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TC Council Packet 03-24-2015 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, MARCH 24, 2015 REGULAR MEETING BEGINS AT 5:00 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICERS MAYOR JENNIE FANCHER MAYOR PRO TEM JAKE WOLF COUNCILORS MEGAN BURCH, MATT GENNETT, SCOTT PRINCE, ALBERT “BUZ” REYNOLDS, SARAH SMITH HYMES REGULAR MEETING BEGINS AT 5:00 PM 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT –COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA 4. PROCLAMATION – ONE BOOK ONE VALLEY 5. WORK SESSION 5.1. EAGLE RIVER WATER QUALITY UPDATE (EAGLE RIVER WATERSHED COUNCIL) 6. ACTION ITEMS 6.1. CONTINUED PUBLIC HEARING ON RESOLUTION NO. 15-04, APPROVING A MINOR PUD AMENDMENT FOR LOTS 38 & 39, BLOCK 4, WILDRIDGE SUBDIVISION (TOWN PLANNER BRIAN GARNER) 6.2. ACTION ON REQUEST BY STARWOOD VACATION OWNERSHIP TO EXTEND DEVELOPMENT PLAN APPROVAL FOR ‘TIMESHARE EAST’ ON LOT 1, RIVERFRONT SUBDIVISION (PLANNING MANAGER MATT PIELSTICKER) 6.3. ACTION ON REQUEST FROM MR. FRANK NAVARRO FOR ASSISTANCE WITH WATER RIGHTS PURCHASE COSTS FOR THE BROOKSIDE PARK PUD (TOWN ENGINEER JUSTIN HILDRETH) 6.4. PUBLIC HEARING SECOND READING OF ORDINANCE NO. 15-02, SERIES OF 2015, AN ORDINANCE AMENDING AVON MUNICIPAL CODE CHAPTERS 1.04 DEFINITIONS, 3.12 REAL ESTATE TRANSFER TAX, 5.04 BUSINESS LICENSES, AND 5.16 PEDDLERS AND SOLICITORS (TOWN ATTORNEY ERIC HEIL) 6.5. RESOLUTION NO. 15-07 SETTING BUSINESS LICENSE FEES (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 6.6. MINUTES FROM MARCH 10, 2015 MEETING (TOWN CLERK DEBBIE HOPPE) 7. WORK SESSION 7.1. POLICY DIRECTION FOR AMENDING THE TOWN COUNCIL ETHICS CODE (TOWN ATTORNEY ERIC HEIL) 8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 8.1. CAST MEETING (MAYOR JENNIE FANCHER) 9. MAYOR & COUNCIL COMMENTS 10. WRITTEN REPORTS 10.1. MODIFIED PUBLIC IMPROVEMENTS AGREEMENT (TOWN ATTORNEY E RIC HEIL) 10.2. MONTHLY FINANCIALS (BUDGET ANALYST KELLY HUITT) 11. EXECUTIVE SESSION, IF CALLED (THIS SESSION IS NOT OPEN TO THE PUBLIC) 12. ADJOURNMENT _____________________________________________________________________________________ MEETING AGENDAS & PACKETS: HTTP://WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, RECREATION CENTER, & LIBRARY. Page 1 OFFICIAL PROCLAMATION ONE BOOK, ONE VALLEY, 2015 A Valley-wide reading program sponsored by the Towns of Avon, Eagle, Gypsum, Minturn, and Vail WHEREAS, community-read programs have united and uplifted hundreds of cities and principalities throughout the United States of America; and, WHEREAS, the book “The Cold Dish” by Craig Johnson, American novelist and playwright who resides in Ucross, WY, is Book 1 of the Walt Longmire Mystery Series. This book, Johnson’s debut novel, which celebrates its 10th anniversary this year, brings to life the vast Wyoming landscape, its people, and a wonderful new character in Sheriff Walt Longmire. WHEREAS, this Eagle Valley community read will feature book talks & discussions, film showings, special related programs such as Western-themed Murder Mystery Nights hosted by the partnering organizations, and a special guest appearance by the author; and, WHEREAS, the Town of Vail Public Library, in collaboration with the Eagle Valley Library District, Colorado Mountain College, and the Bookworm of Edwards have resolved to bring this valley-wide reading program to the citizens of Eagle County; and, WHEREAS, the One Book, One Valley initiative will encourage literacy and shared enjoyment of reading throughout Eagle County, NOW, THEREFORE, we, Andy Daly, Mayor, Town of Vail; Jennie Fancher, Mayor, Town of Avon; George Brodin, Mayor Pro Tem, Town of Minturn; Pam Schultz, Council Member, Town of Gypsum; Kathy Chandler-Henry, Eagle County Commissioner; Pam Brandmeyer, Assistant Town Manager, Town of Vail; and, Jon Stavney, Town Manager, Town of Eagle, do hereby promote the One Book, One Valley initiative and officially announce and promote the novel “The Cold Dish” to all Eagle County residents for their enjoyment and the enjoyment of all. Memo To: Holly Loff, Executive Director, Eagle River Watershed Council From: David E. Rees Date: 8/10/2014 Subject: Results from Benthic Macroinvertebrate Study, 2013. The following is a description of analysis methods and results from the Eagle River Watershed Council biomonitoring in 2013. Methods and Description of Data Analysis In the fall of 2010, the Colorado Department of Public Health and Environment (CDPHE) published specific guidelines for benthic macroinvertebrate sampling and analysis to assist in the evaluation of aquatic life in the State of Colorado (Colorado Department of Public Health and Environment 2010). These guidelines described specific protocols for the analysis of benthic macroinvertebrate data using a Multi-Metric Index (MMI). The group of individual metrics used in MMI calculations depends on the location of the sampling site and corresponding Biotype (Mountains, Transitional, or Plains). The study area for the Eagle River, Gore Creek, and associated tributaries is located within both Biotype 1 (the Transitional Zone) and Biotype 2 (the Mountain Zone). The MMI provides a single index score based on five or six equally weighted metrics. Each of the metrics used in the MMI produces a value that is adjusted to a scale from 1 to 100 based on the range of metric scores found at “reference sites” in the state of Colorado. The thresholds for MMI scores that determine attainment or impairment for aquatic life use in Biotype 1 and 2 are as follows: Biotype Attainment Threshold Impairment Threshold Transitional (Biotype 1) Mountains (Biotype 2) 52 50 42 42 Metric scores that fall between the thresholds for attainment and impairment (the “Grey Zone”) require further evaluation using additional metrics in order to determine an aquatic life designation. The additional metrics include the Shannon Diversity (Diversity) and Hilsenhoff Timberline Aquatics, Inc. Biotic Index (HBI). Descriptions of these auxiliary metrics are listed below, followed by the thresholds determined by the CDPHE for these metrics. Shannon Diversity (Diversity): Diversity was used as an auxiliary metric for the MMI and as an independent metric to evaluate changes in macroinvertebrate community structure. In unpolluted waters, Diversity values typically range from near 3.0 to 4.0. In polluted waters, this value is generally less than 1.0. Hilsenhoff Biotic Index (HBI): The HBI is another auxiliary metric used for the MMI; however, it is also valuable as an independent metric and has been widely used and/or recommended in numerous regional biomonitoring studies (Paul et al. 2005). Most of its value lies in detection of organic pollution, but it is also used to evaluate aquatic conditions in a variety of other circumstances. The HBI was originally developed using macroinvertebrate taxa from streams in Wisconsin; therefore, it may require regional modifications (Hilsenhoff 1988). Tolerance values for taxa occurring in this study area were taken from Barbour et al. (1999) which provides tolerance values for Idaho, or Merritt et al. (2008) which provides other regional tolerance values. Although the HBI value may naturally vary among regions, a comparison of the values produced within the same system should provide information regarding locations impacted by nutrients or other disturbances. Values for the HBI range from 0.0 to 10.0 and increase as water quality decreases. When MMI scores fall between the thresholds for attainment and impairment the macroinvertebrate data is further evaluated using the Diversity and HBI metrics to determine an aquatic life use designation at that site. The specific thresholds used for the MMI are as follows: Biotype HBI Diversity Transitional (Biotype 1) Mountains (Biotype 2) 5.4 5.1 2.4 3.0 An additional means of determining an attainment or impairment designation using the MMI program involves a rapid decline in scores from high scoring waters. When MMI scores are available from multiple years at the same sampling location and a large decline in scores occurs over the span of at least 12 months, a site will automatically be considered impaired for aquatic life use. The requirements for an allowable decline in MMI score are as follows: Biotype High Scoring Water (MMI score) Allowable MMI Decline Transitional (Biotype 1) Mountains (Biotype 2) >64 >64 -22 -22 Additional Metrics: In addition to the MMI and its associated “Grey Zone” metrics, other individual metrics were applied to macroinvertebrate data in order to provide additional information regarding the structure and function of the existing macroinvertebrate community. A description of these additional metrics is provided below: Ephemeroptera Plecoptera Trichoptera (EPT): The design of this metric is based on the assumption that the orders of Ephemeroptera (mayflies), Plecoptera (stoneflies), and Trichoptera (caddisflies) are generally more sensitive to pollution than other benthic macroinvertebrate orders (Lenat 1988). The EPT metric is currently an important and widely used metric in many regions of the United States (Barbour et al. 1999). The EPT value is simply given as the total number of distinguishable taxa in the orders Ephemeroptera, Plecoptera, and Trichoptera found at each station. This number will naturally vary among river systems, but it can be an excellent indicator of disturbance within a specific drainage. The EPT score is expected to decrease in response to a variety of stressors including nutrients (Wang et al. 2007). Diversity and Taxa Index (DAT): The DAT index was used in this study to evaluate water quality based on benthic community structure and diversity. This metric is unique because it incorporates components of community diversity along with taxa richness. Calculated DAT values fall within a range of numbers that are correlated to a scale describing stream condition (Mangum 1986). The DAT scale is as follows: DAT Value SCALE 18-35 Excellent 11-17 Good 6-10 Fair 0-5 Poor Functional Feeding Groups: Most of the previously described metrics use macroinvertebrate information that is related to community structure; however, macroinvertebrate taxa were also separated into functional guilds based on food acquisition to provide a measurement of community function. Some representation of each group usually indicates good aquatic conditions; however, it is normal for certain groups (collector-gatherers) to be more abundant than others (Ward et al. 2002). Scrapers and shredders are often considered sensitive to disturbance because they are specialized feeders (Barbour et al. 1999). Consequently, these sensitive groups are expected to be well represented in healthy streams. Much of the value in this type of analysis comes from comparison of sites within a specific study area. Changes in the proportion of functional feeding groups can provide insight into various types of stress in river systems (Ward et al. 2002). Results and Discussion In the fall of 2013, benthic macroinvertebrate monitoring sites were sampled using a quantitative (Hess) sampling method on the Eagle River, Gore Creek, and selected tributaries. Results obtained from macroinvertebrate data analysis were used to produce MMI scores and other individual metric values that suggested a wide range of environmental conditions occurred in this study area (Tables 1 and 2). Study sites on the Eagle River upstream of Gore Creek’s confluence (ERaRC, ERaMIN, and ERaGC) have historically maintained relatively high MMI scores that were well above the threshold for aquatic life use attainment (Figure 1). During the fall of 2013, these sampling sites continued to produce MMI scores (and additional metric values) that indicated relatively healthy aquatic conditions; however, site ERaRC produced slightly better results than the other two locations (Table 1). Additional metric values at these three sites suggested that benthic macroinvertebrate communities were well-balanced (based on the Diversity and DAT metrics) and aquatic conditions supported a large number of sensitive taxa (based on EPT values). The HBI metric did not detect substantial stress from nutrient enrichment or other disturbances. The two historical sampling sites on Gore Creek were also sampled during fall 2013. The upstream site (GCaBGC) produced an MMI score (68.1) in attainment for aquatic life use and additional metric values (DAT and EPT) indicated good macroinvertebrate community balance with healthy numbers of sensitive taxa (Table 1). Aquatic conditions declined in a downstream direction on Gore Creek, with an MMI score (45.5) in the “grey zone” at site GCMHMIN. Auxiliary metrics determined that this site was in attainment for aquatic life use due to the high Diversity value of 3.53 and an HBI value (4.94) below the impairment threshold (Table 1). The HBI metric is generally a measurement of nutrient-tolerant taxa and the increased HBI value observed at site GCMHMIN in Gore Creek may have been an indication of increased nutrient enrichment. Results from the two sites on Gore Creek generally detected a decline in aquatic conditions in a downstream direction during the fall of 2013, which was similar to results observed during previous years of sampling (Figure 1). Historical macroinvertebrate sampling sites continued on the Eagle River downstream of the confluence with Gore Creek and results from data analysis detected fluctuating aquatic conditions. At site ERAVN, aquatic conditions had deteriorated compared to sites upstream from the Gore Creek confluence (based on the MMI score of 43.3); however, auxiliary metrics (Diversity and HBI) determined that this site was in attainment for aquatic life use (Table 1). It is possible that Gore Creek has had a negative impact on the Eagle River downstream from the confluence based on results from 2013 and from previous sampling events (Figure 1). Farther downstream, site ERblwMCWOL generated one of the highest MMI scores (74.2) in the study area (Table 1). This MMI score was slightly lower than the score produced in 2012 (81.9), but still relatively high compared to other sites in the study area during 2013 (Figure 1). Table 1: MMI scores and additional metric values from composited quantitative (Hess) samples collected at established annual biomonitoring sites during the fall of 2013. Historical study sites include stream segments on the Eagle River, Gore Creek, and Brush Creek. Scores indicating impairment are provided in red. Metric Site ID ERaRC ERaMin ERatGC GCaBGC GCMHMIN ERAVN ERblw MCWOL BRCaER ERGYP MMI 84.2 67.0 63.2 68.1 45.5 43.3 74.2 52.6 64.9 Diversity 3.49 3.48 3.33 3.64 3.53 3.40 3.12 3.36 2.37 HBI 2.95 1.85 3.31 3.05 4.94 2.60 3.12 3.59 3.04 EPT 22 17 18 19 7 10 21 15 14 DAT 23.5 20.5 24.3 21.3 22.9 20.2 24.1 24.2 13.8 Table 2: MMI scores and additional metric values for newly established macroinvertebrate sampling sites. Streams with new sampling sites in the fall of 2013 included: Red Sandstone Creek, Brush Creek, Gypsum Creek, and Lake Creek. Scores indicating impairment are provided in red. Metric Site ID RSC-FB RSC-aI70 BRCaOL GYPCaER LC-LWF MMI 67.9 41.0 65.6 48.5 44.7 Diversity 3.30 2.91 3.41 2.96 3.11 HBI 5.13 4.14 4.56 4.67 3.33 EPT 20 5 18 10 8 DAT 26.1 15.6 25.4 21.5 14.3 Figure 1: MMI scores for ERWC Eagle River, Gore Creek, and Brush Creek historical sites from 2008-2013. Brush Creek, a tributary of the Eagle River, has historically been sampled at one location (site BRCaER) near the confluence with the Eagle River. Due to highly fluctuating MMI scores observed at this site between 1999 and 2012, an additional site (BRCaOL) was established during the fall of 2013 approximately 2.5 miles upstream from site BRCaER to help define spatial changes in aquatic conditions. During the fall of 2013, both sites produced MMI scores above the threshold for aquatic life use attainment; however, there was a decline in MMI scores from 65.6 at site BRCaOL to 52.6 at site BRCaER (Table 1 and Table 2). Other individual metrics did not detect major changes in the aquatic community between these sites, although there was a slight decline in EPT values (18 to 15) from upstream to downstream. The most downstream site in the study area was located on the Eagle River in the Town of Gypsum (downstream from the confluence with Brush Creek). Site ERGYP produced an MMI score of 64.9 in 2013, which was similar to the MMI scores from upstream sites on the Eagle River (Table 1). Despite the acceptable MMI score at site ERGYP, other individual metric values detected a decline in community balance (demonstrated by the Diversity value of 2.37 and DAT value of 13.8). The EPT metric also measured a decrease in sensitive taxa at site ERGYP compared to upstream sites on the Eagle River, while the HBI metric reported a similar proportion of nutrient-tolerant taxa (Table 1). Overall, the MMI and additional metrics suggested that aquatic conditions remained relatively healthy in the downstream portion of the study area despite the decline in community balance and loss of some sensitive taxa. Benthic macroinvertebrate data analysis conducted for site ERGYP produced an MMI score that was similar to previous years of sampling (Figure 1). Recently established study sites on tributaries to the Eagle River produced a wide range of results in the fall of 2013 (Table 2). The MMI exhibited a sharp decline on Red Sandstone Creek from upstream (RSC-FB) to downstream (RSC-aI70), and the score at site RSC-aI70 (41.0) resulted in the only impairment designation in this study area (Table 2). The EPT metric supported the MMI results and also produced the lowest value (5) in the study area at site RSC- aI70. MMI scores were in the “grey zone” in both Gypsum Creek (GYPCaER) and Lake Creek (LC-LWF); however, auxiliary metric values resulted in attainment designations for both locations. Other individual metrics (particularly the EPT) also detected elevated levels of stress at sites GYPCaER and LC-LWF (Table 2). Analysis of functional feeding groups provided an opportunity to evaluate the function rather than structure of aquatic life at each site in this study. Results from the fall of 2013 were reported for historical sampling sites (Table 3; Figure 2), and newly established sampling sites (Table 4). Functional feeding groups were often proportionally dominated by the collector- gatherer group; however, study sites with optimal aquatic conditions typically supported adequate representation from all groups (Tables 3 and 4). The most sensitive and specialized feeding groups (shredders and scrapers) were generally present at most study sites, but exhibited lower proportions in Gore Creek and select tributaries (Red Sandstone Creek and Lake Creek). The high percent composition of collector-gatherers, combined with low proportions of scrapers and shredders, was an indication of stressed aquatic conditions. The results produced from the analysis of functional feeding groups generally supported the conclusions obtained from the MMI and other individual metrics, and detected increased levels of disturbance at certain locations in the study area. Table 3. Relative abundance of functional feeding groups for fall 2013 Hess samples at historical ERWC study sites. Site Functional Feeding Group Collector- Gatherer Collector- Filterer Shredder Scrapers Omnivore Predators ERaRC 61.80% 18.67% 6.59% 6.04% 0.24% 6.67% ERaMin 58.97% 8.70% 11.28% 11.82% 0.00% 9.24% ERatGC 58.17% 15.83% 0.77% 12.40% 0.60% 12.23% GCaBGC 48.80% 22.31% 2.39% 2.59% 11.55% 12.35% GCMHMIN 73.31% 11.33% 0.65% 0.82% 3.49% 10.40% ERAVN 51.24% 12.43% 0.55% 28.66% 0.55% 6.56% ERbMCWOL 12.23% 39.49% 8.32% 33.56% 0.10% 6.30% BRCaER 37.04% 31.87% 0.50% 18.50% 0.00% 12.10% ERGYP 13.65% 55.02% 0.67% 27.77% 0.47% 2.43% Table 4. Relative abundance of functional feeding groups for macroinvertebrate samples collected in the fall of 2013 at newly established tributary sites on Red Sandstone Creek, Brush Creek, Gypsum Creek, and Lake Creek. Site Functional Feeding Group Collector- Gatherer Collector- Filterer Shredder Scrapers Omnivore Predators RSC-FB 51.47% 37.08% 3.70% 2.20% 1.25% 4.30% RSC-aI70 81.79% 1.80% 0.83% 0.14% 11.39% 4.06% BRCaOL 36.01% 28.34% 0.43% 21.65% 0.00% 13.57% GYPCaER 52.26% 5.02% 0.00% 32.09% 0.00% 10.63% LC-LWF 80.36% 10.67% 0.00% 1.98% 0.28% 6.70% Figure 2. Percent composition of functional feeding groups found in fall 2013 Hess samples at historical ERWC study sites. Literature Cited Barbour, M. T., J. Gerritsen, B. D. Snyder, and J.B. Stribling. 1999. Rapid bioassessment protocols for use in streams and wadeable rivers: Periphyton, benthic macroinvertebrates and fish, second edition. EPA 841-B-99-002. U.S. Environmental Protection Agency; Office of Water; Washington, D.C. Colorado Department of Public Health and Environment. 2010. Aquatic life use attainment: Methodology to determine use attainment for rivers and streams. Policy Statement 2010-1. Hilsenhoff, W. L. 1988. Rapid field assessment of organic pollution with a family level biotic index. Journal of the North American Benthological Society 7(1): 65-68. Lenat, D.R. 1988. Water quality assessment of streams using a qualitative collection method for benthic macroinvertebrates. Journal of the North American Benthological Society 7:222-33. Mangum, F.A. 1986. Macroinvertebrates, p. 661-675 in Cooperrider, A. Y., R. J. Boyd, and H. R. Stuart, eds. Inventory and monitoring of wildlife habitat. U.S. Dept. Inter., Bureau of Land Management. Service Center. Denver, Co. xviii, 858pp. Merritt, R. W., K. W. Cummins, and M. B. Berg. 2008. An Introduction to the Aquatic Insects of North America. Fourth Edition, Kendall/Hunt. Dubuque, Iowa. Paul, M. J., J. Gerritsen, C. Hawkins, and E. Leppo. 2005. Draft. Development of biological assessment tools for Colorado. Colorado Department of Public Health and Environment, Water Quality Control Division – Monitoring Unit. Denver, Colorado. Wang, L., D. M. Robertson, and P. J. Garrison. 2007. Linkages between nutrients and assemblages of macroinvertebrates and fish in wadeable streams: implication to nutrient criteria development. Environmental Management 39: 194-212. Ward, J. V., B. C. Kondratieff, and R. E. Zuellig. 2002. An Illustrated Guide to the Mountain Stream Insects of Colorado. Second Edition. University Press of Colorado. Boulder, Colorado. Eagle River Water Quality Programs Update Seth Mason Water Resources Program Director Eagle River Watershed Council Why Monitor? High diversity of water uses: •Recreation •Agriculture •Aesthetics •Water Supply Why Monitor? Potential Impacts to Water Uses: •Geological diversity •Concentrated urban land uses •Major transportation corridor •Aging infrastructure •Growing population ERWC Program Coordination Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement Monitoring Coordination Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement 12 Watershed Data Collectors USGS ERWSD Town of Vail/RiverWatch ERWC/RiverWatch CBS/Newfields Timberline Aquatics USFS CDOT CDPHE Town of Eagle Town of Gypsum Adams Rib Ranch Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. Baseline Monitoring Network 7 Streamflow Monitoring Sites 9 Water Quality / Bio-Monitoring Sites 2 Real -time Temperature Monitors 1 Real -time Specific Conductance Monitor Historical Monitoring Network Streamflow Monitoring Sites Water Quality / Bio-Monitoring Sites Monitoring Coordination Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. Data Analysis Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement Data Analysis Eagle River Macroinvertebrate Assessment: MMI Scores 2009-2013 Regulatory Context •303(d) Listing on Gore Creek for Aquatic Life Impairment •303(d) Listing on Beaver Creek for Aquatic Life Impairment •If conditions on Eagle River near Avon degrade further, listing is likely. •Listing can impact discharge permit applications and renewals •Monitoring allows stakeholders to anticipate and respond to regulatory action Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. Data Analysis Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement Facilitated Action Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. Stakeholder Engagement Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. ERWC Program Coordination Baseline Monitoring and Coordination Data Analysis and Interpretation Facilitation of Coordinated Action Stakeholder/Public Engagement Goal: To provide ongoing water quality monitoring while fostering collaborative action to preserve or enhance the integrity of the watershed. Looking Forward Monitoring Program Development: •Partnership Expansion •Incorporation of Streamflow Gauges •Expansion to Colorado River •Reporting and Coordination Facilitated Actions: •Urban Runoff Group •Gore Creek Strategic Action Plan •Riparian Condition Assessment •Stormwater Risk Assessment •Review of Site Development Regulations Town of Avon Role / Benefits Received •Multifaceted programs supported by broad partnerships •Town of Avon’s contributions are significantly leveraged •ERWC program goals/activities inform decision making •Identify and fill data gaps •Data  Information •Pro tect water uses Thank you for your support! TOWN COUNCIL REPORT To: Mayor and Town Council From: Brian Garner, Town Planner Date: March 16, 2015 Agenda Topic: PUBLIC HEARING – Resolution 15-04 Case #PUD14007 Minor PUD Amendment for Lot 38 & Lot 39, Block 4, Wildridge Subdivision UPDATE Council considered the Application at the March 10, 2015 meeting and motioned to continue the case to the March 24, 2015 meeting with additional details provided in the resolution. Resolution 15-04 has been updated to include: • Exhibit A - providing site specific details of the approval (PUD Amendment for Lots 38 & 39 Wildridge Subdivision) • PUD Amendment conditions Pursuant to the March 10 Council discussion, the minimum livable area proposed by the applicant has been reduced from 3,000 square feet to 2,500 square feet. Introduction Bobby Ladd with RAL Architects, Inc., the Applicant, representing Wildridge Lots, LLC, the Property Owner, is requesting a Planned Unit Development (PUD) Amendment (the Application) to modify the allowed building type for Lots 38 & 39, Block 4, Wildridge Subdivision (the Property). The current lot entitlements are as follows: Lot 38: Two (2) total dwelling units in the form of one (1) single-family-detached structure or one (1) duplex structure Lot 39: Four (4) total dwelling units in the form of one (1) fourplex or two (2) duplex structures. The Application is requesting the ability to amend the zoning to re-subdivide the Property to develop a total of six (6) single-family-detached structures. No change to the entitled density is requested; only a change to the allowed building type. As required by the Avon Development Code, the application is being processed as a Minor PUD Amendment. Attached to this report are a Vicinity Map and the Application materials. Process Minor PUD Amendment Process This application is processed under §7.16.060(h), Amendments to a Final PUD, AMC. Subsection (1)(ii), sets forth criteria for a Minor Amendment, while subsection (2)(ii) sets forth the review procedures for the same process. The application, as submitted, meets the criteria for a Minor Amendment: A. The PUD amendment does not increase density, increase the amount of nonresidential land use or significantly alter any approved building scale and mass of development. B. The PUD amendment does not change the character of the development and maintains the intent and integrity of the PUD. PUBLIC HEARING – PUD14007 - Minor PUD AmendmentPage | 1 C. The PUD amendment does not result in a net decrease in the amount of open space or result in a change in character of any of the open space proposed within the PUD. Public Notification The application was noticed in compliance with the Public Hearing and noticing requirements as set forth in the Avon Development Code (ADC) Sec. 7.16.020(4) Constructive Notice. For the PZC hearing(s), a mailed notice was provided to all property owners within 300’ of the property on January 5, 2015. Additionally, a notice of public hearing was published in the Vail Daily newspaper on January 9, 2015. A new public notification was performed for the March 10, 2015 Town Council hearing consisting of a mailed notice and published notice. Public Hearings The application was first considered at the January 20, 2015 PZC meeting where the PZC motioned to continue the application to the February 17, 2015 PZC meeting. Council considered the Application at the March 10, 2015 meeting and motioned to continue to the March 24, 2015 meeting with additional details provided in the resolution. Council will make a final decision on this Application through a Resolution after holding one more public hearing on March 24. Proposed PUD Amendment The Property is currently undeveloped, zoned PUD and is included in the Wildridge Subdivision. The Wildridge Subdivision and PUD Plat contains a Land Use Summary table indicating the number of units entitled for each individual lot as shown in Exhibit 1 below. Highlighted are the subject properties with their respective entitlements. Exhibit 1 – Wildridge Subdivision and PUD Land Use Summary PUBLIC HEARING – PUD14007 - Minor PUD AmendmentPage | 2 The Application includes a narrative, response to the mandatory review criteria, and preliminary site and building design plans showing the proposed development scenario. Conceptual Lot Split Plan: As demonstrated in the attached conceptual lot split plan, this Application is requesting to create six (6) separate lots of record that each would be permitted one (1) single-family-detached structure. The lot split plan also incorporates a deeded open space tract of 1.07 acres that would be commonly held by the six residential properties and maintained under the covenants and restrictions. Approval of this request would supersede the existing entitlement of a duplex and a fourplex on the respective lots. The Conceptual Lot Split Plan also demonstrates: • Proposed Lots 38A-38F and respective lot sizes • Proposed Open Space Tract of 1.07 acres • Existing easements for slope maintenance, drainage and snow storage • Existing platted utility and drainage easement • Proposed new utility and drainage easements • Proposed building setbacks retaining the existing Wildridge standards • Proposed platted “No Build” areas • The primary platted Access, Utility & Drainage Easement • Maximum building heights of 35-feet or topographic line 8460 as represented on the base topographic survey, whichever is lower Conceptual Site Plan: The applicant has provided a proposed site plan that demonstrates: • The proposed siting of the six home footprints (conceptual siting) • Proposed approximated square footage of each home footprint • Approximate location of retaining walls • Relationship of primary access drive to lots and homes • Fire truck/emergency response vehicle turnaround areas Modifications to Original Application Modifications to the application were requested by the PZC which have been addressed by the applicant and a revised application was presented at the February 17, 2015 meeting. The following is a summary of the presented modifications: • Consistent with existing entitlements, six (6) total units remain proposed • Proposed development lots will remain single-family-detached (SFD) units • Proposed Lot layout has been re-engineered to address neighboring property concerns • SFD units shift from 5 units on the west side to 4 units • SFD units on the east side shift from 1 to 2 units • Maximum building footprints of 3,000-3,500 square feet are proposed • Maximum residential floor area of 3,500-5,000 square feet is proposed • A “glass ceiling” additional building height restriction on applicable lots • Platted open space grows slightly and is redistributed • Open space is proposed as a Conservation Easement • Site section views are included to provide a better understanding of impacts to adjacent properties Next Steps if Council Approves: o Major Subdivision review and approval by PZC and Town Council o Major Development Plan with Design Review for each new home proposed (PZC review and approval) PUBLIC HEARING – PUD14007 - Minor PUD AmendmentPage | 3 o Building Permit review and approval (administrative) Staff Analysis Staff worked closely with the applicant to propose a project that meets the applicable review criteria, meets the intent of the Development Code and the Comprehensive Plan and to mitigate impact to adjacent properties. The proposal to allow six separate single-family-detached structures in lieu of the entitled duplex and fourplex (or two duplexes) does not change the density and will have an overall positive effect on the mass and scale of the developed property. By separating the potential structural massing, the visual impact of the developed site is minimized revealing increased building articulation, increased light and air between units, and decreased impact to wildlife migration. After reviewing the PUD review criteria below, Staff finds the Application is in conformance with the purpose of the Development Code, review criteria, and any potentially negative impact to neighboring properties has been mitigated to the fullest extent. The development pattern in this portion of Wildridge is a mix of duplex and single-family-detached homes (predominantly single family and duplex structures in a “low density” pattern with open spaces surrounding developed parcels); the proposed Application will help provide variety in building forms and create a more diverse development pattern. PUD Review Criteria Pursuant to §7.16.060(e)(4), Review Criteria, AMC, the PZC shall consider the following criteria when forming the basis of a recommendation: (i) The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or incorporates creative site design such that it achieves the purposes of this Development Code and represents an improvement in quality over what could have been accomplished through strict application of the otherwise applicable district or development standards. Such improvements in quality may include, but are not limited to: improvements in open space provision and access; environmental protection; tree/vegetation preservation; efficient provision of streets, roads, and other utilities and services; or increased choice of living and housing environments. Staff Response: The stated purposes of §7.04, Development Code, AMC, and §7.16.060, PUD, AMC, includes statements regarding the implementation of the Comprehensive Plan; regulating intensity of use; avoiding increased demands on public services and facilities; and providing for compatibility with the surrounding area, among other statements. The proposed amendment does not increase demands on public services, and provides compatible building layouts with the surrounding area. It should be noted that all other applicable development standards (parking, design standards, access requirements) would remain intact. Additionally, the application proposes deeded open space and non-buildable area representing nearly half of the total lot area. (ii) The PUD rezoning will promote the public health, safety, and general welfare; Staff Response: The Application will promote the public health, safety and welfare by separating the structures and allowing more light and air between dwelling units which confer additional benefits to the surrounding community and for wildlife migration across the site. (iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of this Development Code, and the eligibility criteria outlined in §7.16.060(b); Staff Response: The proposed PUD amendment is part of an established PUD, and is therefore not subject to the eligibility criteria or Public Benefit requirements outlined in §7.16.060(b). Consistency with the Comprehensive Plan is required and analysis is provided below. The Town of Avon Comprehensive Plan includes this property within District 24: Wildridge Residential District. The planning principals specific to this property include the following: PUBLIC HEARING – PUD14007 - Minor PUD AmendmentPage | 4 Site buildings of varying sizes along the street to maximize sun exposure, protect views, be compatible with existing surrounding development, and break up building bulk. The Wildridge District planning principles contemplate enhancing and promoting open space connectivity. Approval of this Application would result in an additional deeded open space tract, improved building massing, breaks up of building bulk with smaller structures, and maximized sun exposure. (iv) Facilities and services (including roads and transportation, water, gas, electric, police and fire protection, and sewage and waste disposal, as applicable) will be available to serve the subject property while maintaining adequate levels of service to existing development; Staff Response: This PUD amendment does not change the current entitlement of six total residential units; therefore the existing services can adequately serve the property. The application has been provided to Eagle River Water and Sanitation District as well as Eagle River Fire Protection District for review and no concerns were raised by these agencies. Additionally, a single curb cut from Wildridge Road East is proposed thereby reducing the Town’s maintenance (i.e. ditch work) requirements. (v) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse impacts upon the natural environment, including air, water, noise, storm water management, wildlife, and vegetation, or such impacts will be substantially mitigated; Staff Response: The proposed PUD amendment should impose no additional impacts to the natural environment, wildlife, vegetation, and air beyond the current entitlement since the development rights remain the same with six (6) total units. (vi) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse impacts upon other property in the vicinity of the subject tract; and Staff Response: Approval of the PUD amendment would not result in significant adverse impacts upon other property in the vicinity as the proposed PUD Amendment maintains the existing entitled density, and increases the building setbacks and utility/drainage easements. (vii) Future uses on the subject tract will be compatible in scale with uses or potential future uses on other properties in the vicinity of the subject tract. Staff Response: Single-family-detached residential use is compatible in scale with current and potential uses on other properties in the vicinity of the Property. PZC Recommendation After considering public comments at the January 20 and February 17 PZC meetings, the PZC recommended approval of the Application with two conditions: 1. Lots 38A – 38F shall be required to adhere to the “glass ceiling” maximum building height as proposed by the applicant. 2. Homes constructed on Lots 38A – 38F shall adhere to the following size requirements: LOT Minimum Livable Area Maximum Residential Floor Area (Excluding Garage) Maximum Building Footprint (Including Garage) Lot 38A 2,500 square feet 5,000 square feet 3,500 square feet Lot 38B 2,500 square feet 4,000 square feet 3,000 square feet Lot 38C 2,500 square feet 4,000 square feet 3,000 square feet Lot 38D 2,500 square feet 5,000 square feet 3,500 square feet Lot 38E 2,500 square feet 4,000 square feet 3,000 square feet Lot 38F 2,500 square feet 3,500 square feet 3,000 square feet PUBLIC HEARING – PUD14007 - Minor PUD AmendmentPage | 5 The PZC recommendation includes the following findings: Findings: 1. The PUD amendment does not increase density, increase the amount of nonresidential land use or significantly alter any approved building scale and mass of the development. 2. The PUD amendment does not change the character of the development and maintains the intent and integrity of the PUD. 3. The PUD amendment does not result in a net decrease in the amount of open space or result in a change in character of any of the open space proposed within the PUD. 4. The application was evaluated pursuant to Section 7.16.060(e)(4), Review Criteria, AMC, and found to be in compliance with the mandatory review criteria. Staff Recommendation Staff recommends approval of Resolution 15-04 with Exhibit A, thereby approving the Minor PUD Amendment application for Lot 38 & Lot 39, Block 4, Wildridge Subdivision. Attachments A. Draft Resolution 15-04 with Exhibit B. Vicinity Map C. Application Materials PUBLIC HEARING – PUD14007 - Minor PUD AmendmentPage | 6 TOWN OF AVON RESOLUTION NO. 15-04 Series of 2015 A RESOLUTION APPROVING FILE #PUD14007, A MINOR PUD AMENDMENT FOR LOT 38 & LOT 39, BLOCK 4, WILDRIDGE SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, STATE OF COLORADO WHEREAS, a Minor PUD Amendment Application (“Application”), was submitted to the Community Development Department of the Town on December 19, 2014 by Bobby Ladd of RAL Architects, Inc. (“Applicant”); and WHEREAS, the Application requests to amend the zoning of Lot 38 & Lot 39, Block 4, Wildridge Subdivision, to allow a cumulative six (6) single-family-detached structures in place of the currently entitled one (1) duplex structure and one (1) fourplex or two (2) duplex structures on Lot 38 & Lot 39; and WHEREAS, the Application requests the PUD zoning amendment to allow a re-subdivision of Lot 38 & Lot 39 into Lots 38A – 38F together with open space and easements; and WHEREAS, the Application was reviewed as a “Minor PUD Amendment” pursuant to code section 7.16.060(1)(ii), Avon Development Code. WHEREAS, the Planning and Zoning Commission held a public hearing on January 6, 2015, and February 17, 2015 after posting notice of such Public Hearing in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided; and WHEREAS, the Planning and Zoning Commission recommended that the Town Council approve the Application; and WHEREAS, the Avon Town Council held a public hearing on March 10, 2015 and March 24, 2015, and after posting notice as required by law, considered all comments, testimony, evidence and staff report prior to taking action on the Application; and WHEREAS, the Avon Town Council has examined the review criteria set forth in §7.16.060(e)(4); and WHEREAS, the Avon Town Council has made the following findings regarding the Application: (1) The Application was processed in accordance with §7.16.060(h), Amendment to a Final PUD, which allowed the application to be processed as a minor amendment pursuant to §7.16.060(h)(1)(ii), Minor Amendment, and utilized the review criteria set forth in §7.16.060(e)(4), Preliminary PUD Review Criteria; and, Resolution 15-04 PUD14007 - Minor PUD Amendment TC March 24, 2015 Page 1 of 2 (2) The Application is in substantial compliance with §7.16.060(e)(4), Preliminary PUD Review Criteria, AMC based upon review of the Application, the Town staff report and other evidence considered by the Avon Town Council at the public hearing; and, (3) The Application will not result in adverse impacts upon the natural environment, including air, water, noise, storm water management, wildlife, and vegetation, or such impacts will be substantially mitigated; and, (4) Approval of the Application will reduce building massing compared to the existing underlying zoning, allowing for an improvement in quality over what could have been accomplished through the existing zoning designations; and, (5) Building impacts on-site are reduced by adding restrictions that are currently not in effect including: building footprint restrictions and livable area restrictions; and, (6) The Application is in conformance with policy recommendations in the Avon Comprehensive Plan, including “siting buildings of varying sizes along the street to maximize sun exposure, protect views, be compatible with surrounding development, and break up building bulk.” NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that PUD14007, a Minor PUD Application, is hereby approved to amend the Wildridge Subdivision and PUD Land Use Summary cumulatively as six (6) single-family- detached residences, which shall be constructed on separate lots (Lots 38A – 38F) subject to future subdivision approval by the Town as set forth in Exhibit A: PUD Amendment for Lots 38 & 39, Block 4, Wildridge Subdivision, Town of Avon, Eagle County, State of Colorado, ADOPTED March 24, 2015. AVON TOWN COUNCIL By: _______________________________ Attest: ___________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk Resolution 15-04 PUD14007 - Minor PUD Amendment TC March 24, 2015 Page 2 of 2 TOWN COUNCIL REPORT To: Honorable Mayor and Avon Town Council From: Matt Pielsticker, AICP, Planning Manager Date: March 16, 2015 Agenda Topic: Request from Starwood Vacation Ownership for Extension to Development Approval Lot 1, Riverfront Subdivision & PUD Summary The Community Development Department received a written request for a three year time extension to the Development Plan approval for a timeshare project on Lot 1, Riverfront Subdivision. The Final Design approval was granted by the Planning and Zoning Commission (PZC) on April 20, 2010 for a two year period. In March, 2012, the Avon Town Council approved a three (3) year extension. Any request for a time extension of a development approval greater than one year must be approved by the Town Council. The Council may approve multiple time extensions or extensions for periods greater than one year at their sole discretion. The request and approved drawings are attached to this Memorandum for reference. Municipal Code Requirements Pursuant to §7.16.020(h), Termination of Approval, Avon Municipal Code, the property owner is requesting a three (3) year time extension to their Final Design approval for a 74-unit timeshare development until April 20, 2018. In the written request (Attachment A), the applicant states that the downturn in the global economy has changed the method to which they conduct business, and additional time to study the economics of the project is required before moving forward. According to §7.16.020(h), the “owner shall submit a written request for an extension to the Director prior to the expiration date and shall state the reasons and circumstances for such extension request.” There are no codified review criteria for this type of request; rather, Council has the sole discretion on the acceptable timeframe of an extension. Discussion The PZC unanimously approved the Development Plan for this project subject to the following conditions referenced in the attached (Attachment B) letter dated May 17, 2010. These conditions of approval are unresolved to date and if the extension is granted, Staff recommends that that they be carried forward and addressed prior to the issuance of any grading or building permit(s). There are no review criteria for this type of request and as mentioned, the Town Council may consider any pertinent factors when considering the extension. Staff has evaluated this request and find no compelling reason to deny. The Riverfront PUD provides clear guidance with respect to project massing and orientation with zoning standards specific to each property in the Subdivision. The Riverfront PUD also contains its own set of site specific Design Guidelines which supersede Town of REQUEST FOR DEVELOPMENT PLAN EXTENSION – LOT 1, RIVERFRONT SUBDIVISION PAGE 1 OF 2 Avon standards. Lastly, if the same project were submitted under current regulations, the Development Plan would be found in compliance with the mandatory review criteria and Design Guidelines. Recommendation Staff recommends approval of the attached request, thereby approving the three (3) year time extension to the approval for Lot 1, Riverfront Subdivision until April 20, 2018, with the following condition: 1. Property owner shall resolve the outstanding conditions of approval cited in Matt Pielsticker’s May 17, 2010 meeting letter prior to the issuance of a grading and/or building permit. 2. If a building permit is not issued, or another extension granted by April 20, 2018, the Development Plan approval for Lot 1, Riverfront Subdivision, is void and a new Development Plan application must be submitted in accordance with the Avon Development Code. Attachments: A. Written Extension Request B. PZC Approval Letter, dated May 17, 2010 C. Approved Plans REQUEST FOR DEVELOPMENT PLAN EXTENSION – LOT 1, RIVERFRONT SUBDIVISION PAGE 2 OF 2 MEMO RANDUM Stud io Obermeier Sheykhet Inc. 1580 Lincoln Street Suite 200 Denver, Colorado 80203 phone 303.327.4600 fax 303.327.4605 DEDI CATED TO DESIGN EXCELLENCE 2 P:\90606.01_WRR\Admini stration\Correspondence\Outgoing\Letter & Memo\TOWN OF AVON\WRR_Matt_Pielsticker_15_02_09_TSER_Extension.doc To: Mr. Matt Pielsticker Date: February 09, 2015 Company: Starwood Vacat ion Ownership Project: Westin Riverfront Resort Time Share East and River From: Aleksandr Sheykhet Project #: 90606.11 Subject: Riverfron Subdivison, LOT 1-Timeshare East and River Final Design Review Approval Timeline Extension Request File #: 2.1.2 Attachments: Via: Email Mr. Piels ticker, The Riverfront Subdivision, Lot 1 Project was granted the Final Design Approval at the Town of Avon Planning Commission meeting held on April 20, 2010. Timeshare East and River Final Design Approval has been granted an extension and is now set to expire on April 20, 2015. The Starwood Development team respectfully submits this memorandum requesting the opportunity to open discussions for a multiyear time extension for the subject property. I. NATURE OF REQUEST. Starwood Vacation Ownership and Studio OS respectfully request a three (3) year extension of the approval and all the rights, obligations, and conditions associated with it. We believe that Section 7.16.090 (g) of the Avon Municipal Code sets forth the process for requesting a Final Design Review Approval extension and that our request for a three (3) year extension must be approved by Avon Town Council. We look forward to working with you closely to facilitate the approval of this extension request at your earliest opportunity. II. DELAY REQUEST JUSTIFICATION. Starwood Vacation Ownership is committed to this Project, the region, and the Town of Avon. Starwood Vacation Ownership owns and /or operates number of properties in Avon: Westin Riverfront Timeshare, Sheraton’s Mountain Vista, Lakeside Terrace. The downturn in the global economy has significantly changed the method in which we conduct our business and continues to challenge our business models on a daily basis. We consider this location to be of prime value to our customers, but we continue to be challenged by a soft consumer market which is the main driver for our products. Considering these influences, we page 2 of 2 require additional time to study the economics and develop a viable business strategy that will enable us to move the project forward. III. PROCESS. We understand that a decision to grant this extension is a prerogative of the Town of Avon Council. We will discuss with you and other stakeholders the preliminary steps and protocol required to appear before the Town Council in the near future. Our team is prepared to provide the necessary information to assist in the process to expedite a positive outcome. IV. SUBMITTALS. Our team will be submitting the following package to assist in the review and approval of the time extension request: · Previously approved drawings. · Letter of acknowledgment and acceptance of the findings and conditions outlined in your letter of approval dated 05.17.2010. · Revised Memorandum requesting a time extension. Note that this memorandum will be updated based on coordination with you, the Planning Director, other town officials. V. NEXT STEP Please let us know if you have additional questions or concerns. We will follow up with a telephone call in the next several days to discuss specifics. We look forward to preserving this development opportunity with the Town of Avon. 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AC C E S S T H R O U G H A D J A C E N T L O T AT S O U T H E A S T T O B E A P P R O V E D B Y PR O P E R T Y O W N E R POTENTIALLOCATION :G.C.TOADVISEPOTENTIALCARENTRYDRIVETHROUGHLOTCPOTENTIALCARENTRYDRIVE(E)BUS STOP PDFcreatedwithpdfFactoryPro trialversionwww.pdffactory.com TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Justin Hildreth, Town Engineer Date: March 5, 2015 Agenda Topic: Request for Water Right Cash-in-Lieu Fee Reduction, Brookside Park PUD Summary In June 2013, Riverview Park Associates, applied for a PUD amendment to modify the allowed uses to include up to twenty-four (24) residential dwelling units on Lot 1, of the Brookside Park PUD. The application was approved by Ordinance 13-06, with a condition that: “Prior to the issuance of a Building Permit, the Applicant shall provide proof of adequate water rights from the Upper Eagle Regional Water Authority”. The PUD Amendment resulted in additional water demand for the Single Family Equivalents (SFE’s) required to serve the development by 5.7 SFE’s, which triggered the need to purchase additional water rights as cash-in-lieu from the Upper Eagle Regional Water Authority (UERWA). UERWA subsequently noticed Brookside that the cost would be $50,000. The project developer, Frank Navarro, is contesting the requirement and is requesting the Town rebate $15,000 of the building permit and review fees to compensate for the cash-in-lieu fees they must pay to the UERWA. The basis for the request is included in the attached letter. Mr. Navarro is expected to attend Tuesday’s meeting. Background In 2005, the Town entered into a water lease with the UERWA that set the number of SFE’s the UERWA is obligated to serve at 4,984 SFEs. It has been increased three times to 5,276.55 SFE’s to accommodate the Riverfront, Eagle River at Avon and Wyndham developments. The number of SFE’s was based on the existing zoning in the Town in 2005 and currently the Town’s build-out will be 5,244 SFE’s leaving 32.55 for Town’s uses like affordable housing and the police and fire station at Buck Creek PUD. The Town has taken the position that new developments, which require more water than their zoning in 2004, must increase the Town’s SFE allotment with the UERWA with cash- in-lieu payments. If the Town did not require this, there will not be enough SFE’s to accommodate already approved density at build-out and the Town would likely have to purchase the SFE’s from the UERWA. Staff Recommendation Staff recommends Town Council not approve this request of the $15,000 rebate in building permit fees to account for required cash-in-lieu fees. Three previous projects have been required to pay the fee, and have done so. In addition, builders of homes larger than 3,000 SF must also pay an additional fee to account for the impact on the Town’s SFE allotment with the UERWA. If Town Council decides to grant Mr. Navarro’s request, staff recommends it be paid out of the Water Fund. Attachment February 23, 2015 letter from Frank Navarro to Virginia Egger HELTON & WILLIAMSEN, P.C. CONSULTING ENGINEERS IN WATER RESOURCES 384 Inverness Parkway, Suite 144 Englewood, Colorado 80112-5822 Phone (303) 792-2161 Fax (303) 792-2165 E-mail: twilliamsen@helton-williamsen.com M E M O R A N D U M January 14, 2013 To: Evette Curran From: Tom Williamsen Subject: Water demand estimate – Brookside Park PUD Conversion Project I reviewed the water demand and consumptive use estimates for the Brookside Park PUD Conversion Project submitted by Rick Pylman, developer’s representative. The project would convert an existing 30,000 sq. ft. office building to 20 residential units and an additional 8,000 sq. ft. of irrigated landscape. Brookside is located at 37347 U.S. Highway 6 in the Town of Avon. The water use by the existing office building is included in the Town of Avon’s augmentation plan. Any water use increase will be included in UERWA’s plans for augmentation. I have reviewed the Water Demand Worksheet submitted by Mr. Pylman and the customer delivery records that you provided. The water demand for the 20 residential units will total 6.72 acre-feet annually and for 8,000 sq.ft. of irrigated landscape will total 0.46 acre-feet annually. The existing office building has used 0.84 acre-feet annually for in-building use and 2.17 acre-feet annually for irrigation based on the customer records for 1998-2012. The water for this project will be supplied through the Avon Water Plant and waste water will be treated at the Avon Wastewater Plant. The water demand to be included in UERWA’s augmentation plans were calculated by: 1) separating the historical in-building and irrigation uses for the average monthly recorded deliveries using the procedure developed with the Division Engineer, 2) subtracting the resultant in-building use from the monthly amounts calculated for 20 residential units to get the net additional in- building use, and 3) adding the net in-building use with the additional irrigation requirements for 8,000 sq. ft. of landscape. The consumptive use is the combination of 5% of the net in-building use plus 80% of the additional irrigation use. The resulting increased annual water demands will be: Net in-building ………..….….. 5.88 acre-feet Increased irrigation ….……… 0.46 acre-feet Total ……………………...... 6.34 acre-feet The resulting increased annual consumptive use will be: Net in-building ………..….…. 0.29 acre-feet Increased irrigation ………… 0.37 acre-feet Total …………………….... 0.66 acre-feet Evette Curran January 14, 2013 Page 2 The cash-in-lieu of water rights dedication totals $10,568 based on the UERWA Resolution on Water Dedication Policy as amended January 26, 2012. The Water Demand Worksheet and the cash in lieu calculations are attached. Enclosure cc: Linn Brooks w/enclosure c:\2013-01-14 Memo to ECurran Water Demand and Dedication Brookside.doc Project Name: Contact Person: Telephone:Date: Lot 1, Brookside Park, Eaglewood Subdivision 37347 US Highway 6, Avon CO. 81620 Yes Yes No If yes, identify: Yes Yes No 0 0square feet 0square feet 0.0single family equivalents (SFEs) 0acre-feet per year 20 1,483square feet 20.0single family equivalents (SFEs) 6.72acre-feet per year 6.72 acre-feet per year 0square feet Average lot size: Note to Applicant: Please complete all information highlighted in blue. Additional comments to be entered on the Comments worksheet. WATER DEMAND WORKSHEET Description of Proposed Project: Eagle River Water & Sanitation District Upper Eagle Regional Water Authority Brookside Park PUD Conversion F. Average floor area of unit: (inclusive of garage and unfinished basement) G. Greater of E or E x F / 3,000: H. In-house demand (E x 0.3360): 2. IRRIGATION WATER DEMAND I. Total In-house demand (D + H): Town of Avon 970-926-6065 11/26/2012 PUD Amendment to allow for potential conversion of Brookside PUD Office Building to residential use. Location of Proposed Project (qtr qtr section, township, range, lot/filing) (attach legal description): 2.097 acres Total Area (square feet or acres): Has this area been annexed to a metropolitan district or town? Is this project a redevelopment of existing lots and structures? 1. RESIDENTIAL INDOOR WATER DEMAND B. Average floor area of house: (inclusive of garage and unfinished basement) C. Greater of A or A x B / 3,000: D. In-house demand (A x 0.3921): E. Multi-family units (number): (inclusive of duplex, condominium, and apartment units) If yes, identify by water/sewer billing address: 1641 Worthington Road, Suite 330, West Palm Beach, Florida, 33409 A. Average irrigated area per detached single family lot: A. Detached single family lots (number): Rick Pylman Page 1 of 3 Form Date: November 2009 Project Name:Brookside Park PUD Conversion 0.00acres 0square feet 0.00acres 0.18acres acres acres acres 0.18acres 0.18acres 0.46 acre-feet square feet square feet square feet gallons Annual Requirement Type (acre-feet) square feet 0.000.10 gpd/sqft square feet 0.000.16 gpd/sqft square feet 0.000.06 gpd/sqft guest rooms 0.00100 gpd/room guest rooms 0.00150 gpd/room seats 0.0035 gpd/seat seats 0.0020 gpd/seat 0.00 DemandConsumptive Use (acre-feet)(acre-feet) 6.72 0.34 0.46 0.37 7.18 0.71 This is a re-zone request to allow the potential to convert the existing Brookside Center office building to a residential use. The existing 30,000 of office space would be converted to 20 residential multi-family units. Some parking would be removed and an additional 8,000 sq. ft. of landscape area would be added to the existing landscape area. I. Total other indoor usage B. Fountain water surface area: C. Swimming pool: 1. Surface area 2. Volume C. TOTAL 1. Irrigated parks 2. Irrigated entry features A. Retail B. Office 5. AVERAGE ANNUAL CONSUMPTIVE USAGE (FOR ERW&SD STAFF USE) Describe below the expected number of employees/guests/daily hours and anything that impacts the number of people using the facilities or special featurs such as swimming pools, hot tubs, or other indoor water features (use the Comments worksheet if more space is needed): B. Irrigated area (1A x 2A / 43,560): C. Average irrigated area per multi-family unit: D. Irrigated area (1E x 2C / 43,560): E. Other irrigated areas: Sprinkler & drip 3. OTHER OUTDOOR WATER USES 4. OTHER INDOOR WATER USES Describe irrigation methods (sprinkler, drip, etc.): 3. Irrigated street ROW 4. Common space G. Tavern H. Other (describe) A. Indoor usage B. Irrigation usage C. Warehouse or storage D. Motel/hotel without kitchens E. Motel/hotel with kitchens F. Restaurant 5. Total other F. Total irrigated areas (2B + 2D + 2E5): G. Total irrigation demand (2F x 2.5): A. Pond water surface area: Page 2 of 3 Form Date: November 2009 Project Name:Brookside Park PUD Conversion Project Name: By: Date: Verified By: Date: Disclaimer: (ERW&SD Employee) APPLICANT: DISTRICT: 11/26/2012 (Owner/Authorized Representative) Rick Pylman Brookside Park PUD Conversion Additional information, explanations and comments: Eagle River Water & Sanitation District and Upper Eagle Regional Water Authority retain the right to revise the factors and cash-in-lieu payments. Page 3 of 3 Form Date: November 2009 No t e t o A p p l i c a n t : T h i s w o r k s h e e t t o b e c o m p l e t e d b y E R W S D p e r s o n n e l . Pr o j e c t N a m e : Wa s t e w a t e r t r e a t e d a t A v o n W W T P ? (Y e s o r N o ) : Ye s Ro w Ja n F e b M a r A p r M a y J u n J u l A u g S e p O c t N o v D e c T o t a l 1 0. 5 7 0 . 5 2 0 . 5 7 0 . 5 5 0 . 5 7 0 . 5 5 0 . 5 7 0 . 5 7 0 . 5 5 0 . 5 7 0 . 5 5 0 . 5 7 6.72 2 E x i s t i n g I n d o o r U s e f r o m C u s t o m e r R e c o r d s 0. 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0 . 0 7 0.84 3 N e t N e w I n d o o r U s e 0. 5 0 0 . 4 5 0 . 5 0 0 . 4 8 0 . 5 0 0 . 4 8 0 . 5 0 0 . 5 0 0 . 4 8 0 . 5 0 0 . 4 8 0 . 5 0 5.88 4 0. 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 3 8 0 . 5 7 0 . 4 8 0 . 4 6 0 . 2 8 0. 0 0 0 . 0 0 0 . 0 0 2 . 1 7 5 0. 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 7 0 . 1 0 0 . 1 2 0 . 0 9 0 . 0 7 0 . 0 1 0 . 0 0 0 . 0 0 0.46 6 N e t N e w T o t a l D e m a n d 0. 5 0 0 . 4 5 0 . 5 0 0 . 4 8 0 . 5 7 0 . 5 8 0 . 6 2 0 . 5 9 0 . 5 5 0. 5 1 0 . 4 8 0 . 5 0 6 . 3 4 7 0. 0 3 0 . 0 2 0 . 0 3 0 . 0 2 0 . 0 8 0 . 1 0 0 . 1 2 0 . 1 0 0 . 0 8 0. 0 3 0 . 0 2 0 . 0 3 0 . 6 6 8 0. 0 4 0 . 0 2 0 . 0 4 0 . 0 2 0 . 1 0 0 . 1 2 0 . 1 4 0 . 1 2 0 . 1 0 0. 0 4 0 . 0 2 0 . 0 4 0 . 8 0 Ca s h i n L i e u o f W a t e r R i g h t s P a y m e n t : $1 0 , 5 6 8 Ro w d e s c r i p t i o n : 1 2 3 Ne t N e w I n d o o r U s e : Ro w 1 - R o w 2 . 4 5 6 7 8 No t e s : Pr e c e d i n g d e s c r i p t i o n s a n d n o t e s a d d e d F e b r u a r y 7 , 2 0 0 8 b y T A W . Up d a t e d 1 / 3 1 / 2 0 1 1 T A W Up d a t e d 2 / 2 2 / 2 0 1 2 T A W Ne t N e w T o t a l D e m a n d : R o w 3 + R o w 5 . To t a l C o n s u m p t i v e U s e : R o w 3 x 5 % + R o w 5 x 8 0 % . De d i c a t i o n R e q u i r e m e n t : 1 2 0 % x R o w 7 . . Ca s h i n L i e u o f W a t e r R i g h t s P a y m e n t : D e d i c a t i o n R e q u i r e m e n t x $ 7 , 0 5 0 i n M a y , J u n e , J u l y a n d A u g u s t an d x $ 2 2 , 4 5 0 i n J a n u a r y , F e b r u a r y , Ma r c h , A p r i l , S e p t e m b e r , O c tober, November and December. T h e v a l u e s u s e d i n t h e C a s h i n L i e u c a l c u l a t i o n a r e t a k e n f r o m t h e m o s t r e c e n t U E R W A R e s o l u t i o n o n W a t e r D e d i c a t i o n P o l i c y a m en d e d J a n u a r y 2 6 , 2 0 1 2 . D e d i c a t i o n R e q u i r e m e n t @ 1 2 0 % Re s i d e n t i a l I n d o o r U s e : T h e a n n u a l t o t a l i s f r o m t h e W a t e r D e m a n d W o r k s h e e t . T h e a n n u a l a m o u n t i s d i s t r i b u t e d m o n t h l y ba s e d o n n u m b e r o f d a y s i n m o n t h. Ex i s t i n g I n d o o r U s e i s t h e a v e r a g e m o n t h l y u s a g e f o r N o v e m b e r t h r o u g h A p r i l f r o m C u s t o m e r R e c o r d s . Ex i s t i n g I r r i g a t i o n U s e : A v e r a g e m o n t h l y u s e f r o m C u s t o m e r r e c o r d s f o r 1 9 9 8 - 2 0 1 2 m i n u s R o w 2 . Ad d i t i o n a l Ir r i g a t i o n U s a g e : F r o m W a t e r d e m a n d W o r k s h e e t f o r 8 , 0 0 0 s q u a r e f e e t o f n e w i r r i ga t i o n . T h e a n n u a l a m o u n t i s d i s t ri b u t e d m o n t h l y b a s e d o n t h e r a ti o o f e s t i m a t e d m o n t h l y consumptive use to an n u a l c o n s u m p t i v e u s e : M a y 1 4 % , J u n e 2 3 % , J u l y 2 6 % , A u g u s t 2 1 % , S e p t e m b e r 1 4 % , O c t o b e r 2 % . Co m p o n e n t Re s i d e n t i a l I n d o o r U s a g e f r o m w r k s h t Ex i s t i n g I r r i g a t i o n U s e ( 1 9 9 8 - 2 0 1 2 A v g ) Ad d i t i o n a l I r r i g a t i o n U s a g e T o t a l C o n s u m p t i v e U s e WA T E R R I G H T S D E D I C A T I O N R E Q U I R E M E N T S O R C A S H I N L I E U Up p e r E a g l e R e g i o n a l W a t e r A u t h o r i t y (v a l u e s i n a c r e - f e e t ) Br o o k s i d e He l t o n & W i l l i a m s e n , P C 1/ 1 4 / 2 0 1 3 U E R W A W a t e r D e m W k s h t C a s h i n L i e u C a l c u l a t o r B r o o k s i d e 2 0 1 2 t a w HELTON & WILLIAMSEN, P.C. CONSULTING ENGINEERS IN WATER RESOURCES 384 Inverness Parkway, Suite 144 Englewood, Colorado 80112-5822 Phone (303) 792-2161 Fax (303) 792-2165 E-mail: twilliamsen@helton-williamsen.com M E M O R A N D U M November 25, 2014 To: Evette Curran From: Tom Williamsen Subject: Water demand estimate – Brookside Park PUD Conversion Project I reviewed the revised water demand and consumptive use estimates for the Brookside Park PUD Conversion Project submitted by Rick Pylman, developer’s representative. The project would convert an existing 30,000 sq. ft. office building to 16 residential units and add 15,000 ft2 of irrigated landscape. Brookside is located at 37347 U.S. Highway 6 in the Town of Avon. The water use by the existing office building is included in the Town of Avon’s augmentation plan. Increase of the water use will be included in UERWA’s plans for augmentation. I reviewed the Water Demand Worksheet submitted on September 11 and the landscape irrigation information provided by Mr. Pylman and the customer delivery records provided by you. I also conferred by telephone with Mr. Pylman. The water for this project primarily will be supplied through the Avon Water Plant and wastewater will be treated at the Edwards Wastewater Plant. The in-building water demand for the 16 residential units will total 5.38 acre-feet annually. The historical in-building use was calculated using the procedures developed with the Division Engineer by using the daily use in November-April as the average daily in-building use in May- October. The irrigation component is difference between the actual metered water use in May- October and the estimated in-building use. The existing office building used 0.83 acre-feet annually for in-building use and 2.16 acre-feet annually for irrigation based on the customer records for 1998-2012. The net in-building water demand for the redevelopment will be 4.55 acre- feet (5.38 – 0.83 = 4.55). Mr. Pylman provided information concerning the irrigation systems, application rates, and areas irrigated by drip and spray methods. Pursuant to the “Policy for Water Rights Impact Fees” (November 2014) this information is acceptable for estimating irrigation water needs for the increased area. The procedure calls for increasing the irrigated area by 5% and using the tables of water demand and consumptive use shown in the Leonard Rice Engineers’ memorandum dated November 11, 2013 for the “Medium Water Use Category”. The consumptive use is 85% of the application amount. The incremental annual water demands will be: Net in-building ………..….….. 4.55 acre-feet Increased irrigation ….……… 0.49 acre-feet Total ……………………...... 5.04 acre-feet Evette Curran November 25, 2014 Page 2 The incremental annual consumptive use will be: Net in-building ………..….…. 0.23 acre-feet Increased irrigation ………… 0.42 acre-feet Total ……………………….. 0.65 acre-feet The cash-in-lieu of water rights dedication totals $45,045 based on the rates prescribed in the UERWA Resolution on Water Dedication Policy as amended November 21, 2013. The Water Demand Worksheet, metered water deliveries, irrigation demand analysis, and the cash in lieu calculations are attached. Enclosure cc: Linn Brooks w/enclosure Glenn Porzak w/enclosure c:\2014-11-25 Memo to ECurran Water Demand and Dedication Brookside.doc Project Name: Contact Person: Telephone:Date: Yes Yes No If yes, identify: Yes Yes No 0 0square feet 0square feet 0.0single family equivalents (SFEs) 0acre-feet per year 16 1,853square feet 16.0single family equivalents (SFEs) 5.38acre-feet per year 5.38 acre-feet per year square feet 0.00acres square feet 0.00acres acres acres acres acres 0.00acres 0.00acres 0.00 acre-feet If yes, identify by water/sewer billing address: 1641 Worthington Road, Suite 330, West Palm Beach, Florida, 33409 I. Total In-house demand (D + H): A. Average irrigated area per detached single family lot: A. Detached single family lots (number): Average lot size: 1. RESIDENTIAL INDOOR WATER DEMAND 2. IRRIGATION WATER DEMAND B. Average floor area of house: (inclusive of garage and unfinished basement) C. Greater of A or A x B / 3,000: WATER DEMAND WORKSHEET Description of Proposed Project: Brookside Park PUD Conversion 2.097 acres Lot 1, Brookside Park, Eagle wood Subdivision, 37347 US Highway 6, Avon CO 81620 Total Area (square feet or acres): Note to Applicant: Please complete all information highlighted in blue. Additional comments to be entered on the Comments worksheet. 970-926-6065 9/11/2014 G. Greater of E or E x F / 3,000: H. In-house demand (E x 0.3360): G. Total irrigation demand (2F x 2.5): 1. Irrigated parks 2. Irrigated entry features Conversion of existing office building to residential loft . Location of Proposed Project (qtr qtr section, township, range, lot/filing) (attach legal description): 3. Irrigated street ROW 4. Common space B. Irrigated area (1A x 2A / 43,560): C. Average irrigated area per multi-family unit: D. Irrigated area (1E x 2C / 43,560): E. Other irrigated areas: F. Average floor area of unit: (inclusive of garage and unfinished basement) D. In-house demand (A x 0.3921): E. Multi-family units (number): (inclusive of duplex, condominium, and apartment units) Has this area been annexed to a metropolitan district or town? Is this project a redevelopment of existing lots and structures? Town of Avon Rick Pylman 5. Total other F. Total irrigated areas (2B + 2D + 2E5): Page 1 of 3 Form Date: November 2009 Project Name:Brookside Park PUD Conversion square feet square feet square feet gallons Annual Requirement Type (acre-feet) square feet0.000.10 gpd/sqft square feet0.000.16 gpd/sqft square feet0.000.06 gpd/sqft guest rooms0.00100 gpd/room guest rooms0.00150 gpd/room seats0.0035 gpd/seat seats0.0020 gpd/seat 0.00 DemandConsumptive Use (acre-feet)(acre-feet) 5.380.27 0.000.00 5.38 0.27 Project Name: By: Date: Verified By: Date: Disclaimer: C. TOTAL APPLICANT: DISTRICT: This is a request to convert the existing Brrokside Center office building to residential use. The existing 30,000 sq. ft. of office space will be converted to 16 residential units. Some parking will be removed and an additional 8,000 sq. ft. of landscaping will be added to the existing landscape area. The existing pool and hot ub remain unchanged. I. Total other indoor usage 9/11/2014 (Owner/Authorized Representative) Rick Pylman Brookside Park PUD Conversion (ERW&SD Employee) B. Fountain water surface area: C. Swimming pool: 1. Surface area 2. Volume B. Office 5. AVERAGE ANNUAL CONSUMPTIVE USAGE (FOR ERW&SD STAFF USE) Describe below the expected number of employees/guests/daily hours and anything that impacts the number of people using the facilities or special featurs such as swimming pools, hot tubs, or other indoor water features (use the Comments worksheet if more space is needed): A. Pond water surface area: 3. OTHER OUTDOOR WATER USES 4. OTHER INDOOR WATER USES Describe irrigation methods (sprinkler, drip, etc.) & Type of irrigated area(s): A. Retail Additional information, explanations and comments: Eagle River Water & Sanitation District and Upper Eagle Regional Water Authority retain the right to revise the factors and cash-in-lieu payments. G. Tavern H. Other (describe) A. Indoor usage B. Irrigation usage C. Warehouse or storage D. Motel/hotel without kitchens E. Motel/hotel with kitchens F. Restaurant Page 2 of 3 Form Date: November 2009 Wa t e r Y r D e c N o v Oc t S e p Aug J u l J u n M a y Apr Ma r F e b J a n T o t a l 20 1 2 1 1 1 1 2 2 7 5 6 1 7 3 1 0 3 9 7 1 4 1 4 1 5 1 7 5 1 3 20 1 1 2 1 1 2 3 1 6 1 9 3 8 9 7 5 1 9 1 3 1 2 1 0 2 1 4 5 7 20 1 0 9 1 0 9 1 1 1 2 1 8 1 8 2 1 9 7 3 4 1 4 1 4 1 2 1 2 8 2 2 20 0 9 1 0 1 0 1 4 8 3 2 0 4 1 8 1 2 9 3 3 6 2 1 5 1 5 3 6 1 2 1 2 3 5 20 0 8 1 3 1 6 1 5 1 8 2 2 4 8 2 4 4 2 0 6 1 1 5 1 9 2 2 2 1 1 9 1 1 2 0 20 0 7 3 0 1 8 1 9 1 5 3 2 0 6 2 2 7 2 3 5 4 3 2 4 2 0 4 0 2 4 1 0 3 9 20 0 6 2 1 1 9 4 5 1 1 4 1 5 7 1 4 3 2 1 7 1 5 0 2 7 2 2 2 0 1 9 9 5 4 20 0 5 1 8 1 8 4 5 1 6 2 1 6 4 1 7 9 1 6 1 1 3 6 1 9 2 0 2 4 4 0 9 8 6 20 0 4 1 8 1 5 1 9 1 0 4 1 3 7 1 3 7 1 3 6 1 0 6 2 1 2 4 2 3 2 3 7 6 3 20 0 3 1 7 1 9 2 1 3 7 1 2 7 1 4 9 2 1 6 9 3 2 0 2 0 2 6 1 9 7 6 4 20 0 2 1 4 2 6 1 9 7 0 9 4 1 8 0 2 2 7 2 0 5 7 5 2 4 2 2 2 0 9 7 6 20 0 1 2 2 4 2 2 5 2 1 9 2 1 9 2 8 6 2 7 1 2 1 6 1 1 4 2 6 2 5 1 9 1 4 8 4 20 0 0 1 5 1 5 1 8 1 1 9 2 7 4 2 5 6 2 4 4 2 4 1 6 6 4 3 2 3 2 3 1 3 3 7 19 9 9 1 9 1 8 2 6 1 2 8 2 5 3 2 1 4 1 9 2 1 2 8 2 0 2 7 2 6 2 3 1 0 7 4 19 9 8 1 9 1 9 2 0 9 8 1 3 3 1 5 3 3 2 1 2 2 7 2 5 2 2 2 0 1 5 1 0 7 2 Av e r a g e 1 7 . 1 1 7 . 9 2 3 . 2 1 1 4 . 4 1 7 2 . 5 1 7 9 . 5 2 0 6 . 3 1 4 4 . 8 3 2 . 4 2 1 . 7 2 2 . 9 2 0 . 4 9 7 3 . 1 Av g a c - f t 0 . 0 5 0 . 0 5 0 . 0 7 0 . 3 5 0 . 5 3 0 . 5 5 0 . 6 3 0 . 4 4 0 . 1 0 0 . 0 7 0 . 0 7 0 . 0 6 2 . 9 9 Me t e r e d P o t a b l e W a t e r D e l i v e r i e s t o t h e B r o o k s i d e Of f ic e B u i l d i n g (1 0 0 0 g a l l o n s ) He l t o n & W i l l i a m s e n , P C 11 / 2 5 / 2 0 1 4 C o p y o f B r o o k s i d e U s a g e t a w BR O O K S I D E I R R I G A T I O N D E M A N D Dr i p I r r i g a t i o n Q u a n t i t y # E m i t t e r s G P M Sp r a y I r r i g a t i o n # S p r a y H e a d s GP M Sp r u c e T r e e s 14 1 0 2 . 3 P e r e n n i a l s 10 2. 0 As p e n T r e e s 22 3 1. 1 G r o u n d C o v e r 5 1. 0 Cr a b a p p l e T r e e s 2 7 0. 2 O r n a m e n t a l G r a s s 10 2. 0 Co t t o n w o o d T r e e s 4 1 0 0 . 7 Sh r u b s 45 3 2. 3 To t a l D r i p I R R 87 6. 6 To t a l S p r a y I R R 25 5. 0 To t a l D r i p & S p r a y I R R Mi n u t e s P e r c y c l e ( 1 2 0 m i n u t e s ) 79 0 M i n u t e s P e r c y c l e ( 2 0 m i n u t e s ) 10 0 89 0 Da y s p e r W e e k ( 3 d a y s ) 2, 3 7 0 D a y s p e r W e e k ( 3 d a y s ) 30 0 2, 6 7 0 We e k s P e r M o n t h ( 4 w e e k s ) 9, 4 8 0 W e e k s P e r M o n t h ( 4 w e e k s ) 1, 2 0 0 10 , 6 8 0 Ir r i g a t i o n S e a s o n ( 6 m o n t h s ) 56 , 8 8 0 I r r i g a t i o n S e a s o n ( 6 m o n t h s ) 7, 2 0 0 64 , 0 8 0 gallons *A p p l i c a t i o n R e q u i r e d H I G H ( B l u e G r a s s ) 1 0 0 % M E D I U M 7 5 % L O W 5 0 % V E R Y L O W ( X e r i c ) 2 5 % To t a l S q u a r e F e e t T o t a l A c r e s *T o t a l I n c h e s 21 . 6 0 16 . 2 0 10.805.40 To t a l I r r i g a t e d A r e a S p r a y & D r i p 7, 0 6 8 0. 1 6 To t a l G a l l o n s N e e d e d 95 , 4 1 8 71 , 5 6 4 47,70923,855 To t a l A c r e - F e e t N e e d e d 0. 2 9 0. 2 2 0 0.150.07 To t a l S q u a r e F e e t T o t a l A c r e s *A p p l i c a t i o n R e q u i r e d H I G H ( B l u e G r a s s ) 1 0 0 % M E D I U M 7 5 % L O W 5 0 % V E R Y L O W ( X e r i c ) 2 5 % To t a l I r r i g a t e d A r e a N e w T u r f 7, 9 6 2 0. 1 8 To t a l G a l l o n s N e e d e d 10 7 , 4 8 7 80 , 6 1 5 53,74426,872 To t a l A c r e - F e e t N e e d e d 0. 3 3 0. 2 4 7 0.160.08 To t a l S q u a r e F e e t T o t a l A c r e s *A p p l i c a t i o n R e q u i r e d H I G H ( B l u e G r a s s ) 1 0 0 % M E D I U M 7 5 % L O W 5 0 % V E R Y L O W ( X e r i c ) 2 5 % To t a l I r r i g a t e d A r e a 15 , 0 3 0 0. 3 5 To t a l G a l l o n s N e e d e d 20 2 , 9 0 5 15 2 , 1 7 9 101,45350,726 To t a l A c r e - F e e t N e e d e d 0. 6 2 0. 4 6 7 0.310.16 To t a l S q u a r e F e e t T o t a l A c r e s *A p p l i c a t i o n R e q u i r e d H I G H ( B l u e G r a s s ) 1 0 0 % M E D I U M 7 5 % L O W 5 0 % V E R Y L O W ( X e r i c ) 2 5 % Gr a n d T o t a l I r r i g a t e d A r e a 15 , 7 8 2 0. 3 6 To t a l G a l l o n s N e e d e d 21 3 , 0 5 0 15 9 , 7 8 8 106,52553,263 To t a l A c r e - F e e t N e e d e d 0. 6 5 4 0. 4 9 0 0.3270.163 *W a t e r U s e R e q u i r m e n t s a t M o u n t a i n S t a r - P e r L R E M e m o 1 1 - 1 2 - 1 3 5% a d d e d B u f f e r No t e t o A p p l i c a n t : T h i s w o r k s h e e t t o b e c o m p l e t e d b y E R W SD p e r s o n n e l . Pr o j e c t N a m e : Ja n F e b M a r A p r M a y J u n J u l A u g S e p O c t N o v D e c T o t a l 0. 3 8 6 0 . 3 4 9 0 . 3 8 6 0 . 3 7 4 0 . 3 8 6 0 . 3 7 4 0 . 3 8 6 0 . 3 8 6 0 . 3 7 4 0 . 3 8 6 0 . 3 7 4 0 . 3 8 6 4.55 0. 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0. 0 0 0 . 0 0 0 . 0 0 0 . 0 0 0 . 0 4 0 . 1 3 0 . 1 4 0 . 1 2 0 . 0 6 0 . 0 0 0 . 0 0 0 . 0 0 0.49 To t a l D e m a n d 0. 3 8 6 0 . 3 4 9 0 . 3 8 6 0 . 3 7 4 0 . 4 2 6 0 . 5 0 4 0 . 5 2 6 0 . 5 0 6 0 . 4 3 4 0 . 3 8 6 0 . 3 7 4 0 . 3 8 6 5 . 0 4 0. 0 1 9 0 . 0 1 7 0 . 0 1 9 0 . 0 1 9 0 . 0 5 3 0 . 1 2 9 0 . 1 3 8 0 . 1 2 1 0 . 0 7 0 0 . 0 1 9 0 . 0 1 9 0 . 0 1 9 0 . 6 4 4 0. 3 8 6 0 . 3 4 9 0 . 0 1 9 0 . 0 1 9 0 . 0 5 3 0 . 1 2 9 0 . 1 3 8 0 . 5 0 6 0 . 4 3 4 0 . 0 1 9 0 . 0 1 9 0 . 3 8 6 2 . 4 5 9 Ca s h i n L i e u o f W a t e r R i g h t s P a y m e n t : $4 5 , 0 4 5 Ro w d e s c r i p t i o n : To t a l D e m a n d : S u m o f t h e 4 u s e t y p e s . To t a l C o n s u m p t i v e U s e : M o n t h l y I n d o o r u s e x 5 % + I r r i g a t i o n U s e x 85 % + O u t d o o r U s e ( d e p e n d e n t o n s p e c i f i c u s e ) . De d i c a t i o n R e q u i r e m e n t : T o t a l C o n s u m p t i v e U s e f o r M a r c h , A p r i l , M a y , J u n e , J u l y , O c t o b e r a n d N o v e m b e r & T o t a l D e m a n d i n J a n u a r y , F e b r u a r y , A u g u s t , S e p tember and De c e m b e r . Ca s h i n L i e u o f W a t e r R i g h t s P a y m e n t : D e d i c a t i o n R e q u i r e m e n t x $ 7 , 5 0 0 i n M a y , J u n e , J u l y a n d A u g u s t a n d x $ 2 3 , 8 0 0 i n J a n u a r y , F e b r u a r y , M a r c h , A p r i l , S e p t e m b e r , Oc t o b e r , N o v e m b e r a n d D e c e m b e r . C a s h - i n - l i e u v a l u e s f r o m U E RW A R e s o l u t i o n o n W a t e r D e d i c a t i o n P o l i c y a m e n d e d N o v e m b e r 2 1 , 2 0 1 3 . De d i c a t i o n R e q u i r e m e n t Re s i d e n t i a l I n d o o r U s e : T h e a n n u a l t o t a l c o m e s f r o m c e l l " C 4 9 " i n t h e " A n n u a l W o r k s h e e t ". T h e a n n u a l a m o u n t i s d i s t r i bu t e d m o n t h l y b a s e d o n n u m b e r o f d a y s i n m o n t h . Ot h e r I n d o o r U s a g e : T h e a n n u a l t o t a l c o m e s f r o m c e l l " E 1 0 1 " i n t h e A n n u a l W o r k s h e e t . T h e a n n u a l a m o u n t i s d i s t r i b u t e d m o n t h l y b a s e d o n n u m b e r o f d a ys in month. Ir r i g a t i o n U s a g e : T h e a n n u a l t o t a l i s f r o m t h e B r o o k s i d e I r r i g a t i o n D e m a n d s p r e a d s he e t f o r t h e M e d i u m W a t e r U s e C a t e g o r y u s i n g t h e L R E N o v e m b e r 11, 2013 Memorandum. Th e a n n u a l a m o u n t i s d i s t r i b u t e d m o n t h l y b a s e d o n t h e r a t i o o f e s t i ma t e d m o n t h l y c o n s u m p t i v e u s e t o a n n u a l c o n s u m p t i v e u s e : M a y 7 . 9 % , J u n e 2 7 . 0 % , J u l y 2 8 . 9 % , A u g u s t 23 . 7 % , S e p t e m b e r 1 2 . 5 % . Ot h e r O u t d o o r U s a g e : T h e a n n u a l t o t a l c o m e s f r o m s e c t i o n 3 o f t h e " A n n u a l W o r k s he e t " . T h e a n n u a l a m o u n t i s d i s t r i b u t e d m o n t h l y d e p e n d i n g o n t h e t y p e of other use and must be a n a l y z e d o n a p r o j e c t s p e c i f i c u s e . Co m p o n e n t Re s i d e n t i a l I n d o o r U s a g e Ot h e r I n d o o r U s a g e Ir r i g a t i o n U s a g e Ot h e r O u t d o o r U s a g e To t a l C o n s u m p t i v e U s e WA T E R R I G H T S D E D I C A T I O N R E Q U I R E M E N T S O R C A S H I N L I E U Up p e r E a g l e R e g i o n a l W a t e r A u t h o r i t y (v a l u e s i n a c r e - f e e t ) Br o o k s i d e P a r k P U D C o n v e r s i o n He l t o n & W i l l i a m s e n , P C 11 / 2 5 / 2 0 1 4 U E R W A W a t e r D e m W k s h t C a s h i n L i e u C a l c u l a t o r 2 0 1 4 B r o o k s i d e r e v 1 1 - 2 4 - 1 4 T A W 2 t a w Heil Law & Planning, LLC Office: 303.975.6120 3445 S. Clermont St. Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Fancher and Town Council members FROM: Eric J. Heil, Town Attorney RE: Ordinance No. 15-02 Amending Real Estate Transfer Tax, Business License and Peddler and Solicitor Licenses – SECOND AND FINAL READING DATE: March 19, 2015 SUMMARY: Ordinance No. 15-02 is presented to the Avon Town Council for second and final reading. Council approved first reading on March 10, 2015. Ordinance No. 15-02 would amend the Avon Municipal Code to clarify certain provisions of the Real Estate Transfer Tax, amend Chapter 5.04 Business Licenses to update the business license regulations, consolidate licensing and regulation of peddlers and solicitors with this Chapter, and add regulations concerning vendors and public artists. This memorandum explains the proposed changes to the Avon Municipal Code. PUBLIC HEARING: Council is required to conduct a public hearing prior to taking final action on Ordinance No. 15-02. AMENDMENTS FROM FIRST READING: Upon further staff review a few additional minor revisions are proposed for second and final reading which are described as follows: 5.04.010 Applicability – the phrase “. . . and any person who advertises for accommodation use of a property . . .” was added to clarify that persons who advertise for accommodations are required to have a business license. 5.04.090 Required – fee – application. A subsection (f) was added to state, “Business licenses shall be prominently displayed at the place of business in a conspicuous place. If the licensee does not have a place of business in Town then the license shall show the mailing address of such licensee.” DESCRIPTION OF AMENDMENTS: The following description of amendments to the Avon Municipal Code was presented at first reading: AMC 1.04.010 Definitions. The proposed change to the definition of Person recognizes limited liability companies and other legal entities which may be authorized in the future. Chapter 3.12 Real Estate Transfer Tax: Policy Issue: The current RETT regulations allow an exemption for the first $160,000 for acquisition of a primary residence, thus allow $3,200 in RETT relief. This exemption is for the purpose of facilitating housing for primary residences. Due to TABOR (Tax Payor’s Bill of rights in the Colorado Constitution) the Town cannot enact any new real estate transfer tax or expand the existing real estate transfer tax, even with voter approval. Any exemption or reduction of the RETT tax cannot be undone under the current constitutional language. The Town may amend the RETT regulations with regard to administration and clarification for interpretation provided that such amendment does not constitute a tax policy change that increases taxes. Due to questions that have arisen over the last couple years, several amendments are proposed in this ordinance which are described below. M EMORANDUM & PLANNING, LLC Avon Town Council Ordinance No. 15-02 Real Estate Transfer Tax and Business License amendments March 19, 2015 Page 2 of 3 AMC 3.12.020 – add a definition of Primary Residence which incorporates elements from the state election code for establishing primary residence (i.e voter registration in Avon, address on Colorado Driver’s license, etc.) and clarifies requirement to occupy and use home as a primary residence within 30 days of transfer and allows Town Manager to extend deadline to occupy home for an additional 90 days. AMC 3.12.060 (15) and (16) – a language to address co-signors to allow a co-signor provided that the co- signor is participating solely for the purpose of facilitating financing qualifications for the primary residence/applicant. This reflects the Finance Department’s policy which has been to approve real estate transfer tax exemption applications with co-signors. AMC 3.12.060(15) – add a sub-section (c) to parallel AMC 3.12.060(16) with regard to treatment of exemption between Buyer and Seller. AMC 3.12.060(16) – clarification that this section provides an exemption for the first $160,000 for acquisition of a primary residence that applies to subsequent acquisitions of a primary residence after claiming an exemption for the first acquisition of a primary residence under AMC 3.12.060(15). The reference to the applicable eligibility criteria in the existing language is awkward. AMC 3.12.070(a) – clarify that applications for exemption for low and moderate income housing projects must be submitted prior to the transfer of property. AMC 3.12.140 – improve language regarding refunds of tax paid in error, clarify that failure to file a timely RETT exemption application does not constitute error, and delete section which states failure of Town Manager to approve refund application within 10 days results in an automatic approval. AMENDMENTS TO 5.04 BUSINESS REGISTRATION AND 5.16 PEDDLER AND SOLICITOR: The amendments to Chapters 5.04 and 5.16 include the following substantive changes as well as updates and revisions to various procedures: ¥ administration of business licenses from the Town Clerk to the Finance Department; ¥ the Peddler and Solicitor regulations are consolidated with Business License regulations; ¥ Vendor regulations are adopted; and ¥ Public Artist regulations are adopted. 5.04.040 Marijuana Businesses Prohibited is updated to include reference to marijuana establishment and marijuana clubs which prohibition was previously approved by Council by ordinance but the approved language was not codified. 5.040.050 Advertisement of Accommodations has been added to enhance the Town’s enforcement of short-term rentals. 5.04.060 Peddler and Solicitor Regulations have been consolidated and additional regulations have been added, including honoring “No Solicitor” signs, hours of operations, background checks, Avon Town Council Ordinance No. 15-02 Real Estate Transfer Tax and Business License amendments March 19, 2015 Page 3 of 3 misrepresentation of facts, and prohibition on blockading public places and right-of-ways. These new regulations are similar to peddler and solicitor regulations adopted in other communities. 5.04.070 Public Artist regulations are proposed as minimum regulations to insure public artist activities do not conflict with neighboring businesses, pedestrian traffic or general public use of plazas and pedestrian ways. These regulations parallel the City of Denver’s regulations for the 16th Street Mall and are proposed after significant research on first amendment and freedom of expression rights. No license is proposed for public artists. 5.04.080 Vendor Regulations are proposed to authorize such regulations but to allow the specific design and selection process to be determined by the Town Manager. Draft written criteria and regulations for vendor carts will be presented to the Avon Town Council at the April 28, 2015 regular Council meeting. 5.04.090 through 5.04.150 clarify administration and enforcement procedures of business licenses and violations. The revocation procedures are expanded to better clarify the process and address peddlers, solicitors and vendors. A two step appeals process whereby the decision of the Finance Director is first appealed to the Town Manager, then appealed to the Town Council. PROPOSED MOTION: “I move to approve second and final reading of Ordinance No. 15-02 AN ORDINANCE AMENDING AVON MUNICIPAL CODE CHAPTERS 1.04 DEFINITIONS; 3.12 REAL ESTATE TRANSFER TAX; 5.04 BUSINESS LICENSES; AND, 5.16 PEDDLERS AND SOLICITERS” Thank you, Eric ATTACHMENT A: Ordinance No. 15-02 Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 1 of 14 TOWN OF AVON, COLORADO ORDINANCE NO. 15-02 SERIES OF 2015 AN ORDINANCE AMENDING AVON MUNICIPAL CODE CHAPTERS 1.04 DEFINITIONS; 3.12 REAL ESTATE TRANSFER TAX; 5.04 BUSINESS LICENSES; AND, 5.16 PEDDLERS AND SOLICITERS WHEREAS, the Avon Town Council finds that amendments to Chapter 3.12 concerning the timing of applications for exemption from real estate transfer tax for primary residence exemptions and concerning applications for refunds will improve the administration of real estate transfer tax exemption applications; WHEREAS, the Avon Town Council finds that the transfer of certain business license functions from the Town Clerk to the Finance Department will promote the efficiency of the Town government by consolidating business license and sales and accommodation tax license and collection functions in the same department; WHEREAS, the Town of Avon has adopted home rule authority and the Avon Town Council finds that the administration of real estate transfer tax and regulation of business licenses is a matter of local concern; WHEREAS, the regulation of peddlers and solicitors will promote the protection of the general public from unwanted disturbance, potential dangers, and potential deceptive or fraudulent practices; WHEREAS, the regulation of vendors will promote the orderly, safe and attractive use of public plazas, places, parks and other public right-of-ways; WHEREAS, the regulation of public artists will promote the orderly and safe use of public plazas, places, parks and other public right-of-ways; WHEREAS, it is the Town Council finds that amendment to Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 of the Avon Municipal Code will promote the health, safety and welfare of the Avon community; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with state law, the Avon Municipal Code and the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies the proposed amendment to the Avon Municipal Code. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 2 of 14 Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendment to Avon Municipal Code Section 1.04.010 Definitions. Section 1.04.010 Definitions of the Avon Municipal Code is amended, with strike-out indicating words which are deleted and double underline indicating words which are added, to read as follows: Person includes a natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business, trust, organization, limited liability company, other recognized legal entity or the manager, lessee, agent, servant, officer or employee of any of them. Section 3. Amendment to Avon Municipal Code Section 3.12.020 Definitions. Section 3.12.020 Definitions of the Avon Municipal Code is amended to add the following definition: Primary residence means the occupation and use of a residence as the primary residence, which shall be determined by the Town Manager by taking into account the following circumstances: voter registration in Avon, Colorado (or signing an affidavit stating that the applicant is not registered to vote in any other place); stated address on Colorado driver’s license or Colorado identification card; stated address on motor vehicle registration; ownership or use of other residences not situated in Avon, Colorado; and stated residence for income and tax purposes. Occupation and use of a residence as a primary residence must occur within thirty (30) days of transfer of the real property, provided that the Town Manager may grant an extension of an additional ninety (90) days if extenuating circumstances are found to exist in the Town Manager’s discretion and provided that such extension request is included with the applicant’s application for exemption. Section 4. Amendment to Avon Municipal Code Section 3.12.060(15). Section 3.12.060(15) of the Avon Municipal Code is amended, with strike-out indicating words which are deleted and double underline indicating words which are added, to read as follows: (15) The first one hundred sixty thousand dollars ($160,000.00) of the consideration for any sale or conveyance of real property and completed improvements for occupancy as a primary residence, provided the following conditions are met: a. The same applicant has not previously received an exemption pursuant to this Subsection; b. An application for exemption is filed with the Town Manager or his or her designee prior to payment of the tax, which application is accompanied by: 1. An affidavit that the real property is being purchased for use as a primary residence and not for investment or resale (provided that a co- signor shall not disqualify the exemption for the applicant where the co- ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 3 of 14 signor is signing for the sole purpose of facilitating the financing qualifications of the applicant/primary resident and signs an affidavit that the co-signor is not a co-purchaser for investment or resale purposes); and 2. A promissory note in the amount of the tax otherwise owing, together with interest accruing at the rate hereinafter provided, providing that the tax and the promissory note including accrued interest shall be due and payable in full in the event the applicant shall fail to occupy and use the property as a primary residence within the timeframe established under the definition of primary residence found in 3.12.020 or shall cease to use the property as his or her primary residence within one (1) year after closing and granting to the Town a lien securing such indebtedness, which lien shall be subordinate to any first mortgage or deed of trust of record. c. The exemption applies only to the portion of the transfer tax actually paid by the buyer and will not reduce any portion of the transfer tax that the seller agrees to pay in the transaction. Section 5. Amendment to Avon Municipal Code Section 3.12.060(16). Section 3.12.060(16) of the Avon Municipal Code is amended, with strike-out indicating words which are deleted and double underline indicating words which are added, to read as follows: (16) The first one hundred sixty thousand dollars ($160,000.00) of the consideration for any sale or conveyance of real property and completed improvements for occupancy as a primary residence, provided that the following conditions are met: a. The applicant previously received a primary residence exemption pursuant to Section 3.12.060(15) and the applicant has satisfied the conditions of Paragraph (15) of this Section Subsection (15)b.1. and 2. of Section 3.12.060; and b. An application for exemption is filed with the Town Manager or his or her designee prior to payment of the tax, which application is accompanied by: 1. An affidavit that the applicant's current primary residence used to satisfy the requirements of Paragraph Section3.12.060(15) is within the Town; that the applicant meets the definition of an Eagle County employee; that the real property is being purchased for use as a new primary residence and not for investment or resale (provided that a co- signor shall not disqualify the exemption for the applicant where the co- signor is signing for the sole purpose of facilitating the financing qualifications of the applicant/primary resident and signs an affidavit that the co-signor is not a co-purchaser for investment or resale purposes); and 2. A promissory note in the amount of the tax otherwise owing, together with interest accruing at the rate hereinafter provided, providing that the ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 4 of 14 tax and the promissory note including accrued interest shall be due and payable in full in the event that the applicant shall fail to occupy and use the property as a primary residence within the timeframe established under the definition of primary residence found in 3.12.020 or shall cease to use the property as his or her primary residence or shall cease to meet the definition of an Eagle County employee within one (1) year after closing and granting to the Town a lien securing such indebtedness, which lien shall be subordinate to any first mortgage or deed of trust of record; and c. The exemption applies only to the portion of the transfer tax actually paid by the buyer and will not reduce any portion of the transfer tax that the seller agrees to pay in the transaction. Section 6. Amendment to Avon Municipal Code Section 3.12.070(a). Section 3.12.070(a) of the Avon Municipal Code is amended, with strike-out indicating words which are deleted and double underline indicating words which are added, to read as follows: (a) Application required. No transfer of real property shall be exempt from the imposition of the real estate transfer tax imposed in Section 3.12.030 unless a complete application for exemptions is filed with the Town and such application is approved by the Town. An application may be filed no more than seventy-five (75) days prior to a transfer of real property or within seventy-five (75) days after the transfer of real property. No application for exemption from real property transfer tax shall be received and no such application shall be approved if submitted to the Town more than seventy-five (75) days four (4) months after the date of transfer, unless the Finance Director finds good cause exists for a later filing. Notwithstanding the foregoing, an application for exemption for low and moderate income housing projects pursuant to Section 3.12.060(14) must be submitted and approved prior to the transfer of real property and no such application for exemption pursuant to Section 3.12.060(14) may be received or approved after the transfer of real property. Section 7. Amendment to Avon Municipal Code Section 3.12.140 Refund of tax paid in error. Section 3.12.140 of the Avon Municipal Code is amended with strike-out indicating words which are deleted and double underline indicating words which are added, to read as follows: 3.12.140 Refund of tax paid in error. If the full amount of the tax is paid in error in connection with a transfer as to which the first one hundred sixty thousand dollars ($160,000.00) of the consideration paid is exempt, the transferee may apply to the Town Manager for a refund of the tax paid in error, without interest. A transferee who has paid a real estate transfer tax, or portion thereof, in error may apply for a refund. Any such application for refund must be filed within one (1) year after the day of recording of the deed causing the transfer. The failure to file an application for exemption from a real estate transfer tax within the timeframes established in Section ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 5 of 14 3.12.070 shall not constitute the payment of a real estate transfer tax in error. A failure of the Town Manager to act upon the application within ten (10) business days after receipt of the application shall be conclusively deemed to constitute approval of such application. Any person whose application is denied may appeal to the Town Council in accordance with Subsection 3.12.070(b) of this Chapter. Section 8. Amendment to Avon Municipal Code Chapter 5.04. Chapter 5.04 of the Avon Municipal Code is repealed in its entirety and re-enacted to read as follows: “Chapter 5.04 Business Licenses 5.04.010. Applicability. Any person, as defined in AMC Section 1.04.010 Definitions, engaged in business in the Town, as defined in AMC Section 3.08.010 and any person who advertises for accommodation use of a property in the Town of Avon shall first have applied for and received a business license issued by the Finance Director. 5.04.020. Definitions. For the purpose of this Chapter, the words set forth in this Section shall have the following meanings: Peddler means any person who sells and delivers or offers for sale to consumers any goods, wares or merchandise, food or beverage, traveling from place to place, or from house to house, or from street to street, or who sells or offers for sale and delivery any goods or other such articles while traveling on foot or by vehicle or any other type of conveyance. Public artist means any person who performs or creates art on Town owned property or street right-of-ways, for fees, tips or other compensation, which acts include but are not limited to music, recitals, readings, acting, drawings, paintings, mimes, and stationary performance. Solicitor means any person traveling either by foot or vehicle or any other type of conveyance from place to place, or from house to house, or from street to street, taking or attempting to take orders for the sale of goods, wares, merchandise or personal property of any nature whatsoever, for future delivery or for services to be performed or furnished in the future, whether or not such person has, carries or exposes for sale a sample of the subject of such sale or whether he or she is collecting advance payments on such sales or not. Vendor means any person who sells or attempts to sell, or offers to the public, any services, goods, wares or merchandise including, but not limited to food or beverage, from any outdoor location from a stationary cart or table regardless of whether a fee is charged for such goods or services. 5.04.030. Purpose. ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 6 of 14 (a) Require the licensing of businesses conducting business in the Town of Avon to gather valuable information and data regarding business activity in the Avon community. (b) Regulate the licensing of businesses to prevent unlawful businesses. (c) Promote and protect the use of street, sidewalk, trail and other public right-of- ways for the effective and safe passage of persons. (d) Preserve the limited number of Town parking spaces for parking use to prevent congestion. 5.04.040. Marijuana businesses prohibited. Medical marijuana business, marijuana establishment and marijuana club, as each are defined in Section 7.08.010 of this Code and as may be amended or recodified, are prohibited and unlawful in the Town. 5.04.050. Advertisement of accommodations. Every property owner providing any room or rooms used for accommodation for a total continuous duration of less than thirty (30) days shall obtain and maintain a business license prior to advertising such accommodation. The failure to obtain a business license prior to advertising such accommodation shall be a violation of this Chapter. Advertising shall include any written, oral or video communication or publication disseminated by signage, mailing, print, internet listing, e-mail publication, social media, other electronic means, telephone or other means which is intended to directly or indirectly induce a person to use or possess the accommodation for consideration. Any advertisement of accommodations shall prominently display the Avon business license number in the advertisement as, “Avon Business License No. [insert number]”. The failure to prominently display the Avon business license number in any advertisement of accommodation shall be a violation of this Chapter. 5.04.060. Peddler and Solicitor Regulations. Every peddler or solicitor shall comply with the following regulations and the failure to comply with the following regulations shall be a violation of this Chapter. (a) Signage. No peddler or solicitor shall engage or attempt to engage in the business of peddling at any home, residence, gated residential complex, apartment complex or business that prominently displays a “No Peddlers” or “No Solicitors” sign or any other similar sign that communicates the desire of the occupants, managers or operators to not be contacted by peddlers or solicitors; ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 7 of 14 (b) Hours. No peddler or solicitor shall engage in the business of peddling between the hours of 8:00 p.m. or one half hour after sunset, whichever occurs earlier, and 9:00 a.m. (c) Investigation by Law Enforcement Official. Prior to the issuance of any business license for a solicitor or peddler: (1) The Police Chief or designee shall conduct a background check and investigate the applicant to assess any known dangers or risks that could stem from the applicant going door to door in the neighborhoods of the Town. The Police Chief or designee shall submit a written report to the Finance Director or designee stating his/her recommendation as to approval or disapproval of the license application. (2) If the Police Chief or designee recommends disapproval, his/her report(s) shall specify the reasons for such recommendation. (d) Carrying License Required. The business license shall be carried at all times when soliciting or peddling in the Town and shall be exhibited by such solicitor or peddler whenever requested to do so by a police officer, any Town official, or any persons solicited or peddled. (e) Misrepresentation of Facts. It is unlawful for any peddler or solicitor to make or cause to be made, directly or indirectly, for the purpose of selling or procuring an order for the sale of any goods, wares, merchandise, services, or anything of value, any assertion, representation, or statement of fact which is untrue, deceptive or misleading. (f) Unlawful to Blockade or Obstruct Public Places and Rights-of-Way. It is unlawful for any person to peddle or solicit to blockade or obstruct Town property or public right-of-ways in the Town. It is unlawful for any person to peddle or solicit from a vehicle, cart, trailer or other apparatus that occupies a parking space on Town property or public right-of-way. 5.04.070. Public Artist Regulation. Public artists may not perform in any one spot for longer than one hour without the express, written consent of the adjacent property owner and retail tenants. Public artists must not in any way block the entrance to any building nor may they reduce the pedestrian right-of-way to less than ten (10) feet. Public artists may not use any form of amplification unless an amplified sound permit has been obtained. Public artists may not interfere with special events taking place on Town property or right-of-ways. Public artists must keep the people in the audience out of pedestrian and transit paths. Public artists cannot leave any of their items -- equipment, props, tip jars, etc. – in the middle of the sidewalk. Public artist performances and their audience cannot block a merchant's display windows or doorways. Public artists may give people the opportunity to tip for performances; but must not solicit, beg, “hustle,” or physically accost people in any way. Public artists must separate themselves from other performers, street artists ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 8 of 14 and vendors by at least seventy-five (75’) feet, or more if necessary, to eliminate conflicts. Public artists are responsible that the noise level of their performance does not create problems for those around them. Public artists must pick up the trash left behind by their audience. Juggling of sharp objects or fire objects are not allowed without a permit and appropriate license or special event permit agreement with the Town. 5.04.080. Vendor Regulations. (a) Applicability. These Vendor Regulations shall apply to any vendors operating on Town property, sidewalk, street or other public right-of-way. (b) Location and permits. The location and maximum number of vendor permits shall be established by the Town Council by resolution. (c) Vendor Permits. The process for advertising the availability of vendor permits and the process for selecting vendors shall be adopted in writing and administered by the Town Manager. (d) Minimum Regulations. The following minimum requirements for vendors shall apply: (i) The Vendor licensee shall provide commercial liability insurance naming the Town of Avon as additional insured in such amount and in such form as established by the Town Attorney. (ii) The Vendor licensee shall indemnify the Town of Avon in such form as established by the Town Attorney. (iii) Vendor permits may be granted for a maximum three year period by the Town Manager. Vendor permits for longer than three years must be approved by the Town Council by resolution. (iv) The Vendor licensee shall operate in all respects in accordance with the terms of the vendor permit. (e) Additional Regulations. The criteria and regulations for vendor carts and vendor equipment and vendor operations, shall be adopted in writing by the Town Manager. (f) License—exhibition. Vendors are required to publicly exhibit their licenses and permits. 5.04.090. Required – fee – application. (a) A business license shall be obtained from the Finance Director prior to engaging in any business in the Town. It is unlawful and a violation of this Chapter for any person to engage in any business in the Town without first obtaining a business license required by this Chapter from the Finance Department. ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 9 of 14 (b) Business license fees shall be established by adoption of a resolution by the Avon Town Council, such fees shall include but not be limited to annual fees and late filing fees. (c) The business license application shall include information as required by the Finance Director, including but not limited to: the name of the business; the type of business; and, the name, address and contact information of the person conducting the business. (d) The person holding an annual business license shall file updated and current business license information each year on or before the anniversary of the issuance of a business license by the Finance Director on forms furnished by the Finance Department. The failure to file updated and current information on a timely basis shall be a violation of this Chapter. (e) The Finance Director may require upon the issuance or renewal of a business license, businesses within certain NAICS industry classifications and/or geographic locations to report certain daily sales tax and/or accommodations tax and other related data on forms on for periods prescribed by the Finance Director. (f) Business licenses shall be prominently displayed at the place of business in a conspicuous place. If the licensee does not have a place of business in Town then the license shall show the mailing address of such licensee. 5.04.100. Lawful business – denial. The Finance Director shall reject any business license application or reject a business license annual update if the business or use of the property which the business occupies is not in compliance with all applicable laws, including local, state and federal laws or if the Finance Director finds upon recommendation of the Police Chief that an applicant for a peddlers and solicitors license presents a threat to the public. The denial of a business license application or annual update shall be in writing, shall state the grounds for denial, shall state the rights of the applicant to appeal the decision and shall identify the last day to submit an appeal to the Town. The decision of the Finance Director may be appealed in accordance with Section 5.04.130. 5.04.110. Revocation—causes—notice and hearing. (a) A business license may be revoked for the following grounds: (1) Fraud, misrepresentation or false statement contained in the application of the license; (2) Fraud, misrepresentation or false statements made in the course of carrying on the licensed business; ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 10 of 14 (3) Failure to pay sales tax, accommodations tax or other applicable tax or fees to the Town of Avon; (4) For vendors, solicitors and peddlers: failure to comply with the vendor regulations or the terms of a vendor license permit; (5) For vendors, solicitors and peddlers: any violation of the ordinances of the Town involving moral turpitude; (6) For vendors, solicitors and peddlers: conviction of any crime or misdemeanor involving moral turpitude; or, (7) For vendors, solicitors and peddlers: conducting business in an unlawful manner or in such manner as to constitute a breach of the peace, or to constitute a menace to the health, safety or general welfare of the public. (b) The Finance Director may revoke a business license in accordance with the following procedures: (1) The Finance Director shall submit a written notice of revocation to the business licensee, stating the following: (i) the grounds for revocation; (ii) requesting information if necessary; (iii) stating corrective action if applicable and appropriate; (iv) stating the appeal rights of the business licensee; (v) identifying the last day to file an appeal with the Town and stating that the revocation shall become effective on day after if no appeal is filed; and, (vi) stating that conduct of business without a business license shall be a violation of this Chapter. (2) Written notice shall be sent by U.S. first class mail to the address provided in the business license application. Notice shall be deemed given on the date that notice is deposited in the U.S. mail. (c) The Finance Director may immediately suspend a business license pending a written notice of revocation if the Finance Director has that reasonable grounds to believe that the business licensee has failed to comply with any regulation and that the violation creates an immediate threat to the health, safety and general welfare of the Avon community. ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 11 of 14 (d) The decision of the Finance Director may be appealed to the Avon Town Manager in the manner and in accordance with procedures set forth in Section 5.04.120. 5.04.120. Appeal. (a) Appeal to Town Manager. The business owner (“appellant”) may appeal the decision of the Finance Director to the Town Manager. The appellant shall file a written appeal with the Town Manager within thirty (30) days after the date of transmittal of a written decision of the Finance Director or designee to deny or revoke a business license. The failure to file a written appeal within thirty (30) days after the date of transmittal of the Finance Director’s decision shall bar any further consideration of the application, shall bar any appeal to the Town Manager and shall bar any judicial review by a Colorado court. The written appeal shall state the reasons for the appeal. An appeal which is filed timely shall be considered and acted upon by the Town Manager within forty-five (45) days after the date of receipt. The Town Manager’s review shall be de novo. The Town Manager may conduct a hearing if determined necessary by the Town Manager to ascertain additional facts relevant to the appeal. The Town Manager shall provide at least three (3) days’ prior notice to the appellant stating the date, time and location where the Town Manager will conduct a hearing. The decision of the Town Manager shall be in writing, shall state the appellant’s right to appeal the decision to the Town Council, shall state the last day to submit an appeal to the Town, and shall be sent by U.S. first class mail to the appellant. The decision of the Town Manager may be appealed to the Town Council. (b) Appeal to Town Council. The appellant may appeal the decision of the Town Manager to the Town Council. The appellant shall file a written appeal with the Town Clerk within thirty (30) days after the date of transmittal of a written decision of the Town Manager to deny an appeal. The failure to file a written appeal within thirty (30) days after the date of transmittal of the Town Manager’s decision shall bar any further consideration of the application, shall bar any appeal to the Town Council and shall bar any judicial review by a Colorado court. The written appeal shall state the reasons for the appeal. An appeal which is filed timely shall be considered and acted upon by the Town Council within forty-five (45) days after the date of receipt. The Town Council’s review shall be de novo. The Town Council shall conduct a hearing. The Town Council shall provide at least three (3) days’ prior notice to the appellant stating the date, time and location where the Town Council will conduct a hearing. The decision of the Town Council shall be in writing and shall be sent by U.S. first class mail to the appellant. The decision of the Town Council shall be the final decision of the Town and shall be final on the day that the Town Council takes action to adopt its findings in writing. 5.04.130. Violation – penalty. ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 12 of 14 Any person violating any of the provisions of this Chapter shall be deemed to have committed a civil infraction for each and every day or portion thereof during which any infraction is committed, continued or permitted and shall be subject to the penalties contained in Chapter 1.09 of this Code. 5.04.140. Unpaid fees, penalties and interest a prior lien. (a) The fees, penalties and interest imposed by this Chapter shall be a first and prior lien upon the goods and business fixtures owned or used by any business required by the provisions of this Chapter to submit a business license return and make payment of the fees, penalties and interest. (b) The lien created by Subsection (a) above shall be construed to be liens and encumbrances upon the specific items of personal property therein enumerated, and shall take precedence over all other liens, encumbrances or claims of whatsoever nature, and shall immediately attach to such items without the necessity of the filing of any notice of lien thereof. 5.04.150. Enforcement of Fees and Penalties and foreclosure of liens. (a) If any fee, penalty or interest imposed by this Chapter and not paid within fifteen (15) days after the same are due, the Director of Finance shall issue a warrant under his or her official seal directed to any duly authorized revenue collector, or to the sheriff of any county in this State commanding him or her to levy upon, seize and sell sufficient personal property of the tax debtor which is subject to the liens created by Section 5.04.150 found within his or her county for the payment of the amount due, together with interest, penalties and costs. (b) Simultaneously with the issuance of said warrant, the Director shall issue a notice of payment lien, setting forth the name of the business, the amount of the fee, penalties, interest and costs, the date of the accrual thereof, and that the Town claims a first and prior lien therefor on the tangible personal property of the business subject to said liens. (c) Such notice shall be on forms prepared by the Director, shall be verified by him or her, and shall be filed in the office of the clerk and recorder of any county in this State in which the business owns tangible personal property subject to said liens. (d) Upon the filing of said notice of lien, the effective date of the lien shall relate back to the date of the first transaction for which any fee is due. Section 9. Amendment to Avon Municipal Code Chapter 5.16 Chapter 5.16 Peddlers and Solicitors of the Avon Municipal Code is repealed in its entirety. Section 10. Codification Amendments. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 13 of 14 typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 11. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 12. Effective Date. This Ordinance shall take effect thirty (30) days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 13. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 14. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 15. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [EXCUTION PAGE FOLLOWS] ATTACHMENT A: Ord. No 15-02 - FINAL READING Ord 15-02 Amending Chapters 1.04, 3.08, 3.12, 5.04 and 5.16 March 24, 2015 – FINAL Page 14 of 14 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on March 10, 2015 and setting such public hearing for March 24, 2015 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk ADOPTED ON SECOND AND FINAL READING on March 24, 2015. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk APPROVED AS TO FORM: ____________________________ Eric J. Heil, Town Attorney ATTACHMENT A: Ord. No 15-02 - FINAL READING TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Scott Wright, Asst. Town Manager Date: March 21, 2015 Agenda Topic: Resolution No. 15-07 Establishing Business License Fees Background Ordinance No. 15-02 amending various sections of the Avon Municipal Code including Section 5.04 Business Licenses, includes a provision under Section 5.04.090(b) that requires that business license fees be established by adoption of a resolution. In general, the revised business license code requires all persons doing business in the Town to have a business license. The fee resolution establishes different fees for different types of business licensees and also establishes a paper processing surcharge and a late filing fee. Also of note – the regular In-Town business license fee is proposed to increase from the current amount of $75 to $200. The existing fee has been in place since 1990. Further explanations and definitions of the license types and other administrative policies are planned to be placed on the Town’s website and communicated in our online sales tax and business licensing system – MUNIRevs. Staff Recommendation Staff recommends the Town Council approve Resolution No. 15-07 A Resolution Setting Business License Fees. Recommended Motion Move to approve Resolution No. 15-07 A Resolution Setting Business License Fees. Exhibits and Attachments: Resolution No. 15-07 and Exhibit A Res. No. 15-07 March 24, 2015 Page 1 of 2 TOWN OF AVON RESOLUTION NO. 15-07 Series of 2015 A RESOLUTION SETTING BUSINESS LICENSE FEES WHEREAS, the Avon Municipal Code Section 5.04.090(b) states that business license fees shall be adopted by resolution; and WHEREAS, Colorado Revised Statutes § 31-15-501 and the Town of Avon Home Rule powers authorizes the Town to regulate and license businesses, including the establishment of business license fees; and WHEREAS, the Avon Town Council finds that the adoption of business license fees as attached in Exhibit A: Business License Fee Schedule, is appropriate and reasonable to partially defray the cost of administration of business licenses and licensees in general. NOW, THEREFORE BE IT RESOLVED that the Avon Town Council adopts Exhibit A: Business License Fee Schedule which shall take effect on April 23, 2015. ADOPTED March 24, 2015. AVON TOWN COUNCIL By:_______________________________ Attest:___________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk Res. No. 15-07 March 24, 2015 Page 2 of 2 Exhibit A: Business License Fee Schedule All Business License Fees are annual fees. Fixed Location Business 1 = $ 200.00 Short-term Accommodation 2 = $ 75.00 Home Occupation = $ 50.00 Peddlers and Solicitors per AMC Sec. 5.04.060; Vendors per AMC Sec. 5.04.080; and, Contractors licensed per AMC Sec. 15.08.050 and conducting work without a permanent physical business address in Town = $ 25.00 Late Filing Fee (applicable 30 days after expiration of annual license) = $ 25.00 Paper Filing Surcharge Fee = $ 15.00 1. If a business is transacted at two (2) or more separate physical locations by one person, a separate license for each place of business shall be required. Fixed location businesses include, but are not limited to: Lodges, hotels, motels, time-share operators, boarding houses, condo-hotel operators and bed and breakfast establishments. 2. Each separate short-term accommodation unit or address shall require a separate business license. Persons who rent property for short-term accommodation and utilize a reservation system business that holds a business license shall be exempt from the business license requirement. TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, MARCH 10, 2015 AVON TOWN HALL, ONE LAKE STREET 1. CALL TO ORDER & ROLL CALL Mayor Fancher called the meeting to order at 5:07 p.m. A roll call was taken and Council members present were Megan Burch, Buz Reynolds, Matt Gennett, Jake Wolf, Scott Prince and Sarah Smith Hymes. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Director of Economic Initiatives Susan Fairweather, Planning Manager Matt Pielsticker, Executive Assistant to the Town Manager Preston Neill and Town Clerk Debbie Hoppe. 2. APPROVAL OF AGENDA Mayor Fancher asked to remove from the agenda Item 6.2 Action on request by Brookside for assistance with water rights purchase cost. Council agreed to the change. 3. PUBLIC COMMENT – COMMENTS ARE WELCOME ON TOPICS NOT ON THE AGENDA Jonathan Levine commented. 4. PROCLAMATION NAMING THE WEEK OF MARCH 9TH AS SCOTTY STOUGHTON WEEK 5. CONSENT AGENDA 5.1. ACTION ON LETTER OF ENGAGEMENT RETAINING MOSES WITTEMYER, AND APPOINTMENT OF RICHARD MEHREN AND JAY MONTGOMERY AS SPECIAL WATER C OUNSEL (TOWN ATTORNEY ERIC HEIL) 5.2. MINUTES FROM FEBRUARY 20, 2015 RETREAT (TOWN CLERK DEBBIE HOPPE) 5.3. MINUTES FROM FEBRUARY 24, 2015 MEETING (TOWN CLERK DEBBIE HOPPE) Councilor Gennett moved to approve the Consent Agenda as submitted; Mayor Pro Tem Wolf seconded the motion and it passed unanimously by those present. 6. ACTION ITEMS 6.1. PUBLIC HEARING ON RESOLUTION NO. 15-04, APPROVING A MINOR PUD AMENDMENT FOR LOTS 38 & 39, BLOCK 4, WILDRIDGE SUBDIVISION (TOWN PLANNER BRIAN GARNER) Mayor Fancher opened the Public Hearing, Alice Leeds commented. Mayor Fancher moved to continue Resolution No. 15-04, approving a Minor PUD Amendment for Lots 38 & 39, Block 4, Wildridge Subdivision to Tuesday, March 24th at 5:00 pm; Mayor Pro Tem Wolf seconded the motion and it passed 6 to 1 vote. Councilor Gennett voted no. 6.2. ACTION ON REQUEST BY BROOKSIDE FOR ASSISTANCE WITH WATER RIGHTS PURCHASE COSTS (TOWN ENGINEER JUSTIN HILDRETH) 6.3. RESOLUTION 15-06, APPROVING THE FOURTH SUPPLEMENTAL WATER SERVICE AGREEMENT WITH THE UPPER EAGLE REGIONAL WATER AUTHORITY (TOWN ENGINEER, JUSTIN HILDRETH) Mayor Fancher moved to approve Resolution 15-06, approving the Fourth Supplemental Water Service Agreement with the Upper Eagle Regional Water Authority; Councilor Gennett seconded the motion and it passed unanimously by those present. Avon Council Meeting 3-10-2015 Minutes Page 1 TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, MARCH 10, 2015 AVON TOWN HALL, ONE LAKE STREET 6.4. ACTION ON REQUEST FOR CALENDAR DATES AND FUNDING FOR THE MAN OF THE CLIFF FESTIVAL ON OCTOBER 10 - 11 IN NOTTINGHAM PARK AND ON THE PERFORMANCE PAVILION (DIRECTOR OF ECONOMIC INITIATIVES SUSAN FAIRWEATHER) Mayor Fancher moved to approve $7,000 funding request with approval of dates left up to Danita Dempsey Special Events Supervisor and Adam Williams for the Man of the Cliff Festival in Nottingham Park and on the Performance Pavilion; Councilor Reynolds seconded the motion and it passed unanimously by those present. Mayor Pro Tem Wolf recused himself. 6.5. PUBLIC HEARING SECOND READING OF ORDINANCE NO. 15-01, SERIES OF 2015, AN ORDINANCE REGARDING RETIREMENT BOARD COMPOSITION AND EMPLOYEE RETIREMENT PLANS (ASSISTANT TOWN MANAGER SCOTT WRIGHT) Mayor Fancher opened the Public Hearing, no comments were made. Councilor Burch moved to approve Second Reading of Ordinance No. 15-01, Series of 2015, an Ordinance Regarding Retirement Board Composition and Employee Retirement Plans; Councilor Gennett seconded the motion and it passed unanimously by those present. 6.6. FIRST READING OF ORDINANCE NO. 15-02, SERIES OF 2015, AN ORDINANCE AMENDING AVON MUNICIPAL CODE CHAPTERS 1.04 DEFINITIONS, 3.12 REAL ESTATE TRANSFER TAX, 5.04 BUSINESS LICENSES, AND 5.16 PEDDLERS AND SOLICITORS (TOWN ATTORNEY ERIC HEIL) Councilor Gennett moved to approve First Reading of Ordinance No. 15-02, Series of 2015, An Ordinance Amending Avon Municipal Code Chapters 1.04 Definitions, 3.12 Real Estate Transfer Tax, 5.04 Business Licenses, and 5.16 Peddlers and Solicitors; Councilor Reynolds seconded the motion and it passed unanimously by those present. 7. WORK SESSION 7.1. DIRECTION TO TOWN STAFF REGARDING TERM SHEET FOR AN INTERGOVERNMENTAL AGREEMENT WITH THE EAGLE RIVER FIRE PROTECTION DISTRICT FOR A FUNDING PARTNERSHIP IN ACQUIRING LOT 1B FOR A JOINT POLICE AND FIRE PUBLIC SAFETY CENTER AND P ROCESS FOR DESIGN, COST ESTIMATING, BIDDING AND CONSTRUCTION MANAGEMENT OF THE C ENTER (TOWN ATTORNEY ERIC HEIL) 8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 9. MAYOR & COUNCIL COMMENTS 10. WRITTEN REPORTS 10.1. GIFT REPORTING – WINTERWONDERGRASS (ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) 11. EXECUTIVE SESSION, IF CALLED (THIS SESSION IS NOT OPEN TO THE PUBLIC) 11.1. FOR THE PURPOSE OF A CONFERENCE WITH THE TOWN ATTORNEY FOR RECEIVING LEGAL ADVICE UNDER C.R.S. §24- 6-402(2)(B) AND FOR THE PURPOSE OF DETERMINING POSITIONS RELATIVE TO MATTERS THAT MAY BE SUBJECT TO Avon Council Meeting 3-10-2015 Minutes Page 2 TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, MARCH 10, 2015 AVON TOWN HALL, ONE LAKE STREET NEGOTIATIONS, DEVELOPING STRATEGY FOR NEGOTIATIONS, AND/OR INSTRUCTING NEGOTIATORS, UNDER C.R.S. §24-6-402(2)(E) CONCERNING PROPOSED AMENDMENTS TO THE ESTABLISHING AGREEMENT AND THE MASTER SERVICE AGREEMENT WITH THE UPPER EAGLE RIVER WATER AUTHORITY. 11.2. FOR THE PURPOSE OF A CONFERENCE WITH THE TOWN ATTORNEY FOR RECEIVING LEGAL ADVICE UNDER C.R.S. §24- 6-402(2)(B) CONCERNING THE MOUNTAIN STAR WATER STORAGE TANK. Mayor Fancher moved to meet in Executive Session for the purpose of a conference with the Town Attorney for receiving legal advice under C.R.S. §24-6-402(2)(b) and for the purpose of determining positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators, under C.R.S. §24-6-402(2)(e) concerning proposed amendments to the Establishing Agreement and the Master Service Agreement with the Upper Eagle River Water Authority as well as for the purpose of a conference with the Town Attorney for receiving legal advice under C.R.S. §24-6-402(2)(B) concerning the Mountain Star water storage tank; Councilor Smith Hymes seconded the motion and it passed unanimously by those present. The time was 8:03 p.m. Mayor Fancher made a motion to end the Executive Session; Councilor Gennett seconded the motion and it passed unanimously by those present. The time was 8:55 p.m. 12. ADJOURNMENT There being no further business to come before the Council, the regular meeting adjourned at 8:56 p.m. RESPECTFULLY SUBMITTED: _________________________________ Debbie Hoppe, Town Clerk APPROVED: Jennie Fancher ________________________________ Jake Wolf ________________________________ Matt Gennett ________________________________ Megan Burch ________________________________ Albert “Buz” Reynolds ________________________________ Scott Prince ________________________________ Sarah Smith Hymes ________________________________ Avon Council Meeting 3-10-2015 Minutes Page 3 Heil Law & Planning, LLC Office: 303.975.6120 3445 S. Clermont St. Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Fancher and Town Council members FROM: Eric J. Heil, Town Attorney RE: Town Code of Ethics DATE: March 16, 2015 SUMMARY: The Town Council discussed the Avon Town Code of Ethics (“Ethics Code”) at its December 11, 2014 work session. The Town Council expressed a desire to re-visit the Ethics Code and provided some preliminary direction on revisions for consideration. This memorandum presents draft amendments to the Town Code of Ethics for consideration and discussion by the Avon Town Council. BACKGROUND: The Avon Home Rule Charter requires the Avon Town Council to adopt an Ethics Code. The current Town Code of Ethics was adopted by Ord. No. 92-15. Revisions were adopted in early 2012 by Ord. No. 2012-01. As a home rule community, Avon has the authority to adopt its own Ethics Code as a matter of local concern. However, awareness of the State Standards of Conduct is informative and the revisions in 2012 incorporated language from the State Standards of Conduct where appropriate for convenience and efficiency. OBTAINING PRIVATE WORK RELATED TO OFFICIAL ACTS: A new sub-section (11) under 2.30.060 Conflict of Interest is presented which would prohibit any Town Officer from accepting compensation or work related to any Official Act on a specific project, application or contract within 6 months of the Official Act. NOTE: This restriction is worded to apply both during and after the term of employment or office, the operative rule being within 6 months. Other examples of such restrictions are limited to accepting compensation or employment after the term of employment or office. The State Standards of Conduct set forth an “ethical principle” as a guide in CRS §24-18-105 which states, “A public officer, a local government official, or an employee should not, within six months following the termination of his office or employment, obtain employment in which he will take direct advantage, unavailable to others, of matters with which he was directly involved during his term of employment. These matters include rules, other than rules of general application, which he actively helped to formulate and applications, claims, or contested cases in the consideration of which he was an active participant.” The City of Boulder’s Code of Conduct establishes a 6 month restriction after termination of employment or office, as follows: Activities That Occur After Termination of Employment or Office: No former public official or public employee shall seek or obtain employment concerning matters upon which he or she took any action during his or her service with the city for six months following termination of office or employment if such action, occurred less than four years prior to seeking or obtaining employment, involved an exercise of discretion by the public official or public employee and provided direct benefit to the employer, including but not limited to a contract, lease, employment or regulatory approval. This provision may be waived by the city council or the city manager. M EMORANDUM & PLANNING, LLC Avon Town Council Town Code of Ethics March 16, 2015 Page 2 of 2 Town Code of Ethics March 16, 2015 Page 2 of 2 PRESENCE OF TOWN COUNCIL OR PLANNING COMMISSION MEMBER WITH CONFLICT OF INTEREST: The revisions in 2012 added language whereby a Town Council member or Planning Commission member could remain in the room and participate in discussions when there was a conflict of interest if the majority of the remaining Council members provided consent. My recollection is that no Town Council member or Planning Commission member ever requested to remain in the meeting room and participate in the discussion on a business item once a conflict of interest was declared. The attached DRAFT revisions would delete this language and revert back to the prior strict rule that a Town Council member or Planning Commission member with a conflict of interest must leave the room during discussion and consideration of that business item. PUBLIC CONTRACTS: The Ethics Code adopts a general rule that no Town Officer shall have an interest in any contract made by the Town, but then contains several exceptions to allow the lowest bidder (or highest bidder for auctions) or when the Town Officer discloses the conflict and does not vote on the contract. The existing Ethics Code language in Section 2.30.120 Public Contracts tracks CRS §24-18- 201 et. seq. and contains similar exceptions. The DRAFT revised language presents a very strict restriction and prohibition to disallow any contract for compensation or approval of vender permit to any Town Official. NOTE: Town Official includes spouses and minor children. The DRAFT revised language attempts to distinguish contracts with organizations where a Town Official is an employee of an organization but is not an owner or controlling officer. The two exceptions that are retained which are: (1) investments or deposits in financial institutions which are in the business of loaning or receiving money [meaning that the mere deposit at a local bank that enters into a contract with the Town does not create a conflict]; and, (2) matters for which the Town Officer has voted in accordance with Section 2.30.100 [meaning such participation is necessary for quorum and action and such Town Officer has made disclosure to the Colorado Secretary of State in accordance with Section 2.30.110]. Section 2.30.100 was revised slightly to incorporate a finding that participation by a Council member or Planning Commission member with a conflict of interest will not be contrary to the public interest. This language parallels language in the Urban Renewal Authority statutes regarding participation by an Urban Renewal Authority director that has a property interest within an Urban Renewal Authority plan. REQUESTED ACTION: Direction on these proposed revisions to the Ethics Code. Any revisions to the Ethics Code would require adoption by ordinance. ATTACHMENTS: ATTACHMENT A: AVON TOWN CODE OF ETHICS ATTACHMENT B: CML ETHICS MATERIALS ATTACHMENT C: COLORADO STANDARDS OF CONDUCT Thank you, Eric ATTACHMENT A: AVON TOWN CODE OF ETHICS DRAFT AMENDMENTS Page 1 of 7 DRAFT: MARCH 16, 2015 PRESENTED TO AVON TOWN COUNCIL WORK SESSION ON MARCH 24, 2015 Town Code of Ethics 2.30.010 Citation. This Chapter shall be known and may be cited as the "Avon Town Code of Ethics." 2.30.020 Declaration of policy. The proper operation of democratic government requires that public officers be independent, impartial and responsible to the people; that government decisions and policy be made within the proper channels of the governmental structure; that public office not be used for personal gain; and that the public have confidence in the integrity of its government. In recognition of these goals, a code of ethics for all Town oOfficers is adopted. The purpose of this code is to establish guidelines for ethical standards of conduct for all such oOfficers by setting forth those acts or actions that are incompatible with the best interest of the Town, and by directing disclosure by such oOfficers of private financial or other interests in matters affecting the Town. 2.30.030 Finding of local concern. The Town Council finds and determines that the matter of ethical municipal government is a matter of local concern upon which home rule municipalities in Colorado are fully empowered to legislate and to supersede conflicting state statutes. 2.30.040 Effect of common law. This Chapter shall supersede and override the common law as to the subject matter of this Chapter. 2.30.050 Definitions. As used in this Chapter, unless the context requires otherwise: Business means any corporation, limited liability corporation, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business operated for private profit. Confidential information means all information, whether transmitted orally, electronically or in writing, , which is intended to be confidential and which does not constitute a public record under the Colorado Open Records Act set forth in C.R.S. §24-72- 200.1 et. seq. including but not limited to attorney-client confidential and privileged communications and information received in an executive session. Council or Town Council means the Town Council of the Town of Avon. Council Member means any member of the Town Council. Officer means any person holding a position by election or appointment in the service of the municipality, whether paid or unpaid, including the members of the Town Council, any other Town board, committee or commission, any employee and any independent contractor. Official act or official action means any vote, decision, recommendation, approval, disapproval or other action, including inaction, which involves the use of discretionary authority. Substantial financial interest means an interest owned or held by an oOfficer which is: a. An ownership interest in a business; b. A creditor interest in a business; c. An ownership interest in real or personal property; d. A loan or any other debtor interest; e. A directorship or officership in a business. An officer shall be presumed to have a substantial financial interest in any of the ATTACHMENT A: AVON TOWN CODE OF ETHICS DRAFT AMENDMENTS Page 2 of 7 DRAFT: MARCH 16, 2015 PRESENTED TO AVON TOWN COUNCIL WORK SESSION ON MARCH 24, 2015 abovementioned interests owned, held or controlled by such oOfficer's spouse or dependent children. 2.30.060 Conflict of interest. A Town Officer shall not: (1) Disclose or use confidential information acquired in the course of such Officer's duties (a) in order to further a business or other undertaking in which such Officer has a substantial financial interest or (b) for any use which would be detrimental to the Town; (2) Engage in a substantial financial transaction for his or her private business purposes with a person whom such oOfficer inspects or supervises in the course of his or her official duties; (3) Perform an official act which directly and substantially affects to its economic benefit a business or other undertaking in which such Officer has a substantial financial interest; (4) Perform an official act which directly and substantially affects a business or other undertaking by whom the oOfficer is employed, or by whom such Officer is engaged as counsel, consultant, representative or agent; (5) Acquire or hold an interest in any business or undertaking which such Officer has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by the agency over which he or she has substantive authority; (6) Perform an official act directly and substantially affecting to its economic detriment any business or other undertaking when such Officer has a substantial financial interest in a competing business or undertaking; (7) Solicit or accept a present or future gift, favor, loan, service or thing of value from a person under circumstances which would lead a reasonably prudent person to believe that such gift, favor, service or thing of value was made or given primarily for the purpose of influencing or attempting to influence such oOfficer in connection with an official act, or as a reward for official action he or she has previously taken. The provisions of this Subsection shall not apply to those circumstances described in Subsection 2.30.070(3);. (8) Perform any official act under circumstances which give rise to appearance of impropriety on the part of the Officer; (9) Make or accept any ex parte communication or contact concerning a matter which is to be determined after a public hearing without making the contents of such communication or contact a part of the record of such public hearing; (10) Appear on behalf of any private person, business or entity, other than himself or herself, his or her spouse, or minor children, before the Town Council, any Town Commission or the Municipal Court.; or, (11) Accept compensation or employment related to any Official Act on a specific project, application, or contract within six (6) months of taking such Official Act. 2.30.070 Exemptions. The provisions of Section 2.30.060 shall not prohibit an Officer from: (1) Accepting or receiving a benefit as an indirect consequence of the performance of an official act; (2) Taking official action when such Officer is similarly situated to other Town residents, such as adopting general land use regulations, owning property within a special or local improvement district, voting for taxes or ATTACHMENT A: AVON TOWN CODE OF ETHICS DRAFT AMENDMENTS Page 3 of 7 DRAFT: MARCH 16, 2015 PRESENTED TO AVON TOWN COUNCIL WORK SESSION ON MARCH 24, 2015 bonds, adopting ordinances of general applicability or otherwise acting upon matters involving the common public interest, except that this exemption shall not apply to interests of Officers of the Avon Urban Renewal Authority in any project or in any property included or planned to be included in any project and the provisions of C.R.S. §31-25- 104(3) shall control; (3) Soliciting or accepting gifts or loans which are: a. Campaign contributions reported as required by law; b. An occasional nonpecuniary gift, insignificant in value; c. A nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; d. Payment of or reimbursement for actual and necessary expenditures for travel and subsistence or attendance at a convention or other meeting at which such Officer is scheduled to participate; e. Reimbursement for or acceptance of an opportunity to participate in a social function or meeting which is not extraordinary when viewed in light of the position held by such Officer; f. Items of perishable or nonpermanent value, including, but not limited to, meals, lodging, travel expenses or tickets to sporting, recreational, educational, or cultural events; g. Payment for speeches, debates, or other public events, reported as honorariums to the Town Manager; h. A loan at a rate of interest which is not substantially lower than the commercial rate then currently prevalent for similar loans within the Town. (4) Receiving such compensation for his or her services to the Town as may be fixed by ordinance, pay plan, budget or other similar official action. 2.30.080 Disclosure of conflict of interest in Town Council action. Any member of the Town Council who believes he or she has a conflict of interest as defined in Section 2.30.060 on any matter proposed or pending before the Town Council shall disclose such potential interest to the Town Council. Any member of the Council who believes that another member of the Council has a conflict of interest shall bring the matter to the attention of the Council prior to Council consideration of the issue involving the alleged conflict. The Council shall determine whether a conflict of interest exists. The Council member who has an alleged conflict of interest shall not vote on the determination of whether a conflict of interest exists; however, such Council member may participate in the discussion and may remain in the room with the consent of the majority of the remaining Council members. If the Council determines that an actual conflict of interest exists, the Council Member shall not attempt to influence other members of the Town Council in connection with such matter, and, except as provided in Section 2.30.100, the Council Member shall not vote upon such matter. The Council Member shall leave the room during Council's discussion and action on the subject, and shall return only when the council has taken up the next agenda item. 2.30.090 Disclosure of conflict of interest in Planning Commission action. Any member of the Planning Commission who believes he or she has a conflict of interest as defined in Section 2.30.060 on any matter proposed or pending before the Planning Commission shall disclose such potential ATTACHMENT A: AVON TOWN CODE OF ETHICS DRAFT AMENDMENTS Page 4 of 7 DRAFT: MARCH 16, 2015 PRESENTED TO AVON TOWN COUNCIL WORK SESSION ON MARCH 24, 2015 interest to the Planning Commission. Any member of the Planning Commission who believes that another member of the Planning Commission has a conflict of interest shall bring the matter to the attention of the Planning Commission prior to Planning Commission consideration of the issue involving the alleged conflict. The Planning Commission shall determine whether a conflict interest exists. The Planning Commission member who has an alleged conflict of interest shall not vote on the determination of whether a conflict of interest exists; however, such Planning Commission member may participate in the discussion and may remain in the room with the consent of the majority of the remaining Planning Commission members. If the Planning Commission determines that an actual conflict of interest exists, the member of the Planning Commission shall not attempt to influence other members of the Planning Commission in connection with such matter, and, except as provided in Section 2.30.100, the member of the Planning Commission shall not vote upon such matter. The member of the Planning Commission shall leave the room during the Planning Commission's discussion and action on the subject, and shall return only when the Planning Commission has taken up the next agenda item. 2.30.100 When Council Member or member of the Planning Commission with conflict of interest may vote. Notwithstanding the provisions of Sections 2.30.080 and 2.30.090, a Council member or member of the Planning Commission may vote upon a matter as to which he or she has a conflict of interest if: (1) His or her participation is necessary to obtain a quorum or to otherwise enable the Council or Planning Commission to act, and (2) he or she complies with the disclosure provisions of Section 2.30.110, and (3) a majority of the Council members or Planning Commission members present at a meeting who do not have a conflict of interest find that the participation of such Council member or Planning Commission member will not be contrary to the public interest and vote to permit such Council member or Planning Commission member to vote despite the conflict of interest. 2.30.110 Voluntary Disclosure to Secretary of State. A Town oOfficer may, prior to acting in a manner which may impinge on his or her fiduciary duty and the public trust, disclose the nature of his or her private interest to the Colorado Secretary of State. Such Town oOfficer shall make the disclosure in writing to the Colorado Secretary of State, listing the amount of his or her financial interest, if any, the purpose and duration of his or her services rendered, if any, and the compensation received for the services or such other information as is necessary to describe his or her interest. If he or she then performs the official act involved, he or she shall state for the record the fact and summary nature of the interest disclosed at the time of performing the act. Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction under this Town Code of Ethics or any other local, state or other code of ethics or standards of conduct. 2.30.120 Public contracts. (a) The Town shall not enter into any contract with a Town Officer (including spouse or minor children of the Town Officer) to provide any compensation from the Town for the provision of goods or services and shall not ATTACHMENT A: AVON TOWN CODE OF ETHICS DRAFT AMENDMENTS Page 5 of 7 DRAFT: MARCH 16, 2015 PRESENTED TO AVON TOWN COUNCIL WORK SESSION ON MARCH 24, 2015 approve any vendor permit or privilege to conduct commercial business on Town property during such Officer’s term, appointment or employment with the Town; provided that this restriction shall not apply to compensation provided to any Town Officer for performance of official duties for the Town. This section shall not operate to restrict the Town from entering into contracts or approving vendor permits and privileges to an organization which employees a Town Officer if such Town Officer is not an owner or controlling officer of such organization that receives such compensation, permits or privileges and such Town Officer declares a conflict of interest in accordance with Section 2.30.060(3) and does not participate in any Town decision related to such public contract. For the purposes of this section, ownership in an organization shall include any ownership interest that is greater than 1%. (b) The provisions of Subsection (a) of this Section shall not apply to: (1) Investments or deposits in financial institutions which are in the business of loaning or receiving money; or, (2) with respect to which the Town Officer has voted therein in accordance with Section 2.30.100. (c) It shall be a violation of this Code of Ethics for any Town Officer to enter into a contract with the Town or receive compensation or receive vendor permits or privileges from the Town in violation of this section. (d) Any contract approved by the Town or vendor permit or privilege granted by the Town in violation of this section shall be unenforceable against the Town. (a) Except as provided in Subsection (b) of this Section, no Officer shall have an interest in any contract made by the Town. (b) The provisions of Subsection (a) of this Section shall not apply to: (1) Contracts awarded to the lowest responsible bidder based on competitive bidding procedures; (2) Merchandise sold to the highest bidder at public auctions; (3) Investments or deposits in financial institutions which are in the business of loaning or receiving moneys; (4) A contract between the Town and an officer if, because of geographic restrictions, the Town could not otherwise reasonably afford itself of the subject of contract. It shall be presumed that the Town could not otherwise reasonably afford itself of the subject of a contract if the additional cost to the Town is greater than ten percent (10%) of a contract with an officer or if the contract is for services that must be performed within a limited time period and no other contractor can provide those services within that time period; (5) A contract with respect to which the officer has disclosed his or her personal or financial interest to the Town Council and has not voted thereon, or with respect to which the officer has voted therein in accordance with Section 2.30.100. (c) No Town officer shall be a purchaser or vendor in connection with any sale or purchase made by him or her in his or her official capacity. The provisions of this Subsection shall not apply to those contracts described in Subsection (b) of this Section. 2.30.130 Limitation on subsequent employment. ATTACHMENT A: AVON TOWN CODE OF ETHICS DRAFT AMENDMENTS Page 6 of 7 DRAFT: MARCH 16, 2015 PRESENTED TO AVON TOWN COUNCIL WORK SESSION ON MARCH 24, 2015 A former Town oOfficer may not, within six (6) months following the termination of his or her office with the Town, contract with or become employed by an employer who contracts with the Town involving matters with which such oOfficer was directly involved during such Officer’s the term of office or with the Town. 2.30.140 Enforcement. (a) The Town Council shall have the primary responsibility for the enforcement of this Chapter. It shall have the power to investigate any complaint, to initiate any suit and to prosecute any criminal or civil action on behalf of the Town wherein it believes such action is appropriate. (b) The Town Council may direct the Town Attorney to investigate or prosecute any apparent violation of this Chapter or the Council may employ or appoint any qualified attorney to investigate or prosecute any violation or series of violations by one (1) or more persons of this Chapter. In the event the alleged conflict of interest involves a Council member (or multiple Council members), the Council member(s) who has an alleged conflict of interest shall not vote upon whether to investigate or prosecute the alleged conflict of interest. (c) Any person who believes that a violation of any portion of this Chapter has occurred may file a complaint with the Town Council, which shall promptly investigate such complaint and take such action thereon as the Council shall deem to be appropriate. (d) The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the general fund of the Avon Town government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such Town oOfficer. 2.30.150 Penalties and remedies. (a) It is unlawful for any person to violate any provision of, or to fail to comply with any of the requirements of this Chapter. Any person who violates any provisions of this Chapter shall be punished in accordance with the provisions of Section 1.08.010 of this Code. Additionally, upon conviction such person shall be liable to the Town for such damages as may have been suffered or incurred as a result of such violation. (b) Upon conviction for any violation of this Chapter such oOfficer shall immediately forfeit his or her office or position. Nothing in this Chapter shall be construed to prohibit such public oOfficer from being reelected, reappointed or otherwise rehired to any position forfeited under the provisions of this Chapter. (c) Any court of competent jurisdiction called upon to enforce the provisions of this Chapter may, with the consent of the Town Council, exempt from the provisions of this Chapter any conduct of a Town Officer upon the finding that the enforcement of this Chapter with respect to such Officer's conduct would not be in the public interest. 2.30.160 Distribution of code of ethics. The Town Clerk shall cause a copy of this code of ethicsthe Avon Town Code of Ethics to be distributed to every Officer of the Town within thirty (30) days after enactment of the ordinance adopting this Chapter. Each Town Officer elected, appointed, or engaged thereafter shall be furnished a copy before entering upon the duties of his or her office. 2.30.170 Gift Reporting. ATTACHMENT A: AVON TOWN CODE OF ETHICS DRAFT AMENDMENTS Page 7 of 7 DRAFT: MARCH 16, 2015 PRESENTED TO AVON TOWN COUNCIL WORK SESSION ON MARCH 24, 2015 (a) In accordance with §7, Article XXIX of the Colorado Constitution, the requirements of Article XXIX of the Colorado Constitution shall not apply to the Town of Avon. It is the intention and purpose that this section 2.30.170, Chapter 2.30 Avon Town Code of Ethics of the Avon Municipal Code, and any other applicable Avon Home Rule Charter provision, ordinance or resolution adopted by the Town of Avon shall completely address all matters set forth in Article XXIX of the Colorado Constitution. (b) Any Town Officer who receives any present, or offer of future, individual gift, favor, loan, service or thing of value in excess of $50.00 and such gift is offered due to such person’s status as a Town Officer then such Officer shall report such gift and the estimated value to the Town Clerk. The Town Clerk shall promptly disclose gifts received, or offer of future gifts, to the Town Council. The failure of a Town Officer to report a gift to the Town Clerk shall constitute a violation of the Avon Town Code of Ethics. (c) Council shall determine if gifts received or offered in the future constitute a conflict of interest in accordance with the Avon Town Code of Ethics. Council members who are the recipient or intended recipient of a gift shall not vote on whether such gift constitutes a conflict of interest unless such gift is offered to Council as a whole or offered to Town generally. (d) Gifts which are given by an individual who is a relative or personal friend of the recipient on special occasions shall not be deemed a conflict of interest. Gifts which are given without the purpose or intent to influence a Town Officer in connection with an official act or as a reward for an official act performed and gifts which do not create the appearance of impropriety shall not be a conflict of interest. (e) Gifts which are received which are determined by Council to be a conflict of interest shall be returned. The receipt of a gift or the failure to return a gift or reimburse the equivalent value when Council determines such gift is a conflict of interest shall constitute a violation of the Avon Town Code of Ethics. ATTACHMENT B: CML ETHICS MATERIALS ATTACHMENT B: CML ETHICS MATERIALS ATTACHMENT B: CML ETHICS MATERIALS ATTACHMENT B: CML ETHICS MATERIALS ATTACHMENT B: CML ETHICS MATERIALS STATE STANDARDS OF CONDUCT Page 1 of 12 Title 24. GOVERNMENT - STATE ADMINISTRATION Article 18. Standards of Conduct Part 1. CODE OF ETHICS § 24-18-101. Legislative Declaration The general assembly recognizes the importance of the participation of the citizens of this state in all levels of government in the state. The general assembly further recognizes that, when citizens of this state obtain public office, conflicts may arise between the public duty of such a citizen and his or her private interest. The general assembly hereby declares that the prescription of some standards of conduct common to those citizens involved with government is beneficial to all residents of the state. The provisions of this part 1 recognize that some actions are conflicts per se between public duty and private interest while other actions may or may not pose such conflicts depending upon the surrounding circumstances. Law reviews: For article, "Conflicts of Interest in Government", see 18 Colo. Law. 595 (1989); for article, "Advising Quasi-Judges: Bias, Conflicts of Interest, Prejudgment, and Ex Parte Contacts", see 33 Colo. Law. 69 (March 2004). § 24-18-102. Definitions As used in this part 1, unless the context otherwise requires: (1) "Business" means any corporation, limited liability company, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business, whether or not operated for profit. (2) "Compensation" means any money, thing of value, or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another. (3) "Employee" means any temporary or permanent employee of a state agency or any local government, except a member of the general assembly and an employee under contract to the state. (4) "Financial interest" means a substantial interest held by an individual which is: (a) An ownership interest in a business; (b) A creditor interest in an insolvent business; (c) An employment or a prospective employment for which negotiations have begun; (d) An ownership interest in real or personal property; (e) A loan or any other debtor interest; or (f) A directorship or officership in a business. (5) "Local government" means the government of any county, city and county, city, town, special district, or school district. (6) "Local government official" means an elected or appointed official of a local government but does not include an employee of a local government. (7) "Official act" or "official action" means any vote, decision, recommendation, approval, disapproval, or other action, including inaction, which involves the use of discretionary authority. (8) "Public officer" means any elected officer, the head of a principal department of the executive branch, and any other state officer. "Public officer" does not include a member of the general assembly, a member of the judiciary, any local government official, or any member of a board, commission, council, or committee who receives no compensation ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 2 of 12 other than a per diem allowance or necessary and reasonable expenses. (9) "State agency" means the state; the general assembly and its committees; every executive department, board, commission, committee, bureau, and office; every state institution of higher education, whether established by the state constitution or by law, and every governing board thereof; and every independent commission and other political subdivision of the state government except the courts. § 24-18-103. Public Trust - Breach of Fiduciary Duty (1) The holding of public office or employment is a public trust, created by the confidence which the electorate reposes in the integrity of public officers, members of the general assembly, local government officials, and employees. A public officer, member of the general assembly, local government official, or employee shall carry out his duties for the benefit of the people of the state. (2) A public officer, member of the general assembly, local government official, or employee whose conduct departs from his fiduciary duty is liable to the people of the state as a trustee of property and shall suffer such other liabilities as a private fiduciary would suffer for abuse of his trust. The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the general fund of the state or local government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such public officer, member of the general assembly, local government official, or employee. § 24-18-104. Rules of Conduct for All Public Officers, Members of the General Assembly, Local Government Officials, and Employees (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. A public officer, a member of the general assembly, a local government official, or an employee shall not: (a) Disclose or use confidential information acquired in the course of his official duties in order to further substantially his personal financial interests; or (b) Accept a gift of substantial value or a substantial economic benefit tantamount to a gift of substantial value: (I) Which would tend improperly to influence a reasonable person in his position to depart from the faithful and impartial discharge of his public duties; or (II) Which he knows or which a reasonable person in his position should know under the circumstances is primarily for the purpose of rewarding him for official action he has taken. (2) An economic benefit tantamount to a gift of substantial value includes without limitation a loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of such services. (3) The following shall not be considered gifts of substantial value or gifts of substantial economic benefit tantamount to gifts of substantial value for purposes of this section: (a) Campaign contributions and contributions in kind reported as required by section ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 3 of 12 1-45-108, C.R.S.; (b) An occasional nonpecuniary gift, insignificant in value; (c) A nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; (d) Payment of or reimbursement for actual and necessary expenditures for travel and subsistence for attendance at a convention or other meeting at which such public officer, member of the general assembly, local government official, or employee is scheduled to participate; (e) Reimbursement for or acceptance of an opportunity to participate in a social function or meeting which is offered to such public officer, member of the general assembly, local government official, or employee which is not extraordinary when viewed in light of the position held by such public officer, member of the general assembly, local government official, or employee; (f) Items of perishable or nonpermanent value, including, but not limited to, meals, lodging, travel expenses, or tickets to sporting, recreational, educational, or cultural events; (g) Payment for speeches, appearances, or publications reported pursuant to section 24-6-203; (h) Payment of salary from employment, including other government employment, in addition to that earned from being a member of the general assembly or by reason of service in other public office. (4) The provisions of this section are distinct from and in addition to the reporting requirements of section 1-45-108, C.R.S., and section 24-6-203, and do not relieve an incumbent in or elected candidate to public office from reporting an item described in subsection (3) of this section, if such reporting provisions apply. § 24-18-105. Ethical Principles for Public Officers, Local Government Officials, and Employees (1) The principles in this section are intended as guides to conduct and do not constitute violations as such of the public trust of office or employment in state or local government. (2) A public officer, a local government official, or an employee should not acquire or hold an interest in any business or undertaking which he has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by an agency over which he has substantive authority. (3) A public officer, a local government official, or an employee should not, within six months following the termination of his office or employment, obtain employment in which he will take direct advantage, unavailable to others, of matters with which he was directly involved during his term of employment. These matters include rules, other than rules of general application, which he actively helped to formulate and applications, claims, or contested cases in the consideration of which he was an active participant. (4) A public officer, a local government official, or an employee should not perform an official act directly and substantially affecting a business or other undertaking to its economic detriment when he has a substantial financial interest in a competing firm or undertaking. § 24-18-106. Rules of Conduct for Members of the General Assembly (1) Proof beyond a reasonable doubt of commission of any act enumerated in this ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 4 of 12 section is proof that the member of the general assembly committing the act has breached his fiduciary duty and the public trust. A member of the general assembly shall not accept a fee, a contingent fee, or any other compensation, except his official compensation provided by statute, for promoting or opposing the passage of legislation. (2) It shall not be a breach of fiduciary duty and the public trust for a member of the general assembly to: (a) Use state facilities or equipment to communicate or correspond with a member's constituents, family members, or business associates; (b) Accept or receive a benefit as an indirect consequence of transacting state business; or (c) Accept the payment of or reimbursement for actual and necessary expenses for travel, board, and lodging from any organization declared to be a joint governmental agency of this state under section 2-3-211 (2), C.R.S., if: (I) (A) The expenses are related to the member's attendance at a convention or meeting of the joint governmental agency at which the member is scheduled to deliver a speech, make a presentation, participate on a panel, or represent the state of Colorado or for some other legitimate state purpose; (B) The travel, board, and lodging arrangements are appropriate for purposes of the member's attendance at the convention or meeting; (C) The duration of the member's stay is no longer than is reasonably necessary for the member to accomplish the purpose of his or her attendance at the convention or meeting; (D) The member is not currently and will not subsequent to the convention or meeting be in a position to take any official action that will benefit the joint governmental agency; and (E) The attendance at conventions or meetings of the joint governmental agency has been approved by the executive committee of the legislative council or by the leadership of the house of the general assembly to which the member belongs; or (II) The general assembly pays regular monthly, annual, or other periodic dues to the joint governmental agency that are invoiced expressly to cover travel, board, and lodging expenses for the attendance of members at conventions or meetings of the joint governmental agency. (3) Notwithstanding any other provision of law, no member of the general assembly shall lobby, solicit lobbying business or contracts, or otherwise establish a lobbying business or practice respecting issues before the general assembly prior to the expiration of his or her term. Where the member tenders his or her resignation prior to the expiration of his or her term, the requirements of this subsection (3) shall apply up through the date of the member's resignation from office. § 24-18-107. Ethical Principles for Members of the General Assembly (1) The principles in this section are intended only as guides to a member of the general assembly in determining whether or not his conduct is ethical. (2) A member of the general assembly who has a personal or private interest in any measure or bill proposed or pending before the general assembly shall disclose the fact to the house of which he is a member and shall not vote thereon. In deciding whether or not he has such an interest, a member shall consider, among other things, the following: (a) Whether the interest impedes his ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 5 of 12 independence of judgment; (b) The effect of his participation on public confidence in the integrity of the general assembly; and (c) Whether his participation is likely to have any significant effect on the disposition of the matter. (3) An interest situation does not arise from legislation affecting the entire membership of a class. (4) If a member of the general assembly elects to disclose the interest, he shall do so as provided in the rules of the house of representatives or the senate, but in no case shall failure to disclose constitute a breach of § 24-18-108. Rules of Conduct for Public Officers and State Employees (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty. (2) A public officer or a state employee shall not: (a) Engage in a substantial financial transaction for his private business purposes with a person whom he inspects, regulates, or supervises in the course of his official duties; (b) Assist any person for a fee or other compensation in obtaining any contract, claim, license, or other economic benefit from his agency; (c) Assist any person for a contingent fee in obtaining any contract, claim, license, or other economic benefit from any state agency; or (d) Perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent. (3) A head of a principal department or a member of a quasi-judicial or rule-making agency may perform an official act notwithstanding paragraph (d) of subsection (2) of this section if his participation is necessary to the administration of a statute and if he complies with the voluntary disclosure procedures under section 24-18-110. (4) Repealed. § 24-18-108.5. Rules of Conduct for Members of Boards and Commissions (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty. (2) A member of a board, commission, council, or committee who receives no compensation other than a per diem allowance or necessary and reasonable expenses shall not perform an official act which may have a direct economic benefit on a business or other undertaking in which such member has a direct or substantial financial interest. § 24-18-109. Rules of Conduct for Local Government Officials and Employees (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. (2) A local government official or local government employee shall not: (a) Engage in a substantial financial transaction for his private business purposes with a person whom he inspects or supervises in the course of his official duties; or (b) Perform an official act directly and substantially affecting to its economic benefit ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 6 of 12 a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent. (3) (a) A member of the governing body of a local government who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter. (b) A member of the governing body of a local government may vote notwithstanding paragraph (a) of this subsection (3) if his participation is necessary to obtain a quorum or otherwise enable the body to act and if he complies with the voluntary disclosure procedures under section 24-18-110. (4) It shall not be a breach of fiduciary duty and the public trust for a local government official or local government employee to: (a) Use local government facilities or equipment to communicate or correspond with a member's constituents, family members, or business associates; or (b) Accept or receive a benefit as an indirect consequence of transacting local government business. § 24-18-110. Voluntary Disclosure A member of a board, commission, council, or committee who receives no compensation other than a per diem allowance or necessary and reasonable expenses, a member of the general assembly, a public officer, a local government official, or an employee may, prior to acting in a manner which may impinge on his fiduciary duty and the public trust, disclose the nature of his private interest. Members of the general assembly shall make disclosure as provided in the rules of the house of representatives and the senate, and all others shall make the disclosure in writing to the secretary of state, listing the amount of his financial interest, if any, the purpose and duration of his services rendered, if any, and the compensation received for the services or such other information as is necessary to describe his interest. If he then performs the official act involved, he shall state for the record the fact and summary nature of the interest disclosed at the time of performing the act. Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction. § 24-18-111. [Repealed] § 24-18-112. Board of Ethics for the Executive Branch - Created - Duties (1) There is hereby created a board of ethics for the executive branch of state government in the office of the governor. The board shall consist of five members to be appointed by and serve at the pleasure of the governor. (2) The board of ethics for the executive branch shall: (a) Comment, when requested by the governor, on each proposed gubernatorial appointment, including the heads of the principal departments and the senior members of the governor's office based upon the provisions of this article; (b) Upon written request of the governor, review complaints of any violation of the provisions of this article by a member of the executive branch of state government; (c) Make written recommendations to the governor concerning his requests; and (d) Review appeals brought before the board of ethics pursuant to section 24-30-1003(4). ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 7 of 12 § 24-18-113. Board of Ethics for the General Assembly - Created - Duties (1) (a) There is hereby created a board of ethics for the general assembly. The board shall consist of four legislative members. One member shall be appointed by and serve at the pleasure of the majority leader of the house of representatives; one member shall be appointed by and serve at the pleasure of the majority leader of the senate; one member shall be appointed by and serve at the pleasure of the minority leader of the house of representatives; and one member shall be appointed by and serve at the pleasure of the minority leader of the senate. (b) The terms of the members appointed by the majority and minority leaders of the house of representatives and the senate and who are serving on March 22, 2007, shall be extended to and expire on or shall terminate on the convening date of the first regular session of the sixty-seventh general assembly. As soon as practicable after such convening date, the majority and minority leaders of the house of representatives and the senate shall each appoint or reappoint members in the same manner as provided in paragraph (a) of this subsection (1). Thereafter, the terms of members appointed or reappointed by the majority and minority leaders of the house of representatives and the senate shall expire on the convening date of the first regular session of each general assembly, and all subsequent appointments and reappointments by the majority and minority leaders of the house of representatives and the senate shall be made as soon as practicable after such convening date. The person making the original appointment or reappointment shall fill any vacancy by appointment for the remainder of an unexpired term. Members appointed or reappointed by the majority and minority leaders of the house of representatives and the senate shall continue in office until the member's successor is appointed. (2) The board of ethics for the general assembly shall, upon written request of a member of the general assembly, issue advisory opinions concerning issues relating to the requesting member's conduct and the provisions of this article. Part 2. PROSCRIBED ACTS RELATED TO CONTRACTS AND CLAIMS § 24-18-201. Interests in contracts (1) Members of the general assembly, public officers, local government officials, or employees shall not be interested in any contract made by them in their official capacity or by any body, agency, or board of which they are members or employees. A former employee may not, within six months following the termination of his employment, contract or be employed by an employer who contracts with a state agency or any local government involving matters with which he was directly involved during his employment. For purposes of this section, the term: (a) "Be interested in" does not include holding a minority interest in a corporation. (b) "Contract" does not include: (I) Contracts awarded to the lowest responsible bidder based on competitive bidding procedures; (II) Merchandise sold to the highest bidder at public auctions; (III) Investments or deposits in financial institutions which are in the business of loaning or receiving moneys; (IV) A contract with an interested party if, ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 8 of 12 because of geographic restrictions, a local government could not otherwise reasonably afford itself of the subject of the contract. It shall be presumed that a local government could not otherwise reasonably afford itself of the subject of a contract if the additional cost to the local government is greater than ten percent of a contract with an interested party or if the contract is for services that must be performed within a limited time period and no other contractor can provide those services within that time period. (V) A contract with respect to which any member of the general assembly, public officer, local government official, or employee has disclosed a personal interest and has not voted thereon or with respect to which any member of the governing body of a local government has voted thereon in accordance with section 24-18-109(3)(b) or 31-4-404(3), C.R.S. Any such disclosure shall be made: To the governing body, for local government officials and employees; in accordance with the rules of the house of representatives and the senate, for members of the general assembly; and to the secretary of state, for all others. ANNOTATION Local government officials should not be interested in any contract made by them in their official capacity and an official who has a private interest in any matter proposed or pending before the governing body should disclose the interest to the governing body and not vote on it; however, this section specifically exempts any contract awarded to the lowest responsible bidder based on competitive bidding procedures. Independent Ethics Commission Advisory Opinion 12-01. It would not pose a violation of this section for a retired community college accounting professor to enter into a contract with the college since he was not involved in the accounting procedures at the college when he was employed there and the proposed contract does not involve a matter in which he was directly involved as a professor. Independent Ethics Commission Advisory Opinion 10-08. It would not violate this section for a former employee of the department of health care policy and financing to enter into a contract with a consulting company to work on project management issues relating to a major health care provider, where the state agency indicated there is no conflict. Independent Ethics Commission Letter Ruling 10-02. Because employee's duties as area maintenance manager for the governor's office of information technology (OIT) have been reassigned and he no longer has responsibilities or duties over the site in question and the employee has made a full disclosure to his supervisors and there is no information that he took advantage of information unavailable to others not in government employment, the employee is not in violation of this section if he leases properties owned by a limited liability corporation controlled by his wife to the OIT. Independent Ethics Commission Advisory Opinion 13-05. A state agency is in the best position to determine whether a state employee's future employment outside of state government poses a conflict of interest given the agency's superior understanding of the duties performed by the state employee involved. Independent Ethics Commission Advisory Opinion 13-13. § 24-18-202. Interest in sales or purchases Public officers and local government officials shall not be purchasers at any sale or vendors ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 9 of 12 at any purchase made by them in their official capacity. § 24-18-203. Voidable contracts Every contract made in violation of any of the provisions of section 24-18-201 or 24-18-202 shall be voidable at the instance of any party to the contract except the officer interested therein. § 24-18-204. Dealings in warrants and other claims prohibited State officers, county officers, city and county officers, city officers, and town officers, as well as all other local government officials, and their deputies and clerks, are prohibited from purchasing or selling or in any manner receiving to their own use or benefit or to the use or benefit of any person or persons whatever any state, county, city and county, city, or town warrants, scrip, orders, demands, claims, or other evidences of indebtedness against the state or any county, city and county, city, or town thereof except evidences of indebtedness issued to or held by them for services rendered as such officer, deputy, or clerk, and evidences of the funded indebtedness of such state, county, city and county, city, or town. § 24-18-205. Settlements to be withheld on affidavit (1) Every officer charged with the disbursement of public moneys who is informed by affidavit establishing probable cause that any officer whose account is about to be settled, audited, or paid by him has violated any of the provisions of this part 2 shall suspend such settlement or payment and cause such officer to be prosecuted for such violation by the district attorney of the appropriate jurisdiction. (2) If there is judgment for the defendant upon such prosecution, the proper officer may proceed to settle, audit, or pay such account as if no such affidavit had been filed. § 24-18-206. Penalty A person who knowingly commits an act proscribed in this part 2 commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501 , C.R.S. In addition to the penalties provided in section 18-1.3-501 , C.R.S., the court may impose a fine of no more than twice the amount of the benefit the person obtained or was attempting to obtain in violating a provision of this part 2. Article 18.5. Independent Ethics Commission §24-18.5-101. Independent ethics commission - establishment - membership - subpoena power - definitions (1) As used in this article, unless the context otherwise requires: (a) "Article XXIX" means article XXIX of the state constitution approved by the voters at the 2006 general election. (b) "Commission" means the independent ethics commission created in section 5 (1) of article XXIX. (2)(a) The independent ethics commission, originally established in the office of administrative courts in the department of personnel created in section 24-30-1001 , is hereby transferred to and established in the judicial department as an independent agency, effective on June 10, 2010. The commission shall consist of five members. The appointing authorities for the commission members, the order of appointment of such members, and other requirements pertaining to commission membership shall be as specified in section 5 (2) of article XXIX. Subject to the requirements of paragraph (b) of this ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 10 of 12 subsection (2), the member appointed by the senate pursuant to section 5 (2) (a) (I) of article XXIX shall be appointed by the president of the senate with the approval of two-thirds of the members elected to the senate. Subject to the requirements of paragraph (b) of this subsection (2), the member appointed by the house of representatives pursuant to section 5 (2) (a) (II) of article XXIX shall be appointed by the speaker of the house of representatives with the approval of two-thirds of the members elected to the house of representatives. (b) In connection with the appointment of commission members, no more than two members appointed to the commission shall be affiliated with the same political party. (c) The commission members shall be appointed to four-year terms; except that the first member appointed by the senate and the first member appointed by the governor shall initially serve two-year terms. Appointments to the commission by the senate and the house of representatives shall be made no later than May 1, 2007, and the initial terms of commission members shall commence July 1, 2007. (3) Commission members shall serve without compensation; except that commission members shall be reimbursed for the actual and necessary expenses that they incur in carrying out their duties and responsibilities as commission members. (4) In accordance with the provisions of section 5 of article XXIX, the powers and duties of the commission shall be as follows: (a) To hear complaints, issue findings, and assess penalties on ethics issues arising under article XXIX and other standards of conduct and reporting requirements as provided by law; and (b)(I) To issue advisory opinions and letter rulings on ethics issues arising under article XXIX and other standards of conduct and reporting requirements as provided by law. (II) The commission shall prepare a response to a request for an advisory opinion from a public officer, member of the general assembly, local government official, or government employee as to whether particular action by such officer, member, official, or employee satisfies the requirements of article XXIX as soon as practicable after the request is made to the commission. (III) Any person who is not a public officer, member of the general assembly, local government official, or government employee may submit a request to the commission for a letter ruling concerning whether potential conduct of the person making the request satisfies the requirements of article XXIX. In such case, the commission shall issue a response to the request as soon as practicable. (IV) Each advisory opinion or letter ruling, as applicable, issued by the commission shall be a public document and shall be promptly posted on a web site that shall be maintained by the commission; except that, in the case of a letter ruling, the commission shall redact the name of the person requesting the ruling or other identifying information before it is posted on the web site. (5) (a) Subject to the provisions of paragraph (c) of this subsection (5), the commission shall dismiss as frivolous any complaint filed under article XXIX that fails to allege that a public officer, member of the general assembly, local government official, or government employee has accepted or received any gift or other thing of value for private gain or personal ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 11 of 12 financial gain. (b) For purposes of this subsection (5): (I) "Official act" shall have the same meaning as set forth in section 24-18-102(7) . (II) "Private gain" or "personal financial gain" means any money, forbearance, forgiveness of indebtedness, gift, or other thing of value given or offered by a person seeking to influence an official act that is performed in the course and scope of the public duties of a public officer, member of the general assembly, local government official, or government employee. (c) This subsection (5) is repealed if the Colorado supreme court holds, in response to one or more written questions submitted by the general assembly pursuant to section 3 of article VI of the state constitution, that the standard of accepting or receiving "any gift or other thing of value for private gain or personal financial gain" specified in paragraph (a) of this subsection (5) is unconstitutional in applying section 3 (1) or (2) of article XXIX. (6) Pursuant to the provisions of section 5 (1) of article XXIX, the commission shall adopt reasonable rules as may be necessary for the purpose of administering and enforcing the provisions of article XXIX and any other standards of conduct and reporting requirements as provided by law. Any rules shall be promulgated in accordance with the requirements of article 4 of this title. (7) Subject to available appropriations, the commission may employ such staff as it deems necessary to enable it to carry out its functions in accordance with the requirements of this article and article XXIX. (8) No subpoena requiring the attendance of a witness or the production of documents shall be issued by the commission unless a motion to issue any such subpoena has been made by one member of the commission and approved by no fewer than four members of the commission. (9) Any final action of the commission concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver. (10) Any state employee on the staff of the commission as of June 10, 2010, shall be transferred with the agency and shall become an employee of the agency. ANNOTATION Law reviews. For article, "The Practitioner's Guide to Amendment 41 and the Colorado Independent Ethics Commission", see 38 Colo. Law. 37 (October 2009). As personification of state, governor proper party defendant in suit contesting constitutionality of article XXIX (amendment 41) at time of its filing. The evaluation of whether a person or entity is a proper party in a lawsuit must be determined in light of relevant facts and circumstances. Here, there was no alternative entity for plaintiffs to sue in order to challenge article XXIX. Colorado has long recognized the practice of naming the governor, in his role as state's chief executive, as proper defendant in cases where a party seeks to "enjoin or mandate enforcement of a statute, regulation, ordinance, or policy". The only appropriate state agent for litigation purposes was the governor. Prior to creation of the independent ethics commission (commission), the governor was appropriate party defendant in a ATTACHMENT C: STATE STANDARDS OF CONDUCT STATE STANDARDS OF CONDUCT Page 12 of 12 constitutional challenge. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). Considering both language of article XXIX and voters' intent in initiating it, article XXIX is self-executing in that it does not require any further action by the general assembly to be effective. A constitutional provision is self-executing when the provision appears to take immediate effect and no further action by the general assembly is required to implement the right given. Here, article XXIX can take effect without any further action by the general assembly. Its provisions do not merely lay out bare principles without any means of implementation; rather, the article has a built-in mechanism for operation. It provides for the creation of the commission that, once in existence, will be independent of the general assembly and will promulgate necessary rules to implement and enforce gift bans and other ethical standards. There is no indication that voters intended to require further legislative action with respect to article XXIX. To the contrary, voters used initiative process to avoid possibility that general assembly would prevent them from establishing commission that would enforce gift bans against general assembly's members as well as other government employees. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). Because preliminary injunction issued before commission came into existence and before it had opportunity to act in furtherance of this article, plaintiffs failed to present a ripe as-applied constitutional challenge. Relief plaintiffs seek is only available in a successful facial challenge, not in an as-applied challenge. In order for plaintiffs to obtain a declaration that article is unconstitutional as applied, there must be an actual application or at least a reasonable possibility of enforcement or threat of enforcement. As of the time of suit, the commission was not yet in existence, and it had not yet acted to enforce the gift bans. No enforcement or threat of enforcement of the gift bans had occurred. Therefore, concerns expressed by plaintiffs were merely speculative interpretations of what might occur once commission is operative. As such, district court did not have jurisdiction to grant preliminary injunction. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). ATTACHMENT C: STATE STANDARDS OF CONDUCT Heil Law & Planning, LLC Office: 303.975.6120 3445 S. Clermont St. Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Fancher and Town Council members FROM: Eric J. Heil, Town Attorney RE: Modified Public Improvements Agreement DATE: March 19, 2015 SUMMARY: This memorandum is to inform the Town Council of a modified form of the Public Improvements Agreement which would be used in the Village (at Avon) where public improvements are proposed to be constructed and completed in advance of final subdivision plat or building permits. No Council action is required to approve this modified form of Public Improvements Agreement. The attached form of the modified Public Improvements Agreement is presented for information purposes because the existing form of the Public Improvements Agreement was previously presented to Council in 2012. The Town uses a Public Improvements Agreement when development projects construct public improvements that are to be conveyed to the Town or to other entities (e.g. roads, water, sewer, drainage structures, etc.). The form Public Improvements Agreement had been updated over the last several years and provides comprehensive terms addressing completion of improvements, inspection, acceptance and warranty. The existing form Public Improvements Agreement also includes provisions for financial guarantees which tract the requirements in the Avon Municipal Code. Traer Creek has requested the ability to construct public improvements without providing the financial guarantee for completion in limited circumstances where it will fully construct and complete the public improvements before obtaining a final subdivision plat or obtaining any other development approval that requires the installation of public improvements. A modified form of the Public Improvements Agreement is attached in which the financial guarantee is limited to the required warranty guarantee, a financial guarantee is required to secure the site in the event that the public improvements work stops, and the owner agrees that the public improvements must be completed before receiving any development approval that requires the public improvements. The financial guarantee is commonly required where a final subdivision plat is approved and the developer has the right to sell individual lots before the completion of necessary public infrastructure required to serve the lots. The financial guarantee is a form of assurance that public improvements will be completed where third parties are purchasing lots or otherwise investing in a project in reliance on the Developer’s completion of the public improvements. Excerpts from the Avon Development Code are provided as follows for convenience: 7.32.100 - Public improvements, public improvement agreements, construction and guarantee of improvements. Modifie (a) Purpose. The purpose of this Section is to provide for the proper design, layout and construction of public improvements by development so that public improvements constructed by the applicant meets Town standards and is guaranteed by the applicant, thereby protecting the Town from inadequate or incomplete public improvement construction. (b) Applicability. This Section is applicable to any development proposing the construction or modification of any new or existing public infrastructure. Public infrastructure includes, but is not limited to, any land improvement including utilities, roadways, sidewalks, trails, landscaping, lighting, parking facilities, for public or private use excluding development for single-family or duplex homes. M EMORANDUM & PLANNING, LLC Avon Town Council Modified Public Improvements Agreement March 19, 2015 Page 2 of 2 Modified Public Improvements Agreement March 19, 2015 Page 2 of 2 (c) Guarantee Required. To ensure the installation of required public improvements that are not accepted at the time the final plat is filed, the improvement agreement shall require the applicant to guarantee the completion of all such improvements by one (1) or more of the methods specified in this Section. The means of a guarantee may be changed during the guarantee period through a written modification of the agreement. The amount of the guarantee shall be determined on the basis of the applicant's cost estimate. The Town may substitute the actual construction bid prices for the cost estimate figures to ensure adequate guarantee amounts. If a change order work causes an increase in the construction contract, the guarantee amount shall increase commensurately. The guarantee shall remain in effect until final acceptance of the public improvements and the posting of an acceptable security for the warranty period. (i) Release of Guarantee of Improvements. (1) The Town shall release the obligation for performance guarantees upon the final acceptance of the improvement, together with the posting of adequate security for warranty. ATTACHMENT: Modified Form of Public Improvements Agreement Thank you, Eric FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 1 of 10 [INSERT NAME OF PROJECT] PUBLIC IMPROVEMENTS AGREEMENT with partial Financial Guarantee THIS PUBLIC IMPROVEMENTS AGREEMENT (“Agreement”), made and entered on ___________________, 201___, is by and among ___________________________________ (“Owner” [“District” shall be substituted for Owner when applicable]), and the Town of Avon, a Colorado home rule municipality, by and through its Council (“Town”). RECITALS WHEREAS, the Owner desires to enter into a Public Improvements Agreement (“Agreement”) with the Town; and WHEREAS, pursuant to the Municipal Code, the Town desires to make reasonable provisions for completion of certain public improvements (“Public Improvements”) as depicted on the plans approved by the Town for the _______________, dated ________________, (“Approved Plans”) and as set forth in Exhibit A: Approved Plans attached hereto and incorporated herein by reference, together with minor changes approved by the Town Engineer; and WHEREAS, the Owner is responsible for the completion of the Public Improvements; and WHEREAS, there is no final subdivision plat, development application or building permit that requires the installation and completion of the Public Improvements, and Owner desires to enter into this Agreement to set forth certain requirements for the installation, completion, acceptance and warranty for the Public Improvements without the provision of a financial guarantee for the completion of the Public Improvements, and acknowledges and agrees to certain restrictions on development applications until such time as the public improvements are completed and accepted unless Owner provides required financial guarantee. AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Completion of Work. (a) Performance. Owner agrees to furnish all equipment, labor and material necessary to perform and complete, in a good and workmanlike manner, all Public Improvements and work incidental thereto (“Work”) as ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 2 of 10 depicted on the Approved Plans and as set forth in Exhibit A: Approved Plans. Owner further agrees that Owner will be responsible for all costs of Public Improvements as assigned. Said Work shall be performed in accordance with the Approved Plans. (b) Time for Completion of Public Improvements. Owner agrees to complete Public Improvements within two (2) years of the date of this Agreement. Owner agrees to complete construction of Public Improvements prior to the issuance of a building permit for any building to be served by the Public Improvements. (c) Inspection Procedures. All Work shall be done under the inspection procedures and standards established by the Town and Holy Cross Energy, Eagle River Water and Sanitation District, Upper Eagle River Water Authority, Excel Energy, Qwest Communications, Comcast or any other utility (“Utilities”), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All Work shall not be deemed complete until the reasonable approval and acceptance of the Public Improvements by the Town and/or the Utilities. Such inspections by the Town and Utilities shall not relieve the Owner or Owner’s agents from any responsibility or obligation to assure that all Work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (d) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Owner and subject to the limitations set forth in Paragraph 5 below. (e) Notice of Non-‐Compliance. In the event that the Town through its inspectors reasonably determines that the Public Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-‐compliance (“Notice of Non-‐Compliance”) to the Owner. The Notice of Non-‐Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non-‐Compliance must be provided to the Owner within five (5) working days after the date of the inspection. (f) Final Acceptance. Upon completion of the Public Improvements, inspection by the Town to verify compliance of the construction with the Approved Plans, receipt of the As-‐Built Plans, and receipt of adequate financial guarantee for the warranty period (“Warranty Guarantee”), ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 3 of 10 the Town shall provide final acceptance of the Public Improvements in writing to the Owner. 2. Security for Site Work. Owner shall provide an irrevocable letter of credit in a form acceptable to the Town Attorney or provide a cash deposit, in an amount determined adequate by the Town Engineer, to secure the site and Work, including but not limited to drainage and erosion control, in the event that the construction of the Public Improvements is delayed or abandoned. 3. Restriction on Development Approvals. Any development application for property, including but not limited to final subdivision plats and building permits, which requires the completion and acceptance of the Public Improvements in order to serve such property, shall be deferred or any approval shall be conditioned up final completion and acceptance of the Public Improvements, at the discretion of the Town, or shall be conditioned upon the provision of financial guarantee for completion of the Public Improvements if requested by the Owner. 4. Warranty Period. The Public Improvements shall be warranted to be free from defects in workmanship or quality for a period of two (2) years after acceptance of all the Work by the Town. In the event of any such defect, the Town may require Owner to correct the defect in material or workmanship. The Owner shall provide a Warranty Guarantee as a financial security during the warranty period. (a) Amount of Guarantee to Secure Warranty. The amount of the Warranty Guarantee during the warranty period shall be a percentage of the total actual cost of completion of Public Improvements in the amount set forth below: Total Construction Cost Percent to Secure Warranty $0.00 – $500,000.00 10 $500,000.00 – $1,000,000.00 7½ $1,000,000.00 and over 5 (b) Corrective Work. In the event any corrective work is performed during the two (2) year warranty period then the warranty on such corrected work shall be extended for two (2) years from the date on which the corrected work is completed. Guarantee equal to one hundred and ten percent (110%) of the cost of any corrected work, as estimated by the Town Engineer, shall be retained by the Town or immediately paid to the ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 4 of 10 Town by the Owner, if sufficient funds are not held by the Town, in accordance with Paragraph 3(a) above, for a period of two (2) years from the date of completion of the corrected work. (c) Form of Warranty Guarantee. The form of the Warranty Guarantee shall be as set forth in Avon Municipal Code Sub-‐Sections 7.32.100(e) and (i) as may be amended from time to time. 5. Engineering Certification. Upon completion of portions of the Public Improvements, Owner will cause Owner’s engineers (who shall have been actively engaged in observing the construction of the Public Improvements and shall be registered engineers in the State of Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on-‐site observation, review of sufficient construction-‐observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Public Improvements, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as-‐constructed plans and other supporting documentation shall be submitted with the certification. The as-‐constructed plans shall be submitted on paper and in one of the following digital formats: AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 6. Inspection Fees. Fees for inspections, if any, shall be paid by the Owner within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-‐of-‐pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such inspection fees exceed five percent (5%) of the actual aggregate costs for such Public Improvements. 7. No Obligation of Town to Complete Improvements. Owner agrees that in the event Owner shall fail to perform its obligations as set forth herein, the Town shall be under no obligation to complete any of the said Public Improvements or to issue permits for development served by the Public Improvements. 8. Non-‐Liability of Town; Indemnification. The Town shall not, nor shall any officer, agent, or employee thereof, be liable or responsible for any accident, loss or damage related to the Work specified in this Agreement, nor shall the Town, nor any officer, agent or employee thereof, be liable for any persons or property injured by reason of the nature of said Work. To the extent permitted by law, Owner hereby agrees to indemnify and hold harmless the Town, and any of its ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 5 of 10 officers, agents and employees against any losses, claims, damages or liabilities to which the Town or any of its officers, agents or employees may become subject, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Owner, as hereinbefore stated. Furthermore, the Owner shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss or claim. 9. Rights of Town in Event of Default. In the event that Owner defaults in whole or in part in the performance of this Agreement, and after the expiration of thirty (30) days after having given written notice to Owner of such default during which period of time the Owner fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Public Improvements specified on Exhibit A: Approved Plans. All costs paid by the Town to correct or complete the Public Improvements, including cost of personnel, equipment, materials, studies, legal and other amounts expended by the Town to perform the Public Improvement construction responsibilities of Owner, together with an administrative fee in the amount of fifteen percent (15%) of the total costs incurred by Town shall be paid by Owner. Any such costs relating to the Public Improvements, which have not been reimbursed by Owner, shall be a debt of Owner. In addition to other remedies stated in this Agreement, if the Owner is in default of this Agreement, the Town may withhold the acceptance or processing of development applications and may withhold the approval of development permits for or on any property which would be served by the Public Improvements until such time as the Public Improvements are completed. 10. Letter Certifying Completion and Final Acceptance of Improvements. When all Public Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired and provided that Owner is not in default under any of its obligations to the Town under this Agreement, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Owner under this Agreement have been satisfied (“Certification”). 11. Non-‐Liability of Town for Indirect or Consequential Damages or Lost Profits. The Parties agree that the Town shall not be liable for indirect or consequential damages, including lost profits, which result or arise from the Town’s declaration that Owner is in default of the Agreement, so long as the Town acts in good faith. 12. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 6 of 10 in this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 13. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Owner without the express written consent of the Town Council of the Town. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council of the Town. No assignment shall release the Owner from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 14. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relation with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub-‐consultant or sub-‐ contractor of the Owner. Absolutely no third party beneficiaries are intended by this Agreement. Any third-‐party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. 15. Amounts Past Due. Any amounts due to the Town of Avon under this Agreement which are past due shall bear interest at the rate of one and one-half percent (1½%) per month (eighteen percent [18%] per annum, compounded annually).. 16. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 17. Covenants Running with the Land. This Agreement and the obligations hereof shall be deemed to be covenants running with the land and shall be binding on the successors and assigns of the parties hereto. 18. Venue. Venue for any litigation arising out of this Agreement shall be in the District Court for Eagle County, Colorado. [Signature Page Follows] ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 7 of 10 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN. TOWN OF AVON BY:_____________________________ ATTEST:____________________________ Mayor or Manager Town Clerk APPROVED AS TO FORM: ___________________________ Town Attorney OWNER BY:__________________________ Owner ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 8 of 10 EXHIBIT A: APPROVED PLANS APPROVED PLANS: ______________________________ Construction Drawings __________________, Town of Avon, Colorado _______________, 20__ Sheets 1 through __ Release Date: _______________, 20__ Prepared by: ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 9 of 10 EXHIBIT B: COST ESTIMATE PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE ATTACHMENT A FORM OF PUBLIC IMPROVEMENTS AGREEMENT w/o Financial Guarantee March 19, 2015 Page 10 of 10 EXHIBIT C: FORM OF GUARANTEE [Insert Form of Guarantee] ATTACHMENT A FISCAL YEAR 2015 FINANCIAL REPORT March 24, 2015 ______________________________________________________________________________________ 1. Fiscal Year 2015 Financial Report Cover Memo 2. Sales and Accommodations Tax Reports - January 2015 3. Real Estate Transfer Tax Report and Monthly Detail - February 2015 4. General Fund Year-To-Date Expenditures - February 2015 5. Fleet Maintenance Fund Year-To Date Expenditures - February 2015 6. Transit Fund Year-To Date Expenditures - February 2015 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Kelly Huitt, Budget Analyst Date: March 18, 2015 Re: Fiscal Year 2015 Financial Report – January / February Revenues: SALES TAX • Sales tax revenue for the month of January is up $126,332.41 or 19.77% compared to January 2014, and up 20.31% compared to the budget. This increase includes $45,490 from new businesses, and after adjusting for new business growth, 12.65% is the gain in revenue from existing business for the month. Year-to-date sales tax from new businesses makes up 36.01% of total year over year growth. January 2015 sales tax revenue is the highest ever for the month of January. • December collections are up compared to 2014 for all industries except for Service Related business, which is down -8.95% for January. Accommodations is up 24.95% mostly from growth of existing business, while Miscellaneous Retail is up 20.79% due to growth in new business. The Other business category is up 106.65% compared to 2014 due to new building finishing contractors business and growth in specialty trade contractors. 2014/2015 Growth Growth Variance Existing Business New Business Home/Garden 6,928.47 15.02%4.28% Grocery, Specialty, Health 14,930.86 9.64%0.64% Liquor Stores 382.94 1.15%0.00% Sporting Goods Retail/Rental 9,633.73 9.17%2.01% Miscellaneous Retail 4,883.27 -0.98%21.77% Accommodations 32,994.04 24.09%0.86% Restaurants/Bars 5,636.58 0.60%4.33% Other 52,608.04 45.95%60.70% Service Related (1,665.52)-9.72%0.77% Total $126,332.4112.65%7.12% Category Sales Tax Monthly Totals ACCOMMODATIONS TAX • Accommodations tax revenue for January is up $34,509.26, or 26.58% compared to January 2014, and up 27.29% compared to the monthly budget. • January accommodations tax collections are up for all accommodation types. Hotels are up 12.05%, Vacation rentals 73.10%, and Timeshares are up 38.93% for the month. REAL ESTATE TRANSFER TAX • 2015 real estate transfer tax collections for February equal $85,479.08. This is a -84.80% decrease from February 2014 and ($357,907) under the estimated monthly budget. Chapel square was purchased in February of last year which added $490,000 to the monthly total. If you take this anomalous transaction out February 2015 is actually up 18.36% or $13,259.38 compared to 2014. Expenditures: • General Fund expenditures for February 2015 total 20.40% of the budgeted amounts. These expenditures include the annual Cirsa insurance payment as well as encumbrances for several of the community grants. • Fleet expenditures to date are at 20.22% of the total budget. These costs include stock parts and several blanket purchase orders, which encumber funds for the year for ongoing expenditures such as regularly purchased shop supplies and monthly copier charges. • Transit funds are 22.64% expended compared to the annual budget. TOWN OF AVON SALES TAX 2015 Actual vs. Budget Budget YTD Collections Budget % of change 2010 2011 2012 2013 2014 2015 2015 Variance from 2014 January 515,009.18$ 511,040.76$ 519,784.89$ 677,943.78$ 638,863.27$ 636,040$ 765,195.68$ 129,155.19$ 19.77% February 504,752.59 532,903.25 533,546.48 636,702.27 673,722.03 670,745 March 620,937.20 665,532.70 643,910.29 720,267.31 793,301.96 789,797 April 309,937.09 305,269.73 304,220.84 307,407.13 381,839.56 380,152 May 242,830.16 236,424.93 270,082.79 309,938.72 340,332.28 338,829 June 377,920.42 406,828.27 430,588.57 490,329.18 538,517.31 536,138 July 421,975.98 452,873.44 472,215.40 537,479.66 570,959.86 568,437 August 361,702.25 419,977.29 455,439.86 504,332.25 547,085.80 544,669 September 359,139.22 391,546.49 424,793.75 475,362.88 546,016.59 543,604 October 288,859.84 299,193.35 341,711.43 356,925.96 417,921.46 416,075 November 284,528.70 301,407.41 336,060.63 362,460.94 397,935.36 396,177 December 818,360.74 921,815.61 852,868.64 981,917.79 1,221,263.98 1,215,868 Total 5,105,953.37$ 5,444,813.23$ 5,585,223.57$ 6,361,067.87$ 7,067,759.46$ 7,036,531$ 765,195.68$ 129,155.19$ 19.77% Actual Collections $0 $100,000 $200,000 $300,000 $400,000 $500,000 $600,000 $700,000 $800,000 2011 2012 2013 2014 2015 Year Sales Tax Collections for January TOWN OF AVON ACCOMMODATIONS TAX 2015 Actual vs. Budget Actual Collections Budget YTD Collections Budget % of change 2010 2011 2012 2013 2014 2015 2015 Variance 2014 January 87,938.84$ 85,233.73$ 90,118.88$ 108,508.43$ 129,851.78$ 129,125$ 164,361.04$ 35,236.35$ 26.58% February 99,336.34 114,035.90 106,016.32 137,503.61 150,317.06 149,475 March 105,518.15 122,145.16 115,043.42 153,208.80 168,597.39 167,653 April 26,496.88 26,214.58 20,786.24 26,494.49 31,626.02 31,449 May 12,425.51 15,152.82 16,664.44 24,527.17 21,961.97 21,839 June 32,857.68 49,999.66 56,012.17 66,578.91 54,232.23 53,929 July 51,170.82 62,928.07 66,726.73 73,008.92 81,083.01 80,629 August 42,188.56 52,037.55 58,358.93 67,688.07 71,044.33 70,647 September 30,090.34 35,521.81 42,245.24 44,661.37 50,840.16 50,555 October 20,614.06 21,801.56 25,879.51 27,154.53 34,977.59 34,782 November 20,582.47 24,971.33 22,786.42 28,171.04 32,064.02 31,884 December 98,561.90 135,984.00 112,759.02 131,361.43 168,944.85 167,999 Total 627,781.55$ 746,026.17$ 733,397.32$ 888,866.77$ 995,540.41$ 989,966$ 164,361.04$ 35,236.35$ 26.58% $- $25,000.00 $50,000.00 $75,000.00 $100,000.00 $125,000.00 $150,000.00 $175,000.00 2011 2012 2013 2014 2015 Accommodations Tax Collections for January Town of Avon Real Estate Transfer Tax 2015 Actual vs. Budget Budget YTD Collections $ change % of change 2010 2011 2012 2013 2014 2015 2015 2014 2014 January 237,133.00$ 57,540.00$ 50,204.00$ 22,535.00$ 85,126.74$ 160,127$ 48,640.40$ (36,486.34)$ -42.86% February 362,719.22 230,705.50 41,750.07 55,872.69 562,219.70 443,458 85,479.08 (476,740.62)$ -84.80% March 284,243.65 187,099.47 84,760.49 125,927.64 50,375.06 259,156 April 210,185.30 249,482.30 219,195.80 144,437.80 197,656.36 361,257 May 112,431.30 187,668.62 270,170.12 121,784.12 183,745.60 309,894 June 66,271.14 49,606.58 169,040.47 90,309.74 220,009.15 210,619 July 63,509.36 46,707.37 71,057.40 386,434.78 141,051.52 250,789 August 88,823.40 106,785.21 232,505.93 97,579.70 154,032.32 240,515 September 159,861.96 140,876.56 96,389.34 157,010.67 267,886.92 290,867 October 222,575.20 64,005.33 176,889.62 169,839.80 178,044.24 287,091 November 115,654.16 98,057.44 150,549.86 112,491.82 122,582.66 212,070 December 236,117.45 198,448.03 145,134.57 83,382.60 1,596,319.22 799,470 Total 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,567,606.36$ 3,759,049.49$ 3,825,312$ 134,119.48$ (513,226.96)$ -79.28% Budget 3,825,312.00 Variance, Favorable (Unfavorable)(3,691,192.52)$ Actual Collections $- $100,000.00 $200,000.00 $300,000.00 $400,000.00 $500,000.00 $600,000.00 $700,000.00 2011 2012 2013 2014 2015 YTD Real Estate Transfer Tax Collections Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget General Government: Legislative: 111 Mayor and Town Council 233,000$ -$ 39,841$ 193,159$ 17.10% 112 Boards and Commissions 15,299 - 2,018 13,281 13.19% 113 Town Attorney 155,000 133,627 19,140 2,233 98.56% 115 Town Clerk 111,612 15,675 19,413 76,524 31.44% Total Legislative 514,911 149,302 80,412 285,197 44.61% Judicial: 121 Municipal Court 99,349 15,578 15,407 68,364 31.19% Executive: 131 Town Manager 349,041 - 51,897 297,144 14.87% 133 Community Relations 133,077 283 21,674 111,120 16.50% Total Executive 482,118 283 73,571 408,264 15.32% Finance Department: 132 Human Resources 220,896 6,199 35,106 179,591 18.70% 141 Finance 771,070 42,724 108,001 620,345 19.55% 143 Information Systems 371,273 43,674 53,466 274,133 26.16% 149 Nondepartmental 389,131 33,777 165,771 189,583 51.28% Total Financial Administration 1,752,370 126,374 362,344 1,263,652 27.89% Total General Government 2,848,748 291,537 531,734 2,025,477 28.90% Community Development: 212 Planning 261,570 9,602 48,227 203,741 22.11% 213 Building Inspection 136,402 - 19,011 117,391 13.94% 214 Economic Development 170,035 5,631 15,680 148,724 12.53% 215 Town Produced Events 289,520 230 161,863 127,427 55.99% 216 Signature Event Seed Funding 5,000 - - 5,000 0.00% 217 Community Grants 197,850 5,040 102,400 90,410 54.30% Total Community Development 1,060,377 20,503 347,181 692,693 34.67% Police Department: 311 Administration 594,777 21,967 80,565 492,245 17.24% 312 Patrol 2,155,027 44,540 261,245 1,849,242 14.19% 313 Investigations 243,073 - 35,349 207,724 14.54% Total Police 2,992,877 66,507 377,159 2,549,211 14.82% Public Works: 412 Engineering 478,850 513 32,248 446,089 6.84% 413 Roads and Bridges 1,473,326 59,540 163,116 1,250,670 15.11% 418 Buildings & Facilities 1,031,549 120,274 113,854 797,421 22.70% Total Public Works 2,983,725 180,327 309,218 2,494,180 16.41% Department Expenditure Summaries General Fund February 2015 Expenditures to Date Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget Department Expenditure Summaries General Fund February 2015 Expenditures to Date Parks and Recreation: 514 Administration 202,850 9,019 42,471 151,360 25.38% 515 Adult Programs 27,668 571 5,038 22,059 20.27% 516 Aquatics 436,271 12,219 51,305 372,747 14.56% 518 Fitness 137,141 1,124 11,830 124,187 9.45% 519 Guest Services 252,799 5,398 38,910 208,491 17.53% 521 Youth Programs 121,491 570 10,386 110,535 9.02% 522 Cabin 27,741 - 168 27,573 0.61% 551 Parks & Grounds 985,717 40,279 110,718 834,720 15.32% Total Parks and Recreation 2,191,678 69,180 270,826 1,851,672 15.51% TOTAL OPERATING EXPENDITURES 12,077,405$ 628,054$ 1,836,118$ 9,613,233 20.40% Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES Public Works: 434 Fleet Maintenance 1,688,919$ 57,815$ 283,641$ 1,347,463$ 20.22% Total Operating Expenditures 1,688,919 57,815 283,641 1,347,463 20.22% TOTAL EXPENDITURES 1,688,919$ 57,815$ 283,641$ 1,347,463$ 20.22% Expenditure Summary Fleet Maintenance Enterprise Fund February 2015 Expenditures to Date Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES 431 Transit Administration 240,302$ 10,286$ 49,320$ 180,696$ 24.80% 432 Transit Operations 1,408,165 3,759 341,653 1,062,753 24.53% 435 Wash Bay 221,131 1,690 16,649 202,792 8.29% Total Operating Expenditures 1,869,598 15,735 407,622 1,446,241 22.64% TOTAL EXPENDITURES 1,869,598$ 15,735$ 407,622$ 1,446,241$ 22.64% Expenditure Summary Transit Enterprise Fund February 2015 Expenditures to Date