HomeMy WebLinkAbout20053105.tiff RECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
OCTOBER 19, 2005
TAPE #2005-37
The Board of County Commissioners of Weld County,Colorado, met in regular session in full conformity
with the laws of the State of Colorado at the regular place of meeting in the Weld County Centennial Center,
Greeley, Colorado, October 19, 2005, at the hour of 9:00 a.m.
ROLL CALL: The meeting was called to order by the Chair and on roll call the following members were
present, constituting a quorum of the members thereof:
Commissioner William H. Jerke, Chair
Commissioner M. J. Geile, Pro-Tem
Commissioner David E. Long
Commissioner Robert D. Masden
Commissioner Glenn Vaad
Also present:
County Attorney, Bruce T. Barker
Assistant County Attorney, Lee Morrison
Acting Clerk to the Board, Jenny VanEgdom
Director of Finance and Administration, Donald D. Warden
MINUTES: Commissioner Masden moved to approve the minutes of the Board of County Commissioners
meeting of October 17, 2005, as printed. Commissioner Long seconded the motion, and it carried
unanimously.
AMENDMENTS TO AGENDA: There were no amendments to the agenda.
PUBLIC INPUT: No public input was given.
CONSENT AGENDA: Commissioner Geile moved to approve the consent agenda as printed.
Commissioner Masden seconded the motion, and it carried unanimously.
PRESENTATIONS:
RECOGNITION OF SERVICES, BOARD OF RETIREMENT-RICHARD BAUER: Chair Jerke recognized
and thanked all persons listed for presentations on the agenda for their service with the various Advisory
Boards and Councils.
RECOGNITION OF SERVICES, EXTENSION ADVISORY COUNCIL- SANDRA LAMONTAGNE: See
previous item.
RECOGNITION OF SERVICES,JUVENILE COMMUNITY REVIEW BOARD-TOM JOAQUIN:See previous
item.
2005-3105
BC0016
RECOGNITION OF SERVICES,WORKFORCE DEVELOPMENT BOARD-BERNARD RUESGEN: See
previous item.
RECOGNITION OF SERVICES, REGIONAL COMMUNICATIONS ADVISORY BOARD - JASON
GOODALE: See previous item.
RECOGNITION OF SERVICES, NORTHEAST REGIONAL EMERGENCY MEDICAL AND TRAUMA
SERVICES ADVISORY COUNCIL - DONNA NYDUCK, TRACEY JONES: See previous item.
COMMISSIONER COORDINATOR REPORTS: There were no Commissioner Coordinator Reports.
WARRANTS: Donald Warden, Director of Finance and Administration, presented the following warrants
for approval by the Board:
All Funds $1,538,826.85
Commissioner Long moved to approve the warrants as presented by Mr.Warden. Commissioner Masden
seconded the motion, which carried unanimously.
BIDS:
PRESENT BIDS: Mr. Warden stated there were no bids to present.
APPROVE HIGHWAY DE-ICING SALT BID-DEPARTMENT OF PUBLIC WORKS:Mr.Warden stated bids
were submitted from six vendors and the Department of Public Works recommended the low bid from
Tri-State Commodities. He stated the fuel surcharge will only apply if gasoline is above$3.00 per gallon.
Commissioner Geile moved to approve said bid. The motion, which was seconded by Commissioner
Masden, carried unanimously.
APPROVECONCRETESAND BID-DEPARTMENTOF PUBLIC WORKS: Mr.Warden stated bids were
received from two vendors,and the Department of Public Works recommended the low bid from Aggregate
Industries. Commissioner Masden moved to approve said bid. The motion, which was seconded by
Commissioner Vaad, carried unanimously.
NEW BUSINESS:
CONSIDER TASK ORDER FOR AIR QUALITY PROGRAM AND AUTHORIZE CHAIR TO SIGN: Dr.Mark
Wallace, Director of Public Health and Environment,stated the Task Order is for operation of the Air Quality
Program during the 2006 calendar year. He stated the Air Quality Program includes operation of an air
quality monitoring network(particulate and gaseous), inspections and enforcement guidance, issuing or
denying open burning permits,and follow-up on air quality complaints. Dr.Wallace stated the amount of the
Task Order will not exceed $91,191.00, which is an increase of approximately$1,000.00 from the 2005
Task Order. He stated nineteen percent of the awarded funds originate as Federal monies, and the
remaining eighty-one percent of funds are awarded from the State. Responding to ChairJerke, Dr.Wallace
stated open burning permits have previously been issued, and agricultural-related burning is exempt. In
response to Commissioner Masden, Dr.Wallace stated staff time related to the Air Quality Program is billed
at a rate of$45.45 per hour. Further responding to Commissioner Masden, Dr. Wallace stated the Air
Quality Program is not directly related to the Early Action Compact, and there has been no change in the
monitoring and sampling activities with the program. He further stated the State awards monies to local
entities to complete monitoring at designated monitoring stations, and the samples obtained at the station
are the same as previous years. Responding to Commissioner Geile, Dr. Wallace stated the State is
responsible for ensuring all new gas wells are installed and maintained properly. Commissioner Geile
Minutes, October 19, 2005 2005-3105
Page 2 BC0016
moved to approve said task order and authorize the Chair to sign. Seconded by Commissioner Long,the
motion carried unanimously.
CONSIDER DISBURSEMENT CERTIFICATE FOR IMPROVEMENTS FOR ESCROW AGREEMENT
#13685400 AND AUTHORIZE CHAIR TO SIGN - ROCKY MOUNTAIN ENERGY CENTER, LLC, C/O
CALPINE CORPORATION: Frank Hempen, Jr., Department of Public Works, stated the Disbursement
Certificate is the final draw on the escrow agreement for improvements to Weld County Road 51. He stated
staff is developing a letter for the Board to sign to release$39,600.00 from the account for the completed
railroad crossing work. Commissioner Geile moved to approve said disbursement certificate and authorize
the Chair to sign. Seconded by Commissioner Masden, the motion carried unanimously.
CONSIDER ENERGY IMPACT GRANT FOR PUBLIC WORKS EQUIPMENT AND AUTHORIZE CHAIR TO
SIGN: Mr.Warden stated the Department of Local Affairs has awarded a grant of$1.5 million to enable the
purchase of equipment for the Department of Public Works. Commissioner Geile moved to approve said
grant and authorize the Chair to sign. Seconded by Commissioner Masden, the motion carried
unanimously.
CONSIDER AGREEMENT FOR DONATION OF PROPERTY FOR POUDRE RIVER TRAIL AND
AUTHORIZE CHAIR TO SIGN-MARY AND THOMAS STEVENS: Bruce Barker,County Attorney,stated
the donation of property is for one of the last stretches of the Poudre River Trail. He stated the associated
costs for the property, construction of the trail, and fences and cattle guards will be paid for by the Trail
Board. Mr. Barker recommended acceptance of the donation. In response to ChairJerke,Mr. Barker stated
the donation is considered as a Donation of Right-of-Way. Commissioner Vaad stated acquiring one
remaining property will provide for a complete trail. Commissioner Vaad moved to approve said agreement
and authorize the Chair to sign. Seconded by Commissioner Long, the motion carried unanimously.
CONSIDERAPPOINTMENTOF DEPUTY DISTRICTATTORNEYANDAUTHORIZECHAIRTO SIGN-
CHRISTOPHER ESTOLL: Commissioner Long moved to appoint Christopher Estoll as a Deputy District
Attorney. Seconded by Commissioner Vaad, the motion carried unanimously.
PLANNING:
CONSIDER ACCEPTANCE OF FILING OF SERVICE PLANS AND REFERRAL TO WELD COUNTY
PLANNING COMMISSION FOR STUDY AND RECOMMENDATION - PIONEER REGIONAL
METROPOLITAN DISTRICT AND PIONEER METROPOLITAN DISTRICTS NO. 1 THROUGH 6: Mr.
Barker stated six applications for Service Plan Approvals were received on October 17, 2005. He stated
the draft Resolution accepts the Service Plans for filing, and refers the Service Plans to the Planning
Commission,with instructions to return a recommendation to the Board before January 4,2006. He further
stated on January4, 2006,the Board will set the date for a public hearing. In response to ChairJerke, Mr.
Barker stated acceptance will allow the filing process to start, and accepts the filing fee of $3,500.00.
Commissioner Masden moved to accept said filing of service plans, and refer to the Planning Commission
for study and recommendation. Seconded by Commissioner Vaad, the motion carried unanimously.
Chair Jerke called for a short recess.
PROBABLE CAUSE HEARING CONCERNING STIPULATION FOR USE BY SPECIAL REVIEW PERMIT
#1495, DATED MARCH 7, 2005 - JESS ARAGON, DBATIMBERROCK LANDSCAPE: Lee Morrison,
Assistant County Attorney, stated the hearing is pursuant to the stipulation of the parties in Case
Number 04-CV-259,and the stipulation provides a standard for the temporary operation of the facility,prior
to the consideration of a Use by Special Review Permit. He stated paragraphs B and C of the stipulation
state that if the operators do not follow the standards placed before them, the County may ask the Court
for an Order vacating the interim authority to operate and, further, to reinstate the provisions for no
Minutes, October 19, 2005 2005-3105
Page 3 BC0016
operation,or to seek penalties under a contempt motion. He further stated the decision to refer the matter
to the County Attorney's Office is to be made by the Board of County Commissioners, in accordance with
the probable cause procedures defined in Section 2-4-40,of the Weld County Code. Mr.Morrison clarified
that the Board's action on the matter will determine whether the County Attorney's Office will proceed back
to court. In response to Chair Jerke, Mr. Morrison stated the majority of the alleged violations were based
on the observations of neighbors,and occurred outside of working hours;therefore, Planning staff was not
able to independently investigate the alleged violations. In response to Commissioner Geile,Mr.Morrison
stated the two portions of the stipulation allegedly violated are#12,regarding height piles,and#20,regarding
hours of operation;however,the other 23 standards are not alleged to have been violated. He further stated
alleged violations not summarized or provided to the applicant by staff should not be considered for
discussion in this hearing.
Michelle Martin, Department of Planning Services,gave a brief history surrounding the application for Use
by Special Review Permit#1495, and displayed maps and photos of the property and surrounding area.
She stated staff from the Department of Planning Services documented stockpiles on the property
exceeding the height of the fence on March 28, 2005, and June 13, 2005. Ms. Martin displayed photos of
the site taken during the June 13, 2005 visit, and read Condition#20 into the record. She further stated
surrounding property owners have documented isolated incidents when the applicant has violated the stated
hours of operation, and read the alleged violations provided by Judy Hartshorn, Garry and Kathy
Weinmeister, and Brad Weiler, into the record. Ms. Martin also displayed the corresponding photographs
of various violations provided by the neighbors,and read the responses given by the applicant in regard to
the alleged violations. Ms.Martin displayed a video submitted by Mr.Weinmeister,showing a semi tractor-
trailer on or near the applicant's property on April 7,April 16, May4, and May 5,2005. Mr. Morrison stated
only the photos corresponding to the summarized dates of violations of which the applicant has previously
received notification should be considered. Responding to Commissioner Geile, Ms. Martin stated the
applicant has been notified of alleged violations on the dates of March 19,April 7, May 4, May 5,June 15,
June 25, and July 1, 2005.
Responding to Mr. Morrison, Ms. Martin stated it is not possible to see the logo on the semi tractor-trailer
in any of the video footage. Ms. Martin stated the Department of Planning Services has determined that
the applicant is not in compliance with Conditions#12 and #20 of the stipulation. Responding to Chair
Jerke,Ms.Martin stated no violations recorded within twenty minutes of the stated business operation hours
were taken into consideration. Mr.Morrison stated operations do not exclude minor maintenance,and the
owner and staff may be present on the property outside of the listed operation hours. In response to
Commissioner Geile, Ms. Martin stated the applicant was notified of the alleged violation dates on May 9,
2005, and a response to the allegations was received on June 2, 2005. She further stated the applicant
was notified of a second set of alleged violations on July 6,2005;however,no response was received from
the applicant regarding those violations. Ms.Martin stated notice was given from Planning staff regarding
the pile height violations on March 28, and June 13, 2005.
In response to Commissioner Vaad, Ms. Martin stated the access road issue is not settled, and will go to
trial on December 21,2005. Responding to Commissioner Vaad,Mr. Morrison stated the issue before the
courts on December 21, 2005 is that other parties are contending that the applicant lacks the right to use
the road to access the property, and the applicant has exceeded his right to use the road. Further
responding to Commissioner Vaad,Mr. Morrison stated the access road is a private road,and the road was
created by mutual deeds to be used for access by the surrounding property owners.
Rick Zier,Attorney for the applicant, detailed the history of the applicant's Use by Special Review Permit
application process. Mr.Zier stated the applicant recently received a positive recommendation from the
Planning Commission; however, the Board's action on the Use by Special Review Permit has been
continued until the pending lawsuit regarding the access road is settled. He stated the road is commonly
Minutes, October 19, 2005 2005-3105
Page 4 BC0016
owned,and the applicant is an equal owner; however,the neighbors contend that the road should only be
used for agricultural and residential purposes. He stated the applicant has followed all limitations very
closely, and the allegations from surrounding neighbors are not true. Mr. Zier stated no independent
verification has been given,except for the violations noted by County staff. He further stated the surrounding
neighbors are not willing to compromise, and have stated they will never be satisfied with the applicant's
business on the site. Responding to Mr. Zier, Commissioner Geile stated the issue before the Board is
related to violations, not the Use by Special Review Permit. Responding to Commissioner Geile, Mr.
Morrison stated the information stated by Mr.Zier is not irrelevant. Mr.Zier stated wide latitude is allowed
in a Probable Cause hearing, and his information will allow the Board to understand the position of the
applicant. He further stated the surrounding neighbors are obsessed and irrational in their complaints, and
the complaints are not serious in nature. Mr.Zier stated the applicant has not ignored the notifications of
violations from Planning staff, and took action to correct the problems. He stated the applicant has
repeatedly asked for unannounced verification to be completed, to prove the business is in compliance.
He further stated the applicant's site contains 42 piles of landscape materials, and the heights of the piles
are adjusted to specifications on a daily basis. Mr. Zier stated the applicant's business does not put the
health of surrounding neighbors at risk, and the applicant works to protect the interests of the neighbors.
Cindi Rubiano stated she viewed the video segments of the semi tractor-trailer,and believes the neighbors
have altered the times displayed on the video. She stated the truck driver always leaves the premises
before the specified closing time, and drives the semi to Greeley to be parked overnight. Ms. Rubiano
submitted a presentation regarding pile heights into the record, marked as Exhibit H. She stated staff
stands at ground level to confirm that material piles are not visible above the fence. She stated the applicant
was not aware that the delivered load of railroad ties would be considered as a material pile; however,the
pile was corrected immediately after being notified by Planning staff that it was in violation. She further
stated there is no opaque screening on the south side of the property, since it was not required.
Ms. Rubiano stated Garry and Kathy Weinmeister have personal racial issues with the applicant,and they
are not credible witnesses. She further stated the applicant's property inside the fence is not visible from
the Weinmeister's property. (Changed to Tape#2005-38)Ms. Rubiano stated the applicant has policies
in place to have the gates closed prior to closing time everyday, and on one occasion a truck had to be
parked overnight near the auto mall site since the driver could not make it back to the site before closing
time. She stated she believes the times listed on the video have been tampered with, and the truck driver
has never parked on the side of the road more than a few minutes. Ms. Rubiano presented sales receipts
and invoices for March 19,April 7,April 16,June 25,and July 1,2005,marked as Exhibits I,J, L, M,and N,
and gave a brief explanation of the documents. She further submitted a refute of alleged allegations related
to the receipts and invoices,marked as Exhibit K. In response to Commissioner Geile,Ms. Rubiano stated
semi tractor-trailers of contracted companies travel to the site to deliver loads of material;however,the only
dump truck allowed on the property is owned by the applicant. She further stated all vendors associated
with the operations of TimberRock have been made aware of, and abide by, the hours of operation;
however,an occasional non-contracted vendor may travel to the site,and would not be aware of the hours
of operation until arrival.
Jess Aragon,applicant,submitted letters, photos,and policies, marked as Exhibits O, P,and Q, and gave
a brief explanation of each of the items. Mr.Aragon stated he drafted a list of 18 policies and procedures
to be conveyed to each employee, and read the policies into the record. He further reviewed each of the
photos, and read the letters from three vendors. Mr. Aragon also discussed photos illustrating the
improvements that have been made to the property. Commissioner Geile stated that Mr.Aragon needs to
have accounting controls in place to substantiate the documents previously presented by Ms. Rubiano.
Jim Speers,TimberRock truck driver,stated there are several allegations of the semi tractor-trailer parked
on Weld County Road 17 on days he was not working; therefore, the truck would have been parked in
Greeley. He stated the semi tractor-trailer is driven off the property no later than 4:45 p.m.every weekday,
Minutes, October 19, 2005 2005-3105
Page 5 BC0016
without fail. In response to Chair Jerke, Mr. Speers stated he is not a contracted truck driver, he is a
full-time employee of TimberRock. In response to Commissioner Vaad, Mr. Speers stated his truck was
only displayed in one of the alleged violation photos;however,he believes the time represented on the photo
is inaccurate. Responding to Commissioner Geile, Mr. Speers stated he is the sole truck driver for
TimberRock.
Stan List, TimberRock customer, stated he is impressed by the recent improvements completed by the
applicant to the site. Mr. List stated he picked up a load of mulch at TimberRock, and the gates were
already closed when he went to leave at 4:45 p.m.,and he had to have a staff member open the gate to let
him out. He further stated the applicant is doing everything possible to follow the guidelines set before him.
Brandi Rubiano, Colorado State University student and part-time employee at TimberRock, stated she
worked for the applicant during the summer months. She stated Mr.Aragon has followed the stipulation,
and the gate to the property is closed early every day. She further stated she noticed a discrepancy in the
video presented earlier regarding airplane noise,and believes the videotape was altered.Ms.Rubiano stated
she believes the surrounding neighbors have issues with the applicant that are racially motivated, and
believes they are creating fraudulent documents.
Taylor Brown,Colorado State University student and part-time employee at TimberRock, stated she was
in charge of scheduling deliveries and pick-ups during the summer months. She stated she closed the
gates early on numerous occasions, and she never scheduled late deliveries. She further stated she
believes the photos submitted by neighbors have been altered.
Jack Quiller,employee atTimberRock,stated he was the first to arrive every day,and the last to leave,and
he was in charge of the opening and closing of the gate. He further stated he has never opened the gate
before operating hours, and he has never closed the gate later than closing time.
Karl Hagman, Windsor resident and TimberRock customer, stated he is a new resident of Windsor, and
he came to TimberRock to purchase yard materials for his new home. Mr. Hagman stated the property is
very attractive. He stated he arrived atTimberRock at4:45 p.m.,and after he entered the property,the semi
driver was leaving and shut the gates. Mr.Aragon informed him that no loading would take place that day
since operation hours had to be strictly followed. He stated the hours were clearly presented to him, and
he had to come back another time to load his purchase.
Marcelle Guedner,previous owner of the property,stated she personally called Mr.Aragon every evening
at 5:00 p.m. to make sure the business was closed by the required time. Ms. Guedner stated the parcel
of land for the business was sold in February, and she is no longer part of the application process. In
response to Commissioner Geile, Ms. Guedner reiterated that as of January, 2005, she is no longer a
participant in the property,and the judge has released her name from the lawsuit. She stated the neighbors
are sending erroneous documentation, and they are biased.
Chair Jerke called for a short recess.
Tina Schinner, surrounding property owner, stated she took note of the violations she witnessed while
working in her yard,and submitted her notes to Planning staff. Ms.Schinner stated she does not know how
to obtain independent verification of the alleged violations,since Planning Staff cannot visit the site outside
of operation hours. She further gave a brief summary of her involvement regarding the lawsuit over the
access road. She stated the property is well maintained, and the employees have good road etiquette;
however,the customers do not. Ms.Schinner stated she has no personal issues with Mr.Aragon,and she
does not believe the neighbors are racially motivated. In response to Commissioner Geile, Ms.Schinner
Minutes, October 19, 2005 2005-3105
Page 6 BC0016
stated she does not argue that Mr. Aragon has a right to use the road; however, she is concerned about
liability issues for the other owners in the case of an accident.
Garry Weinmeister, surrounding property owner, stated he assembled most of the photo and video
evidence presented to the Board. Mr. Weinmeister stated he has personally observed a total of 73
violations, and the photos and video have not been altered or falsified in any way. He further stated the
shadows of the sun are apparent in the photos he has submitted,and the time of day can be verified by the
lighting and shadows.
Kathy Weinmeister,surrounding property owner,stated she has submitted two lists of observed violations
to Planning staff, and the photos were in no way altered or falsified. Ms.Weinmeister gave a brief history
of the alleged violations previously discussed, and encouraged the Board to enforce the Court Order. In
response to Commissioner Geile, Ms. Weinmeister stated only eight of the violations she submitted to
Planning staff may be considered before the Board today.
Brad Weiler,surrounding property owner,stated he keeps a daily log of the noted violations for TimberRock.
Mr.Weiler gave a brief summary of the violations he has observed regarding use of the semi tractor-trailer.
In response to Commissioner Geile,Mr.Weiler stated the semi tractor-trailer in the photos dated March 19,
April 7, May 5, and June 15, 2005, belonged to Mr. Aragon.
Ms. Rubiano stated the semi tractor-trailer in the photos referenced by Mr. Weiler cannot positively be
identified,and she referred the Board to a picture of the semi owned by TimberRock provided by Mr.Aragon.
She further stated the semi tractor-trailer owned by TimberRock has never been parked on the side of the
road for three hours.
Mr.Zier stated Ms.Schinner referenced liability issues regarding the road while stating her concerns, and
the company does carry liability insurance. He stated the semi tractor-trailer referenced in the photos
submitted does not belong to TimberRock, and the company cannot be held liable for unsolicited trucks
parked on the road. He further stated Ms. Schinner could have called a credible third party to verify the
alleged violations;however,no third party objective evidence has been provided. Mr.Zier stated there has
been no evidence of any willful violations to justify a contempt of court action, the evidence that has been
submitted by surrounding property owners is not credible, and he requested any prosecution be denied.
In response to Commissioner Geile,Mr.Zier stated a total often public hearings have been heard regarding
the application for TimberRock. Further responding to Commissioner Geile, Mr.Zier stated the applicant
has built credibility by being true to his word,and completing all tasks and requirements placed before him.
He further stated there are many instances in the County where applicants have begun business operations
before receiving a Use by Special Review Permit,and he believes the neighbors have not been adversely
affected by the operations of TimberRock.
Mr.Weinmeister stated violations on June 15,2005 are included for consideration by the Board; however,
Mr.Zier previously stated the date was not on the list. He further stated he does not believe the statements
of the applicant to be credible. In response to Chair Jerke, Ms. Martin verified that June 15, 2005 is a
violation date. Mr.Zier stated he mis-spoke regarding June 15,2005,and further stated the applicant did
not receive notice of the second packet of noted violation until October,2005. Responding to Mr.Zier,Ms.
Martin stated the file was made available for viewing,although Ms.Rubiano did not view the file until recently.
Commissioner Vaad stated he does not believe there is convincing evidence of the existence of facts in the
case. He stated the violations regarding pile heights are minimal and he believes the Courtwould have the
same finding; therefore, he finds that no probable cause exists. Commissioner Geile stated he has
credibility issues with the applicant,and sufficient evidence has been submitted regarding the semi tractor-
trailer. He stated he would support the resolution,as it relates to violation of Condition#20 of the stipulation.
Minutes, October 19, 2005 2005-3105
Page 7 BC0016
Commissioner Long stated he does not find evidence beyond a reasonable doubt of abuse or consistent
disregard of the stipulations, and he does not support the resolution. Commissioner Masden stated the
applicant responded to the violations noted by Planning staff in a very quick manner;therefore,he is not in
support of the resolution. Chair Jerke stated he believes the Board has discretion in this matter, and he
does not believe a business should be shut down for minimal violations; therefore, he is not in support of
the resolution. Commissioner Vaad moved that the Board of County Commissioners find no probable
cause exists concerning the stipulation for Use by Special Review#1495. The motion was seconded by
Commissioner Masden. Upon requestfor a roll-call vote,the motion carried four to one,with Commissioner
Geile in opposition.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
consent agenda. No Ordinances were approved.
Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted by
the Acting Clerk to the Board.
There being no further business, this meeting was adjourned at 1:05 p.m.
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BOARD OF COUNTY COMMISSIONERS
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Minutes, October 19, 2005 2005-3105
Page 8 BC0016
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