John W.

Suthers

Attorney General Cynthia H. Coffman Chief Deputy Attorney General Daniel D. Domenico Solicitor General

STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General

Ralph L. Carr Colorado Judicial Center 1300 Broadway, 10th Floor Denver, Colorado 80203 Phone (720) 508-6000

August 15, 2013 VIA EMAIL & U.S. MAIL James M. Lyons Trey Rogers Rothgerber Johnson & Lyons LLP One Tabor Center, Suite 3000 1200 Seventeenth Street Denver, Colorado 80202 Email: jlyons@rothgerber.com Email: trogers@rothgerber.com RE: Petition for Reconsideration of CEDC's Approval of Aurora's RTA Project Application

Dear Counsel: I write in response to the letter dated July 19, 2013, that you sent to Ken Lund, the Executive Director of the Colorado Economic Development Commission (“the “Commission”), on behalf of your clients – a group of entities comprised of hotels located in the Denver Metro area, Colorado Springs, and Vail, as well as two hotel associations (collectively, “Petitioners”). The letter purported to be a “petition” to the Commission for reconsideration of its May 18, 2012 approval of the City of Aurora’s application for a regional tourism project under the Colorado Regional Tourism Act, § 24-46-301, et seq. C.R.S. (2012) (“RTA”). The application in question sought approval for a regional tourism project that has commonly been referred to as the Gaylord Rockies Hotel and Conference Center (hereinafter the “Aurora Application”). The Petitioners advanced two bases for the Commission’s reconsideration of its May 18, 2012 approval of the Aurora Application. First, the petition alleged that, between the approval date and the date of your letter, several material changes have occurred in the nature and scope of Aurora’s regional tourism project such that it no longer satisfies the criteria required for approval of a regional tourism project application under § 24-46-304(3), C.R.S. Second, the petition alleged that if the Commission does not reconsider its approval of the Aurora Application, then Petitioners may be injured by “significant competitive issues” that

Page 2 likely will arise if Aurora’s regional tourism project moves forward, which “could have a material effect on…the relevant market for hotel rooms and meeting/convention space.” Both bases advanced for reconsideration stem from Marriott International’s agreement to acquire Gaylord Entertainment Co., the original developer and operator of Aurora’s regional tourism project, which was publicly announced on or about May 31, 2012. The petition requested that the Commission’s “preliminary approval of the [Aurora Application] be immediately revoked or suspended pending a new application meeting all statutory and regulatory requirements,” including a public hearing on the new application under § 24-46-305(3), C.R.S. The Petitioners demanded “a response to this petition no later than August 15,” and stated that they would “consider a failure to grant or act on this petition by that date to be a denial of the petition and final agency action.” Despite Petitioners’ characterization of the Commission’s approval as “preliminary,” the Commission, in fact, gave final approval of the Aurora Application on May 18, 2012, because that was the date on which “a finding by the majority of the commissioners participating in the review of the application that the application demonstrates that each of the…criteria are materially met” occurred. § 24-46-304)(3), C.R.S. Accordingly, the Commission took “final agency action” approving the Aurora Application on May 18, 2012. The RTA is silent as to whether the Commission’s final agency action approving a regional tourism project is subject to judicial review. However, under Colorado law, the Petitioners likely had 35 days after the May 18, 2012 approval in which to institute an action for judicial review under § 24-4-106(2), C.R.S. See § 244-106(4), C.R.S. In the alternative, the Petitioners may have had 28 days after the May 18, 2012 approval in which to institute an action for judicial review under C.R.C.P. 106(a)(4). See C.R.C.P. 106(b). As you know, the Petitioners did not avail themselves of either mechanism for judicial review, and did not file a petition for reconsideration of the May 18, 2012 approval with the Commission before the expiration of either statute of limitations. For these reasons, your clients’ petition for reconsideration of the Commission’s approval of the Aurora Application is untimely and, therefore, improper under Colorado law.

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Page 3 Sincerely, FOR THE ATTORNEY GENERAL s/ LeeAnn Morrill LEEANN MORRILL First Assistant Attorney General Public Officials Unit Phone: (720) 508-6159 Email: leeann.morrill@state.co.us cc: Jack Finlaw (via email only) Stephanie Donner (via email only) Ken Lund (via email only)

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