basin
Roundtable, as water is integral to land use issues, the local environment, and the economy of these
communities.
5. Reallocation of Water Supplies. Any effort to reallocate the area municipal, irrigation,
snowmaking, and recreation water supplies and water rights to new uses and new regions must be
summarily rejected.
6. New Supply Projects. Any new water supply projects must first serve the local and
regional water supply needs, and fully protect the region’s economic activities, area water quality, and
stream health.
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Town Managers Report:
1) Construction Use Tax Update;
2) Vail Recreation District Operating Agreement with Walking Mountains;
PRESENTER(S): Stan Zemler
ATTACHMENTS:
Construction Use Tax Memorandum
VRD Vail Nature Center Memorandum 121713
12/17/2013
1
To: Town Council
From: Finance Department
Date: December 3, 2013
Subject: Construction Use Tax Administration
I. Background
In November 2007, voters approved a 4.0% use tax on construction and building materials to
complement the existing 4.0% sales tax on all other tangible personal property sold at retail in
the Town of Vail. The tax was effective January 1, 2008 and has generated approximately $5.5
million since inception to be used for capital projects.
The tax is originally collected at the time a building permit is issued based on an estimated cost
of materials equal to 50% of the building valuation as determined by the building inspector
based on information provided by the contractor. The first $10,000 of valuation is exempt to
provide relief for small projects.
Following completion of the project (and up to three years thereafter), there is an opportunity for
both the contractor and the town to assure the correct amount of tax is paid based on actual
costs of the project by requesting an audit of the project. To date, the town has not performed
any audits, nor has any contractor requested one.
II. Analysis
The construction use tax was implemented just after the town’s major redevelopment projects
were underway and just before the national recession began to impact Vail. With the improving
economy, construction activity is picking up once again and some larger projects are on the
horizon. While it is important to have a good process in place for all projects, the amount at
stake is clearly higher with the pick-up in activity and with larger projects.
Recent valuations provided by builders have shown significant variation in cost per square foot
of similar type projects, bringing into question the accuracy of the construction use tax collected.
Some contractors have expressed a concern that they have paid more tax than their
competitors on similar projects. To be fair to all – the town and the taxpayers – it is important to
have a good process in place to assure accuracy of the tax paid.
Building permit fees are also based on valuation and, although this process does not address
building permits per se, if more accurate valuations are established at the time a permit is
issued, permit fees will also be more accurate.
To address the current situation, staff has considered auditing projects completed within the
past three years as provided in the construction use tax ordinance. This approach is not
recommended at this time. Staff believes there has been a lack of clarity within the community
regarding the construction use tax ordinance and conducting audits on completed projects may
12/17/2013
Town of Vail Page 2
place an undue hardship on our contractors. For example, contractors may not have kept as
good records as are necessary to verify actual materials costs. Also, construction use tax is
generally part of the cost of the project which is passed on to the owner. If an additional amount
due is identified through audit after the project is complete, it is likely too late to recoup the cost
from the owner.
III. Proposed Process
As an alternative, the town staff is working with an outside consultant, RRG, to facilitate a new
process going forward to assure more accurate collection of the construction use tax. The
building and construction community has been invited to attend the regularly scheduled
“Breakfast with the Building Official” meeting on December 20th at 7:00 am to learn more about
the new process.
RRG is a private firm that specializes in assisting local governments with the facilitation of
programs that encourage regulatory compliance. RRG has successfully implemented similar
construction use programs for other municipalities and the town has worked with RRG in the
past on sales tax issues.
RRG’s process begins with education, i.e., explaining what the town’s requirements are per the
town code; what records the contractor should be keeping to determine a correct cost of
building and construction materials used in his project; and what process the town and RRG
would use to assure accurate payment of the tax based upon actual materials cost. These
topics will be covered at the “Breakfast with the Building Inspector” meeting.
Then, going forward, RRG would routinely provide an information packet to contractors as they
obtain a building permit which may subsequently be subject to reconciliation of the amount of
tax paid to the amount actually due. The objectives of this step are to help the contractor
understand how the construction use tax applies to him; identify documents the contractor will
need to retain for the reconciliation; and provide RRG contact information for contractor
questions.
RRG would review building permit information monthly and make recommendations to the
Finance Director and staff regarding which method of reconciliation should be applied to each
project upon its completion. The three methods used in this process are as follows:
• self-reconciliation - the contractor reviews his own records to determine accuracy
• independent reconciliation - the contractor submits limited records to RRG for review
• full audit - RRG performs a more rigorous examination of the contractor’s books and
records
The objective of each of these methods is to assure tax payments are fair and accurate for both
the town and the contractor.
Once a project has received a final inspection or a certificate of occupancy, RRG would again
contact the contractor to begin the reconciliation process. The result of the reconciliation could
be an amount due to the town or an amount due back to the contractor. Again, the objective is
to provide an accurate materials cost and therefore a fair and accurate construction use tax.
Staff recommends this proactive approach in working with our contractors to provide a process
that benefits everyone. We will return to Council with an update on January 7, 2014, following
the “Breakfast with the Building Official” meeting.
12/17/2013
VAIL RECREATION
DIST RIC T
700 S. Frontage Rood East
Vail, Colorado 81657
9 7 0 .479.2279
f 970.4 7 9.2197
www.vailrec.com
VAil GOLF CLUB
1778 Vail Volley Drive
479.2260
f 479.2355
GOlf MAINTENANCE
1278 Vail Volley Drive
479.2262
1479.3451
PARK MAINTENANCE
700 S. Frontage Rood East
479.2457
f479.2197
VAil TENNIS CENTER
700 S. Frontage Rood East
479.2294
f 479.2197
JOHN A. D OBSON ARENA
321 lionshead Circle
479.2271
1479.2267
VAil YOUTH SERVICES
395 E. lionshead Circle
479.2292
1479.2835
VAil N ATURE CENTER
841 Vail Volley Drive
479.2291
1479.3459
VAil GYMNASnCS
545 N . Frontage Rood West
479.2287
1479.2286
A DULT & YOU TH SPORTS
700 S. Frontage Rood Ea st
479.2280
1479 .228 1
Or visit us on the web at:
www.vailrec.com
MEMO
Date: December 11, 2013
To: Stan Zemler, Town Manager -Town of Vail
From: Michael Ortiz, Executive Director -Vail Recreation District
Subject: Vail Recreation District contracting program management and
services of the Vail Nature Center with Walking Mountain
Science Center
The Vail Recreation District Board of Directors at their November 14, 2013
meeting directed VRD staff to seek a contractual agreement with Walking
Mountain Science Center for providing leadership, program management and
services for the summer of 2014 at the Vail Nature Center. This contracting of
services does not in any way amend or replace the District's Master Facilities
Lease with the Town of Vail.
Walking Mountains Science Center (formerly Gore Range Natural Science
School) has worked in partnership with the Vail Nature Center since 2003. In the
past decade WMSC staff members have provided the majority of the public
programs at the VNC, contributed to the educational components of VRD's
Camp EcoFun, and interacted with visitors while staffing the VNC. During this
time, WMSC has worked hard to establish itself as a prominent science and
education resource within the Vail Valley community . The WMSC Community
Programs Department educates over 32,000 people annually between the
Nature Discovery Center, a partnership with Vail Resorts and the US Forest
Service, the VNC, a long standing partnership with Vail Recreation District, and
their own WMSC campus.
With a reinvigorated partnership with the Vail Recreation District, WMSC will
use their programmatic expertise to enhance the offerings at the VNC. By
taking on the leadership and operations of the VNC , WMSC can offer visitors
and residents of Vail a renewed educational experience . The VNC, combined
with the Nature Discovery Center, and the WMSC campus, could provide visitors
with a complete nature learning opportunity with an array of education
programs specific to each location. Whether through program development or
marketing, WMSC will be able to help increase the prominence of the VNC and
establish a signature partnership with the Vail Recreation District and Town of
Vail.
12/17/2013
WMSC's vision for improvements that be made in and around VNC includes:
.. Highlighting the human, or cultural history area, as it relates to ecology of the Nature
Center property to create an educational message and thematic story that is truly unique to the
region.
.. Telling stories highlighting existing
tepee, and the itself which can
more closely
the early western explorers who made contributions to our modern knowledge, there
are many stories to tell.
.. Modernizing content of the interpretive displays inside the VNC. While doing so, it would be
important to preserve the historical feel that is intrinsic within the VNC building.
Current programs are well attended. WMSC would work to further the quality of the
experience for in these ny,,,., ..,,,rn Our vision for program and expansion
includes:
.. Expand the program topics that are to emphasize history and
storytelling, programs that focus on the health of Gore Creek and sport of fly fishing,
adult-specific educational programs, and programs for preschool groups are all potential new
program options.
.. Merge and VNC's Summer Hiking Club with WMSC's Groups Excursions and Saturday
Hiking to create a model that is athletic, fun and locals
alike.
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Appointment of CSE and VLMDAC members
PRESENTER(S): Pam Brandmeyer
ACTION REQUESTED OF COUNCIL: Council interviewed all interested applicants at the
work session earlier in the day. Staff requests that the Council vote and appoint five members
to the CSE and four members to the VLMDAC.
BACKGROUND: See information from work session of December 3, 2013.
STAFF RECOMMENDATION: Staff requests Council appoint five members to the CSE
and four members to the VLMDAC for two year terms each, from January 1, 2014 to
December 31, 2015.
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Retail Marijuana Policy Discussion
PRESENTER(S): George Ruther and Matt Mire
ACTION REQUESTED OF COUNCIL: Provide staff with direction.
BACKGROUND: As you are aware, the Town adopted a temporary ban on retail marijuana
establishments, which expires on January 21, 2014. For your convenience, attached is our
June 12, 2013 memorandum, discussing in detail the retail marijuana legislation adopted
earlier this year.
ATTACHMENTS:
Retail Marijuana Policy Options Memorandum
061813 Marijuana Memorandum
12/17/2013
1
To; Vail Town Council
From: Matt Mire, Town Attorney
George Ruther, Director, Community Development
Date: December 17, 2013
Subject: Policy Issues Relating to the Regulation of Retail Marijuana
Purpose
This memorandum outlines the policy issues relating to the regulation of
retail marijuana. As you are aware, the Town adopted a temporary ban on retail
marijuana establishments, which expires on January 21, 2014. At that time, the
Town must 1) prohibit retail marijuana sales within the Town; 2) regulate such
businesses: or extend the temporary ban to allow the Town to further study its
options. For your convenience, attached is our June 12, 2013 memorandum,
discussing in detail the retail marijuana legislation adopted earlier this year.
If the Town desires to regulate retail marijuana, the Council should
consider the following questions:
1. What time, place, manner and number of business
regulations would the Town like to adopt?
2. Does the Town wish to allow all types of retail marijuana
establishments (i.e., retail marijuana stores, retail marijuana cultivation
facilities, retail marijuana product manufacturing facilities and retail
marijuana testing facilities)?
3. Would the Town like to create a local licensing structure
separate from the state licensing structure?
4. If the Town adopts local licensing structure, would the
Town like to charge an operations fee and in what amount?
5. Does the Town desire to reconsider its policy on medical
marijuana centers?
6. If so, would the Town like to allow dual operations (co-
location of medical and retail marijuana businesses)?
12/17/2013
Town of Vail Page 2
Regulations
Local governments may regulate the "time, place, manner and number of
marijuana establishment operations." Colo. Const. art. XVIII §16(5)(f); C.R.S. §
12-4.3-104(3). Local retail marijuana regulations must be at least as restrictive
as state law. C.R.S. § 12-43.3-309(1). Some examples of time place, and
number of business regulations are:
1. Location criteria, such as distance limitations from schools,
parks, other medical and retail marijuana facilities, and residences;
2. Zoning restrictions, including conditional zoning;
3. Business operating requirements such as limited hours of
operation and security requirements;
4. Background check requirements; and
5. Signage restrictions1.
In addition, Amendment 64 expressly authorizes the Town to prohibit
certain retail marijuana uses while allowing others. Colo. Const. art. XVIII
§16(5)(f). Additionally, the Town may limit the number of certain types of retail
marijuana facilities. The different types of retail marijuana establishments are
discussed below:
Retail Marijuana Store
A retail marijuana store sells retail marijuana or retail marijuana products.2
C.R.S. § 12-43.3-402(1)(a). On or before September 30, 2014, retail marijuana
stores may only sell retail marijuana grown in their own licensed cultivation
facilities. C.R.S. § 12-43.3-402(1)(c). After September 30, 2014, a retail
marijuana store may purchase retail marijuana inventory from a separate
licensed retail marijuana cultivation facility. C.R.S. § 12-43.3-402(1)(b).
Retail marijuana stores may only sell retail marijuana, retail marijuana
products, marijuana accessories, non-consumable products such as apparel, and
marijuana related products such as childproof packaging containers. C.R.S. §
12-43.3-402(7)(a). Stores may not sell or give away any consumable product,
including cigarettes or alcohol, or edible products that do not contain marijuana,
such as sodas, candies or baked goods. Id. Stores may not sell any retail
1 The state Department of Revenue (the "DOR") has adopted extensive regulations
concerning background checks and signage, but the Town could adopt additional regulations if
they are more restrictive than the state's.
2 Retail marijuana products are defined as "concentrated marijuana products and marijuana
products that are comprised of marijuana and other ingredients and are intended for use or
consumption such as, but not limited to, edible products, ointments, and tinctures." See C.R.S. §
12-43.4-1.3(18); Colo. Const. art. XVIII § 16(2)(k).
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Town of Vail Page 3
marijuana or retail marijuana products that contain nicotine or alcohol if the sale
of the alcohol would require liquor licensure pursuant to Colorado law. C.R.S. §
12-43.3-402(7)(b).
Retail marijuana stores may not sell retail marijuana or products over the
internet or deliver such products to a person not physically present. C.R.S. § 12-
43.3-402(7)(c). Stores may use automatic dispensing machines. C.R.S. § 12-
43.3-402(8). No marijuana may be consumed on the premises. C.R.S. § 12-
43.3-402(9).
Cultivation Facilities
Retail marijuana cultivation facilities cultivate retail marijuana for sale and
distribution to retail marijuana stores, retail marijuana products manufacturers or
other retail marijuana cultivation facilities. C.R.S. § 12-43.3-403(1). Until
October 1, 2014, a cultivation license may be issued only to persons who hold
retail marijuana store licenses or retail marijuana products manufacturing
licenses. C.R.S. § 12-43.3-403(2)(a). Similarly, prior to October 1, 2014, a
cultivation facility may only transfer retail marijuana to its affiliated retail
marijuana store or retail marijuana products manufacturer, or another affiliated
cultivation facility. C.R.S. § 12-43.3-403(2)(b). A cultivation facility may not sell
more than 30% of the retail marijuana it cultivates to another cultivation facility or
to a retail marijuana store or products manufacturer not owned by the owner of
the cultivation facility. C.R.S. § 12-43.3-403(2)(c).3
Products Manufacturing License
A retail marijuana products manufacturing license allows the manufacture
of concentrated marijuana products and marijuana products intended for
consumption. C.R.S. § 12-43.4-404(1)(a). A products manufacturer may
cultivate its own retail marijuana if it obtains a cultivation license, or it may
purchase retail marijuana from a cultivation facility. C.R.S. § 12-43.4-404(1)(b).
However, before October 1, 2014, a products manufacturer that also has a
cultivation license may not sell any of the retail marijuana that it cultivates except
for the marijuana that is contained in its retail marijuana products. C.R.S. § 12-
43.4-404(1)(c)(I).
Retail marijuana products must be prepared at a licensed premises that is
used exclusively for the manufacture and preparation of retail marijuana or retail
marijuana products and using equipment that is used exclusively for the
manufacture and preparation of retail marijuana products. C.R.S. § 12-43.4-
404(2). An exception to this rule exists if the local jurisdiction allows retail
marijuana products manufacturing licensees to share the same premises as a
medical marijuana-infused products manufacturing licensee, so long as a virtual
or physical separation of inventory is maintained. Id. No marijuana may be
consumed on the premises of a retail marijuana products manufacturing facility.
C.R.S. § 12-43.4-404(5).
3 The requirements of C.R.S. § 12-24.4-403(2) are repealed effective January 1, 2015. It
appears that the General Assembly has attempted to limit retail marijuana cultivation facility sales
during the initial startup period to ensure that the supply of retail marijuana does not exceed the
demand required by retail marijuana stores.
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Town of Vail Page 4
Testing Facilities
Retail marijuana testing facilities perform testing and research on retail
marijuana. C.R.S. § 12-43.3-405(1). Generally, a person who has an interest in
a testing facility may not have an interest in other marijuana businesses. C.R.S.
§ 12-43.4-405(3).
Local Licensing Structure
The Town may adopt its own separate licensing structure. Colo. Const.
art. XVIII §16(5)(f); C.R.S. § 12-43.3-301. If the Town requires a separate
license, it must decide what approval criteria to impose. The Colorado Marijuana
Code provides a good basis for criteria, such as licensee qualifications,
management disclosure requirements and right-to-inspection requirements. The
Town could also impose conditions on licenses necessary to protect the health,
safety and welfare of the Town. Most importantly, by adopting a local licensing
structure, the Town is provided an additional enforcement mechanism that does
not involve the state Marijuana Enforcement Division. If the Town requires a
local license, the Town may schedule a public hearing on the application after
public notice not less than 10 days prior to the hearing. C.R.S. § 12-43.4-302(1).
Operating Fee
The Town may impose operating fees on retail marijuana establishments.
C.R.S. § 12-43.4-501(3). An "operating fee" is defined as a fee "that may be
charged by a local jurisdiction for costs, including but not limited to inspection,
administration, and enforcement of retail marijuana establishments." C.R.S. §
12-43.3-103(11).
Dual Operations
If the Town reconsiders its position on medical marijuana facilities, it
would also need to consider whether it desires to allow dual operations. Where
locally authorized, medical marijuana businesses may share existing licensed
premises with retail marijuana businesses, and medical marijuana products
manufacturers may share premises with retail marijuana product manufacturers.
C.R.S. § 12-43.4-401(2)(a); DOR Permanent Rules Related to the Colorado
Retail Marijuana Code, Rule 304(A).
A person who operates both a medical marijuana business and a retail
marijuana establishment must maintain separate and distinct inventory tracking
processes for medical and retail marijuana inventories. Rule 304(B)(5). The
inventories must be clearly tagged or labeled so that the products can be
reconciled. Id.
In cases where a medical marijuana business and a retail marijuana
establishment share the same licensed premises and the medical marijuana
center only sells to patients 21 years of age and older, the retail store and
medical marijuana center may share entrances and exits and their products may
be displayed, albeit separately, on the same floor. Rule 304(B)(3). Record
keeping for the business operations of both must allow the State and Local
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Town of Vail Page 5
Licensing Authorities to clearly distinguish the inventories and business
transactions of medical versus retail sales. Id. If, however, the medical marijuana
business sells to patients under the age of 21, the medical marijuana business
must maintain separate licensed premises from the retail marijuana
establishment, including separate entrances and exits, inventory, point of sale
operations and record keeping. Rule 304(B)(4).
Conclusion
In sum, if the Town desires to regulate retail marijuana the Town Council
must decide how it would like to proceed with regard to the above policy matters.
If the Town Council provides direction with regard to these questions, staff will
prepare a draft regulatory ordinance from which the Council may work.
12/17/2013
TOWN OF VAIL •
Memorandum
To: Town Council
From: Matt Mire
Date: June 18, 2013
Subject: Retail Sale of Recreational Marijuana Legislation Update
This memorandum serves as an update regarding recent legislation concerning
the regulation of the retail sale of recreational marijuana, which is now referred to as
"adult use marijuana." House Bill 13-1317 ("HB 1317") sets forth the licensing structure,
House Bill 13-1318 ("HB 1318") addresses taxation and Senate Bill 13-283 ("SB 283")
addresses miscellaneous provisions in the Colorado Revised Statutes concerning
marijuana use.
By October 1, 2013, all local jurisdictions are required to either prohibit retail
marijuana sales or adopt an ordinance identifying the entity within the Town that will be
responsible for processing applications. If the DOR fails to adopt regulations by July 1,
2013 or fails to process and issue licenses as dictated in HB 1317, applicants are
entitled to apply directly to the Town for licensure unless the Town has adopted an
ordinance prohibiting the retail sale of marijuana.
I. House Bill 1317
A. Applications for Retail Marijuana Establishments
HB 1317 sets forth a staggered application timeline for Retail Marijuana
Establishments ("RMEs"). Beginning October 1, 2013, any person who is operating or
holds, in good standing, a licensed medical marijuana center, optional premises
cultivation license or a licensed marijuana-infused products business, has a pending
application for one of these licenses, may apply for an RME license. C.R.S. § 12-43.3
104(1)(a)(I). Applications for RMEs can either replace the applicant's current medical
marijuana license or be in addition to the medical marijuana license. C.R.S. § 12-43.3
104(1)(a)(II). Importantly, under no circumstances will any RME license be issued or
effective until January 1, 2014. C.R.S. § 12-43.3-104(1)(a)(VI).
An applicant that currently holds a medical marijuana license must indicate
whether it will surrender the current medical marijuana license or retain the license in
addition to the RME license. C.R.S. § 12-43.3-104(1)(a)(II). If the applicant intends to
surrender the medical marijuana license, the applicant may continue to operate under
the medical marijuana license for the duration of the license's effectiveness or until the
12/17/2013
RME license is granted, in which case the applicant has 14 days to surrender the
medical marijuana license. C.RS. § 12-43.3-104(1)(a)(III). If the RME license is
granted and the applicant is surrenders a medical marijuana license, all medical
marijuana plants and inventory shall become adult-use marijuana plants and inventory
on the date that the RME license is approved. Id.
If the applicant intends to maintain both the medical marijuana and RME
licenses, the applicant may seek to have both establishments at the same location if the
local jurisdiction so allows. C.RS. § 12-43.3-104(1)(a)(IV). Notwithstanding the
foregoing, an applicant that intends to maintain both licenses must maintain physical
separation between the two businesses or only sell medical marijuana to persons 21
years of age or older. C.RS. § 12-43.3-104(1)(a)M.
After January 1, 2014, persons who did not previously have a medical marijuana
license may submit their notice of intent to apply for a RME license pursuant to Article
43.3 of Title 12 of the Colorado Revised Statutes. C.RS. § 12-43.3-104(1)(b)(I)(A). The
State Licensing Authority, which is designated by HB 1317 as the Colorado Department
of Revenue ("DaR"), must establish a form for the notice and establish an application
fee. Id.
Effective July 1, 2014, applications for RME licensure open to all. C.RS. § 12
43.3-104(1)(b)(II). A license issued pursuant to an application received after July 1,
2014 will not be effective until after October 1, 2014. Applicants who file a notice of
intent to apply for RME licensure after January 1, 2014 but before July 1, 2014, are
given priority over those applicants that file after July 1, 2014. C. RS. § 12-43.3
104(2)(b)(II)(a). Upon receipt of an RME application, the DaR must act upon the
application no sooner than 45 days and no later than 90 days after the date of the
application. C.RS. § 12-43.3-104(2)(b)(I).
Applications for RME licenses shall be $500 if the applicant currently holds a
medical marijuana business license or $5,000 for applicants that do not currently hold
medical marijuana business licenses. C.RS. § 12-43.4-501. In either case, one half of
the application fee is transferred to the local jurisdiction where the retail operation is
proposed, provided the local jurisdiction has not prohibited the retail sale of marijuana.
Id. The other half of the application fee must be transferred to the marijuana cash fund.
Id. Local governments may adopt and impose operating fees in an amount determined
by their governing bodies for RMEs located within their jurisdictions. C.RS. § 12-43.4
501(3).
B. Types of Licenses
House Bill 1317 creates the following classes of RME licenses: retail marijuana
store licenses; retail marijuana cultivation facility licenses; retail marijuana products
manufacturing licenses; and retail marijuana testing facility licenses. Each class of
license is discussed below.
Retail Marijuana Store License
Town of Vail Page 2
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A retail marijuana store license is issued to persons selling marijuana or
marijuana products at retail. 1 C.RS. § 12-43.3-402(1 )(a). On or before September 30,
2014, retail marijuana stores may only sell marijuana grown in their own licensed
cultivation facilities. C.RS. § 12-43.3-402(1 )(c). After September 30, 2014, a store
may purchase inventory from a separate licensed retail marijuana cultivation facility.
C.RS. § 12-43.3-402(1)(b).
After September 30, 2014, a retail marijuana store may purchase not more than
30% of its on-hand inventory of marijuana 'from another licensed RME (such as another
retail marijuana store) that is not owned by the retail marijuana store. C.RS. § 12-43.3
402(1)(c)(II). Similarly, no retail marijuana store or other cultivation facility may sell
more than 30% of its total on-hand inventory to another Colorado licensed RME. Id.
However, the DOR may grant a temporary waiver if the applicant suffers a catastrophic
event for a period not to exceed 90 days. Id.
A retail marijuana store cannot accept any marijuana from a retail marijuana
cultivation facility unless provided with evidence that all applicable excise taxes have
been paid. C.RS. § 12-43.3-402(1 )(d). Further, stores are responsible for tracking all
marijuana and products from the point of transfer to the store to the point of sale.
C.RS. § 12-43.3-402(1)(e).
Prior to initiating a sale, an employee must verify that the purchaser has valid
identification showing that he or she is 21 years of age or older. C.RS. § 12-43.3
402(3)(b). A store may not sell more than a % ounce of marijuana and no more than %
ounce equivalent of marijuana products during a single transaction to a person who
does not have a valid identification showing that the person is a Colorado resident.
C.R.S. § 12-43.3-402(3)(a).
Retail marijuana stores may only sell marijuana, marijuana products, marijuana
accessories, non-consumable products such as apparel, and marijuana related
products such as childproof packaging containers. C.RS. § 12-43.3-402(7)(a). Stores
may not sell or give away any consumable product, including cigarettes or alcohol, or
edible products that do not contain marijuana, such as sodas, candies or baked goods.
Id. Stores may not sell any marijuana or marijuana products that contain nicotine or
alcohol if the sale of the alcohol would require liquor licensure pursuant to Colorado law.
C.RS. § 12-43.3-402(7)(b).
Retail marijuana stores may not sell retail marijuana or products over the internet
or deliver such products to a person not physically present. C.RS. § 12-43.3-402(7)(c).
Stores may use automatic dispensing machines. C.R.S. § 12-43.3-402(8). No
marijuana may be consumed on the premises. C.RS. § 12-43.3-402(9).
Retail Marijuana Cultivation Facility License
Retail marijuana products are defined as "concentrated marijuana products and marijuana products
that are comprised of marijuana and other ingredients and are intended for use or consumption such as, but
not limited to, edible products, ointments, and tinctures." See C.R.S. § 12-43.4-1.3(18); Colo. Const. art.
XVIII § 16(2)(k).
Town of Vail Page 3
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Retail marijuana cultivation facility licenses may be issued to persons who
cultivate marijuana for sale and distribution to licensed retail marijuana stores, retail
marijuana products manufacturing licensees or other retail marijuana cultivation
facilities. C.RS. § 12-43.3-403(1). On or before September 30, 2014, a cultivation
license may be issued only to persons who hold retail marijuana store licenses or retail
marijuana products manufacturing licenses. C.RS. § 12-43.3-403(2)(a). Similarly, prior
to September 3D, 2014, a cultivation licensee may only transfer marijuana to its
affiliated retail marijuana store or retail marijuana products manufacturer, or another
affiliated cultivation facility. C.R.S. § 12-43.3-403(2)(b). Under no circumstances maya
cultivation facility sell more than 30% of the marijuana it cultivates to another cultivation
facility or to a retail marijuana store or products manufacturer not owned by the owner
of the cultivation facility. C.RS. § 12-43.3-403(2)(c).2
Cultivation licenses may be combined in a common area to grow and cultivate
marijuana to provide marijuana to more than one licensed retail marijuana store or
products manufacturer, if the holder of the cultivation license is also a common owner of
each licensed retail marijuana store or licensed retail marijuana products manufacturer
to which the marijuana is provided. C.RS. § 12-43.3-403(2)(d).
Cultivation facilities must remit excise tax under C.RS. § 39-28-101, et seq.
C.RS. § 12-43.3-403(3). Prior to the delivery of any sold marijuana, the cultivation
facility must provide evidence that it paid the applicable excise tax. C.RS. § 12-43.3
403(4). A cultivation facility must track the marijuana it cultivates from seed or
immature plant to wholesale purchase. Id. No marijuana may be consumed on the
premises. C.RS. § 12-43.3-403(6).
Retail Marijuana Products Manufacturing License
A retail marijuana products manufacturing license may be issued to persons who
manufacture concentrated marijuana products and marijuana products that are
comprised of marijuana and other ingredients and are intended for consumption.
C.RS. § 12-43.4-404(1)(a). A products manufacturing licensee may cultivate its own
marijuana if it obtains a cultivation license, or it may purchase marijuana from a
cultivation facility. C.RS. § 12-43.4-404(1)(b). However, before October 1, 2014, a
products manufacturer that also has a cultivation license may not sell any of the
marijuana that it cultivates except for the marijuana that is contained in its marijuana
products. C.RS. § 12-43.4-404(1 )(c)(I).
Retail marijuana products manufacturing licensees must track all marijuana from
the point it is transferred or delivered from a cultivation facility to the point of transfer to
a retail marijuana store. C.RS. § 12-43.4-404(1)(b). Further, the products
manufacturer may not accept any marijuana from any cultivation facility until evidence
that any applicable excise tax has been paid by the cultivation facility. C.RS. § 12
43.4-404(1 )(d).
The requirements of C.R.S. § 12-24.4-403(2) are repealed effective January 1, 2015. It
appears that the General Assembly has attempted to limit cultivation facility sales during the
initial startup of RMEs to ensure that the supply of marijuana does not exceed the demand
required by retail marijuana stores.
Town of Vail Page 4
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Marijuana products must be prepared at a licensed premises that is used
exclusively for the manufacture and preparation of marijuana or marijuana products and
using equipment that is used exclusively for the manufacture and preparation of
marijuana products. C.RS. § 12-43.4-404(2). An exception to this rule exists if the
local jurisdiction allows retail marijuana products manufacturing licensees to share the
same premises as a medical marijuana-infused products manufacturing licensee, so
long as a virtual or physical separation of inventory is maintained. Id.
Products manufacturing licensees may not add marijuana to any food products
that hold trademarks, unless the products manufacturer does not state or advertise to
the consumer that the final marijuana product contains the trademarked food product.
C.RS. § 12-43.4-404(1)(e)(I). Products manufacturing licensees may not intentionally
or knowingly label or package marijuana products in a manner that would cause a
reasonable consumer confusion as to whether the product was a trademarked food
product or in a manner that violates any federal trademark law. C.RS. § 12-43.4
404(1)(e)(II)-(III). An edible marijuana product may, but is not required to, list
ingredients and compatibility with dietary practices. C.RS. § 12-43.4-404(7). Finally,
marijuana may not be consumed on the premises. C.RS. § 12-43.4-404(5).
Retail Marijuana Testing Facilitv License
Retail marijuana testing facility licenses may be issued to a person who performs
testing and research on marijuana. C.RS. § 12-43.3-405(1). The scope of this license
will be largely determined when the DOR issues regulations concerning the testing of
marijuana.
Dual Operations
A person may operate a licensed medical marijuana center, an optional
cultivation facility, a medical marijuana-infused products manufacturing facility and any
RME at the same location if the local jurisdiction permits a dual operation. C.RS. § 12
43.4-401 (2)(a). If permitted by the local jurisdiction, dual medical marijuana and retail
marijuana stores must maintain separate licensed premises, including entrances and
exits, inventory, point of sale operations and record keeping.3 C.RS. § 12-43.4
401 (2)(b )(1).
C. State and Local Licensing Procedures
HB 1317 reiterates that any local jurisdiction may regulate the time, place,
manner and number of RMEs, and may require a local license. C.RS. § 12-43.4
104(3). The local regulations must be at least as restrictive as HB 1317 and associated
DOR regulations. C.RS. § 12-43.4-309(1). Further, local jurisdictions may prohibit the
operation of RMEs. Id.; C.RS. § 12-43.4-104(3).
The DOR has been directed to promulgate regulations to address the situation where a dual
medical and retail storefront sells only to persons 21 years of age or older. C.R.S. § 12-43.3
401 (2)(b)(II). Specifically, the DOR is to determine whether to allow single entrances and exits and virtual
separation of the two facilities. Id.
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3
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The DOR has seven days after receipt of an RME application to provide a copy
of the application to the local jurisdiction, unless the local jurisdiction has prohibited the
operation of RMEs. C.RS. § 12-43.4-301(1). The local government must then notify
the state whether the application complies with the jurisdiction's time, place, manner
and number of marijuana businesses regulations. Id.
A local government may also impose a separate licensing requirement. Id. If the
Town has a separate licensing requirement, the Town may schedule a public hearing
on the application. C.RS. § 12-43.4-302(1). Public notice of the hearing must be
posted in a conspicuous place on the property and published in a newspaper of general
circulation in the county where the premises are located not less than 10 days prior to
the hearing. Id. Importantly, even if a local jurisdiction opts not to impose a separate
licensing structure, the local jurisdiction may require public notice of the state
application to be posted and published. C.RS. § 12-43.4-301 (2).
Before the DOR issues a state license, the applicant must file with the DOR
evidence of a corporate surety bond in the amount of $5,000. C.RS. § 12-43.4-303(1).
The bond must be conditioned on the applicant timely paying all sales and use taxes
due to the state. Id. This bond must be renewed each time the applicant's license is
renewed. C.RS. § 12-43.4-301 (3).
A license applicant is prohibited from operating a RME without state and local
approval, assuming the local government has opted to regulate. C.RS. § 12-43.4
304(1). If the applicant does not receive local jurisdiction approval within one (1) year
from the date of the DOR's approval. the state license shall expire and may not be
renewed. Id.
The DOR may refuse or deny a license application, reinstatement or renewal for
"good cause." C.RS. § 12-43.4-305(1). "Good cause" means the licensee or applicant
has violated, does not meet, or has failed to comply with any of the requirements of HB
1317; any special terms or conditions that were placed on a license pursuant to an
order of the DOR or local licensing authority; or the licensed premises have been
operated in a manner that adversely affects the public health or safety of the immediate
neighborhood in which the establishment is located. Id. If the DOR denies a license,
the applicant is entitled to a hearing on such denial pursuant to C.RS. § 24-4-106.
C.RS. § 12-43.4-305(2). The denial must be in writing and provide notice of the
grounds for the denial at least 15 days prior to the applicant's hearing date.
D. General Licensing Requirements
An applicant must notify the state licensing authority in writing of the name,
address and date of birth of the owner, officer or manager before the new owner, officer
or manager begins associating with the RME. C.RS. § 12-43.4-309(3), Each owner,
officer, manager or employee of an RME must pass a fingerprint-based criminal history
record check and obtain a identification card before being associated with the RME
operation. Id.
The following persons are prohibited from being licensees:
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1. Anyone not of good moral character (considering the factors in
C.RS. § 24-5-101);
2. Anyone with a history of its officers, directors, stockholders or
owners who are not of good moral character;
3. Anyone financed in whole or in part by any other person whose
criminal history reflects that he or she is not of good moral character and
reputation satisfactory to the licensing authority;
4. Anyone under 21 years of age;
5. Anyone who fails to comply with any of the bonding or fee
requirements of HB 1317;
6. Anyone who has discharged a sentence for conviction of a felony in
the 5 years immediately preceding the application;
7. Anyone who has discharged a sentence for a conviction of a felony
pursuant to any state or federal law regarding the possession, distribution.
manufacturing. cultivation. or use of a controlled substance in the 10 years
immediately preceding the application or five years from the effective date of HB
1317, whichever is longer, unless the felony conviction is based on a charge of
possession or use of marijuana or marijuana concentrate that would not be a
felony if the person were convicted of the offense on the date of the application;
8. Anyone who employs another person at a retail marijuana
establishment who has not submitted fingerprints for a criminal history record
check or whose criminal record history check reveals that the person is ineligible;
9. A sheriff. deputy sheriff, police officer, prosecuting attorney. or an
officer or employee of the state licensing authority or a local licensing authority;
10. Anyone who seeks a license for a location that is currently licensed
as a retail food establishment or wholesale food registrant; or
11. An owner who has not been a resident of Colorado for at least two
years from the date of the application.
C.R.S. § 12-43.3-306. When investigating and considering an applicant's criminal
history, the state and/or local licensing authority must also consider information
provided by the applicant such as evidence of rehabilitation, character references and
educational achievements; particularly those items pertaining to the time between the
applicant's last criminal conviction and the consideration of the application. C.RS. §
12-43.3-306(2)(a).
An application for a state RME license may not be approved if the application
concerns a location that is the same or within 1,000 feet of a location for which, within
the two years immediately preceding the date of the application, the DOR denied an
application for the same class of license due to the nature of the use or other concern
related to location. C.RS. § 12-43.3-307(1)(a). Similarly, an applicant must establish
that it has or will have possession of the premises by ownership or under a lease or
other arrangement. C.RS. § 12-43.3-307(1)(b).
Town of Vail Page 7
12/17/2013
A licensee must personally manage the premises or employ a manager, and the
licensee must report the name of the manager to the state and local authorities. A
licensee must report any change in manager to the state and local licensing authorities
within seven days. C.R.S. § 12-43.4-309(11). All officers, managers and employees of
an RME must be residents of Colorado upon the date of their license application.
C.RS. § 12-43.4-309(5). An RME owner must have been a resident of Colorado for at
least two years prior to the date of the application. Id. RME licenses may be
transferred only upon approval of the OOR and local licensing authority. C.RS. § 12
43.4-308(2). The local licensing authority may hold a new public hearing and the
guidelines for initial licensure are applicable to the proposed transferee. Id.
A licensee must possess and maintain possession of the premises for which the
license is issued by ownership, lease, rental or other arrangement for possession at all
times during the term of a license. C.RS. § 12-43.4-309(7). A licensee may move a
RME's permanent location to another place in Colorado if the state and local licensing
authorities authorize the move. C.RS. § 12-43.4-309(12). The license must be
conspicuously placed in the licensed premises at all times. C.RS. § 12-43.4-309(8). It
is unlawful for any person to distribute marijuana or marijuana products using a mobile
distribution center. C.RS. § 12-43.4-901 (4)(h).
The OOR requires a complete disclosure of all persons having a direct or indirect
financial interest in each RME license. C.RS. § 12-43.4-312(1). A licensee must report
all transfers or changes of financial interest to the state and local licensing authorities
and receive prior approval. C.RS. § 12-43.4-309(10). Reports must be filed with the
licensing authorities prior to any transfers of capital stock of any corporation, regardless
of its size. Id.
E. License Renewals
At least 90 days prior to the expiration of an existing license, the OOR will notify
the licensee of the expiration by first class mail. C.RS. § 12-43.4-310(1}. The licensee
may apply for renewal at least 30 days prior to the expiration date. Id. Upon receipt of
a renewal application, the OOR must submit a copy of the application to the local
licensing authority to determine whether the application complies with all local licensing
requirements. Id.
Notwithstanding the foregoing, the OOR may extend the expiration date of a
license and accept a late application for renewal if the applicant has filed a timely
renewal application with the local licensing authority. Id. Further, either the OOR or the
local licensing authority may at their discretion, waive the 30-day renewal time
requirement if reasonable grounds are stated. Id.
A licensee whose license has been expired for not more than 90 days may file a
late renewal application upon the payment of a non-refundable late application fee of
$500 to the OOR C.RS. § 12-43.4-310(2). A late renewal applicant may continue to
operate the RM E until the OOR has taken final action to approve or deny the late
renewal application, unless the OOR summarily suspends the license. Id. Finally, the
OOR may, in its discretion revoke or elect not to renew a license if it determines that the
Town of Vail Page 8
12/17/2013
licensed premises have been inactive, without good cause, for at least one year.
C.RS. § 12-43.4-311.
F. Powers and Duties of the State Licensing Authority
The DOR has been granted a number of powers and duties under HB 1317. The
primary responsibility of the DOR is to grant or refuse state licenses for the cultivation,
manufacture, distribution, sale and testing of marijuana and marijuana products. C.RS.
§ 12-43.4-202(2)(a). The DOR is further authorized to suspend, fine, restrict or revoke
state licenses or issue fines for violations of the statute, after investigation and
opportunity for a public hearing. /d.: see generally C.RS. § 12-43.4-601(1).
The DOR must maintain a seed-to-sale tracking system that tracks marijuana
from either seed or immature plant stage until the marijuana or marijuana product is
sold to a customer at a retail marijuana store. C.RS. § 12-43.4-202(1}. HB 1317 does
not specify how the seed-to-sale tracking system should function. See C.RS. § 12
43.4-202(2)(b).
In addition to the seed-to-sale tracking system, the DOR is charged with
promulgating regulations on the following:
1. Procedures for the issuance, renewal, suspension and revocation
of licenses to operate RMEs;
2. A schedule of application, licensing and renewal fees;
3. Qualifications for licensure, including a fingerprint-based criminal
record check for all owners, officers, managers, contractors, employees and
other support staff;
4. Establishing a marijuana and marijuana products independent
testing and certification program to ensure, at a minimum, that products sold for
human consumption do not contain contaminants that are injurious to the health,
to ensure correct labeling and verify THC potency:
5. Security requirements including lighting, physical security, video
and alarm requirements;
6. Requirements to prevent the sale or diversion of marijuana and
products to persons under the age of 21;
7. Labeling requirements for marijuana and products;
8. Health and safety regulations and standards for the manufacture of
marijuana products and the cultivation of marijuana;
9. Limitations on the display of marijuana and marijuana products;
10. Regulation of the storage of, warehouses for, and transportation of
marijuana and products;
11. Sanitary requirements;
12. Recordkeeping requirements;
Town of Vail Page 9
12/17/2013
13. Reporting and transmittal requirements for monthly sales and
excise tax payments;
14. Enforcement and penalties for regulatory violations;
15. Rules on inspections, investigations, searches, seizures, and
forfeitures;
16. Development of identification cards for owners, officers, managers
contractors, employees and other support staff of licensed entities; and
17. Signage, marketing and advertising regulations;
C.RS. § 12-43.4-202(3).
The DaR must also create a statewide licensure class system for cultivation
facilities. The classifications are to be based upon square footage of the facility; lights,
lumens or wattage; lit canopy; the number of cultivating plants; and other reasonable
metrics. C.RS. § 12-43.4-202(4)(a). The DaR may establish limitations upon
marijuana production based on the class of cultivation facilities, the previous months'
sales, pending sales or other reasonable metrics. C.RS. § 12-43.4-202(4)(b). When
limiting marijuana production, the DaR must consider the total current and anticipated
demand for adult-use marijuana in Colorado and attempt to minimize the market for
unlawful marijuana. C.RS. § 12-43.4-202(4)(b)(II).
G. Disposition of Unauthorized Marijuana, Products and Related
Materials
A state or local agency is not required to cultivate or care for any retail marijuana
or retail marijuana product seized from a licensee. C.RS. § 12-43.4-602(3). In issuing
a final agency decision concerning a disciplinary action, the DaR may specify that
some or all of the licensee's marijuana or marijuana products are not "retail" product
and therefore an illegal controlled substance. C.RS. § 12-43.4-602(4). The order may
further specify that the licensee has lost any interest in the marijuana or marijuana
product. 'd. Finally, the DaR may order the destruction of any marijuana or marijuana
products, including any containers, equipment, supplies and other property incidental to
the illegal contraband. 'd. A licensee has 15 days from an order for destruction of
property to file a petition to stay the agency action. C.RS. § 12-43.4-602(5).
H. Inspection of Books and Records
Each RME licensee must keep a complete set of all records necessary to fully
show the business transactions of the licensee. C.R.S. § 12-43.4-701(1). These
records must be open at all times during business hours for inspection by the DaR 'd.
The licensed premises, including storage areas where marijuana or marijuana products
are stored, cultivated, sold, dispensed, or tested are also subject to inspection by the
state or local jurisdiction during all business hours and other times of apparent activity.
C.RS. § 12-43.4-701(2). Licensees must maintain records for the current tax year and
the 3 immediately preceding tax years. C.RS. § 12-43.4-701 (3).
Town of Vail Page 10
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I. Effectiveness and Sunset Review
H B 1317 is now effective, but sunsets on July 1, 2016. Prior to the repeal of the
measure, the Department of Regulatory Agencies is to conduct a sunset review to
evaluate the continued existence of the program and determine its effectiveness.
C.R.S. § 12-43.4-1001.
II. House Bill 13-1318
HB 1318 imposes a sales and excise tax on the sale of adult-use marijuana,
subject to statewide voter approval on November 5, 2013. C.R.S. § 39-28.8-401. HB
1318 also provides guidelines for the retention of books and records to document the
payment of these taxes. C.R.S. § 39-28.8-303. For example, retail marijuana stores
must keep business records showing that all marijuana is received from retail marijuana
cultivation facilities. C.R.S. § 39-28.8-303(4).
A. Special Sales Tax
Beginning January 1, 2014, the bill imposes a tax of 10% on the sale of
marijuana or marijuana products to a consumer by a retail marijuana store. C.R.S. §
39-28.8-202(1)(a). This 10% sales tax is in addition to the 2.9% state sales tax and any
applicable local government sales tax. While the General Assembly approved an initial
10% special sales tax in HB 1318, the November ballot approval would authorize up to
a 15% sales tax so that the special marijuana sales tax rate can be increased by the
legislature in the future without further ballot approval. See C.R.S. § 39-28.8-202(2)(b).
Each fiscal year, 15% of the gross marijuana sales tax revenues collected by the
DOR will be apportioned to local governments that have retail marijuana stores within
their jurisdictions. See C. R.S. § 39-28.8-203(1 )(a)(I). Therefore, a municipality will be
apportioned a percentage of the gross revenues on a pro rata basis. 'd. By way of
example, if the Town represented 10% of the total adult-use marijuana sales tax
revenue collected by the DOR, the Town would receive 10% of the 15% local
government portion of the gross sales tax revenue. Id. Notably, counties will receive
the "local" portion of sales tax revenue when retail marijuana stores are located in
unincorporated areas. Id. Distribution of the local government portion of the sales tax
will be paid monthly, no later than the 15th • C.R.S. § 39-28.8-203(1 )(a)(III). Importantly,
the special sales tax does not prevent local governments from imposing, levying and
collecting any other fee or tax upon the retail sale of marijuana or marijuana products or
upon the occupation or privilege of selling marijuana products. See C.R.S. § 39-28.8
203(1 )(a)(VI). However, any such additional local sales tax must be self-collected by
the local government. 'd.
B. Excise Tax
Beginning January 1. 2014, a 15% excise tax will be imposed on the first sale or
transfer of unprocessed marijuana by a cultivation facility. C. R.S. § 39-28.8-302(1 )(a).
The excise tax is in addition to the sales tax imposed by C.R.S. § 39-28.8-203. 'd. The
excise tax will be imposed when the cultivation facility first sells or transfers the
Town of Vail Page 11
12/17/2013
marijuana to a retail marijuana product manufacturing facility, a retail marijuana store or
another retail marijuana cultivation facility. Id. The excise tax is not imposed on the
sale or transfer of unprocessed marijuana by a cultivation facility to medical marijuana
centers. C.R.S. § 39-28.8-302(2).
III. Senate Bill 13-283
S8 283 addresses miscellaneous issues relating to marijuana sales and
cultivation. Most importantly, S8 283 prohibits a person from knowingly using or
consuming marijuana or possessing an open container while in the passenger area of a
motor vehicle that is on a public highway or right-of-way. C.R.S. § 42-4-1305.5(2)(a).
An "open marijuana container" is defined as a receptacle or marijuana accessory that
contains any amount of marijuana and that is: (1) open or has a broken seal; (2) the
contents of which are partially removed; or (3) there is evidence that marjjuana has
been consumed within the vehicle. C.R.S. § 42-4-1305.5(1)(c). The open container law
does not apply to back seat passengers when: (1) the vehicle is designed, maintained
or used primarily for the transportation of persons for compensation; (2) the back seat
passenger is in the living quarters of a house coach, house trailer, motor home or trailer
coach; (3) the posseSSion is in the area behind the last upright seat of a vehicle not
equipped with a trunk; or (4) the possession is in an area not normally occupied by the
driver or a passenger in a vehicle that is not equipped with a trunk. C.R.S. § 42-4
1305.5(2)(b). Notably, S8 283 recognizes that home rule municipalities may adopt
ordinances on open containers that are no less restrictive than state law. C.R.S. § 42
4-1305.5(3).
S8 283 also provides that:
1. Local governments may prohibit the use of flammable gases in
home marijuana cultivation. C.R.S. § 9-7-113.
2. Contracts pertaining to lawful activities authorized under
Amendment 64, Article 43.4 of Title 12, C. R.S., and all associated regulations are
not void or voidable as against public policy. C.R.S. § 13-22-601.
3. Marijuana accessories are excluded from the definition of "drug
paraphernalia." C.R.S. § 18-18-426(2).
4. Marijuana smoke is included within the Colorado Clean Indoor Air
Act prohibition on smoking in public places. C.R.S. § 25-14-203(16).
5. Expenditures on marijuana that would otherwise be eligible for
federal income tax deductions are not eligible, because marijuana is a controlled
substance under federal law. See C.R.S. §§ 39-22-104; 39-22-304.
6. The medical marijuana license cash fund is converted to the
"Marijuana Cash Fund," and directing all license fees and taxes relating not
distributed to local governments to be deposited into such fund. C.R.S. § 12
43.3-501.
Town of Vail Page 12
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VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Vail Village Townhouse Zone District Discussion
PRESENTER(S): Jonathan Spence
ACTION REQUESTED OF COUNCIL: The Community Development Department requests
that the Vail Town Council instruct Town Staff on moving forward with the Vail Village
Townhouse Zone District implementation.
BACKGROUND: The Vail Town Council instructed the Town Staff to initiate a rezoning
process upon the adoption of the Vail Village Townhouse (VVT) District. The Community
Development Department has reached out to owners of properties identified as being eligible
for rezoning pursuant to the purpose statement of the zone district. In doing so, staff has
discovered that support for the rezoning effort is not universal.
STAFF RECOMMENDATION: Please see Section VI of the staff memorandum.
ATTACHMENTS:
TC Memo
12/17/2013
TO: Vail Town Council
FROM: Community Development Department
DATE: December 17, 2013
SUBJECT: Vail Village Townhouse Zone District
I. SUMMARY
The Vail Town Council instructed the Town Staff to initiate a rezoning process upon the
adoption of the Vail Village Townhouse (VVT) District. The Community Development
Department has reached out to owners of properties identified as being eligible for
rezoning pursuant to the purpose statement of the zone district. In doing so, staff has
discovered that support for the rezoning effort is not universal. Staff details the results of
the community outreach below in Section IV.
II. PURPOSE
The purpose of this memorandum is to solicit direction from the Town Council on moving
forward with the Vail Village Townhouse District. Based upon the information received to
date and the considerations outlined in Section V of this report, the Community
Development Department requests that the Vail Town Council instruct Town Staff on
proceeding with the rezoning effort. The council may wish to use the options outlined in
Section VI of this report to assist in the formulation of that direction.
III. BACKGROUND
On August 21, 2012 the Vail Town Council adopted Ordinance No. 2 of the 2012 Series
establishing the VVT Zone District. The District was created following numerous public
hearings before the Planning and Environmental Commission and the Town Council first,
as a private property owner initiated application and later, as a Community Development
staff led effort. This zone district was specifically developed for developments like the
Vail Townhouses Condominium, Vail Row Houses, Vail Trails Chalets, Vail Trails East
Condominiums and the Texas Townhomes. This zone district was established for the
following purposes:
A. To provide for the regulation of existing townhouse properties in Vail Village
that were legally non-conforming in regard to the provisions of the High
Density Multiple-Family District.
12/17/2013
Town of Vail Page 2
B. To create incentives for the redevelopment of the existing townhouse
properties in Vail Village.
C. To preserve the existing character of the townhouse properties in Vail Village
and the existing character of the neighborhood.
With the District in place, staff reached out to the property owners of the parcels
originally identified as potentially suitable for rezoning. A first correspondence requesting
feedback was initiated on August 1, 2013 with a second request occurring on November
18, 2013. The deadline for feedback from the November 18th request was December 9,
2013.
IV. PROPERTY OWNER RESPONSE
The map below shows the five properties identified as potentially appropriate for the
District. Three of properties are condominium projects with established home owner
associations where decisions are made collectively within the established bylaws. The
remaining two buildings have been subdivided vertically resulting in ownership of the
land under the building not being held in common.
Vail Row Houses (A) (1-6), Vail Trails Chalets (C) and Vail Trails East (D) have
submitted letters of opposition representing their 56 units. Opposition has also been
received from the owners of units 11 and 11B of Vail Row Houses (B) and the owners of
units 6 and 6B in the Texas Townhomes (E). Of the approximately 77 unit owners, staff
has received opposition from 60, support from 4 and no response from the remaining 13.
A. Vail Row Houses 1-6, aka Vail Townhouses Condominiums
• 12 Unit Building with active HOA
• Building is a condominium with an airspace map and commonly held
ground
• Received notification of HOA opposition to rezoning. Opposition cited
(verbally) includes a lack of redevelopment incentives particularly
pertaining to height.
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12/17/2013
Town of Vail Page 4
B. Vail Row Houses 7-13
• 9± Unit Building with no active HOA
• Building has been subdivided into 7 townhomes with at least two of the
seven further split into two units (upstairs/downstairs).
Owner Unit #
NORTH FIFTH LLC Unit 7 Support
SHIRLEY, ERICKSON S. Unit 8 Support
CHRISTOPHER B. GALVIN
REVOCABLE TRUST
Unit 9 Support
SUN UP TRUST Unit 10 No Response
BRIDGEWATER, B.A., JR &
BARBARA P.
Unit 11A Opposition
BRIDGEWATER, B.A., JR &
BARBARA P.
Unit 11B Opposition
GALVIN, MICHAEL P. - Unit 12 Support
VAIL RETREAT LLC Unit 13A No Response
VAIL RETREAT LLC Unit 13B No Response
C. Vail Trails Chalet
• 19 Unit Building with active HOA
• Building is a condominium with an airspace map and commonly held
ground
• Received notification of HOA opposition to rezoning. This opposition
applies to both the Vail Trails Chalet and Vail Trails East properties and
is based on a lack of redevelopment incentives and a perception that the
VVT district is not applicable to the Vail Trails Chalet and Vail Trails East
properties because of their lack of a townhouse configuration of
ownership. (Attachment 1)
D. Vail Trails East
• 25 Unit Building with active HOA
• Building is a condominium with an airspace map and commonly held
ground
• Received notification of HOA opposition to rezoning. (See above)
E. Texas Townhomes
• 12± Unit Building with no active HOA
• Building has been subdivided into 8 townhomes with at least five of the
seven further split into two units (upstairs/downstairs).
Owner Unit #
PARKER, FOXHALL A. &
HELEN W.
Unit 1 No Response
GORDON, LORIE Unit 2 No Response
12/17/2013
Town of Vail Page 5
GORDON, LORIE Unit 2B No Response
WOODHULL TRUST - JOHN
R. WOODHULL & BARBARA
A. WOODHULL TRUSTEES
Unit 3 No Response
WOODHULL FAMILY 2010
TRUST
Unit 4 No Response
WOODHULL FAMILY 2010
TRUST
Unit 4B No Response
EDWARDS, LEE
MACCORMICK
Unit 5 No Response
GORDON, LORIE Unit 5B No Response
MACCORMICK, ALEXANDER Unit 6 Opposition
MACCORMICK, ALEXANDER Unit 6B Opposition
PROCHNOW, CHRISTOPHER
T. & ANN T.
Unit 7 No Response
LIGHTHALL, DIANE GAMEL Unit 8 No Response
V. CONSIDERATIONS
To assist the Town Council in its discussion related to the implementation of the Vail
Village Townhouse District, staff offers the following:
1. Ordinance No. 2, Series of 2012 established the Vail Village Townhouse Zone
District. This ordinance was approved by a vote of 4-2 following extensive
discussion and debate.
2. The Official Vail Land Use Map identifies the area as Village Master Plan.
3. In concert with the adoption of Ordinance No. 2, Series of 2012 that
established the Vail Village Townhouse Zone District, the Town Council
adopted Resolution No. 7, Series 2012 that amended the Vail Village Master
Plan to include recommendations applicable to redevelopment in the new zone
district. This was adopted by a vote of 6-0.
4. Per Colorado Revised Statute 29-20-104, local governments are enabled to
make land use decisions including matters effecting zoning. Property owner
support is not required.
VI. ACTION REQUESTED
Based upon the information received to date and the considerations outlined in Section
V above, the Community Development Department requests that the Vail Town Council
instruct Town Staff to either;
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Town of Vail Page 6
1. Move forward to the Planning and Environmental Commission with a rezoning
application for all five properties, recognizing that opposition does exist.
• Attains the original purposes of the establishment and application of
the Vail Village Townhouse Zone District.
• Not supported by many property owners.
2. Move forward to the Planning and Environmental Commission with a rezoning
application for Vail Row Houses 7-13 and Texas Townhomes only, recognizing
that not 100% of owners are in support.
• Attains a portion of the original purpose.
• Not supported by all property owners.
3. Do not move forward with applying the Vail Village Townhouse Zone District at
this time.
• Does not accomplish original purpose.
• Respects the current wishes of a majority of affected property
owners.
VII. ATTACHMENTS
1. Correspondence, David Reynolds, President, Vail Trails Chalet Condominium
Association, 9-9-2013
12/17/2013
VAIL TRAILS CHALET CONDOMINIUM ASSOCIATION
% Vail Home Rentals, Inc.
POBox 6520
Avon, Colorado 81620
Mr. George Ruther, Director
Vail Depmiment of Community Development
75 South Frontage Road
Vail, Colorado 81657
Dear George:
A letter dated August 1, 2013 was sent by the Town of Vail (TOV) to the Vail Trail
Chalets and Vail Trails East owners stating that the Community Development Department
intends to apply the new Vail Village Townhouse Zone District (VVTD) zoning to Vail Trails
Chalets (VTC) and Vail Trails East (VTE). That letter invited VTC and VTE owners to provide
input before an application was prepared, and this letter is intended to provide that response on
behalf of the owners of the Vail Trails Chalets community.
Our Association and our owners respectfully oppose the proposed application of the new
VVTD zone district to our community and request that the TOV, for the reasons stated in this
letter, cease considering the proposed zone district amendment for VTC and VTE, but rather
move toward a rezoning arrangement for VTC and VTE which more accurately reflects current
conditions while enhancing the opportunity for redevelopment, with height and density more
similar to that which TOV has authorized for most other condominiums in East Vail Village.
TOV should also consider that VTC and VTE were approved and built during the first
five years after Vail was founded. The units at VTC and VTE have always (since the 1960's)
been condominium units and have never been townhouse units. The existing site area, frontage,
setbacks and other construction characteristics of VTC and VTE were approved under the early
Vail Village criteria and some VTC and VTE units are still owned by their original owners or by
their families.
VTC and VTE were then inconsonantly zoned within the High Density Multi-Family
District (HDMFD) which was established after VTC and VTE were built. Such a designation
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made VTC and VTE nonconforming and severely restricts the potential for redevelopment. The
main present zoning incongruities for VTC and VTE are created by the following HDMFD
zoning requirements :
1. Minimum lot or site area is ten thousand (10,000) square feet of buildable
area.
2. Minimum frontage of thirty feet (30').
3. Minimum front setback of twenty feet (20'), and the minimum rear setback of
twenty feet (20').
4. For a flat roof or mansard roof, the height of buildings may not exceed forty five
feet (45'). For a sloping roof, the height of buildings may not exceed forty eight
feet (48').
5. Not more than seventy six (76) square feet of gross residential floor area (GRF A)
is permitted for each one hundred (100) square feet of buildable site area.
6. Site coverage can not exceed fifty five percent (55%) of the total site area.
7. At least thirty percent (30%) of the total site area is to be landscaped. The
minimum width and length of any area qualifying as landscaping is fifteen feet
(15') with a minimum area not less than three hundred (300) square feet.
8, Off street parking and loading must be provided in accordance with chapter 10 the
Vail Town Code. At least seventy five (75%) percent of the required parking
must be located within the main building or buildings and hidden from public
view or must be completely hidden from public view from adjoining properties
with a landscaped benn. No parking may be located in any required front setback
area.
VTC and VTE clearly do not comply with most of these requirements and these
restrictions greatly affect any future plans for the redevelopment of VTC and VTE.
On August 21,2012 the TOV passed Ordinance No.2 of2012 creating the Vail Village
Townhouse District (VVTD), and now the Community Development Department proposes that
VTC and VTE be rezoned from HDMFD to VVTD. Such rezoning, in practical redevelopment
tenns, does not place VTC and VTE in a better position than the HDMFD , but rather increases
the degree of non-conformity, violating a standard of zone district administration. Such rezoning
from HDMFP to VVTD would be trading the severely incongruous for the severely restrictive.
The VVTD provisions of the Municipal Code states that the purpose of this zone distriact
is, in part, to establish an incentive to redevelopment, something it does not do in the case of
VTC and VTE. While it applies equally to all the properties within the VVTD, it does not
12/17/2013
distinguish between the other properties it applies to such as Vail Townhouses, Vail Row
Houses, Texas Townhomes, which are true townhouses, and VTC and VTE which are, without
dispute, traditional condominiums much more like the surrounding Ramshorn, Galatyn,
Vorlaufer, Villa Valhalla, Manor Vail and All Seasons, all of which (including VTC and VTE)
lack townhouse characteristics.
The VVTD ordinance promotes redevelopment of the townhouses but it does exactly the
opposite for VTC and VTE due to the following VVTD restrictions:
A. Height -It restricts height to 35 feet for flat roofs and 38 feet for sloping roofs. These
limitations are ten feet more restrictive than the current zone district, which permit 45
foot and 48 foot heights, respectively.
B. Density -It restricts density to the existing number of units or to 25 dwelling units per
acre of total site area. This is no change, and therefore no improvement, in comparison
with the current zone district.
C. Set backs -Twenty feet (20') from front, rear and side lines . The same as under the
HDMFD. VTC and VTE do not comply, but the proposed change represents no
improvement in the current situation.
D. Lot Area and Site Dimensions -The VVTD zone district provides for minimum lot or
site area for a "townhouse project" and for "platted townhouse lots", but the VTC and the
VTE are neither. There are no standards for residential condominiums such as VTC and
VTE. Perhaps more than any other observation, the absence of these zoning standards
establishes that the VVTD should not be applied to the VTC and VTE communities.
The one advantageous provision of the VVTD is that it grants unlimited Gross
Residential Floor Area (GRF A), but unlimited GRF A is of little or no redevelopment incentive
consequence without the ability to increase the number of existing units, to increase height and to
reduce setbacks. Therefore the VVTD zoning would place VTC and VTE in a position that
makes redevelopment practically impossible unless still another zone district amendment were
applied to these communities.
Redevelopment incentive IS intimately related to economic potential. Neither the
HDMFD nor the VVTD provide such potential. They do the opposite. In order to create a true
zoning incentive for the redevelopment of VTC and VTE the TOV should consider zoning for
VTC and VTE that includes the following:
A. Building height of at least 56 feet above present grade of Gore Creek Drive, comparable
to the redevelopment height granted to nearby Ramshorn and Tivoli, which are at a
12/17/2013
higher elevation than VIC and VIE, and presently after their redevelopment, block more
severely VIC's and VIE's view to the Vail Mountain. Such 56 foot height for VIC
and VIE would not block anyone else's view to Vail Mountain. Such height is also more
similar to the height of other nearby condominiums such as Galatyn, Vorlaufer, Villa
Valhalla, Mill Creek and Manor Vail. Ihe VVID 35 flatl38 foot sloping roof restriction
is clearly onerous .
B. Ihe ability to redevelop and rebuild on a footprint no smaller than the present VIC and
VIE footprint , retaining the existing patios and terraces.
C. Unlimited gross residential floor area (GRF A), the same as under the VVID.
D. Density of twice the number of existing units.
E. Vacation of Gore Creek Drive, from the intersection with Vail Valley Drive and up to the
already vacated portion of Gore Creek Drive (which was vacated in favor of Iexas
Iownhomes) in order to permit the adjoining communities to cooperatively provide for
the resolution of long-standing parking challenges.
F. Ihe ability to build an underground parking garage under the P-2 property and under the
portion of Gore Creek Drive adjacent to VIC, VIE and P-2 of sufficient size and design
to accommodate the needs of VIC, VIE and the P-2 owners. And , further, the ability to
connect any such garage to any redeveloped buildings of VIC and VIE.
Io incentivize redevelopment, the above A through F characteristics should be
established as the main criteria of any new zoning for VIC and VIE . Such criteria should be
coordinated with a master plan for East Vail Village, including but not limited to VIC, VIE, All
Seasons and P-2 and other adjacent and nearby owners, including IOV and Vail Resorts.
Unless redevelopment is incentivized and made viable , our East Vail Village
neighborhood, due to the age of the buildings and the visual disarray caused by surface parking,
could become the oldest looking and least attractive area of Vail Village. HDMFD and VVID
are not the solution, because both impede redevelopment and depress property values; they both
burden VIC and VIE and as a consequence the whole of East Vail Village , and they threaten to
tum the area into the most dilapidated part of Vail Village.
We urge the IOV to take a broader view of the East Vail Village future and not classify
VIC and VIE in the same category as the townhouses with which VIC and VIE have nothing
in common. We urge IOV to view VIC and VIE more carefully and equitably, based on age
and their particular historical circumstances, and to give VIC and VIE treatment that truly
incentivizes redevelopment that permits these old properties to be brought to present day Vail
standards. For this we request that IOV establish for VIC and VIE zoning with the criteria A
through F described above as a practical incentive to redevelopment.
12/17/2013
It may be that the East Vail Village communities should work toward a special
development district which recognizes their common background and issues, but progress on any
such proposal must be associated with the Town's willingness to vacate the portions of Gore
Creek Drive upon which these communities now rely (and must in the future rely) for parking
facilities. Recent efforts to move in that direction met with resistance from the Town, and what
seems to be a current effort to constrict development alternatives beyond those which are now in
effect would be counterproductive, rather than a movement toward the stated goal of the VVTD.
For these reasons we ask the TOV not to rezone VTC and VTE within the VVTD and
request that the TOV take a new and more specific view of the rezoning needs for VTC and VTE
that truly and effectively incentivizes redevelopment.
resident
Vail Trails Chalet Condominium Association
cc: Vail Town Council
Vail Planning and Environmental Commission
Mr. Jonathan Spencer -Planner TOV
Mr. James Lamont -Vail Homeowners Association
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Second reading of Ordinance No. 22, Series 2013, an ordinance making
budget adjustments to the Town of Vail General Fund, Capital Projects Fund, Real Estate
Transfer Tax Fund and Dispatch Services Fund
PRESENTER(S): Kathleen Halloran
ACTION REQUESTED OF COUNCIL: Approve or approve with amendments Ordinance No.
22, Series 2013
BACKGROUND: Please see attached memo
STAFF RECOMMENDATION: Approve or approve with amendments Ordinance No. 22,
Series 2013
ATTACHMENTS:
121217 3rd supp 2nd
12/17/2013
TO: Vail Town Council
FROM: Finance Department
DATE: December 11, 2013
SUBJECT: 2013 Supplemental Appropriation
On Tuesday evening you will be asked to approve Ordinance 22, third supplemental
appropriation of 2013 upon second reading.
Changes from first reading
The following items reflect information requested by Council or updates since first
reading:
Capital Projects Fund
Since the first reading, more firm bids were received on the Mobile Communications
vehicle. After working closely with the preferred vendor (NOMAD), the proposed budget
of $350,000 is now reduced to $321,000. The below outlines the 50% matching grants
and contributions requested by Town Council:
E911 Board funding $85,000
External agencies $25,000
E911 capital reserve in the Dispatch Services Fund $43,000
Contribution from NOMAD, the vehicle vendor $7,500
With the above matching funds of $160,500, the town’s Capital Projects Fund would
cover a net cost of $160,500. Please see attached memo from Dispatch Services.
During the December 3rd meeting, Council requested more information on capital
projects performance to budget. Attached is a worksheet detailing completed projects
over $200,000 with budget and actual expenditures.
Police Confiscations - Federal Fund
In the first reading, staff had proposed using $27,000 of this fund toward the purchase
of a Mobile Communications vehicle. Per Town Council, this expenditure was removed
from the proposed budget with an amended ordinance at that first reading.
12/17/2013
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12/17/2013
2013
20131st 20133rdProposed
BudgetSupplementalAmendedSupplementalAmendedComments
Revenue
E911 Board Revenue 801,603$ -$ 801,603$ -$ 801,603$
Interagency Charges1,127,338 - 1,127,338 - 1,127,338
Town of Vail Interagency Charge569,193 - 569,193 - 569,193
Earnings on Investments & Other10,000 - 10,000 - 10,000
Total Revenue 2,508,134 - 2,508,134 - 2,508,134
Expenditures
Salaries & Benefits 1,947,887 - 1,947,887 - 1,947,887
Operating, Maintenance & Contracts546,388 - 546,388 - 546,388
Capital Outlay20,000 157,146 177,146 - 177,146 Continuation of Intergraph system upgrade
Total Expenditures 2,514,275 157,146 2,671,421 - 2,671,421
Revenue Over (Under) Expenditures(6,141) (157,146) (163,287) - (163,287)
Transfer to Capital Projects Fund - - - (43,000) (43,000) Mobile Communications vehicle
Beginning Fund Balance463,578 326,405 799,983 799,983
Ending Fund Balance 457,437$ 636,697$ 593,697$
TOWN OF VAIL 2013 BUDGET
SUMMARY OF REVENUE, EXPENDITURES, AND CHANGES IN FUND BALANCE
DISPATCH SERVICES FUND
9
12/17/2013
Capital Construction Projects Completed 2010-2013 Value Greater Than $200,000
Approved Const. Contract Additional Total % Change From Total
Capital Project Description Year Budget Account(s)Original Budget Supplemented Budget Budget Requests Final Budget Original Budget Expenditures*Original Final Savings
Lionshead Transit Center 2010 VRA001 5,832,751.53$ -$ -$ 5,832,751.53$ 0%5,832,751.53$ 100%100%-$
Lionshead Welcome Center 2011 VRA002 7,261,998.88$ 300,000.00$ 400,000.00$ 7,961,998.88$ 10%7,866,998.88$ 108%99%95,000.00$
Frontage Road Widening - Ford Park to Bald Mtn 2011 RPT010 2,364,658.00$ -$ 2,364,658.00$ 0%1,663,643.00$ 70%70%701,015.00$
Lionshead Entry Portal Streetscape Improvements 2012 VRA005 & VRA006 2,997,989.00$ -$ -$ 2,997,989.00$ 0%2,669,285.00$ 89%89%328,704.00$
Frontage Road East Vail Shouler Widening 2012 RPT010 1,150,000.00$ -$ -$ 1,150,000.00$ 0%460,000.00$ 40%40%690,000.00$
Frontage Road Main Vail Widening and Guardrail 2012 CSC015/CMT/Impact Fees 1,146,000.00$ -$ 130,000.00$ 1,276,000.00$ 11%1,276,000.00$ 111%100%-$
Spruce Way Culvert Replacement 2012 CMT012 200,000.00$ -$ -$ 200,000.00$ 0%126,000.00$ 63%63%74,000.00$
East Vail Berm Utilities and Drainage Basin 2012 COT011 350,000.00$ -$ -$ 350,000.00$ 0%113,000.00$ 32%32%237,000.00$
E Meadow Dr Reconstruction 2012 CSC013 500,000.00$ (120,000.00)$ -$ 380,000.00$ -24%363,000.00$ 73%96%17,000.00$
Matterhorn Bridge 2012 CSR008 1,195,000.00$ 100,000.00$ 160,000.00$ 1,455,000.00$ 22%1,455,000.00$ 122%100%-$
Library Remodel 2012 VRA004 1,600,000.00$ 451,728.00$ 202,000.00$ 2,253,728.00$ 41%2,229,896.00$ 139%99%23,832.00$
Red Sandstone Park 2012 RPI001 464,000.00$ -$ -$ 464,000.00$ 0%428,255.00$ 92%92%35,745.00$
South Frontage Road Widening 2013 RPT010 600,000.00$ 600,000.00$ 0%390,656.42$ 65%65%209,343.58$
Lionshead Park (Sundial Plaza)2013 VRA008 850,000.00$ 850,000.00$ 0%850,000.00$ 100%100%-$
TOTALS 26,512,397.41$ 731,728.00$ 892,000.00$ 28,136,125.41$ 6.12%25,724,485.83$ 97.03%91.43%2,411,639.58$
% Spent of Budget
12/17/2013
75 S. Frontage Rd. W. www.Vail911.com Phone: 970-479-2200
Vail, Colorado 81657 Fax: 970-479-3434
To: Stan Zemler, Town Manager
Kathleen Holloran, Budget Manager
From: Dwight Henninger, Chief of Police
Tom Banker, Communications Director
Date: December 10, 2013
Subject: Mobile Communications Unit Replacement Supplemental Request
This memorandum is to update the progress made towards acquiring the 50% cost
sharing amount of $160,455 (down from $175K due to a reduction in vehicle price)
needed to fund the procurement of the Mobile Back Up 911 Center. The Town of Vail’s
Council committed to provide 50% of the total $320,909, if the support from our
County’s partners could be found. Since then the County partner agencies in a very
short amount of time have rallied to our cause to find the funding necessary to make
this goal of an increased state of Operational Readiness come true. An RFP was sent
out, and 6 proposals were received at a lower price than expected. Those vendors
were:
1. NOMAD Global Communications Systems
2. LDV, INC
3. Farber Specialty Vehicles
4. Pierce Manufacturing
5. Summit Bodyworks
6. SVI
The preferred vendor is NOMAD, which is the company that built the County Command
Post trailer a number of years ago. Additionally, a complete list of the funding model is
listed below:
TOV 50% Contribution - $160,455 (approved 10/01/13 see attached
supplemental request memo)
County Agency Contribution - $25,000 confirmed (Eagle County Paramedic
Services, Eagle PD, Eagle County Sherriff, Greater Eagle Fire Protection District,
Eagle River Fire Protection District) - $12,500 more pending City Board Approval
which would reduce the Comm Center Capital Contribution)
12/17/2013
Town of Vail Page 2
E-911 Board - $85,000 Contribution ($15,600 additional each year will be voted
on by the board annually which will more than cover the on going operational
costs and upgrades)
Dispatch Services Fund Capital Reserve (which involves 911 Authority Board
funding for Back Up Center Needs that were contributed in years 2011, 2010 and
2009) - $43,000
Preferred Vendor NOMAD Marketing Payment for the ability to show off the
vehicle to potential customers - $7,500 (they will cut a check to TOV for this
amount)
GRAND TOTAL: $320,955
Once again, as a County leader in Public Safety and Emergency Preparedness, we
truly appreciate your efforts to bolster our overall level of readiness. We are confident
now that all monetary contingencies have been addressed and seek approval to move
forward with the awarding of our Mobile Communications Vehicle and authorize the
Town Manager to sign a contract for the purchase.
12/17/2013
Ordinance No. 22, Series of 2013
ORDINANCE NO. 22
SERIES OF 2013
AN ORDINANCE MAKING BUDGET ADJUSTMENTS TO THE TOWN OF VAIL GENERAL
FUND, CAPITAL PROJECTS FUND, REAL ESTATE TRANSFER TAX FUND, AND
DISPATCH SERVICE FUND OF THE 2013 BUDGET FOR THE TOWN OF VAIL,
COLORADO; AND AUTHORIZING THE SAID ADJUSTMENTS AS SET FORTH HEREIN;
AND SETTING FORTH DETAILS IN REGARD THERETO.
WHEREAS, contingencies have arisen during the fiscal year 2013 which could not have
been reasonably foreseen or anticipated by the Town Council at the time it enacted Ordinance No.
16, Series of 2012, adopting the 2013 Budget and Financial Plan for the Town of Vail, Colorado;
and,
WHEREAS, the Town Manager has certified to the Town Council that sufficient funds are
available to discharge the appropriations referred to herein, not otherwise reflected in the Budget, in
accordance with Section 9.10(a) of the Charter of the Town of Vail; and,
WHEREAS, in order to accomplish the foregoing, the Town Council finds that it should make
certain budget adjustments as set forth herein.
NOW, THEREFORE, BE IT ORDAINED, BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO that:
1. Pursuant to Section 9.10(a) of the Charter of the Town of Vail, Colorado, the Town
Council hereby makes the following budget adjustments for the 2013 Budget and Financial Plan for
the Town of Vail, Colorado, and authorizes the following budget adjustments:
General Fund $ 302,600
Capital Projects Fund 361,000
Real Estate Transfer Tax Fund 175,000
Dispatch Services Fund 43,000
Total $ 881,600
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.
3. The Town Council hereby finds, determines, and declares that this ordinance is
12/17/2013
Ordinance No. 22, Series of 2013
necessary and proper for the health, safety, and welfare of the Town of Vail and the inhabitants
thereof.
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.
5. All bylaws, orders, resolutions, and ordinances, or parts thereof, inconsistent
herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed
to revise any bylaw, order, resolution, or ordinance, or part thereof, theretofore repealed.
INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON
FIRST READING this 3rd day of December, 2013, and a public hearing shall be held on this
Ordinance on the 17th day of December, 2013, at the regular meeting of the Town Council of the
Town of Vail, Colorado, in the Municipal Building of the town.
_______________________________
Andrew P. Daly, Mayor
ATTEST:
___________________________
Tammy Nagel, Acting Town Clerk
READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED IN FULL this 17th
day of December 2013.
_____________________________
Andrew P. Daly, Mayor
ATTEST:
________________________________
Tammy Nagel, Acting Town Clerk
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Second reading of Ordinance No. 23, Series of 2013, Commercial Ski Storage,
an ordinance extending a temporary moratorium on the processing and approval of all
business and land use applications for private ski club uses within the Town.
PRESENTER(S): George Ruther
ACTION REQUESTED OF COUNCIL: Approve, Approve with Conditions or Deny Ordinance
No. 23, Series of 2013.
BACKGROUND: The continuation of a moratorium on the operation of, and the processing
and approval of all business and land use applications for private ski clubs will allow the Staff,
Town Attorney, Council and the Community, to assess whether such uses are in the best
interest of the public health, safety and welfare.
On December 3, 2013, Vail Town Council approved Ordinance No. 23, Series of 2013, with
one modification. The modification amended the extension of the moratoium for 90 days to
March 17, 2014 instead of June 17, 2014.
STAFF RECOMMENDATION: Approve, Approve with Conditions or Deny Ordinance No. 23,
Series of 2013.
To allow the expiration of the moratorium to coincide with a futture Vail Town Council meeting
date, staff recommends the moratorium be extended to Tuesday, March 19, 2014.
ATTACHMENTS:
Ordinance No. 23, Series of 2013 Second Reading
12/17/2013
Ordinance No. 23, Series of 2013 12/17/2013
ORDINANCE NO. 23
SERIES 2013
AN ORDINANCE EXTENDING THE TEMPORARY MORATORIUM ON
THE PROCESSING AND APPROVAL OF ALL BUSINESS AND LAND
USE APPLICATIONS FOR PRIVATE SKI CLUB USES WITHIN THE
TOWN
WHEREAS, the Town of Vail, in the County of Eagle and State of Colorado (the
"Town"), is a home rule municipal corporation duly organized and existing under the
laws of the State of Colorado and the Vail Town Charter;
WHEREAS, the members of the Town Council have been duly elected and
qualified;
WHEREAS, pursuant to C.R.S. § 31-23-301, the Town is empowered to regulate
and restrict zoning, including but not limited to the location and use of buildings within its
jurisdiction;
WHEREAS, pursuant to C.R.S. § 31-23-303(1), the Town's zoning regulations
must be made in accordance with the Comprehensive Plan and designed to, among
other things, promote health and general welfare within the Town;
WHEREAS, previously, the Town Council has adopted a temporary ban until
December 17, 2013;
WHEREAS, it is the desire of the Town Council that Town Staff study the effects
of allowing private ski clubs to operate within the Town, considering the Town's existing
land use regulations and master plan, and thereafter provide information to the Town
Council as to whether such uses should be permitted at any location in the Town;
WHEREAS, Town Staff needs additional time to gather information and study the
impacts of private ski clubs and the zone districts in which they should be permitted, if at
all;
WHEREAS, the imposition of a moratorium on the operation of, and the
processing and approval of all business and land use applications for private ski clubs
will allow the Town Staff, Town Attorney and the Town Council to assess whether such
uses are in the best interest of the public health, safety and welfare; and
WHEREAS, during such time, the Council finds and determines that it is in the
best interest of the public health, safety and welfare for the town to extend the temporary
ban on the operation of, and the processing and approval of all business and land use
applications for private ski clubs until March 19, 2014.
12/17/2013
Ordinance No. 23, Series of 2013 12/17/2013
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO, THAT:
Section 1. Findings and Intent. The foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council of the
Town of Vail.
Section 2. Temporary Moratorium. Upon the adoption of this ordinance, a
moratorium is imposed on the processing and approval of all business and land use
applications for operation of any private ski club use within the Town. Town Staff is
directed to refuse to process, review or approve any such applications for the operation
of private ski clubs. It shall further be unlawful for any person to operate, cause to be
operated, or permit to be operated in the Town a private ski club at any location within
the Town unless the Town expressly authorized such use prior to the adoption of this
ordinance. For purposes of this ordinance, the term "private ski club" means a
members-only club that serves alcoholic beverages and other refreshment with on-site
ski storage, or any similar use.
Section 3. Investigation and Evaluation. During the term of this moratorium,
Town Staff shall investigate, evaluate and update the Town's Code as necessary to
regulate or prohibit the operation of private ski clubs within the Town.
Section 4. Authority. The Town Council hereby finds, determines and
declares that it has the power to adopt this ordinance pursuant to:
(i) The Local Government Land Use Control Enabling Act, Article 20 of
Title 29 C.R.S.;
(ii) Part 3 of Article 23 of Title 31, C.R.S. (concerning municipal zoning
powers);
(iii) Section 31-15-103, C.R.S. (concerning municipal police powers);
(iv) Section 31-15-401, C.R.S. (concerning municipal police powers);
(v) Section 31-15-501, C.R.S. (concerning municipal power to regulate
businesses);
(vi) The authority granted to home rule municipalities by Article XX of
the Colorado Constitution; and
(vii) The powers contained in the Town of Vail Town Charter.
Section 5. Expiration. The moratorium extended by this ordinance shall
expire on March 19, 2014, unless earlier repealed or extended, as determined by Town
ordinance.
Section 6. If any part, section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not effect the validity
12/17/2013
Ordinance No. 23, Series of 2013 12/17/2013
h
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 7. The Town Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town and
the inhabitants thereof.
Section 8. All bylaws, orders, resolutions and ordinances, or parts
thereof, inconsistent herewith are repealed to the extent only of such
inconsistency. This repealer shall not be construed to revise any bylaw, order,
resolution or ordinance, or part thereof, theretofore repealed.
Section 9. Pursuant to Section 4.11 of the Vail Town Charter, this ordinance
is deemed necessary for the protection of the public health, welfare and safety,
because the location of private ski clubs within the Town prior to the time that Town
staff has had an adequate opportunity to study the effects of such establishments and
the proper location for such establishments, if any, could cause irreparable harm to
the Town and its residents and visitors.
INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN
FULL ON FIRST AND FINAL READING this 3rd day of December, 2013 and a public
hearing for second reading of this Ordinance set for the 17th day of December, 2013,
in the Council Chambers of the Vail Municipal Building, Vail Colorado.
________________________
Andrew P. Daly, Mayor
ATTEST:
__________________________
Tammy Nagel, Acting Town Clerk
READ AND APPROVED ON SECOND READING AND ORDERED PIBLISHED this
17th day of December, 2013.
________________________
Andrew P. Daly, Mayor
ATTEST:
__________________________
Tammy Nagel, Acting Town Clerk
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Second reading of Ordinance No. 24, Series of 2013, An Ordinance Granting a
Non-Exclusive Franchise Service Company of Colorado Regarding the Provision of Natural
Gas Service in the Town. See attached staff memorandum and draft franchise agreement.
PRESENTER(S): Matt Mire
ACTION REQUESTED OF COUNCIL: Approve, Approve with Conditions or Deny Ordinance
No. 24, Series of 2013.
BACKGROUND: The current franchise agreement between the Town and Public Service
Company of Colorado expires on January 31, 2014. For the Public Service Company of
Colorado to continue to provide gas service in the Town, it needs a franchise from the Town.
See attached staff memoradum and draft franchise agreement
STAFF RECOMMENDATION: Approve, Approve with Conditions or Deny Ordinance No. 24,
Series of 2013.
ATTACHMENTS:
Ordinance No. 24, Series 2013
Xcel Franchise Agreement
12/17/2013
Ordinance No. 24, Series of 2013
ORDINANCE NO. 24
SERIES 2013
AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO
PUBLIC SERVICE COMPANY OF COLORADO REGARDING THE
PROVISION OF NATURAL GAS SERVICE IN THE TOWN
WHEREAS, the Town of Vail, in the County of Eagle and State of Colorado (the
"Town"), is a home rule municipal corporation duly organized and existing under the
laws of the State of Colorado and the Vail Town Charter;
WHEREAS, the members of the Town Council of the Town (the "Council") have
been duly elected and qualified;
WHEREAS, the current franchise agreement between the Town and Public
Service Company of Colorado expires on January 31, 2014;
WHEREAS, for Public Service Company of Colorado to continue to provide gas
service in the Town, it needs a franchise from the Town; and
WHEREAS, pursuant to Sections 12.1 and 12.4 of the Vail Town Charter, the
Town Council finds and determines that it is in the best interest of the public health,
safety and welfare for the Town to grant a 20-year franchise to Public Service Company
of Colorado regarding the provision of natural gas service in the Town as more
particularly set forth in the attached franchise agreement.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO, THAT:
Section 1. The franchise agreement between the Town and Public Service
Company of Colorado, in substantially the form attached hereto, is hereby approved,
and a non-exclusive franchise is granted to Public Service Company of Colorado under
the terms set forth in such franchise agreement, commencing on February 1, 2014. The
Town Manager is hereby authorized to execute such 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 effect the validity
of the remaining portions of this ordinance; and the 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 Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town and
the inhabitants thereof.
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Ordinance No. 24, Series of 2013
Section 4. All bylaws, orders, resolutions and ordinances, or parts thereof,
inconsistent herewith are repealed to the extent only of such inconsistency. This
repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or
part thereof, theretofore repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 3rd day of December, 2013, and
a public hearing for second reading of this Ordinance set for the 17th day of December,
2013, in the Council Chambers of the Vail Municipal Building, Vail, Colorado.
_____________________________
Andrew P. Daly, Mayor
ATTEST:
____________________________
Tammy Nagel, Interim Town Clerk
READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED
this 17th day of December, 2013.
_____________________________
Andrew P. Daly, Mayor
ATTEST:
____________________________
Tammy Nagel, Interim Town Clerk
12/17/2013
FRANCHISE AGREEMENT BETWEEN THE TOWN OF VAIL, COLORADO
AND PUBLIC SERVICE COMPANY OF COLORADO
ARTICLE 1 DEFINITIONS
ARTICLE 2 GRANT OF FRANCHISE
ARTICLE 3 TOWN POLICE POWERS
ARTICLE 4 FRANCHISE FEE
ARTICLE 5 ADMINISTRATION OF FRANCHISE
ARTICLE 6 SUPPLY, CONSTRUCTION, AND DESIGN
ARTICLE 7 RELIABILITY
ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS
ARTICLE 9 BILLING AND PAYMENT
ARTICLE 10 PURCHASE OR CONDEMNATION
ARTICLE 11 TRANSFER OF FRANCHISE
ARTICLE 12 CONTINUATION OF UTILITY SERVICE
ARTICLE 13 INDEMNIFICATION AND IMMUNITY
ARTICLE 14 BREACH
ARTICLE 15 AMENDMENTS
ARTICLE 16 EQUAL OPPORTUNITY
ARTICLE 17 MISCELLANEOUS
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ....................................................................................................... 1
§1.1 “Company” ............................................................................................................... 1
§1.2 “Company Facilities” ................................................................................................ 1
§1.3 “Force Majeure”........................................................................................................ 1
§1.4 “Gross Revenues” ..................................................................................................... 1
§1.5 “Other Town Property” ............................................................................................. 1
§1.6 “Private Project” ....................................................................................................... 2
§1.7 “Public Project” ........................................................................................................ 2
§1.8 “Public Utilities Commission” or “PUC” ................................................................. 2
§1.9 “Public Utility Easement” ......................................................................................... 2
§1.10 “Residents” ............................................................................................................... 2
§1.11 “Supporting Documentation”.................................................................................... 2
§1.12 “Tariffs” .................................................................................................................... 2
§1.13 “Town” ...................................................................................................................... 2
§1.14 “Town Council” ........................................................................................................ 2
§1.15 “Town Streets” .......................................................................................................... 2
§1.16 “Utility Service”........................................................................................................ 2
ARTICLE 2 GRANT OF FRANCHISE .................................................................................... 3
§2.1 Grant of Franchise..................................................................................................... 3
§2.2 Conditions and Limitations. ...................................................................................... 3
§2.3 Effective Date and Term ........................................................................................... 3
ARTICLE 3 TOWN POLICE POWERS ................................................................................... 3
§3.1 Police Powers ............................................................................................................ 3
§3.2 Regulation of Town Streets or Other Town Property ............................................... 4
§3.3 Compliance with Laws ............................................................................................. 4
§3.4 Conveyance of Town Streets, Public Utility Easements or Other Town Property ... 4
ARTICLE 4 FRANCHISE FEE ................................................................................................. 4
§4.1 Franchise Fee. ........................................................................................................... 4
§4.2 Remittance of Franchise Fee. .................................................................................... 5
§4.3 Franchise Fee Payment not in Lieu of Permit or Other Fees .................................... 6
ARTICLE 5 ADMINISTRATION OF FRANCHISE ................................................................ 6
§5.1 Town Designee ......................................................................................................... 6
§5.2 Company Designee ................................................................................................... 6
§5.3 Coordination of Work. .............................................................................................. 6
ARTICLE 6 SUPPLY, CONSTRUCTION, AND DESIGN...................................................... 6
§6.1 Supply ....................................................................................................................... 6
§6.2 Charges to the Town for Service to Town Facilities ................................................ 7
§6.3 Restoration of Service. .............................................................................................. 7
§6.4 Company’s Obligations. ........................................................................................... 7
§6.5 Excavation and Construction .................................................................................... 8
§6.6 Restoration ................................................................................................................ 8
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§6.7 Relocation of Company Facilities. ............................................................................ 9
§6.8 Service to New Areas.............................................................................................. 11
§6.9 Town not Required to Advance Funds if Permitted by Tariffs .............................. 11
§6.10 Technological Improvements.................................................................................. 11
ARTICLE 7 RELIABILITY ..................................................................................................... 11
§7.1 Reliability ................................................................................................................ 11
§7.2 Franchise Performance Obligations ........................................................................ 11
§7.3 Reliability Reports .................................................................................................. 11
ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS ............................................... 11
§8.1 New or Modified Service to Town Facilities .......................................................... 11
§8.2 Adjustments to Company Facilities ........................................................................ 12
§8.3 Third Party Damage Recovery................................................................................ 12
ARTICLE 9 BILLING AND PAYMENT ................................................................................ 13
§9.1 Billing for Utility Services. ..................................................................................... 13
§9.2 Payment to Town .................................................................................................... 13
ARTICLE 10 PURCHASE OR CONDEMNATION............................................................... 14
§10.1 Municipal Right to Purchase or Condemn. ............................................................. 14
ARTICLE 11 TRANSFER OF FRANCHISE .......................................................................... 14
§11.1 Consent of Town Required for Transfer ................................................................. 14
§11.2 Transfer Fee ............................................................................................................ 14
ARTICLE 12 CONTINUATION OF UTILITY SERVICE ..................................................... 15
§12.1 Continuation of Utility Service ............................................................................... 15
ARTICLE 13 INDEMNIFICATION AND IMMUNITY ........................................................ 15
§13.1 Indemnification ....................................................................................................... 15
§13.2 Immunity ................................................................................................................. 15
ARTICLE 14 BREACH ........................................................................................................... 16
§14.1 Non-Contestability .................................................................................................. 16
§14.2 Breach. .................................................................................................................... 16
ARTICLE 15 AMENDMENTS ............................................................................................... 17
§15.1 Effective Amendments............................................................................................ 17
ARTICLE 16 EQUAL OPPORTUNITY ................................................................................. 17
§16.1 Economic Development .......................................................................................... 17
§16.2 Employment. ........................................................................................................... 17
§16.3 Contracting. ............................................................................................................. 18
ARTICLE 17 MISCELLANEOUS .......................................................................................... 18
§17.1 No Waiver ............................................................................................................... 18
§17.2 Successors and Assigns........................................................................................... 18
§17.3 Third Parties ............................................................................................................ 19
§17.4 Notice ...................................................................................................................... 19
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§17.5 Examination of Records .......................................................................................... 19
§17.6 PUC Filings ............................................................................................................. 19
§17.7 Information ............................................................................................................. 20
§17.8 Payment of Taxes and Fees. .................................................................................... 20
§17.9 Conflict of Interest .................................................................................................. 20
§17.10 Certificate of Public Convenience and Necessity ................................................... 20
§17.11 Authority ................................................................................................................. 20
§17.12 Severability ............................................................................................................. 21
§17.13 Force Majeure ......................................................................................................... 21
§17.14 Earlier Franchises Superseded ................................................................................ 21
§17.15 Titles not Controlling .............................................................................................. 21
§17.16 Applicable Law ....................................................................................................... 21
§17.17 Payment of Expenses Incurred by Town in Relation to Franchise Agreement ...... 21
§17.18 Incremental Costs.................................................................................................... 21
§17.19 Tariffs Effective ...................................................................................................... 21
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ARTICLE 1
DEFINITIONS
For the purpose of this franchise agreement (“Franchise”), the following words and phrases
shall have the meaning given in this Article. When not inconsistent with context, words used in
the present tense include the future tense, words in the plural include the singular, and words in the
singular include the plural. The word “shall” is mandatory and “may” is permissive. Words not
defined in this Article shall be given their common and ordinary meaning.
§1.1 “Company” refers to Public Service Company of Colorado, a Colorado corporation,
and an Xcel Energy company and its successors and assigns including affiliates or subsidiaries that
undertake to perform any of the obligations under this Franchise.
§1.2 “Company Facilities” means all facilities of the Company reasonably necessary or
desirable to provide gas service into, within and through the Town, including but not limited to
plants, works, systems, distribution lines, equipment, pipes, mains, gas compressors, meters, meter
reading devices, communication and data transfer equipment, control equipment and gas regulator
stations and all associated appurtenances thereto.
§1.3 “Force Majeure” means the inability to undertake or perform any of the duties
under this Franchise due to uncontrollable forces which could not reasonably have been
anticipated and avoided, which shall include without limitation: accidents, breakdown of
equipment, shortage of materials, shortage of labor, acts of God, floods, storms, fires, sabotage,
terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of
government, and other causes or contingencies of whatever nature beyond the reasonable control
of the party affected.
§1.4 “Gross Revenues” means those amounts of money that the Company receives from
the sale of gas within the Town under rates authorized by the Public Utilities Commission, as well
as from the transportation of gas to its customers within the Town and those amounts of money,
excluding expense reimbursements, which the Company receives from the use of Company
Facilities in Town Streets and other public places (unless otherwise preempted by applicable
federal or state law), as adjusted for refunds, net write-offs of uncollectible accounts, corrections,
or regulatory adjustments. Regulatory adjustments include, but are not limited to, credits,
surcharges, refunds, and pro-forma adjustments pursuant to federal or state regulation. “Gross
Revenues” shall exclude any revenues from the sale of gas to the Town or the transportation of gas
to the Town.
§1.5 “Other Town Property” refers to the surface, the air space above the surface and the
area below the surface of any property owned by the Town or directly controlled by the Town due
to the Town’s real property interest in the same or hereafter owned by the Town, that would not
otherwise fall under the definition of “Town Streets”, but which provides a suitable location for the
placement of Company Facilities as specifically approved in writing by the Town. Other Town
Property does not include Public Utility Easements.
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§1.6 “Private Project” refers to any project which is not covered by the definition of
Public Project.
§1.7 “Public Project” refers to (1) any public work or improvement within the Town that
is wholly or beneficially owned by the Town; or (2) any public work or improvement within the
Town where fifty percent (50%) or more of the funding is provided by any combination of the
Town, the federal government, the State of Colorado, any Colorado county, the Vail Parks and
Recreation District (to the extent of any Vail Parks and Recreation District project within the Town
that directly benefits the Town), and the Eagle River Water and Sanitation District (to the extent of
any Eagle River Water and Sanitation District project within the Town that directly benefits the
Town), but excluding all other entities established under Title 32 of the Colorado Revised Statutes.
§1.8 “Public Utilities Commission” or “PUC” refers to the Public Utilities Commission
of the State of Colorado or other state agency succeeding to the regulatory powers of the Public
Utilities Commission.
§1.9 “Public Utility Easement” refers to any easement over, under, or above public or
private property, expressly dedicated to, and accepted by, the Town for the use of public utility
companies for the placement of utility facilities, including without limitation to Company
Facilities.
§1.10 “Residents” means all persons, businesses, industries, governmental agencies,
including the Town, and any other entity whatsoever, presently located or to be hereinafter located,
in whole or in part, within the territorial boundaries of the Town.
§1.11 “Supporting Documentation” means all information reasonably required or needed
in order to allow the Company to design and construct any work performed under the provisions of
this Franchise, including without limitation construction plans, a description of known
environmental issues, the identification of critical right-of-way or easement issues, the final
recorded plat for the property, the date the site will be ready for the Company to begin construction,
the date gas service and meter set are needed, and the name and contact information for the Town’s
project manager.
§1.12 “Tariffs” means those tariffs of the Company on file and in effect with the PUC or
other governing jurisdiction, as amended from time to time.
§1.13 “Town” means the Town of Vail, a Colorado home rule municipality.
§1.14 “Town Council” means the legislative body of the Town.
§1.15 “Town Streets” means the surface, the air space above the surface and the area
below the surface of any streets, alleys, bridges, roads, lanes, and other public rights-of-way within
the Town owned or maintained by the Town, excluding any easements the terms of which do not
permit the use thereof by the Company. Town Streets shall not include Public Utility Easements.
§1.16 “Utility Service” means the sale of gas to Residents by the Company under rates
and Tariffs approved by the PUC, as well as the delivery of gas to Residents by the Company.
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ARTICLE 2
GRANT OF FRANCHISE
§2.1 Grant of Franchise. The Town hereby grants to the Company, subject to all
conditions, limitations, terms, and provisions contained in this Franchise, the non-exclusive right
to make reasonable use of Town Streets, Public Utility Easements (as applicable) and Other Town
Property:
A. to provide Utility Service to the Town and to its Residents under the Tariffs; and
B. to acquire, purchase, construct, install, locate, maintain, operate, upgrade and
extend into, within and through the Town all Company Facilities reasonably necessary to furnish,
sell, transmit, transport and distribute, produce, manufacture, sell, store, purchase or exchange,
Utility Service within and through the Town.
§2.2 Conditions and Limitations.
A. Scope of Franchise. The grant of this Franchise shall extend to all areas of the
Town as it is now or hereafter constituted that are within the Company’s PUC-certificated service
territory; however, nothing contained in this Franchise shall be construed to authorize the
Company to engage in activities other than the provision of Utility Service.
B. Subject to Town Usage. The right to make reasonable use of Town Streets, and
Other Town Property to provide Utility Service to the Town and its Residents under this Franchise
is subject to and subordinate to any Town usage of Town Streets and Other Town Property.
C. Prior Grants not Revoked. This Franchise is not intended to revoke any prior
license, grant, or right to use Town Streets, Other Town Property or Public Utility Easements.
D. Franchise not Exclusive. The rights granted by this Franchise are not, and shall not
be deemed to be, granted exclusively to the Company, and the Town reserves the right to make or
grant a franchise to any other person, firm, or corporation.
§2.3 Effective Date and Term. This Franchise shall take effect on February 1, 2014, and
shall supersede any prior franchise grants to the Company by the Town. This Franchise shall
terminate on January 31, 2034, unless extended by mutual consent.
ARTICLE 3
TOWN POLICE POWERS
§3.1 Police Powers. The Company expressly acknowledges the Town’s right to adopt,
from time to time, in addition to the provisions contained herein, such laws, including ordinances
and regulations, as it may deem necessary in the exercise of its governmental powers. If the Town
considers making any substantive changes in its local codes or regulations that in the Town’s
reasonable opinion will significantly impact the Company’s operations in Town Streets, Public
Utility Easements and Other Town Property, the Town will make a good faith effort to advise the
Company of such consideration; provided, however, that lack of notice shall not be justification
for the Company’s non-compliance with any applicable local requirements.
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§3.2 Regulation of Town Streets or Other Town Property. The Company expressly
acknowledges the Town’s right to enforce regulations concerning the Company’s access to or use
of Town Streets and Other Town Property, including requirements for permits.
§3.3 Compliance with Laws. The Company shall promptly and fully comply with all
laws, regulations, permits and orders lawfully enacted by the Town. Nothing herein provided shall
prevent the Company from legally challenging or appealing the enactment of any laws, regulations,
permits and orders enacted by the Town.
§3.4 Conveyance of Town Streets, Public Utility Easements or Other Town Property. In
the event the Town vacates, releases or sells, conveys, transfers or otherwise disposes of a Town
Street, or any portion of a Public Utility Easement or Other Town Property in which Company
Facilities are located, the Town shall use its best efforts to reserve an easement in favor of the
Company over that portion of the Town Street, Public Utility Easement or Other Town Property in
which such Company Facilities are located. The Company and the Town shall work together to
prepare the necessary legal description to effectuate such reservation. For the purposes of Section
6.8.A of this Franchise, the land vacated, released, sold, conveyed, transferred or otherwise
disposed of by the Town shall no longer be deemed to be a Town Street or Other Town Property
from which the Town may demand the Company temporarily or permanently Relocate Company
Facilities at the Company’s expense.
ARTICLE 4
FRANCHISE FEE
§4.1 Franchise Fee.
A. Fee. In partial consideration for this Franchise, which provides the certain terms
related to the Company’s use of Town Streets, Public Utility Easements and Other Town Property,
which are valuable public properties acquired and maintained by the Town, and in recognition of
the fact that the grant to the Company of this Franchise is a valuable right, the Company shall pay
the Town a sum equal to three percent (3%) of all Gross Revenues. To the extent permitted by law,
the Company shall collect this fee (the “Franchise Fee”) from a surcharge upon Residents who are
customers of the Company. Any change in the Franchise Fee from the fee currently collected by
the Company and remitted to the Town shall not become effective unless and until approved by the
PUC.
B. Obligation in Lieu of Fee. In the event that the Franchise Fee specified herein is
declared void for any reason by a court of competent jurisdiction, unless prohibited by law, the
Company shall be obligated to pay the Town, at the same times and in the same manner as
provided in this Franchise, an aggregate amount equal to the amount that the Company would have
paid as the Franchise Fee as partial consideration for use of the Town Streets, Public Utility
Easements and Other Town Property.
C. Changes in Utility Service Industries. The Town and the Company recognize that
utility service industries are the subject of restructuring initiatives by legislative and regulatory
authorities, and are also experiencing other changes as a result of mergers, acquisitions, and
reorganizations. Some of such initiatives and changes have or may have an adverse impact upon
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the Franchise Fee. In recognition of the length of the term of this Franchise, the Company agrees
that in the event of any such initiatives or changes and to the extent permitted by law, upon
receiving a written request from the Town, the Company will cooperate with the Town in
modifying this Franchise in an effort to correct the adverse impact caused by such initiative and
changes.
D. Utility Service Provided to the Town. No Franchise Fee shall be charged to the
Town for Utility Service provided directly or indirectly to the Town for its own consumption.
§4.2 Remittance of Franchise Fee.
A. Remittance Schedule. Franchise Fee revenues shall be remitted by the Company to
the Town as directed by the Town in monthly installments not more than thirty (30) days following
the close of each month.
B. Correction of Franchise Fee Payments. In the event that either the Town or the
Company discovers that there has been an error in the calculation of a Franchise Fee payment to
the Town, either party shall provide written notice of the error to the other party. If the party
receiving written notice of the error does not agree with the written notice of error, that party may
challenge the written notice of error; otherwise, the error shall be corrected in the next monthly
payment. However, subject to the terms of applicable Tariffs, if the error results in an
overpayment of the Franchise Fee to the Town, and said overpayment is in excess of Five
Thousand Dollars ($5,000.00), at the Company’s election, credit for the overpayment shall be
spread over the same period the error was undiscovered or the Town shall make a refund payment
to the Company. All Franchise Fee underpayments shall be corrected in the next monthly
payment, together with interest computed at the rate set by the PUC for customer security deposits
held by the Company, from the date when due until the date paid. Subject to the terms of
applicable Tariffs, in no event shall either party be required to fund or refund any overpayment or
underpayment made as a result of a Company error which occurred more than five (5) years prior
to the discovery of the error.
C. Audit of Franchise Fee Payments.
(1) Every three (3) years commencing at the end of the third year of this Franchise, the
Company shall conduct an internal audit to investigate and determine the correctness of the
Franchise Fee paid to the Town. Such audit shall be limited to the previous three (3) calendar
years. The Company shall provide a written report to the Town containing the audit findings.
(2) If the Town disagrees with the results of the audit, and if the parties are not able to
informally resolve their differences, the Town may conduct its own audit at its own expense, and
the Company shall cooperate with such audit.
(3) If the results of a Town audit conducted pursuant to subsection C(2) concludes that
the Company has underpaid the Town by three percent (3%) or more, in addition to the obligation
to pay such amounts to the Town, the Company shall also pay all reasonable costs of the Town’s
audit.
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D. Reports. To the extent allowed by law, upon written request by the Town, but not
more than once per year, the Company shall supply the Town with the names and addresses of all
registered gas suppliers and brokers of natural gas that utilize Company Facilities to sell or
distribute natural gas. The Company shall not be required to disclose any confidential or
proprietary information.
§4.3 Franchise Fee Payment not in Lieu of Permit or Other Fees. Payment of the
Franchise Fee does not exempt the Company from any other lawful tax or fee imposed generally
upon persons doing business within the Town, except that the Franchise Fee shall be in lieu of any
occupation, occupancy or similar tax or fee for the use of Town Streets, Public Utility Easements
and Other Town Property.
ARTICLE 5
ADMINISTRATION OF FRANCHISE
§5.1 Town Designee. The Town shall designate in writing to the Company an official
having full power and authority to administer this Franchise. The Town may also designate one or
more Town representatives to act as the primary liaison with the Company as to particular matters
addressed by this Franchise and shall provide the Company with the names and telephone numbers
of said Town representatives. The Town may change these designations by providing written
notice to the Company. The Town’s designee shall have the right, at all reasonable times, to
inspect any Company Facilities in Town Streets and Other Town Property.
§5.2 Company Designee. The Company shall designate a representative to act as the
primary liaison with the Town and shall provide the Town with the name, address, and telephone
number for the Company’s representative under this Franchise. The Company may change its
designation by providing written notice to the Town. The Town shall use this liaison to
communicate with the Company regarding this Franchise.
§5.3 Coordination of Work. The Company shall coordinate its activities in Town Streets,
Public Utility Easements and Other Town Property with the Town. The Town and the Company
will meet annually upon the written request of the Town designee to exchange their respective
short-term and long-term forecasts and/or work plans for construction and other similar work
which may affect Town Streets, Public Utility Easements or Other Town Property, including
without limitation any planned Town Streets paving projects. The Town and Company shall hold
such meetings as either deems necessary to exchange additional information with a view toward
coordinating their respective activities in those areas where such coordination may prove
beneficial and so that the Town will be assured that all applicable provisions of this Franchise,
applicable building and zoning codes, and applicable Town regulations are complied with, and that
aesthetic and other relevant planning principles have been given due consideration.
ARTICLE 6
SUPPLY, CONSTRUCTION, AND DESIGN
§6.1 Supply. Subject to the jurisdiction of the PUC, the Company shall take all
reasonable and necessary steps to provide a sufficient supply of gas to Residents at the lowest
reasonable cost consistent with reliable supplies.
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§6.2 Charges to the Town for Service to Town Facilities. No charges to the Town by the
Company for Utility Service (other than gas transportation which shall be subject to negotiated
contracts) shall exceed the lowest charge for similar service or supplies provided by the Company
to any other similarly situated customer of the Company. The parties acknowledge the jurisdiction
of the PUC over the Company’s regulated intrastate gas rates.
§6.3 Restoration of Service.
A. Notification. The Company shall provide to the Town telephone numbers of a
designated Company representative from whom the Town designee may obtain status information
from the Company on a twenty-four (24) hour basis concerning interruptions of Utility Service in
any part of the Town.
B. Restoration. In the event the Company’s gas system within the Town, or any part
thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to
restore such system to satisfactory service within the shortest practicable time, or provide a
reasonable alternative to such system if the Company elects not to restore such system.
§6.4 Company’s Obligations.
A. Company Facilities. All Company Facilities within Town Streets, Public Utility
Easements and Other Town Property shall be maintained in good repair and condition.
B. Company Work within the Town. All work within Town Streets, Public Utility
Easements and Other Town Property performed or caused to be performed by the Company shall
be done:
(1) in a high-quality manner that is in accordance with general utility practice;
(2) in a timely and expeditious manner;
(3) in a manner that reasonably minimizes inconvenience to the public;
(4) in a cost-effective manner, which may include the use of qualified contractors; and
(5) in accordance with all applicable laws, ordinances, regulations and the Tariffs.
C. No Interference with Town Facilities. Company Facilities shall not unreasonably
interfere with any Town facilities, including water facilities, sanitary or storm sewer facilities,
snowmelt systems, communications facilities, or other Town uses of Town Streets, Public Utility
Easements or Other Town Property in light of the Company’s obligation under Colorado law to
provide safe and reliable utility facilities and services.
D. Permit and Inspection. The installation, renovation, and replacement of any
Company Facilities in Town Streets, Public Utility Easements or Other Town Property by or on
behalf of the Company shall be subject to permit, inspection and approval by the Town in
accordance with applicable laws. Such permitting, inspection and approval may include without
limitation: location of Company Facilities, cutting and pruning of trees and shrubs, and
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disturbance of pavement, sidewalks and surfaces of Town Streets; provided, however, Company
shall have the right to cut, prune, and/or remove vegetation in accordance with its standard
vegetation management requirements and procedures and subject to approval of the Town’s
Design Review Board, which shall not be unreasonably withheld. The Company agrees to
cooperate with the Town in conducting inspections and shall promptly perform any remedial
action lawfully required by the Town pursuant to any such inspection.
E. Compliance. Subject to Section 3.3, the Company and all of its contractors shall
comply with all municipal laws, ordinances, regulations, permits, and standards lawfully adopted,
including without limitation building and zoning codes, and requirements regarding curb and
pavement cuts, excavating, digging, and other construction activities. The Company shall require
that its contractors working in Town Streets, Public Utility Easements or Other Town Property
hold the necessary licenses and permits required by law.
F. As-Built Drawings. Within thirty (30) days after written request of the Town
designee, but no sooner than fourteen (14) days after project completion, the Company shall
commence its internal process to permit Company to provide, on a project-by-project basis,
as-built drawings of any Company Facility installed in Town Streets or Other Town Property or
contiguous to Town Streets or Other Town Property. If the requested information must be limited
or cannot be provided pursuant to regulatory requirements or Company data privacy policies,
Company shall promptly notify the Town of such restrictions, in writing. The Town
acknowledges that the requested information is confidential information of Company and
disclosure to members of the public would be contrary to the public interest. Accordingly, the
Town shall only produce for inspection Company confidential information under the
circumstances set forth in C.R.S. § 24-72-204(3)(a)(IV), as may be amended from time-to-time. In
no event shall the Town provide to any third party confidential information provided by the
Company pursuant to this Franchise without first conferring with the Company. The Company
shall defend, indemnify and hold the Town harmless from any claim, judgment, costs or attorney
fees incurred in participating in any proceeding related to the provision of such confidential
information. As used in this Section, as-built drawings refers to hard copies of the facility
drawings as maintained in the Company’s business records and shall not include information
maintained in the Company’s geographical information system. The Company shall not be
required to create drawings that do not exist at the time of the request.
§6.5 Excavation and Construction. The Company shall be responsible for obtaining,
paying for, and complying with all applicable permits, in the manner required by the laws,
ordinances, and regulations of the Town. Although the Company shall be responsible for
obtaining and complying with the terms of such permits when performing Relocations requested
by the Town under Section 6.7, the Town will not require the Company to pay the fees charged for
such permits. Upon the Company submitting a construction design plan, the Town shall promptly
and fully advise the Company in writing of all requirements for restoration of Town Streets in
advance of Company excavation projects in Town Streets, based upon the design submitted.
§6.6 Restoration. When the Company does any work in or affecting the Town Streets,
Public Utility Easements or Other Town Property, it shall, at its own expense, promptly remove
any obstructions placed thereon or therein by the Company and restore such Town Streets, Public
Utility Easements or Other Town Property to a condition that is substantially the same as existed
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before the work, and that meets applicable Town standards. If weather or other conditions do not
permit the complete restoration required by this Section, the Company may with the approval of
the Town, temporarily restore and maintain the affected Town Streets, Public Utility Easements or
Other Town Property, provided that such temporary restoration and maintenance is not at the
Town’s expense and provided further that the Company promptly undertakes and completes the
required permanent restoration when the weather or other conditions no longer prevent such
permanent restoration. Upon the request of the Town, the Company shall restore the Town Streets,
Public Utility Easements or Other Town Property to a better condition than existed before the
Company work was undertaken, provided that the Town shall be responsible for any incremental
costs of such restoration not required by then-current Town standards, and provided the Town
seeks and/or grants, as applicable, any additional required approvals. If the Company fails to
promptly restore the Town Streets, Public Utility Easements or Other Town Property as required
by this Section, and if, in the reasonable discretion of the Town immediate action is required for
the protection of public health, safety or welfare, the Town may restore such Town Streets, Public
Utility Easements or Other Town Property or remove the obstruction therefrom; provided however,
Town actions do not interfere with Company Facilities. The Company shall be responsible for the
actual cost incurred by the Town to restore such Town Streets, Public Utility Easements or Other
Town Property or to remove any obstructions therefrom. In the course of its restoration of Town
Streets, Public Utility Easements or Other Town Property under this Section, the Town shall not
perform work on Company Facilities unless specifically authorized by the Company in writing on
a project-by-project basis and subject to the terms and conditions agreed to in such authorization.
§6.7 Relocation of Company Facilities.
A. Relocation Obligation. When necessary for the completion of a Public Project, the
Company, at no cost to the Town, shall temporarily or permanently remove, relocate, change or
alter the position of any Company Facility (collectively, “Relocate(s),” “Relocation(s)” or
“Relocated”) in Town Streets, in Other Town Property or in any Public Utility Easement or other
easement that was granted to the Company by the Town at no cost or nominal cost (e.g., ten dollars
($10.00)) to the Company. In the case of Relocation that is necessary for the completion of any
Public Project in a Public Utility Easement that was not provided to the Company by the Town at
no cost or nominal cost (e.g., ten dollars ($10.00)), the Company shall not be responsible for any
Relocation costs unless the Public Utility Easement is located in a Town Street. In the event of any
Relocation contemplated pursuant to this Section 6.7A, the Company and the Town agree to
cooperate on the location and Relocation of the Company Facilities to achieve Relocation in the
most efficient and cost-effective manner possible. Notwithstanding the foregoing, once the
Company has Relocated any Company Facility at the Town’s direction, if the Town requests that
the same Company Facility be Relocated within two (2) years, the subsequent Relocation shall not
be at the Company’s expense. Nothing provided herein shall prevent the Company from obtaining
reimbursement of its Relocation costs from third parties.
B. Private Projects. The Company shall not be responsible for the expenses of any
Relocation required by Private Projects, and the Company has the right to require the payment of
estimated Relocation expenses from the party causing, or responsible for, the Relocation before
undertaking the Relocation.
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C. Relocation Performance. Any Relocation shall be completed within a reasonable
time, not to exceed one hundred twenty (120) days from the later of the date on which the Town
requests, in writing, that the Relocation commence, or the date when the Company is provided all
Supporting Documentation. The Company shall receive an extension of time to complete a
Relocation where the Company’s performance was delayed due to the failure of the Town to
provide adequate Supporting Documentation. The Company has the burden of presenting
evidence to reasonably demonstrate the basis for the delay. Upon written request of the Company,
the Town may also grant the Company reasonable extensions of time for good cause shown and
the Town shall not unreasonably withhold or condition any such extension. The Company shall
notify the Town within twenty (20) business days of receipt of the Supporting Documentation if
the Supporting Documentation is insufficient for the Company to commence or complete the
project.
D. Town Revision of Supporting Documentation. Any revision by the Town of
Supporting Documentation provided to the Company that causes the Company to substantially
redesign and/or change its plans regarding Relocation shall be deemed good cause for a reasonable
extension of time to complete the Relocation under this Franchise.
E. Completion. Each such Relocation shall be complete only when the Company
Relocates the Company Facilities, restores the Relocation site in accordance with Section 6.6 or as
otherwise agreed with the Town, and removes from the site or properly abandons on site all unused
facilities, equipment, material and other impediments.
F. Scope of Obligation. Notwithstanding anything to the contrary in this Franchise,
the Company shall not be required to Relocate any Company Facilities from property (a) owned by
the Company in fee; or (b) in which the Company has a property right, grant or interest, including
without limitation an easement, but excluding a Public Utility Easement or an easement in Town
Streets or Other Town Property which was granted to the Company by the Town at no cost or
nominal cost (e.g., ten dollars ($10.00)) to the Company.
G. Underground Relocation. Underground facilities shall be Relocated underground.
Above ground facilities shall be placed above ground unless the Company is paid for the
incremental amount by which the underground cost would exceed the above ground cost of
Relocation.
H. Coordination.
(1) When requested in writing by the Town designee or the Company, representatives
of the Town and the Company shall meet to share information regarding anticipated projects
which will require Relocation of Company Facilities in Town Streets. Such meetings shall be for
the purpose of minimizing conflicts where possible and to facilitate coordination with any
reasonable timetable established by the Town for any Public Project.
(2) The Town shall make reasonable best efforts to provide the Company with two (2)
years advance notice of any planned Town Street repaving. The Company shall make reasonable
best efforts to complete any necessary or anticipated repairs or upgrades to Company Facilities
that are located underneath such Town Streets within the two-year period if practicable.
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G. Proposed Alternatives or Modifications. Upon receipt of written notice of a
required Relocation, the Company may propose an alternative to or modification of the Public
Project requiring the Relocation in an effort to mitigate or avoid the impact of the required
Relocation of Company Facilities. The Town shall in good faith review the proposed alternative
or modification. The acceptance of the proposed alternative or modification shall be at the sole
discretion of the Town. In the event the Town accepts the proposed alternative or modification,
the Company agrees to promptly compensate the Town for all additional costs, expenses or delay
that the Town reasonably determines resulted from the implementation of the proposed alternative.
§6.8 Service to New Areas. If the territorial boundaries of the Town are expanded
during the term of this Franchise, the Company shall, to the extent permitted by law, extend
service to Residents in the expanded area at the earliest practicable time if the expanded area is
within the Company’s PUC-certificated service territory. Service to the expanded area shall be in
accordance with the terms of the Tariffs and this Franchise, including the payment of Franchise
Fees.
§6.9 Town not Required to Advance Funds if Permitted by Tariffs. Upon receipt of the
Town’s authorization for billing and construction, the Company shall install Company Facilities to
provide Utility Service to the Town as a customer, without requiring the Town to advance funds
prior to construction. The Town shall pay for the installation of Company Facilities once
completed in accordance with the Tariffs. Notwithstanding anything to the contrary, the
provisions of this Section allowing the Town to not advance funds prior to construction shall only
apply to the extent permitted by the Tariffs.
§6.10 Technological Improvements. The Company shall use its best efforts to
incorporate, as soon as practicable, technological advances in its equipment and service within the
Town when such advances are technically and economically feasible and are safe and beneficial to
the Town and its Residents.
ARTICLE 7
RELIABILITY
§7.1 Reliability. The Company shall operate and maintain Company Facilities
efficiently and economically and in accordance with the high standards and best systems, methods
and skills consistent with the provision of adequate, safe and reliable Utility Service.
§7.2 Franchise Performance Obligations. The Company recognizes that, as part of its
obligations and commitments under this Franchise, the Company shall carry out each of its
performance obligations in a timely, expeditious, efficient, economical and workmanlike manner.
§7.3 Reliability Reports. Upon written request, the Company shall provide the Town
with a report regarding the reliability of Company Facilities and Utility Service.
ARTICLE 8
COMPANY PERFORMANCE OBLIGATIONS
§8.1 New or Modified Service to Town Facilities. In providing new or modified Utility
Service to Town facilities, the Company agrees to perform as follows:
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A. Performance. The Company shall complete each project requested by the Town
within a reasonable time, not to exceed one hundred eighty (180) days from the date upon which
the Town makes a written request and provides the required Supporting Documentation for all
Company Facilities. The Company shall be entitled to an extension of time to complete a project
where the Company’s performance was delayed due to Force Majeure. Upon request of the
Company, the Town may also grant the Company reasonable extensions of time for good cause
shown.
B. Town Revision of Supporting Documentation. Any revision by the Town of
Supporting Documentation provided to the Company that causes the Company to substantially
redesign and/or change its plans regarding new or modified service to Town facilities shall be
deemed good cause for a reasonable extension of time to complete the Relocation under this
Franchise.
C. Completion/Restoration. Each such project shall be complete only when the
Company actually provides the service installation or modification required, restores the project
site in accordance with the terms of this Franchise or as otherwise agreed with the Town and
removes from the site or properly abandons on site any unused facilities, equipment, material and
other impediments.
§8.2 Adjustments to Company Facilities. The Company shall perform adjustments to
Company Facilities to accommodate Town Street maintenance, repair and paving operations at no
cost to the Town. In providing such adjustments to Company Facilities, the Company agrees to
perform as follows:
A. Performance. The Company shall complete each requested adjustment within a
reasonable time, not to exceed thirty (30) days from the date upon which the Town makes a written
request and provides to the Company all information reasonably necessary to perform the
adjustment. The Company shall be entitled to an extension of time to complete an adjustment
where the Company’s performance was delayed due to Force Majeure. Upon request of the
Company, the Town may also grant the Company reasonable extensions of time for good cause
shown and the Town shall not unreasonably withhold any such extension.
B. Completion/Restoration. Each such adjustment shall be complete only when the
Company actually adjusts and, if required, readjusts, Company Facilities to accommodate Town
operations in accordance with Town instructions following Town paving operations.
C. Coordination. As requested by the Town or the Company, representatives of the
Town and the Company shall meet regarding anticipated Town Street maintenance operations
which will require such adjustments to Company Facilities in Town Streets or Other Town
Property. Such meetings shall be for the purpose of coordinating and facilitating performance
under this Section.
§8.3 Third Party Damage Recovery.
A. Damage to Company Interests. If any individual or entity damages any Company
Facilities, to the extent permitted by law the Town will notify the Company of any such incident of
which it has knowledge and will provide to the Company within a reasonable time all pertinent
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information within its possession regarding the incident and the damage, including the identity of
the responsible individual or entity.
B. Damage to Company Property for which the Town is Responsible. If any
individual or entity damages any Company Facilities for which the Town is obligated to reimburse
the Company for the cost of the repair or replacement, to the extent permitted by law, the Company
will notify the Town of any such incident of which it has knowledge and will provide to the Town
within a reasonable time all pertinent information within its possession regarding the incident and
the damage, including the identity of the responsible individual or entity.
C. Meeting. The Company and the Town agree to meet periodically upon written
request of either party for the purpose of developing, implementing, reviewing, improving and/or
modifying mutually beneficial procedures and methods for the efficient gathering and transmittal
of information useful in recovery efforts against third parties for damaging Company Facilities.
ARTICLE 9
BILLING AND PAYMENT
§9.1 Billing for Utility Services.
A. Monthly Billing. Unless otherwise provided in the Tariffs, the rules and
regulations of the PUC, or the Public Utility Law, the Company shall render bills monthly to the
offices of the Town for Utility Service and other related services for which the Company is entitled
to payment.
B. Address for Billing. Billings for service rendered during the preceding month shall
be sent to the person(s) designated by the Town and payment for same shall be made as prescribed
in this Franchise and the applicable Company Tariffs.
C. Supporting Documents. To the extent requested by the Town, the Company shall
provide all billings and any underlying Supporting Documentation reasonably requested by the
Town in an editable and manipulatable electronic format that is acceptable to the Company and the
Town.
D. Annual Meetings. The Company agrees to meet with the Town designee on a
reasonable basis for the purpose of developing, implementing, reviewing, and/or modifying
mutually beneficial and acceptable billing procedures, methods, and formats which may include,
without limitation, electronic billing and upgrades or beneficial alternatives to the Company’s
current most advanced billing technology, for the efficient and cost effective rendering and
processing of such billings submitted by the Company to the Town.
§9.2 Payment to Town. In the event the Town determines after written notice to the
Company that the Company is liable to the Town for payments, costs, expenses or damages of any
nature, and subject to the Company’s right to challenge such determination, the Town may deduct
all monies due and owing the Town from any other amounts currently due and owing the Company.
Upon receipt of such written notice, the Company may request a meeting between the Company’s
designee and the Town’s designee to discuss such determination. The Town agrees to attend such
a meeting. As an alternative to such deduction and subject to the Company’s right to challenge,
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the Town may bill the Company for such assessment(s), in which case, the Company shall pay
each such bill within thirty (30) days of the date of receipt of such bill unless it challenges the
validity of the charge in good faith. If the Company challenges the Town determination of liability,
the Town shall make such payments to the Company for Utility Service received by Town
pursuant to the Tariffs until the challenge has been finally resolved.
ARTICLE 10
PURCHASE OR CONDEMNATION
§10.1 Municipal Right to Purchase or Condemn.
A. Right and Privilege of Town. The right and privilege of the Town to construct, own
and operate a municipal utility, and to purchase pursuant to a mutually acceptable agreement or
condemn any Company Facilities located within the territorial boundaries of the Town, and the
Company’s rights in connection therewith, as set forth in applicable provisions of the constitution,
statutes and case law of the State of Colorado relating to the acquisition of public utilities, are
expressly recognized. The Town shall have the right, within the time frames and in accordance
with the procedures set forth in such provisions, to condemn Company Facilities, land,
rights-of-way and easements now owned or to be owned by the Company located within the
territorial boundaries of the Town.
B. Notice of Intent to Purchase or Condemn. The Town shall provide the Company no
less than one (1) year’s prior written notice of its intent to purchase Company Facilities. The Town
shall make best efforts to give the Company at least one (1) year’s prior written notice of its intent
to condemn Company Facilities. Nothing in this Section shall be deemed or construed to
constitute a consent by the Company to the Town’s purchase or condemnation of Company
Facilities, nor a waiver of any Company defenses or challenges related thereto.
ARTICLE 11
TRANSFER OF FRANCHISE
§11.1 Consent of Town Required for Transfer. The Company shall not transfer or assign
any rights under this Franchise to an unaffiliated third party, except when the transfer is made in
response to legislation or regulatory requirements, unless the Town approves such transfer or
assignment in writing. Approval of the transfer or assignment shall not be unreasonably withheld
conditioned.
§11.2 Transfer Fee. Any transfer or assignment of rights granted under this Franchise
requiring Town approval shall be subject to the condition that the Company shall promptly pay to
the Town a transfer fee in an amount equal to the proportion of the Town’s then-population
provided Utility Service by the Company to the then-population of the City and County of Denver
provided Utility Service by the Company multiplied by one million dollars ($1,000,000.00).
Except as otherwise required by law, such transfer fee shall not be recovered from a surcharge
placed only on the rates of Residents.
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ARTICLE 12
CONTINUATION OF UTILITY SERVICE
§12.1 Continuation of Utility Service. In the event this Franchise is not renewed at the
expiration of its term or is terminated for any reason, and the Town has not provided for alternative
utility service, the Company shall have no obligation to remove any Company Facilities from
Town Streets, Public Utility Easements or Other Town Property or discontinue providing Utility
Service unless otherwise ordered by the PUC, and shall continue to provide Utility Service within
the Town until the Town arranges for utility service from another provider. The Town
acknowledges and agrees that the Company has the right to use Town Streets, Other Town
Property and Public Utility Easements during any such period. The Company further agrees that it
will not withhold any temporary Utility Services necessary to protect the public. The Town agrees
that in the circumstances of this Article, the Company shall be entitled to monetary compensation
as provided in the Tariffs and the Company shall be entitled to collect from Residents and, upon
the Town’s compliance with applicable provisions of law, shall be obligated to pay the Town, at
the same times and in the same manner as provided in this Franchise, an aggregate amount equal to
the amount which the Company would have paid as a Franchise Fee as consideration for use of the
Town Streets and Other Town Property. Only upon receipt of written notice from the Town
stating that the Town has adequate alternative utility service for Residents and upon order of the
PUC shall the Company be allowed to discontinue the provision of Utility Service in the Town.
ARTICLE 13
INDEMNIFICATION AND IMMUNITY
§13.1 Indemnification. The Company shall indemnify, defend and hold the Town
harmless from and against claims, demands, liens and all liability or damage of whatsoever kind on
account of or directly arising from the grant of this Franchise, or the exercise by the Company of
the related rights, but in both instances only to the extent caused by the Company, and shall pay the
costs of defense plus reasonable attorneys’ fees. The Town shall (a) give prompt written notice to
the Company of any claim, demand or lien with respect to which the Town seeks indemnification
hereunder; and, (b) unless in the Town’s judgment a conflict of interest may exist between the
Town and the Company with respect to such claim, demand or lien, shall permit the Company to
assume the defense of such claim, demand, or lien with counsel reasonably satisfactory to the
Town. If such defense is assumed by the Company, the Company shall not be subject to liability
for any settlement made without its consent. If such defense is not assumed by the Company or if
the Town determines that a conflict of interest exists, the parties reserve all rights to seek all
remedies available in this Franchise against each other. Notwithstanding any provision hereof to
the contrary, the Company shall not be obligated to indemnify, defend or hold the Town harmless
to the extent any claim, demand or lien arises out of or in connection with any negligent or
intentional act or failure to act of the Town or any of its officers, agents, or employees.
§13.2 Immunity. Nothing in this Section or any other provision of this Franchise shall be
construed as a waiver of the notice requirements, defenses, immunities and limitations the Town
may have under the Colorado Governmental Immunity Act (§ 24-10-101, C.R.S., et seq.) or of any
other defenses, immunities, or limitations of liability available to the Town by law.
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ARTICLE 14
BREACH
§14.1 Non-Contestability. The Town and the Company agree to take all reasonable and
necessary actions to assure that the terms of this Franchise are performed. The Company reserves
the right to seek a change in its Tariffs, including but not limited to the rates, charges, terms, and
conditions of providing Utility Service to the Town and its Residents, and the Town retains all
rights that it may have to intervene and participate in any such proceedings.
§14.2 Breach.
A. Notice/Cure/Remedies. Except as otherwise provided in this Franchise, if a party
(the “Breaching Party”) to this Franchise fails or refuses to perform any of the terms or conditions
of this Franchise (a “Breach”), the other party (the “Non-Breaching Party”) may provide written
notice to the Breaching Party of such Breach. Upon receipt of such notice, the Breaching Party
shall be given a reasonable time, not to exceed thirty (30) days in which to remedy the Breach or, if
such Breach cannot be remedied in thirty (30) days, such additional time as reasonably needed to
remedy the Breach, but not exceeding an additional thirty (30) day period, or such other time as the
parties may agree. If the Breaching Party does not remedy the Breach within the time allowed in
the notice, the Non-Breaching Party may exercise all remedies at law for such Breach, but
excluding any special, punitive or consequential damages.
B. Termination of Franchise by Town. In addition to the foregoing remedies, if the
Company fails or refuses to perform any material term or condition of this Franchise (a “Material
Breach”), the Town may provide written notice to the Company of such Material Breach. Upon
receipt of such notice, the Company shall be given a reasonable time, not to exceed ninety (90)
days, in which to remedy the Material Breach. If the Company does not remedy the Material
Breach within the time allowed in the notice, the Town may, at its sole option, terminate this
Franchise. This remedy shall be in addition to the Town’s right to exercise any of the remedies
provided for elsewhere in this Franchise. Upon such termination, the Company shall continue to
provide Utility Service to the Town and its Residents (and shall continue to have associated rights
and grants needed to provide such service) until the Town makes alternative arrangements for such
service and until otherwise ordered by the PUC and the Company shall be entitled to collect from
Residents and, upon the Town complying with applicable provisions of law, shall be obligated to
pay the Town, at the same times and in the same manner as provided in this Franchise, an
aggregate amount equal to the amount which the Company would have paid as a Franchise Fee as
consideration for use of the Town Streets and Other Town Property. Unless otherwise provided by
law, the Company shall be entitled to collect such amount from Residents.
C. Company Shall not Terminate Franchise. In no event does the Company have the
right to terminate this Franchise.
D. No Limitation. Except as provided herein, nothing in this Franchise shall limit or
restrict any legal rights or remedies that either party may possess arising from any alleged Breach
of this Franchise.
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ARTICLE 15
AMENDMENTS
§15.1 Effective Amendments. No alterations, amendments or modifications to this
Franchise shall be valid unless executed in writing by the parties, which alterations, amendments
or modifications shall be adopted with the same formality used in adopting this Franchise, to the
extent required by law. Neither this Franchise, nor any term herein, may be changed, modified or
abandoned, in whole or in part, except by an instrument in writing, and no subsequent oral
agreement shall have any validity whatsoever.
ARTICLE 16
EQUAL OPPORTUNITY
§16.1 Economic Development. The Company is committed to the principle of
stimulating, cultivating and strengthening the participation and representation of persons of color,
women and members of other under-represented groups within the Company and in the local
business community. The Company believes that increased participation and representation of
under-represented groups will lead to mutual and sustainable benefits for the local economy. The
Company is committed also to the principle that the success and economic well-being of the
Company is closely tied to the economic strength and vitality of the diverse communities and
people it serves. The Company believes that contributing to the development of a viable and
sustainable economic base among all Company customers is in the best interests of the Company
and its shareholders.
§16.2 Employment.
A. Programs. The Company is committed to undertaking programs that identify,
consider and develop persons of color, women and members of other under-represented groups for
positions at all skill and management levels within the Company.
B. Businesses. The Company recognizes that the Town and the business community
in the Town, including women and minority owned businesses, provide a valuable resource in
assisting the Company to develop programs to promote persons of color, women and members of
under-represented communities into management positions, and agrees to keep the Town regularly
advised of the Company’s progress by providing the Town a copy of the Company’s annual
affirmative action report upon the Town’s written request.
C. Recruitment. In order to enhance the diversity of the employees of the Company,
the Company is committed to recruiting diverse employees by strategies such as partnering with
colleges, universities and technical schools with diverse student populations, utilizing
diversity-specific media to advertise employment opportunities, internships, and engaging
recruiting firms with diversity-specific expertise.
D. Advancement. The Company is committed to developing a world-class workforce
through the advancement of its employees, including persons of color, women and members of
under-represented groups. In order to enhance opportunities for advancement, the Company will
offer training and development opportunities for its employees. Such programs may include
mentoring programs, training programs, classroom training and leadership programs.
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E. Non-Discrimination. The Company is committed to a workplace free of
discrimination based on race, color, religion, national origin, gender, age, military status, sexual
orientation, marital status, or physical or mental disability or any other protected status in
accordance with all federal, state or local laws. The Company shall not, solely because of race,
creed, color, religion, sex, age, national origin or ancestry or handicap, refuse to hire, discharge,
promote, demote or discriminate in matters of compensation, against any person otherwise
qualified.
F. Board of Directors. The Company shall identify and consider women, persons of
color and other under-represented groups to recommend for its Board of Directors, consistent with
the responsibility of boards to represent the interests of the Shareholders, customers and
employees of the Company.
§16.3 Contracting.
A. Contracts. It is the Company’s policy to make available to minority and women
owned business enterprises and other small and/or disadvantaged business enterprises the
maximum practical opportunity to compete with other service providers, contractors, vendors and
suppliers in the marketplace. The Company is committed to increasing the proportion of
Company contracts awarded to minority and women owned business enterprises and other small
and/or disadvantaged business enterprises for services, construction, equipment and supplies to
the maximum extent consistent with the efficient and economical operation of the Company.
B. Community Outreach. The Company agrees to maintain and continuously
develop contracting and community outreach programs calculated to enhance opportunity and
increase the participation of minority and women owned business enterprises and other small
and/or disadvantaged business enterprises to encourage economic vitality. The Company agrees
to keep the Town regularly advised of the Company's programs.
C. Community Development. The Company shall maintain and support partnerships
with local chambers of commerce and business organizations, including those representing
predominately minority owned, women owned and disadvantaged businesses, to preserve and
strengthen open communication channels and enhance opportunities for minority owned, women
owned and disadvantaged businesses to contract with the Company.
ARTICLE 17
MISCELLANEOUS
§17.1 No Waiver. Neither the Town nor the Company shall be excused from complying
with any of the terms and conditions of this Franchise by any failure of the other, or any of its
officers, employees, or agents, upon any one or more occasions, to insist upon or to seek
compliance with any such terms and conditions.
§17.2 Successors and Assigns. The rights, privileges, and obligations, in whole or in part,
granted and contained in this Franchise shall inure to the benefit of and be binding upon the
Company, its successors and assigns, to the extent that such successors or assigns have succeeded
to or been assigned the rights of the Company pursuant to Article 11 of this Franchise. Upon a
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transfer or assignment pursuant to Article 11, the Company shall be relieved from all liability from
and after the effective date of such transfer.
§17.3 Third Parties. Nothing contained in this Franchise shall be construed to provide
rights to third parties.
§17.4 Notice. Both parties shall designate from time to time in writing representatives for
the Company and the Town who will be the persons to whom notices shall be sent regarding any
action to be taken under this Franchise. Notice shall be in writing and forwarded by certified mail,
reputable overnight courier or hand delivery to the persons and addresses as hereinafter stated,
unless the persons and addresses are changed at the written request of either party, delivered in
person or by certified mail. Notice shall be deemed received (a) three (3) days after being mailed
via the U.S. Postal Service, (b) one (1) business day after mailed if via reputable overnight courier,
or (c) upon hand delivery if delivered by courier. Until any such change shall hereafter be made,
notices shall be sent as follows:
To the Town: Town Manager
Town of Vail
75 S. Frontage Road
Vail, CO 81657
To the Company: Regional Vice President, Customer and Community Relations
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201
With a copy to: Legal Department
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201
and: Area Manager
Public Service Company of Colorado
2655 North 63rd Street
Boulder, CO 80301
§17.5 Examination of Records. The Town shall have access to and the right to examine
any directly pertinent non-confidential books, documents, papers, and records of the Company
involving any activities related to this Franchise. All such records must be kept for a minimum of
the time period required by law, except that in no event shall the time period for retention of
documents necessary for calculating the Franchise Fee and for the retention of as-built drawings as
contemplated by Section 6.4.F. be less than three (3) years.
§17.6 PUC Filings. Upon written request by the Town, the Company shall provide the
Town non-confidential copies of all applications, advice letters and periodic reports, together with
any accompanying non-confidential testimony and exhibits, filed by the Company with the
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Colorado Public Utilities Commission. Notwithstanding the foregoing, notice regarding any gas
filings that may affect Utility Service rates in the Town shall be sent to the Town upon filing.
§17.7 Information. Upon written request, the Company shall provide the Town with:
A. A copy of the Company’s or its parent company’s consolidated annual financial
report, or alternatively, a URL link to a location where the same information is available on the
Company’s website;
B. Maps or schematics indicating the location of specific Company Facilities ,
including gas lines, located within the Town, to the extent those maps or schematics are in
existence at the time of the request and related to an ongoing project within the Town. The
Company does not represent or warrant the accuracy of any such maps or schematics; and
C. A copy of any report required to be prepared for a federal or state agency detailing
the Company’s efforts to comply with federal and state air and water pollution laws.
§17.8 Payment of Taxes and Fees.
A. Impositions. The Company shall pay and discharge as they become due, promptly
and before delinquency, all taxes, assessments, rates, charges, license fees, municipal liens, levies,
excises, or imposts, whether general or special, or ordinary or extraordinary, of every name,
nature, and kind whatsoever, including all governmental charges of whatsoever name, nature, or
kind, which may be levied, assessed, charged, or imposed, or which may become a lien or charge
against this Franchise (“Impositions”), provided that Company shall have the right to contest any
such Impositions and shall not be in breach of this Section so long as it is actively contesting such
Impositions.
B. Town Liability. The Town shall not be liable for the payment of taxes, late charges,
interest or penalties of any nature other than pursuant to applicable Tariffs.
§17.9 Conflict of Interest. The parties agree that no official, officer or employee of the
Town shall have any personal or beneficial interest whatsoever in the services or property
described herein and the Company further agrees not to hire or contract for services any official,
officer or employee of the Town to the extent prohibited by law, including ordinances and
regulations of the Town.
§17.10 Certificate of Public Convenience and Necessity. The Town agrees to support the
Company’s application to the PUC to obtain a Certificate of Public Convenience and Necessity to
exercise its rights and obligations under this Franchise, provided that this Section shall not impose
any financial obligation on the Town.
§17.11 Authority. Each party represents and warrants that except as set forth below, it has
taken all actions that are necessary or that are required by its ordinances, regulations, procedures,
bylaws, or applicable law, to legally authorize the undersigned signatories to execute this
Franchise on behalf of the parties and to bind the parties to its terms. The persons executing this
Franchise on behalf of each of the parties warrant that they have full authorization to execute this
Franchise. The Town acknowledges that notwithstanding the foregoing, the Company requires a
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Certificate of Public Convenience and Necessity from the PUC in order to operate under the terms
of this Franchise.
§17.12 Severability. Should any one or more provisions of this Franchise be determined to
be unconstitutional, illegal, unenforceable or otherwise void, all other provisions nevertheless
shall remain effective; provided, however, to the extent allowed by law, the parties shall forthwith
enter into good faith negotiations and proceed with due diligence to draft one or more substitute
provisions that will achieve the original intent of the parties hereunder.
§17.13 Force Majeure. Neither the Town nor the Company shall be in breach of this
Franchise if a failure to perform any of the duties under this Franchise is due to Force Majeure.
§17.14 Earlier Franchises Superseded. This Franchise shall constitute the only franchise
between the Town and the Company related to the furnishing of Utility Service, and it supersedes
and cancels all former franchises between the parties hereto.
§17.15 Titles not Controlling. Titles of the paragraphs herein are for reference only, and
shall not be used to construe the language of this Franchise.
§17.16 Applicable Law. Colorado law shall apply to the construction and enforcement of
this Franchise. The parties agree that venue for any litigation arising out of this Franchise shall be
in the District Court for Eagle County, State of Colorado.
§17.17 Payment of Expenses Incurred by Town in Relation to Franchise Agreement. The
Company shall pay for expenses reasonably incurred by the Town for the adoption of this
Franchise, including the publication of notices, publication of ordinances, and photocopying of
documents.
§17.18 Incremental Costs. The parties acknowledge that PUC rules, regulations and final
decisions may require that incremental costs of complying with certain provisions of this
Franchise be borne by customers of the Company who are located within the Town.
§17.19 Tariffs Effective. The Company’s Tariffs shall control the provision of Utility
Service by the Company to the Town.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Franchise to be executed as of
this _____ day of _______________, 20__.
TOWN OF VAIL, COLORADO
____________________________________
Stan Zemler, Town Manager
ATTEST:
_________________________________
Tammy Nagel, Interim Town Clerk
APPROVED AS TO FORM:
_________________________________
J. Matthew Mire, Town Attorney
PUBLIC SERVICE COMPANY OF
COLORADO, a Colorado corporation
By: _________________________________
Jerome Davis, Regional Vice President,
Customer and Community Relations
STATE OF COLORADO )
)SS.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of ___________,
20__ by Jerome Davis, Regional Vice President, Customer and Community Relations of Public
Service Company of Colorado, a Colorado corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires _____________________.
_____________________________________
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Adjournment (8:10 p.m.)
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Certificate of Public Convenience and Necessity from the PUC in order to operate under the terms
of this Franchise.
§17.12 Severability. Should any one or more provisions of this Franchise be determined to
be unconstitutional, illegal, unenforceable or otherwise void, all other provisions nevertheless
shall remain effective; provided, however, to the extent allowed by law, the parties shall forthwith
enter into good faith negotiations and proceed with due diligence to draft one or more substitute
provisions that will achieve the original intent of the parties hereunder.
§17.13 Force Majeure. Neither the Town nor the Company shall be in breach of this
Franchise if a failure to perform any of the duties under this Franchise is due to Force Majeure.
§17.14 Earlier Franchises Superseded. This Franchise shall constitute the only franchise
between the Town and the Company related to the furnishing of Utility Service, and it supersedes
and cancels all former franchises between the parties hereto.
§17.15 Titles not Controlling. Titles of the paragraphs herein are for reference only, and
shall not be used to construe the language of this Franchise.
§17.16 Applicable Law. Colorado law shall apply to the construction and enforcement of
this Franchise. The parties agree that venue for any litigation arising out of this Franchise shall be
in the District Court for Eagle County, State of Colorado.
§17.17 Payment of Expenses Incurred by Town in Relation to Franchise Agreement. The
Company shall pay for expenses reasonably incurred by the Town for the adoption of this
Franchise, including the publication of notices, publication of ordinances, and photocopying of
documents.
§17.18 Incremental Costs. The parties acknowledge that PUC rules, regulations and final
decisions may require that incremental costs of complying with certain provisions of this
Franchise be borne by customers of the Company who are located within the Town.
§17.19 Tariffs Effective. The Company’s Tariffs shall control the provision of Utility
Service by the Company to the Town.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Franchise to be executed as of
this _____ day of _______________, 20__.
TOWN OF VAIL, COLORADO
____________________________________
Stan Zemler, Town Manager
ATTEST:
_________________________________
Tammy Nagel, Interim Town Clerk
APPROVED AS TO FORM:
_________________________________
J. Matthew Mire, Town Attorney
PUBLIC SERVICE COMPANY OF
COLORADO, a Colorado corporation
By: _________________________________
Jerome Davis, Regional Vice President,
Customer and Community Relations
STATE OF COLORADO )
)SS.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of ___________,
20__ by Jerome Davis, Regional Vice President, Customer and Community Relations of Public
Service Company of Colorado, a Colorado corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires _____________________.
_____________________________________
12/17/2013
VAIL TOWN COUNCIL AGENDA MEMO
MEETING DATE: December 17, 2013
ITEM/TOPIC: Adjournment (8:10 p.m.)
12/17/2013