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HomeMy WebLinkAbout12/11/2007AGENDA WHEAT RIDGE URBAN RENEWAL AUTHORITY December 11, 2007 Notice is hereby given of a Public Meeting to be held before the City of Wheat Ridge Urban Renewal Authority on Tuesday, December ll, 2007, at 6:00 p.m., in the City Council Chambers of the Municipal Building at 7500 West 29th Avenue, Wheat Ridge, Colorado. Call the Meeting to Order 2. Roll Call of Members 3. Approval of Minutes - November 6, 2007 4. Public Forum (This is the time for any person to speak on any subject not appearing on the agenda. Public comments may be limited to 3 minutes.) 5. Public Hearing A. Resolution 05-2006, Presentation & Approval of 2008 Budget 6. New Business A. WRURA v. Cornerstone Supreme Court Ruling - Jeff Parker, WRURA Attorney B. 44th and Wadsworth Conceptual Plan - Rob Osborn, WR2020 Executive Director C. Staff Updates 1) 44th and Wadsworth - Financing Negotiations 2) 44th and Wadsworth - Engagemeut of an Appraiser 3) 44th and Wadsworth - Phase II Environmental 4) Wheat Ridge Cyclery Improvements Agreement D. Elec tion of Officers Adjournment - MINUTES WHEAT RIDGE URBAN RENEWAL AUTHORITY November 6, 2007 1. CALL THE MEETING TO ORDER The meeting of the Wheat Ridge Urban Renewal Authority was called to order by Chair Williams at 6:05 p.m. in the council chambers of the Municipal Building, 7500 West 29`h Avenue, Wheat Ridge, Colarado. 2. ROLL CALL OF MEMBERS Authority Members Present: Rick Adams James Bahrenburg Walt Pettit Tom Radigan Larry Schulz Terrell Williams Authority Members Absent: Janet Leo - Also attending: Patrick Goff, Deputy City Manager Corey Hoffinann, WRURA Attorney Ann Lazzeri, Secretary 3. APPROVAL OF MINUTES - October 2, 2007 It was moved by James Bahrenberg and seconded by Larry Schulz to approve the minutes of October 2, 2007. The motion passed unanimously. 4. PUBLIC FORUM There was no one present to address the Authority. 5. NEW BUSINESS A. Staff Updates • Corey Hoffinann reported that the Supreme Court has not yet reached a decision on the Cornerstone case. • Patrick Goff reported that City Counci] approved an ordinance regarding the Urban Renewal Authority. The ordinance was approved _ with language recommended by the Authority: Non-resident WRURA Minutes - 1- November 6, 2007 individual who owns an interest in or is a corporate offccer of a licensed business in good standing located within the City. • Patrick Goff reported that Wheat Ridge 2020 has turned over the option for a second property at 44`h and Wadsworth, known as the Antique MaIL This option is good until January 31, 2008. Patrick Goff reported that negotiations are still under way with First Bank for property acquisition financing. Wheat Ridge 2020 is not in favor of using proper[y as collateral against the loan. Meetings will be held with Jefferson County and Colorado Housing Financing Authority to explore different financing options. Patrick Goff reported that Wheat Ridge Cyclery has requested an extension of the deadline for completion of eligible improvements. The work is in progress and expected to be completed by December l, 2007. It was moved by Walt Pettit and seconded by James Bahrenberg to approve Resolution No. 04, Series of 2007, a resolution of the Wheat Ridge Urban Renewal Authority extending the deadline for completion of the eligible improvements by Wheat Ridge Cyclery. The motion passed unanimously. B. Completion of Phase I Environmental Assessment-44th and W adsworth A Phase I Environmental Site Assessment (ESA) of properties located at 7340 and 7540 West 44`h Avenue was completed. Based on conditions identified during the Phase I process, a soil and groundwater investigation (Phase II ESA) is recommended to evaluate potential impacts to the subject property. It is estimated that a Phase II environmental assessment would take about two months. The Phase I ESA was paid for through a grant and there should be enough grant money left to pay for a Phase II ESA There was a consensus to find out what a Phase II ESA will cost and see if the grant money will cover the cost. W RURA would then request Wheat Ridge 2020 to extend both options until March 1. It will be necessary to formally adopt a resolution containing all these provisions at the next WRURA meeting. WRURA Minutes - 2- November 6, 2007 C. 2008 Budget Discussion The proposed 2008 WRURA budget was reviewed and discussed. Tercell Williams suggested that the proposed budget amount of $1,000 be increased to $2,000 for Conferences and Meetings. Final consideration and adoption of the budget will occur at the December meeting. 6. ADJOURNMENT The meeting was adjourned at 7:11 p.m. The next meeting will be held December 4, 2007. Terrell R. Williams, Chair Ann Lazzeri, Secretary WRURA Minutes - 3- November 6, 2007 Wheat Ridge Urban Renewal Authority 7500 W. 29th Avenue Wheat Ridge, Colorado 80033 3032352846 303-235-2857 (Faz) TO: Urban Renewal Authority Boazd Members FROM: Patrick Goff, Executive Director-04 RE: 2008 Budget Public Heazing and Adoption DATE: December 6, 2007 Attached is Resolution 05-2007 - A Resolution Enacting a Budget and Appropriation for the Year 2008 for the following budgets: Exhibit 1: Town Center Fund Exhibit 2: Walgreens Project Fund Exhibit 3: Wheat Ridge Cyclery Project Fund The major 2008 expenditures, all out of the Town Center Fund, aze for legal representation and reimbursement to the City for staff time provided for Urban Renewal activities. In addition, I've included $15,000 in 2008 to accept the options for the two properties located at 7340 and 7540 W. 44~h Avenue. With the $200,000 transfer from the Town Center Fund to the Walgreens Project Fund in 2007, the WRURA has now satisfied the courts order to escrow the required funds for the Cornerstone lawsuit. In addition, the property tax increment for the Town Center expired in 2006; therefore payments to the Wheat Ridge Fire District will expire in 2007. Sales taY and property tas increment are scheduled to begin with the completion of the eligible improvements for the Wheat Ridge Cyclery project. The improvements were completed by December 1, 2007. One hundred percent of increment will be refunded to Wheat Ridge Cyclery to reimburse them far the eligible improvements. Recommended Motion: "I move to approve Resolution 05-2007 - A Resolution Enacting a Budget and Appropriation for the Year 2008 for the Town Center, Walgreens Project and Wheat Ridge Cyclery Project Funds." Attachments: Resolution 05-2007 Exhibits I-3 WHEAT RIDGE URBAN RENEWAL AUTHORITY RESOLUTION NO.OS Series of 2007 TITLE: A RESOLUTION ENACTING A BUDGET AND APPROPRIATION FOR THE YEAR 2008. WHEREAS, C.R.S. 29-1-103 (1) of the Local Government Budget Law of Colorado requires certain local governmental entities to prepare and adopt an annual budget; and WHEREAS, the Attorney for the Authority has opined that the provisions of the Budget Law do apply to the Authority; and WHEREAS, notice of adoption of the 2008 budget and appropriation was given by the Urban Renewal Authority in compliance with C.R.S. 29-I-106; and WHEREAS, in compliance with the provisions of the Budget Law regarding notice, objections, and hearing, a public heazing was held on the Budget and Appropriation for 2008 by the Authority on December 11, 2007. THEREFORE, BE IT RESOLVED by the Wheat Ridge Urban Renewal Authority as follows: Section 1. The year 2008 budgets for the three funds as shown on Exhibit 1, Exhibit 2, and Exhibit 3 attached hereto aze hereby approved. The purposes of the 2008 budget is to make funds available for normal operating expenses, to appropriate funds for defense of the Authority in legal actions against the Authority, and to provide tax increment funding for an urban renewal project in the urban renewal area. Sources of funds for the Authority are property tax increment and sales tax increment generated by the urban renewal area. Section 2. Total expenditures of the Authority do not exceed available revenues and beginning fund balance. Section 3. A certified copy of this resolution shall be filed with the Division of Locai Government. ADOPTED the I lth day of December , 2007. WHEAT RIDGE URBAN RENEWAL AUTHORITY Chair ATTEST: Secretary to the Authority EXHIBIT 1 WHEAT RIDGE URBAN RENEWAL AUTHORITY Town Center Fund 2006 Actual 2007 Adopted 2007 Estimated 2008 Proposed BEGINNING FUND BALANCE $ 122,792 $ 226,615 $ 219,384 $ 562,381 Revenues 37-500-00-501 Property Taxlncrement 37-500-00-504 Sales Taxlncrement 37-580-00-581 I nterest TOTAL REVENUE $ 233,050 $ 240,000 $ 336,847 $ - $ 200,000 $ 100,000 $ 260,000 $ 260,000 $ 3,585 $ 3,500 $ 12,000 $ 10,000 $ 436,635 $ 343,500 $ 608,847 $ 270,000 Personnel 37-120-600-602 Salaries $ - $ - $ - $ 37-120-600-625 FICA $ - $ - $ - $ Total Personnel $ - $ - $ - $ Supplies 37-120-650-651 Office Supplies $ 52 $ 200 $ 100 $ 200 37-120-650-654 Printing & Photocopying $ - $ 800 $ 400 $ 800 37-120-650-655 Postage $ - $ 200 $ - $ 200 Total Supplies $ 52 $ 1,200 $ 500 $ 1,200 - Services 37-120-700-702 Conference & Meetings $ - $ 1,200 $ 300 $ 2,000 37-120-700-706 Dues, Books, Sub $ 250 $ 3,800 $ 275 $ 1,000 37-120-700-740 Mileage $ - $ - $ - $ - 37-120-700-750 Professional Services $ 18,822 $ 60,000 $ 38,000 $ 60,000 37-120-700-758 City Reimbursement $ 7,227 $ 5,000 $ 5,000 $ 7,000 37-120-700-760 Utilities & Maint. $ 529 $ 500 $ 575 $ 600 37-120-700-799 Misc. $ 457 $ 200 $ 1,200 $ 1,200 Total Services $ 27,285 $ 70,700 $ 45,350 $ 71,800 Capital 37-120-800-801 Lands. Buildings, & Wat $ - $ 20,000 $ - $ 15,000 37-120-500-872 Site Improvements $ - $ - $ - $ - 37-120-800.873 Payment to Fire District $ 12,707 $ 16,000 $ 20,000 $ - 37-120-800-872 PTI - Marketplace $ - $ - $ - $ - 37-120-890-897 Transto Walgreens Fund $ 300,000 $ 200,000 $ 200,000 $ - Total Capital $ 312,707 $ 236,000 $ 220,000 $ 15,000 TOTAL EXPENDITURES $ 340,044 $ 307,900 $ 265,850 $ 88,000 ENDING FUND BALANCE $ 219,383 $ 262,215 $ 562,381 $ 744,381 exHiair z WHEAT RIDGE URBAN RENEWAL AUTHORITY Walgreens Project Fund 2006 Actual 2007 Adopted 2007 Estimated 2008 Proposed BEGINNING FUND BALANCE $ 339,030 $ 643,939 $ 645,658 $ 870,658 Revenues 37-580-00-501 Property Tax Increment $ - $ - $ - $ - 37-580-00-584 Sales Taxlncrement $ - $ - $ 15,000 $ 15,000 37-580-00-581 Interest $ 6,724 $ 5,000 $ 10,000 $ 12,000 37-580-02-588 Sale of Property $ - $ ' $ - 37-590-00-592 Transfrom Town CentFund $ 300,000 $ 200,000 $ 200,000 $ - TOTAL REVENUE $ 306,724 $ 205,000 $ 225,000 $ 27,000 Services 37-121-700-702 Conference & Meetings $ 37-121-700-706 Dues, Books, Sub $ 37-121-700-740 Mileage $ 37-121-700-750 Professional Services $ 37-121-700-758 City Reimbursement $ 37-121-700-799 Misc. $ Total Services $ CapiWl 37-121-500-801 Acquisition 8 Relocate $ 37-121-800-872 Site Improvements $ 37-121-900-901 Loan Payment $ Total Capital $ TOTAL EXPENDITURES $ ENDING FUND BALANCE - $ - $ - $ - - $ - $ - $ - - $ - $ - $ - - $ - $ - $ - - $ - $ - $ - 95 $ - $ 100 $ 100 95 $ - $ 100 $ 100 - $ - $ - $ - - $ - $ - $ - - $ - $ - $ - - $ - $ - $ - 95 $ - $ - $ - $645,659 $ 848,939 $ 870,658 $ 897,658 EXHIBIT 3 WHEAT RIDGE URBAN RENEWAL AUTHORITY Wheat Ridge Cyclery Project Fund 2007 Adopted 2007 Estimated 2008 Proposed BEGINNING FUND BALANCE $ - $ - $ ' Revenues 37-580-00-501 Property Tax Increment $ - $ - $ - 37-580-00-584 Sales Tax Increment $ 24,000 $ 2,000 $ 25,000 37-580-00-581 Interest $ - $ - $ ' 37-580-02-588 Sale of Property $ - $ - $ - TOTAL REVENUE $ 24,000 $ 2,000 $ 25,000 Services 37-121-700-702 Conference & Meetings $ - $ - $ ' 37-121-700-706 Dues, Books, Sub $ - $ - $ - 37-121-700-740 Mileage $ - $ - $ ' 37-121-700-750 Professional Services $ - $ - $ - 37-121-700-758 City Reimbursement $ - $ - $ ' 37-121-700-799 Misc. $ - $ ' $ - Total Services $ - $ - $ - Capital 37-121-800-801 Acquisition & Relocate $ - $ - $ ' 37-121-800-872 Site Improvements $ 24,000 $ 2,000 $ 25,000 37-121-900-901 Loan Payment $ - $ - $ ' Total Capital TOTAL EXPENDITURES $ 24,000 $ 2,000 $ 25,000 $ 24,000 $ 2,000 $ 25,000 ENDING FUND BALANCE $ - $ - $ Wheat Ridge Urban Renewal Authority 7500 W. 29th Avenue Wheat Ridge, Colondo $0033 303235-2846 303-235-2857 (Fax) TO: Urban Renewal Authority Board Mers FROM: Patrick Goff, Executive Director RE: Supreme Court Ruling Wheat Ridge Urban Renewal Authority v. Cornerstone Group XXII, L.L.C. DATE: December 6, 2007 Attached is a copy of the decision of the Colorado Supreme Court in Wheat Ridge Urban Renewal Authority v. Cornerstone Group XXII, L.L.C. The Colorado Supreme Court ruled in favor of the WRURA, reversed the decision of the Court of Appeals, and determined that the remedy of specific performance is not available to compel a governmental authority to exercise the power of eminent domain. The case will now be remanded back to the trial court, but the only damages available if Cornerstone were to prevail are money damages. A more detailed analysis of the decision will be forthcoming by email from Corey Hoffmann and Jeff Parker will be at the December I l'h meeting to discuss further. Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Court's homepage at http://www.courts.state.co.us/supct/supctcase annctsindex.htm Opinions are also posted on the Colorado Bar Association homepage at www.cobar.org. ADVANCE SHEET HEADNOTE December 3, 2007 06SC591, Wheat Ridge Urban Renewal Authority v. The Cornerstone Grouv XXII, L.L.C.: Governmental Immunity - Municipal Contracts - Reserved Powers Doctrine - Eminent Domain Wheat Ridge Urban Renewal Authority sought review of the court of appeals' judgment in Cornerstone Group XXII, L.L.C. v. Wheat Ridge Urban Renewal Authority, 151 P.3d 601 (Colo. App. 2006). The district court preliminarily enjoined the Renewal Authority from dissipating assets needed to complete the redevelopment project that was the subject of its contract with the Cornerstone Group; but the court also found that it was incapable of ordering the Renewal Authority to condemn particular properties, regardless of any contractual obligations to do so, and it therefore dismissed Cornerstone's claim for specific performance. The court of appeals affirmed the preliminary injunction but reversed the district court's order of partial dismissal, finding that under the circumstances of this case it might be both permissible and appropriate to order the Renewal Authority to proceed with its petitions in condemnation. The supreme court granted the Renewal Authority's petition challenging the latter holding and reversed the judgment of the court of appeals. The supreme court held that the district court rightly determined that it lacked the authority to order the specific performance of a contractual obligation to exercise the core governmental power of eminent domain, and that the Renewal Authority could not be estopped from abandoning its petitions in condemnation, under the circumstances of this case. Because, however, the contract was not rendered void under the reserved powers doctrine simply because the Renewal Authority agreed to acquire specific properties, by condemnation if necessary, the supreme court remanded the case with directions to return it to the district court for consideration of Cornerstone's remaining claims, including its claims for breach of contract. SUPREME COURT, STATE OF COLORADO Case No. 06SC591 Two East 14th Avenue Denver, Colorado 80203 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 05CA0279 Petitioner: WHEAT RIDGE URBAN RENEWAL AUTHORITY, v. Respondent: THE CORNERSTONE GROUP XXII, L.L.C. JUDGMENT REVERSED EN BANC December 3, 2007 Hayes, Phillips Hoffmann & Carberry, P.C. Corey Y. Hoffmann Denver, Colorado Light Harrington & Dawes, P.C. Steven J. Dawes Denver, Colorado Attorneys for Petitioner Messner & Reeves, LLC Thomas D. Leland Tanya E. Milligan Denver, Colorado Attorneys for Respondent The Holt Group, LLC Meredith A. Kapushion Denver, Colorado Pacific Legal Foundation Timothy Sandefur Sacramento, California Attorneys for Amici Curiae Pacific Legal Foundation and Arthur Fast JUSTICE COATS delivered the Opinion of the Court. JUSTICE EID, concurring in part and concurring in the judgment only in part. 2 Wheat Ridge Urban Renewal Authority sought review of the court of appeals' judgment in Cornerstone Group XXII L.L.C. v. Wheat Ridge Urban Renewal Authority, 151 P.3d 601 (Colo. App. 2006). The district court preliminarily enjoined the Renewal Authority from dissipating assets needed to complete the redevelopment project that was the subject of its contract with the Cornerstone Group; but the court also found that it was incapable of ordering the Renewal Authority to condemn particular properties, regardless of any contractual obligations to do so, and it therefore dismissed Cornerstone's claim for specific performance. The court of appeals affirmed the preliminary injunction but reversed the district court's order of partial dismissal, finding that under the circumstances of this case it might be both permissible and appropriate to order the Renewal Authority to proceed with its petitions in condemnation. We granted the Renewal Authority's petition challenging the latter holding. Because the district court rightly determined that it lacked the authority to order the specific performance of a contractual obligation to exercise the core governmental power of eminent domain, and the Renewal Authority could not be estopped from abandoning its petitions in condemnation, under the circumstances of this case, the judgment of the court of appeals is reversed. Because, however, the Renewal Authority's 3 agreement to acquire specific properties, by condemnation if necessary, does not render the contract void, the case is remanded with directions to return it to the district court for consideration of Cornerstone's remaining claims, including its claims for breach of contract. I. The Cornerstone Group filed a civil action against the Wheat Ridge Urban Renewal Authority and the City of Wheat Ridge, alleging breach of contract and claims of equitable and promissory estoppel. As relief, it sought indemnification from damage claims by Walgreens, a constructive trust, declaratory and injunctive relief, specific performance of the breached contracts, and damages for the breaches. Cornerstone also filed a motion for preliminary injunction, with regard to which the district court took evidence and made findings of fact and conclusions of law. The district court found that the Renewal Authority and Cornerstone entered into a"Disposition and Development Agreement" to redevelop five parcels of property in Wheat Ridge. The DDA obligated the Renewal Authority to acquire these parcels at its own expense, by eminent domain if necessary, and sell them to Cornerstone, in order to build a Walgreens store. It further provided for enforcement of the agreement by specific performance, injunction, or any remedy available at law. 4 After the Renewal Authority failed to obtain the necessary financing, Cornerstone agreed to provide financing on terms memorialized in a separate "Loan Agreement" and "Line of Credit Note." The loan agreement obligated the Renewal Authority to initiate litigation in eminent domain for the immediate possession and acquisition of the parcels if negotiated agreements were not reached by a certain date, and it too provided for its own enforcement by specific performance. When the Renewal Authority failed to acquire all five properties or begin condemnation proceedings by the loan agreement's deadline, Cornerstone sent notice that the Renewal Authority had defaulted its obligation under the loan agreement. Although the Renewal Authority later filed petitions in condemnation against the four properties it had thus far failed to acquire, the petitions did not salvage the deal. Cornerstone and the Renewal Authority exchanged a series of recriminating letters, and ultimately the Renewal Authority notified Cornerstone that it was terminating the DDA and rescinding its approval of the loan agreement. It subsequently negotiated settlements with two of the landowners to abandon already initiated condemnation proceedings, and it was in the process of negotiating similar settlements with the other two owners. The district court largely granted the motion for preliminary injunction, ordering the Renewal Authority to retain 5 all assets and funds necessary and incidental to the redevelopment project. With regard to Cornerstone's tenth claim for relief - its demand for specific performance of the contracts - the district court found that the subject properties could not be acquired unless the Renewal Authority exercised its power of eminent domain, but ruled that it lacked the authority to order the Renewal Authority to do so; and in response to Cornerstone's ensuing motion, the court entered final judgment pursuant to C.R.C.P. 54(b), dismissing that claim for relief in its entirety. Both parties appealed the district court's rulings, Cornerstone challenging the dismissal of its claim for specific performance and the Renewal Authority challenging the preliminary injunction. The court of appeals affirmed the district court's preliminary injunction but reversed its judgment dismissing Cornerstone's tenth claim for relief. With one member of the panel dissenting, the court rejected the Renewal Authority's assertion that contractual agreements to exercise the uniquely governmental power of eminent domain are necessarily void, instead apparently considering their enforceability dependent upon the extent to which eminent domain proceedings had already progressed and the equities of the individual case. The court of appeals ultimately remanded for reconsideration of Cornerstone's claim for specific performance, ordering the 6 district court to determine, under the circumstances of this case, whether the Renewal Authority should be estopped from abandoning its condemnation petitions and whether Cornerstone, in fact, has a vested right to specific performance of the Renewal Authority's promise to condemn. The Renewal Authority petitioned this court for a writ of certiorari, solely to review the court of appeals' holding with regard to specific performance. II. Specific performance is an equitable remedy for breach of contract. Setchell v. Dellacroce, 169 Colo. 212, 216, 459 P.2d 804, 806 (1969). As a theory of recovery, breach of contract is separate and distinct from both the quasi-contractual claim of promissory estoppel and the defensive doctrine of estoppel in pais, or equitable estoppel, all three of which were separately pled by Cornerstone. Only Cornerstone's request for specific performance was considered and rejected by the district court, and only the court's ruling dismissing Cornerstone's tenth claim for relief was certified as a final judgment for purposes of immediate appeal. It appears that the appellate court equated any theory requiring condemnation of the subject properties with specific performance of the contract or at least that the question of specific performance could not be fully resolved without 7 consideration of Cornerstone's estoppel claim. Zt therefore immediately moved to the question whether the Renewal Authority could be estopped from abandoning its earlier-initiated condemnation proceedings. Determining that under certain circumstances it could, the appellate court, without ever directly addressing the district court's authority to order the specific performance of a contractual obligation to exercise the power of eminent domain, reversed the district court's order of dismissal and remanded for consideration of the relative equities involved in evaluating a claim of estoppel. In light of the appellate court's directions on remand, and its implication that Cornerstone's claim of specific performance could not be fully resolved without simultaneous resolution of its assertions of estoppel, the applicability of estoppel principles is necessarily before this court. Promissory estoppel is an offensive theory of recovery, or cause of action, providing a remedy for those who rely to their detriment, under certain circumstances, on promises, despite the absence of any mutual agreement by the parties on all the essential terms of a contract. Viqoda v. Denver Urban Renewal Auth., 646 P.2d 900, 905 (Colo. 1982). Recovery on a theory of promissory estoppel is incompatible with the existence of an enforceable contract. Scott Co. of Cal. v. MK-Ferguson Co., 832 _ P.2d 1000, 1003 (Colo. App. 1992). By contrast, the doctrine of equitable estoppel is not a cause of action at all, but rather a defensive doctrine, which may be invoked "to bar a party from raising a defense or objection it otherwise would have, or from instituting an action which it is entitled to institute." Jablon v. United States, 657 F.2d 1064, 1068 (9th Cir. 1981); see also Piz v Housing Auth of the City & Countv of Denver, 132 Colo. 457, 463, 289 P.2d 905, 908-909 (1955) ("The doctrine of equitable estoppel has been invoked to cut off rights or privilege conferred by statute . . In the course of distinguishing it from the quasi- contractual action of promissory estoppel, we have at times loosely referred to equitable estoppel as a tort action, but it is more precisely characterized as an equitable doctrine that suggests a tort-related theory in that it attempts to allocate loss resulting from the misrepresentation of facts to the most culpable party and to ameliorate an innocent party's losses. Compare Bd. of County Comm'rs v. DeLozier, 917 P.2d 714, 716 (Colo. 1996) ("[A] claim for equitable estoppel lies in tort, whereas a claim of promissory estoppel lies in contract."), with Berg v. State Bd. of Agric., 919 P.2d 254, 259 (Colo. 1996) ("Equitable estoppel, because it is based on the misrepresentation of facts, is fundamentally a tort theory."). But whatever its theoretical relation to tort law, equitable estoppel is not a cause of action. 9 In Piz, this court, in express reliance on the California case of Times-Mirror Co. v. Superior Court, 3 Cal. 2d 309, 94 P.2d 547 (1935), applied the doctrine of estoppel in pais, or equitable estoppel, to bar a municipality from exercising its prerogative to abandon a condemnation proceeding before completion. Piz, 132 Colo. at 471-72, 289 P.2d at 912-13. Under the extraordinary circumstances of that case, in which the property owner constructed a new business in reliance upon actions and representations of the municipality/condemnor that made the complete loss of his existing business appear virtually inevitable, the municipality was held to be equitably estopped from invoking its privilege to terminate its own condemnation action and avoid compensating the owner for the lost value of his property. Id. Although estoppel under those circumstances effectively forced the municipality to finalize its condemnation action, there was never any suggestion that the municipality could be forced to condemn private property as the result of a prior agreement. Precluding abandonment under those circumstances was merely one method of insuring payment for property the municipality had, by its own representations and conduct, already rendered valueless to its owner. Piz's assertion of equitable estoppel was comparable to a claim for inverse condemnation, based on a de facto taking of his business, 10 excepting only that it was asserted in the course of an ongoing condemnation proceeding, for the purpose of precluding a detrimental change of position by the municipality. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19 P.3d 687, 695 (Colo. 2001) ("A taking unquestionably occurs when an entity clothed with the power of eminent domain substantially deprives a property owner of the use and enjoyment of that property."); see also 2A Julius L. Sackman, Nichols on Eminent Domain § 6.01[15][b] (3d ed. 2006) ("A de facto taking does not require a physical invasion or appropriation of property. Rather, a substantial deprivation of a property owner's use and enjoyment of his property may, in appropriate circumstances, be found to constitute a`taking' of that property or of a compensable interest in the property."). While we nowhere expressly limited the applicability of equitable estoppel in the context of condemnation proceedings to an owner whose property is subject to condemnation, that was the necessary implication of our holding in Piz. Only a party to a condemnation proceeding would be positioned to assert equitable estoppel as a defense to a maneuver by the condemnor to terminate the proceeding without compensating the condemnee for damage already done. Piz properly applied the doctrine of equitable estoppel to prevent the municipality from exercising its right to abandon condemnation proceedings and thereby avoid 11 compensating Piz for property it had already effectively taken. To extend the doctrine to a third party seeking enforcement of a contract, as the court of appeals proposes, would transform its fundamental character from that of an equitable defense to one of an offensive cause of action. The doctrine of equitable estoppel relied on by this court in Piz therefore cannot provide a basis for Cornerstone to force acquisition of private property by eminent domain. This is true regardless of the indefensibility of the Renewal Authority's conduct, the extent of the injuries actually suffered by Cornerstone, or the willingness of the individual owners to have their property condemned. As a result, the court of appeals erred in reversing the dismissal of Cornerstone's claim for specific performance, even if the appellate court merely intended that any ruling on specific performance be made in conjunction with consideration of Cornerstone's claim of equitable estoppel. III• The Renewal Authority asserted, and the dissenting panelist of the court of appeals concurred, that a contractual condition to condemn particular property is necessarily void. If that were indeed the case, there would still be no need to directly consider the district court's authority to order specific performance as a remedy for breach of contract by a governmental 12 entity. In the absence of a valid contract to be breached, a remedy for breach would simply not be at issue. The matter of the court's authority to order specific performance is not so easily avoided, however, because a contract is not rendered void merely by the fact that it includes a commitment to exercise a core governmental power. The Renewal Authority's assertion of voidness derives from what has come to be known as the doctrine of reserved powers. It has long been held that certain core governmental powers, like the power of eminent domain and the police power, are reserved to the sovereign and cannot be abdicated or surrendered by contract.1 See Contributors to Pa. Hosp. v. Citv of Phila., 245 U.S. 20, 23-24 (1917) (holding that the eminent domain power cannot be surrendered by contract); Stone v. Mississippi, 101 U.S. 814, 817 (1879) ("All agree that the legislature cannot bargain away the police power of the State."). Any attempt to do so is simply unenforceable. U.S. Trust Co. of N.Y. v. New Jerse , 931 U.S. 1, 23 (1977) ("In short, the Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty."); see also Pub. Serv. Co of Colo. v. Citv of Loveland, 79 Colo. 216, 228, 245 P. 493, 499 (1926) (stating that city authorities lacked "any 'The scope of the police power is not before the court in this case. 13 power to execute a disclaimer upon behalf of themselves or future city councils depriving them of the free exercise of their [eminent domain power]"). The notion of reserved sovereign powers first arose in the jurisprudence of the United States Supreme Court as an explanation of the limits of the Contract Clause. United States v. Winstar Corp., 518 U.S. 839, 874 (1996) (stating that the reserved powers doctrine was developed to prevent public contracts from becoming a"threat to the sovereign responsibilities of state governments"). State action to condemn particular property for public purposes, despite the government's earlier commitment not to do so, was upheld against challenges that it impaired the obligation of contract, on the ground that the sovereign's surrender of its power of eminent domain could never be an enforceable obligation of contract in the first place. See West River Bridge Co. v. Dix, 47 U.S. 507, 533 (1848) (holding that the Contract Clause did not prevent the state from condemning a toll bridge built pursuant to an exclusive franchise granted by the state years earlier). In this way, the Supreme Court reasoned that the Contract Clause never demands a state's adherence to a contract that surrenders an essential attribute of its sovereignty. U.S. Trust, 431 U.S. at 23. Whether or not it intended that governmental entities be relieved of all liability for injury suffered in reliance on 14 such promises, the Supreme Court's Contract Clause rationale has led to the well-accepted proposition that contracts surrendering the power of eminent domain are void. Id. The same, however, cannot be said of commercial agreements to acquire particular private properties, by condemnation if necessary, and sell them for redevelopment. The reserved powers doctrine rests on a fundamental inability of sovereign governments to contract away essential attributes of their sovereignty. Georgia v. City of Chattanooga, 269 U.S. 472, 480 (1924) (eminent domain "cannot be surrendered, and, if attempted to be contracted away, it may be resumed at will" because it "is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state"); Pa. HosA., 245 U.S. at 23 (legislative abdication of eminent domain is the "renunciation of power to legislate for the preservation of society or to secure the performance of essential governmental duties"); West River, 47 U.S. at 533 (eminent domain °remains with the States to the full extent in which it inheres in every sovereign government, to be exercised by them in that degree that shall by them be deemed commensurate with public necessity"). Despite limited authority to the contrary,z the doctrine of reserved powers implies nothing 2 See Joleewu Ltd v Citv of Austin, 916 F.2d 250 (5th Cir. 1990), vacated in part on other grounds, 934 F.2d 621 (5th Cir. 15 about the ability of governments to otherwise enter into contracts involving the exercise of their sovereign powers Winstar, 518 U.S. at 888-89 (finding the reserved powers doctrine inapplicable when "a contract Government of its legislative sovereignty"). Cf. does not strip the The power of eminent domain is the ability to take private property in the public interest, not the ability to refrain from such a taking. In common parlance, it seems highly questionable that a choice not to exercise a particular power could meaningfully be characterized as the exercise of a different or opposite power. To the extent, however, that the term "power" could be used this way, it would nevertheless remain true that it is the power of eminent domain that has been classified as an essential attribute of sovereignty, not its opposite "power," 1991); Matsuda v. Citv & Countv of Honolulu, 378 F. Supp. 2d 1249 (D. Haw. 2005); and Hsiung v Citv & County of Honolulu, 378 F. Supp. 2d 1258 (D. Haw. 2005). The common thread running through Joleewu and the Hawaii cases is the assumption that there is no useful distinction between an agreement that prohibits the sovereign from acting and one that requires the sovereign to act. See Joleewu, 916 F.2d at 255 (reasoning that because the decision to acquire land for a public purpose is a governmental function, "so is the decision about the timing of the acquisition," and "[a] contract restricting a city's freedom in choosing when to acquire property is thus a contract in derogation of that function" and unenforceable under Texas law); Matsuda, 378 F. Supp. 2d at 1257 ("A contract requiring the sovereign to exercise the power is just as limiting as a contract prohibiting it from doing so."); Hsiun , 378 F. Supp. 2d at 1266 (same). Because we disagree with the assumption that the power to act is the same as the power not to act, we decline to follow the holdings. 16 which is clearly not particularly an attribute of sovereignty at all. Beyond the Supreme Court's specific reference to "surrender" and "contracting away" the power of eminent domain, however, its concern that the Contract Clause not become a barrier to the future exercise of essential attributes of state government does not sugqest similar treatment of contracts to acquire particular properties through the power of eminent domain. As long as government has not surrendered its power to take private property - as distinguished from its "power" not to take private property - it remains empowered to take, or retake as the case may be, that or other property in the future (for just compensation) and redistribute it in any manner that future circumstances and the public welfare demand. It would in fact be counterproductive of the purposes of the Contract Clause to deny states the power to bind themselves to the exercise of their powers as a condition of commercially beneficial transactions. See Robie v. Mass. Tpk. Auth., 199 N.E.2d 914, 922 (Mass. 1964) ("There is no absolute rule of law invalidating a contract executed in contemplation of a taking and substantially as part of the same transaction. This result would be contrary to rational business judgment.") . The power of states to enter into effective financial contracts cannot be questioned, U.S. Trust, 431 U.S. at 24, and much like the future 17 exercise of taxing and spending powers, to which a state clearly may bind itself, id., a commitment to acquire particular properties, as one element of a broader commercial transaction, would seem to be precisely the kind of obligation the impairment of which the Contract Clause was designed to prevent, as distinguished from one impermissibly impairing the government's power to act in the future. IV. The Supreme Court has never suggested, however, that the Contract Clause subjects states to lawsuits for breach of contract, much less that it confers upon state courts the power to order specific performance against coordinate branches of government, or their delegees, for breach of contract. Quite the contrary, the Supreme Court has steadfastly recognized the principle of sovereign immunity from suit, including suit for breach of contract; and with regard to the federal government itself, it has limited relief for breach of contract to that expressly authorized by Congress. See, e.g., Richardson v. Morris, 409 U.S. 964, 465 (1973) (per curiam) (stating that Congress "authorize[d] only actions for money damages and not suits for equitable relief against the United States"); United States v. Jones, 131 U.S. 1, 18-19 (1889) (holding that Congress waived immunity only to suits seeking money damages and a suit seeking specific performance was therefore barred by sovereign 18 immunity); Hagood v. Southern, 117 U.S. 52, 67-69 (1886) (holding that the Eleventh Amendment prohibits breach of contract suits against states in federal court). In support of its strict reading of Congress's waiver of immunity for breach of contract actions, the Supreme Court has emphasized the distinction between monetary compensation for wrongs done by government and equitable or specific relief, noting that courts cannot be permitted to exercise their compulsive powers to restrain the government from acting or to compel it to act. Larson v. Domestic & Eoreign Commerce Corp., 337 U.S. 682, 704 (1949). In contrast to the United States Supreme Court,3 but like a minority of other states, a plurality of this court has held that "when a state enters into authorized contractual relations it thereby waives immunity from suit." Ace Flying Serv. v. Colo. Dep't of Agric., 136 Colo. 19, 22, 314 P.2d 278, 280, (1957). The Ace plurality reasoned that the state lays aside its sovereignty when it enters a contract and binds itself "substantially as one of its citizens does when he enters into a 3 The Court has rejected the theory that a state impliedly waives its immunity from suit when it enters a contract. Fla. Dep't of Health & Rehab. Servs. v. Fla. Nursing Home Assoc., 450 U.S. 147, 149-50 (1981) (per curiam) (holding that Florida did not impliedly waive its immunity to a suit alleging violations of Medicaid regulations when it agreed to abide by those regulations as part of the contracts it entered with members of the Florida Nursing Home Association). 19 contract." Id. at 23, 314 P.2d at 280. Whatever the merits of this rationale, neither Ace nor any subsequent reliance on it by this court involved a claim of specific performance for breach of contract, and the question of that equitable remedy has never been addressed by this court.' Apart from any implied waiver of sovereign immunity, or consent to be sued in court, the question of equitable relief for breach of contract, or specific performance, implicates an additional concern for the separation of governmental powers. As recognized by the Supreme Court, there are "the strongest reasons of public policy" for the rule that specific performance cannot be had against the sovereign. Larson, 337 U.S. at 704. The Government as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right. As was early recognized, `the interference of the Courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief.' ' We have in the past found that under certain circumstances principles of equitable estoppel may prevent the government from denying the existence of a valid express contract. Perl-Mack Enters Co. v. Citv & County of Denver, 194 Colo. 4, 8, 568 P.2d 468, 471 (1977); City of Colo. Springs v. Colo. City, 42 Colo. 75, 88-89, 94 P. 316, 320 (1908); see also Normandy Estates Metro Recreation Dist. v. Normandy Estates Ltd., 191 Colo. 292, 296, 553 P.2d 386, 389 (1976) (a government entity may be prohibited from keeping particular property without paying the contract price because the contract was technically unenforceable). 20 Id. (quoting Decatur v. Paulding, 39 U.S. 497, 516 (1838)); see also Huntt v. Virgin Islands, 382 F.2d 38, 44 (3d Cir. 1967) ("We should think that a court of law and equity would hesitate to interfere in the performance by a legislative body of its political and policy decisions which, in the absence of evidence of taint or fraud, have as their primary, if not sole, objective, the general well-being of the community they are selected to represent."). While the Supreme Court has readily acknowledged that Congress has the power to entrust the business of the government to agencies that are able to contract and be sued in their own names, in the absence of such congressional action it nevertheless holds that courts are without the authority to order specific relief against the government for breach of contract. Larson, 337 U.S. at 704-705. Whether this jurisdiction will similarly leave to the General Assembly the power to determine the availability of equitable relief for governmental breach of other kinds of contractual obligations is a question that need not be resolved in the case before us today. In light of the district court's finding that the instant contract could not be performed without the exercise of the Renewal Authority's power of eminent domain, it is enough that courts in this jurisdiction lack the authority to compel the exercise of core governmental powers that rest within the 21 discretion of a coordinate branch of government, regardless of binding contractual obligations to do so. It has long been recognized that the power of eminent domain lies within the exclusive province of the legislature, to exercise or delegate according to its discretion. See Potashnik v. Pub. Serv. Co. of Colo., 126 Colo. 98, 101, 297 P.2d 137, 138 (1952) ("The power [of eminent domain] lies dormant in the state until the legislature speaks."); see generally 1 William Blackstone, Commentaries *109 (stating that "the legislature alone" may exercise the power of eminent domain). Whi1e a contractual obliqation to condemn particular properties if necessary is not void, and while compensation may be ordered for injury resulting from its breach by the government, as a matter of public policy, if not constitutional necessity, the discretion to exercise the power of eminent domain in the public interest must remain with the body to which it was delegated, and not the courts.s Huntt, 382 F.2d at 44 ("In our view, only the most compelling reasons and the clear necessity to avoid the most unconscionable results could, if at all, sustain the 5 In the respect that Cornerstone seeks a court order compelling the Renewal Authority to act, the case has much in common with a mandamus proceeding. Cf. C.R.C.P. 106(a)(2). We have consistently stated that "mandamus ordinarily does not lie to control the discretion of a public official." Hawkins v. Cline, 161 Colo. 191, 147, 420 P.2d 400, 403 (1966). What is true in mandamus proceedings is also true in a contract dispute when granting specific performance is tantamount to mandamus. 22 substitution by the court of its judgment for that which is committed to the discretion of the legislative organ."). The district court therefore did not err in finding specific performance to be unavailable as a remedy for the breaches of the contract alleged by Cornerstone or in dismissing its tenth claim for relief. V. Because the district court lacked the authority to order the specific performance of a contractual obligation to exercise the core governmental power of eminent domain and the Renewal Authority was not estopped from abandoning its condemnation petitions, the judgment of the court of appeals is reversed. Because, however, the Renewal Authority's agreement to acquire specific properties, by condemnation if necessary, does not render the contract void, the case is remanded with directions to return it to the district court for consideration of Cornerstone's remaining claims, including its claims for breach of contract. 23 JUSTICE EID, concurring in part and concurring in the judgment only in part. I join in all but Part III of the majority's opinion, which addresses, and rejects, the Renewal Authority's argument that an agreement to condemn particular property is void. Maj. op. at 12-18. Even assuming, arguendo, that such an agreement is valid, the trial court has no authority to order specific performance as a remedy to compel the sovereign to exercise its eminent domain power under the aqreement. Id. at 23. Thus, it is not necessary to decide the issue of the validity of the agreement an issue with important constitutional implications to arrive at the result we reach today. I therefore would not decide the issue. See Town of Orchard CitV v. Bd. of Delta Countv Comm'rs, 751 P.2d 1003, 1006 (Colo. 1988) (stating that where "a constitutional question is not essential to the resolution of the issue before us, we will not address it"). Instead, I would assume, without deciding, that the agreement is valid, and hold that specific performance is not available as a remedy. This approach is consistent with the procedural posture of the case, in which the trial court certified its ruling that Cornerstone could not obtain specific performance as a final judgment under C.R.C.P. 54(b) in order to permit an interlocutory appeal on that issue. For these reasons, I join in all but Part III of the opinion. Wheat Ridge Urban Renewal Authority 7500 W. 29th Avenue Wheat Ridge, Colorado 80033 303235-2846 303-2352857 (Fax) TO: Urban Renewal Authority Boazd Members FROM: Patrick Goff, Executive Director -Q~ RE: Staff Updates DATE: December 6, 2007 1. Financing Negotiations Staff continues to negotiate with Ist Bank Wheat Ridge for a property acquisition loan in the amount of $3.4 million for the properties located at 7340 and 7540 W. 44`h Avenue. Ist Bank is now proposing an amortized loan structure rather than an interest only loan to reduce the principal balance over time. Under this structure, the WRURA revenue stream from the Town Center sales taac increment is not sufficient to pay debt service. ls` Bank has asked if the WRURA would be able to provide approximately 20% of the loan value ($680,000) as down payment to decrease the monthly debt service to a level the Authority could afford. Options to consider: a. Use a portion of the $1.5 million loan from the CiTy to make a down payment. b. Request that the City increase the sales tax shaze back from 50% to a higher percentage to increase the WRURA revenue stream to a level that will cover debt service without a down payment. c. A combination of "a" and "b". d. Use a portion of the Town Center Fund reserves far they down payment. e: Request that the City allocate CDBG funds for the down payment. 2. Engagement of an Appraiser l" Bank requires that an appraisal of the property be completed before a loan will be issued. The appraiser must be engaged by 1 st Bank; however, WRURA would be responsible for the financial obligation of the appraisal which is estimated between $3,000 and $4,000. An appraisal will take between 3 to 4 weeks to complete. An appraisal lower than the purchasing price could affect the terms of the loan. Question to consider: Should WRURA ask 151 Bank to move forward with the appraisal? 3. 44'h and Wadsworth - Phase II Environmental Bureau Veritas has completed soil sampling for the Phase II portion of the environmental study. They estimate to have a report completed and submitted to WR2020 by December 15, 2007. Bureau Veritas has also submitted a proposal to WR2020 to complete preliminary asbestos testing of the Antique Mall in the amount of $2,405.00 (attached). The proposal was reviewed by Norman Higley PC who specializes in environmental law. He recommended that WR2020 obtain at least one other quote. WR2020 is working to obtain additional quotes. 4. Wheat Ridge Cyclery Improvements Agreement All Eligible Improvements have been completed. Sales and property tax increment will begin to accrue as of December 1, 2007. ~pU VE4 c a ~ m m ~L3 November 29, 2007 Denise Balkas, AICP Director of Real Estate Development Wheat Ridge 2020 PO Box 1268 Wheat Ridge, CO 80034-1268 Proposal No. 1003.07.512 Subject: Proposal for Limited Asbestos Containing Materials Assessment at Stage Shop Antique Mall, 7340 West 44th Avenue in Wheat Ridge, Colorado Dear Ms. Balkas: Bureau Veritas North America, Inc. (Bureau Veritas) is pleased to present this proposal to Wheat Ridge 2020 Inc. (the "Client") to provide a Limited Suspect-Asbestos Containing Materials (ACM) Assessment at the Stage Shop Antique Mall located at 7340 West 44" Avenue in Wheat Ridge, Colorado. This proposal is based on information received via email on November 28, 2007. Bureau Veritas proposes to provide services in the form of a site inspection of the property, and a final written report. The scope of work for this project is presented below. Bureau Veritas understands that the client has requested this ACM building survey be conducted to identify ACM or presumed ACM (PACM) materials present in the building in preparation of the potentiai acquisition. The proposal does not imply that the survey will be a complete survey required for demolition and construction permits. SCOPE OF WORK Bureau Veritas proposes the following tasks in response to this request for proposal. Limited ACM Buildina Survev Our proposed scope of work is structured to evaluate if ACM and/or presumed ACM (PACM) are present in accessible areas of the referenced facility. This is being conducted in order to develop appropriate handling procedures for asbestos abatement, if warranted, associated with disturbance of interior and exterior materials at the building in accordance with the National Emission Standards for Hazardous Air Pollutants (NESHAPs). In conducting the assessment of suspect ACM, Bureau Veritas will: • Provide a Colorado-accredited buiiding inspector to perform the field assessment. . Evaluate the condition (good, fair, or poor) and friability of identified suspect ACM. Collect at least one representative bulk sample of each suspect ACM/homogeneous area identified in the subject buildings. Bureau Veritas North Americu, Ivc. N1aI¢ (303)988-2585 165 couth Union I3h-d, Suite 310 Pax: (305) 988 2583 Lakc,ood, CO 90228 ~~,«<.us.burevoizvirascom Ms. Denise Balkas Proposal No. 1003.07.512 Wheat Ridge 2020 Inc. ~m Page 2 November 29, 2007 ~ ~ Note: A Homogeneous Area is defined to include surtacing material, thermal systems insulation, and miscellaneous material areas which are uniform in color, texture, construction and application date, and general appearance. Some damage (aesthetic) may occur to finishes/materials that are sampled. If suspect ACM materials differ from those identified by Bureau Veritas are encountered during renovations or remodeling at a later date, the client should have these materials sampled and analyzed for asbestos content before disturbing the material. Bureau Veritas will not utilize destructive sampling methods during this assessment. Bureau Veritas will not be responsible for repairing or patching surfaces or equipment damaged during the sampling process. In addition, we cannot be responsible for suspect materials that may be uncovered during future demolition or renovation activities that were not within our defined scope of work. NOTE: Bureau Veritas will not collect samples of roofing materials during this assessment. Bureau Veritas personnel are not certified in roofing repair, and Bureau Veritas shall therefore under no circumstances be responsible for voiding the roof warranty, or the adequacy and water tightness of the temporary repairs, nor shall Bureau Veritas be responsible for any water damage to the roofing system, building, or its contents resulting from Bureau Veritas' temporary repairs. • Photograph each homogeneous area (HA) sampled. We will include photographs of HAs that are confirmed as ACM in our report. • Submit bulk samples to an accredited laboratory for analysis by Polarized Light Microscopy (PLM) using the United States Environmental Protection Agency's (USEPA's) recommended method (EPA/600R-93/116 (July 1993)). If feasible, we will use Bureau Veritas' Kennesaw, Georgia laboratory that is accredited by the National Institute of Standards and Technology National Voluntary Laboratory Accreditation Program (NIST-NVLAP) for the analysis of bulk materials for asbestos content using PLM. • Bureau Veritas will analyze sample sets, if applicable from homogeneous areas until positive. We will present the results of our analysis as estimated percentages of asbestos (visual estimates by volume) by type (e.g., amosite, chrysotile), as well as types of non-asbestos fibrous materials identified. The EPA National Emissions Standard for Hazardous Air Pollutants (NESHAP)(40 CFR 61, Subparts A and M) also has a requirement related to assessment of suspect ACM in buildings. When the asbestos content of a friable material is visually estimated by PLM to be detectable but less than 10%, the Client may elect to (1) assume the amount is greater than 1% and treat the material as asbestos-containing or (2) require verification of the amount by the PlM point counting technique. If the results obtained by point counting and visual estimation are different, the point count result must be used. When no asbestos is detected by PLM, point counting is not required. Unless requested otherwise, Bureau Veritas will recommend that (1) materials for which samples contain 1 to 10% asbestos be treated as ACM and (2) samples of friable materials containing <1 %(trace) asbestos be further analyzed by point counting. PLM analysis of some non-friable materials, such as vinyl floor tile, may yield false negative results. Therefore, Bureau Veritas recommends semi-quantitative analysis of these materials by transmission electron microscopy (TEM). Floor tiles may contain asbestos fibers too small to be resolved by PLM; and binder/matrix materials may coat fibers, affect color, or obscure optical characteristics to the extent of masking fiber identity. Therefore, if PLM analysis reveals negative results for this non-friable material, Bureau Veritas recommends either (1) Proposal No. 1003.07.512 Ms. Denise Balkas V Wheat Ridge 2020 Inc. Page 3 November 29, 2007 ~ conducting confrmatory semi-quantitative transmission electron microscopy (TEM) analysis, or (2) assuming that the material contains asbestos. The TEM is particularly applicable to bulk materials that contain a large amount of intertering materials that can be removed in the laboratory analysis by ashing and/or dissolution and contain asbestos fibers that are not resolved under PLM techniques. This confrmatory analysis by TEM is recommended in the U.S. Environmental Protection Agency (EPA) "Method for the Determination of Asbestos in Building Materials", EPA 600/R-93/116, July 1993. A danger of having false negatives is that an asbestos-containing building material, such as floor tile, could mistakenly undergo maintenance or demolition without exercising proper asbestos removal techniques, resulting in potential building and personnel exposure to asbestos fbers. With Client authorization, we will analyze certain materials using TEM semi-quantitative analysis on selected samples. . Provide approximate quantity estimates of each type of ACM identified in the building. These estimates, based on approximate quantities of materials identified, may assist you in preparing plans and budgets. These quantity estimates will be preliminary. Contractors should be required to verify quantity estimates when preparing bids. Actual contractor bids may vary from our estimates, depending on the contractor's assumptions. Under no circumstance should our quantity estimates be used as a formal asbestos abatement-bidding document. Written Report Prepare and present a written report documenting Bureau Veritas' evaluation. The report will include a description of sampling and analytical methods, interpretation of the analytical results, a discussion of findings, and conclusions and recommendations as appropriate. The report will include speci£c recommendations for corrective actions and additional sampling, as appiicable. Bureau Veritas will provide these services using its commercially reasonable best efforts consistent with the level and skill ordinarily exercised by members of the profession currently practicing under similar conditions. Client Responsibilities An individual (e.g., building owner or manager) with specific knowledge of the locations of areas of the buiiding affected by this Scope of Work shouid be availabte to Bureau Veritas for the walkthrough evaluation, and to provide access to pertinent areas of the building. Bureau Veritas will require assistance for access to each facility from approximately 8am until 5pm on the day of its evaluation. Bureau Veritas will require electricity in the building for its power tools, task lighting and area lighting during the survey. A ClienYs facility representative with a ladder and keys should be available to Bureau Veritas on the day that the onsite work is performed. If lift equipment is required to access elevated areas, provision for lift equipment and a trained operator will be the ClienYs responsibility. If the Client cannot or does not wish to provide lift equipment, Bureau Veritas will rent the equipment and charge the rental fee to the Client. The following documents may assist Bureau Veritas in its evaluation, if available: ➢ Up-to-date architectural partition (floor) plans oposal No. 1003.07.512 Pr Ms. Denise Balkas 0.", Wheat Ridge 2020 Inc. Page 4 November 29, 2007 EM FEES Bureau Veritas will provide the services described herein on a time and materials basis for an estimated cost of $2,405.00. This estimated fee includes labor, material costs, out-of-pocket expenses reasonably incurred in the pertormance of the work, and other direct costs. Direct costs include laboratory fees based on standard turnaround, reproduction costs, equipment, and travel costs. Bureau Veritas will not incur substantial additional costs without prior written approval from the client. Meetings and telephone calls (other than those held during the onsite evaluation), presentations, and delay time not outlined under the Scope of Work will be billed at our standard rates. Bureau Veritas will provide the services described in this scope of work assuming collection and analysis of up to 25 bulk samples by PLM. If additional (beyond 25) samples are deemed warranted by the AHERA-accredited inspector, Bureau Veritas will notify the Client before anaiyzing additional samples. If Bureau Veritas' work is encumbered or stopped because of actions beyond Bureau Veritas' control, such as building shutdown or labor disputes, Bureau Veritas will charge additional fees at our standard rates, plus out-of-pocket expenses. If Bureau Veritas is required to rent lift equipment to access elevated areas or if laboratory analysis by point counting methods is requested, additional fees will apply to cover the cost of equipment rental and laboratory analysis. BILLING This project will be progress billed every month, if appropriate, and our terms for payment are net 30 days. SCHEDULING Bureau Veritas will perform the work at a mutually agreeable date to be determined after receipt of Wheat Ridge 2020's authorization to proceed. Bureau Veritas will submit its report to Wheat Ridge 2020 within approximately 30 days upon completion of the fieldwork. This proposal will remain valid for 90 days. OTHER TERMS AND CONDITIONS The terms and conditions under which these services are provided are set forth in Bureau Veritas' attached Standard Terms and Conditions. Please refer to that document for additional information. This proposal will remain valid for 60 days. For your convenience, this proposal is presented in a form that can be accepted as an agreement. To accept this proposal, please sign below and return a copy to the undersigned. Ms. Denise Balkas Proposal No. 1003.07.512 - Wheat Ridge 2020 Inc. Page 5 November 29, 2007 M ismilm Thank you for the opportunity to submit this proposal. We look forward to an opportunity to work with you on this project. Prepared by: 4t Q'TAeAOV'- Amy E. McGovern Senior Project Manager Health, Safety, and Environmental Services Reviewed by ~ John Rohde Manager Due Diligence Health, Safety, and Environmental Services This Proposal Accepted Print Name: Title: Company: Date: Wheat Ridge Urban Renewal Authority 7500 W. 29th Avenue Wheat Ridge, Colorado 80033 3032352846 303-235-2857 (Fax) TO: Urban Renewal Authority Board Members FROM: Patrick Goff, Executive Directoc_c~) RE: Election of Officers DATE: December 6, 2007 Article II, Officers and Personnel, of the WRURA By-Laws details the makeup of the WRURA Board and Section 7 specifically outlines the procedures for the election of officers. Section 7. Election of Officers. The Officers of the Authoriry shall be elected annually by the Authority at the first regular meeting in December and shall assume their duties upon election. Officers shall hold office for one year or until their successors are elected and qualdfied Chairman. The Chairman shall preside at all meetings of the Authority. Except as otherwise authorized by resolution of the Authority, the Chairman shall sign all contracts, deeds, checks for the payment of money and other instruments made by the Authority. "I move to select as Chairman of the WRURA, term to commence immediately until his/her successor is elected." Vice Chairman. The Vice Chairman shall perform the duties of the Chairman in the absence of the Chairman from the City or incapacity of the Chairman; and in case of a vacancy in the office of the Chairman, the Vice Chairman shall perform such duties as aze imposed on the Chairman until such time as the Authority shall select a new Chairman from among its members. "I move to select as Vice Chairman of the WRURA, term to commence immediately until hisJher successor is elected." Secretarv. Pursuant to C.R.S. section 31-25-104(2)(c), the Executive Director of the WRURA shall be the Secretary. The Mayor and/or City Manager shall appoint a Recording Secretary. "I move to nominate as Secretary of the WRURA, term to commence immediately until his/her successor is elected." Attachments: By-Laws of the WRURA BY-LAWS OF THE WHEAT RIDGE URBAN RENEWAL AUTHORITY ARTICLE I THE AUTHORITY Section 1. Name of Authoritv. The name of the Authority shall be the "Wheat Ridge Urban Renewal Authority", hereinafter referred to as WRURA or the Authority. The name of the Authority was previously the "Wheat Ridge Economic Development Commission." The Authority shall consist of the number of inembers as provided by Section 25-24 of the Code of Laws of the City of Wheat Ridge. Section 2. Seal of Authoritv. The seal of the Authority shail be in the form of a circle and shall bear the name of the Authority. Section 3. Office of Authoritv. The office of the Authority shall be in the municipal building of the City of Wheat Ridge, Colorado, 7500 West 29th Avenue, Wheat Ridge, Colorado 80033. ARTICLE il OFFICERS AND PERSONNEL Section 1. Officers. The officers of the Authority shall be a Chairman, a Vice Chairman, and a Secretary who shall be Executive Director. Section 2. Chairman. The Chairman shall preside at all meetings of the Authority. Except as otherwise authorized by resolution of the Authority, the Chairman shall sign all contracts, deeds, checks for the payment of money and other instruments made by the Authority. Section 3. Vice Chairman. The Vice Chairman shall perform the duties of the Chairman in the absence of the Chairman from the City or incapacity of the Chairman; and in case of a vacancy in the office of the Chairman, the Vice Chairman shall perform such duties as are imposed on the Chairman until such time as the Authority shall select a new Chairman from among its members. Section 4. Executive Director. The Executive Director shall be appointed by the Authority in accordance with the Cooperation Agreement between WRURA and the City of Wheat Ridge dated October 26, 1987. He or she shall have general supervision over the administration of the affairs and business of the Authority, and shall be charged with the management of the projects of the Authority. He or she shall designate in writing some person to perform the duties of Executive Director in his or her absence. GED\53027\373413.03 Section 5. SecretaN. Pursuant to C.R.S. section 31-25-104(2)(c), the Executive Director of the WRURA shall be the Secretary. However, the Mayor and/or the City Administrator of the City of Wheat Ridge is hereby empowered to appoint a Recording Secretary for the Authority who shall keep the records of the Authority, shall act as Secretary at the meetings of the Authority, and record all votes, and shall keep a record of the proceedings of the Authority in a journal of proceedings to be kept for such purposes, and shall perform all duties incident to this office. He or she shall keep in safe custody the seal of the Authority and shall have power to affix such seal to all contracts and instruments authorized to be executed by the Authority. He or shall shali designate in writing some person to perform his or her duties hereunder in his or her absence. The Recording SecretaN for the Authority shall keep the records of the Authority, shall act as Secretary at the meetings of the Authority, and record all votes, and shall keep a record of the proceedings of the Authority in a joumal of proceedings to be kept for such purposes, and shall perform all duties incident to this offlce. He or she shall keep in safe custody the seal of fhe Authority and shall have power to affix such seal to all contracts and instruments authorized to be executed by fhe Authority. He or she shall designate in writing some person to perform his or her duties hereunder in his or her absence. Section 6. Additional Duties. The Officers of the Authority shall perform such other duties and functions as may from time to time be required by the Authority, or by the By-Laws or the Rules and Regulations of the Authority, or pursuant to any cooperation agreement. Section 7. Election of Officers. The Officers of the Authority shall be elected annually by the Authority at the first regular meeting in December and shall assume their duties upon election. Officers shall hold office for one year or until their successors are elected and qualified. The Recording Secretary shall be appointed by the Mayor and/or the City Administrator of the City of Wheat Ridge, as above provided. Any person appointed to fill the oSice of Recording Secretary or any vacancy therein shall have such term as the Mayor and/or City Administrator may establish, but no WRURA Authority member shall be eligible for this office except as a temporary appointee. Section 8. Vacancies. Should the office of Chairman or Vice Chairman become vacant, the Authority shall select a successor from its membership at the next regular meeting to serve for the unexpired term of said office. Section 9. Personnel. The Authority may from time to time employ such personnel as it deems necessary to exercise its powers, duties and functions as prescribed by the Urban Renewal Law of the State of Colorado, and all other laws of the State of Colorado applicable thereto. The Authority is further expressly authorized to GED\53027\373413.03 2 enter into a cooperation agreement with the City of Wheat Ridge for the provision of any such personnel. ARTICLE III MEETINGS Section 1. Reqular Meetinqs. A regular meeting shall be held at such time and place as may be prescribed by motion adopted by the Authority from time to time. All regular meetings of the Authority shall be advertised in a newspaper of general circulation within the City of Wheat Ridge no less than three days prior to the date of such scheduled meeting. Section 2. Special meetinqs. The Chairman of the Authority may, when he or she deems it expedient, shall upon the written request of two members of the Authority, call a special meeting of the Authority for the purpose of transacting any business designated in the notice thereof. The notice for the special meeting must be delivered to the business or home address of each member of the Authority at least twenty-four (24) hours prior to the date of such special meeting. Such notice shall designate the time and place of the special meeting. Any member may waive notice of any meeting and a member's presence shall constitute waiver of notice of that meeting unless the member's written objection to the transaction of any business at the meeting is filed with the Secretary on the ground that the meeting is unlawfully called or convened. At such special meeting no business shall be considered other than as designated in the notice, but if all of the members of the Authority are present at a special meeting, any or all business may be transacted at such special meeting. Section 3. Quorum. The power of the Authority shall be vested in the Authority members in office from time to time. A majority of the appointed Authority members shall constitute a quorum for the purpose of conducting its business and exercising its powers and for all other purposes, but a smaller number may adjourn from time to time until a quorum is obtained. When a quorum is in attendance, action may be taken by the Authority upon an affirmative vote of the majority of the Authority members present. Aftendance. Three (3) absences from the regular meetings of the Authority within a twelve-month period sha/l constitute grounds for automatic removal from membership, subjecf to confirmation of removal by the City Council. Section 4. Order of Business. At the regular meeting of the Authority the following shall be the order of business: (1) Call the meeting to order. (2) Roll Call of inembers. (3) Pledge of Allegiance. GED\53027373413.03 (4) Approval of minutes. (5) Public forum. (6) Old business. (7) New business. (8) Other matters. (9) Adjournment and place and time of next meeting. A contract with persons outside the Authority, with the United States and other public bodies shall be authorized by written resolution, a copy of which resolution and contract shall be kept with the journal of the proceedings of the Authority. Section 5. Manner of Votinq. The Authority members affirmative and negative votes shall be entered upon the minutes of every meeting, except in the case of elections when the vote may be by ballot, and except where there is a unanimous vote. Section 6. Oqen Meetinqs. The Authority shall make no final policy decisions, pass no resolution, adopt no rule or regulation, or take any action approving a contract calling for the payment of money at any meeting which is not open to the general public. ARTICLE IV AMENDMENTS AND -SUSPENSION OF BY-LAWS Section 1. Amendment of By-Laws. These By-Laws of the Authority shall be amended only if there has been a notice of motion duly seconded in the previous meeting. Section 2. Suspension of Bv-Laws. Any requirement of these By-Laws may be waived by a written consent signed by all Authority members. ARTICLE V MISCELLANEOUS Removal from Authoritv. Notwithstanding the removal process described in Section 4 of Article 111 of these By-Laws, any Authority member may be removed for any of the grounds enumerated in 29-4-208, C.R.S., su6ject to the notice and hearing requirements set forth therein. Uniform Standards for Sales. The Aufhority is aufhorized to adopt uniform standards for the approval of all sales of real property in the exercise of its duties. This section shall not affect the responsibility of the Authority to approve all purchases of real property by Authority action. Section 1. Conflict of Interest. No Authority member, other officer, or employee of the Authority, nor any immediate member of the family of any Authority GED\53027\373413.03 4 member, officer, or employee shall acquire, nor shall any Authority member or officer retain any interest, direct or indirect, in any project or in any property included or planned to be included in any project, nor shall he or she have any interest, direct or indirect; in any contract or proposed contract for materials or services to be furnished or used in connection with any project. If any Authority member, other officer, or employee of the Authority owns or controls an interest, direct or indirect, in any property to be included or planned to be included in any project, he or she shall immediately disclose the same in writing to the Authority, and such disclosure shall be entered upon the minutes of the Authority. Acquisition or retention of any such interest or willful failure to disclose any such interest shall constitute misconduct in office. Written materials. Any wriften notice or other communication to or from the members may take the form of electronic communication or facsimile; provided, however, that all notices of Authority meetings and other materials posted at the Municipal Building or otherwise shall be posted in hard copy written form. Rules of Procedure. The Authority shall follow Roberts Rules of Order, Tenth Edition READOPTED this day of , 2001. Chair Wheat Ridge Urban Renewal Authority GED\53027\373413.03