TC Packet 02-09-2016 TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, FEBRUARY 9, 2016
AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM
REGULAR MEETING BEGINS AT 5:05PM
AVON TOWN HALL, ONE LAKE STREET
_____________________________________________________________________________________
MEETING AGENDAS & PACKETS: HTTP://WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, RECREATION CENTER, & LIBRARY.
Page 1
AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:00 PM (SEE SEPARATE AGENDA PAGE 2)
REGULAR MEETING BEGINS AT 5:05 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. WORK SESSION
4.1. REVIEW OF REPORT ON TOWN OF AVON SALES TAX ON BUILDING MATERIALS (ASSISTANT TOWN MANAGER
SCOTT WRIGHT, TOWN MANAGER VIRGINIA EGGER, TOWN ATTORNEY ERIC HEIL)
5. ACTION ITEMS
5.1. CONSIDERATION OF FOURTH AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT WITH EAGLE RIVER FIRE
PROTECTION DISTRICT TO WAIVE FEES RELATED TO THE CONSTRUCTION OF THE JOINT PUBLIC SAFETY FACILITY
(TOWN ENGINEER JUSTIN HILDRETH)
5.2. APPROVAL OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF AVON AND EAGLE COUNTY FOR
PLAN4HEALTH PROJECT (TOWN ATTORNEY ERIC HEIL)
5.3. RESOLUTION NO. 16-O2, A RESOLUTION INITIATING ANNEXATION PROCEEDINGS AND SETTING A PUBLIC
HEARING FOR THE ANNEXATION OF UPPER EAGLE RIVER WATER AUTHORITY MOUNTAIN STAR WATER TANK
PROPERTY (TOWN ATTORNEY ERIC HEIL)
5.4. MINUTES FROM JANUARY 26, 2016 MEETING (TOWN CLERK DEBBIE HOPPE)
6. WRITTEN REPORTS
7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
8. MAYOR & COUNCIL COMMENTS
9. ADJOURNMENT
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, FEBRUARY 9, 2016
AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM
AVON TOWN HALL, ONE LAKE STREET
CALL TO ORDER AND ROLL CALL
1. APPROVAL OF AGENDA
2. PUBLIC COMMENT
3. RENEWAL OF LIQUOR LICENSES
3.1. APPLICANT: SVO COLORADO MANAGEMENT, INC. D/B/A SHERATON MOUNTAIN VISTA
LOCATION: 160 BEAVER CREEK WEST
TYPE: HOTEL AND RESTAURANT LICENSE
MANAGER: DAVID WEISS
3.2. APPLICANT: FIESTA JALISCO NUMBERO TRES, LLC D/B/A FIESTA JALISCO
LOCATION: 240 CHAPEL PLACE B-12
TYPE: HOTEL AND RESTAURANT LICENSE
MANAGER: RICARDO ARAGON
4. REPORT OF CHANGES – CHANGE IN MANAGER
4.1. APPLICANT: FIESTA JALISCO NUMBERO TRES, LLC D/B/A FIESTA JALISCO
LOCATION: 240 CHAPEL PLACE B-12
CURRANT MANAGER: RICARDO ARAGON
NEW MANAGER: JOSE G. RODRIQUEZ
5. MINUTES FROM JANUARY 26, 2016
6. ADJOURNMENT
THE
TOWN
OF
AVON
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
INCLUDING
COLLECTION
DATA,
LEGAL
REVIEW,
TAX
RELIEF
OPTIONS,
FINANCIAL
INFORMATION
AND
ADMINISTRATION
RECOMMENDATIONS
Prepared
for
the
February
9,
2016
regular
meeting
of
the
Avon
Town
Council
Town
Attorney
Eric
J.
Heil
Assistant
Town
Manager
Scott
Wright
Town
Manager
Virginia
Egger
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
3
OF
20
peer
communities,
including
the
Town
of
Breckenridge,
and
explores
methods
of
improving
administrative
procedures
to
promote
greater
awareness
and
compliance
with
the
Town’s
sales
tax
regulations.
From
2012
through
2015,
the
Finance
Department
adopted
improved
administrative
procedures
to
notify
contractors,
sub-‐contractors
and
suppliers
of
the
Town’s
sales
tax
requirements
and
applicability
of
the
Town’s
sales
tax
to
Building
Materials
delivered
into
Avon.
The
Finance
Department
implemented
MUNIRevs
software
in
2014
and
Town
Council
adopted
revisions
to
business
licensing
regulations
by
Ordinance
No.
15-‐02.
These
two
actions
expanded
the
Town’s
ability
to
identify
businesses
operating
in
Avon
and
the
Town’s
ability
to
notify
such
businesses
of
Town’s
sales
tax
requirements.
The
number
of
business
licenses
issued
to
out-‐of-‐town
Retailers
selling
Building
Materials
in
Avon
increased
from
2010
to
2015
due
to
Town’s
improvements
to
its
administrative
procedures
and
notifications
and
due
to
the
overall
increase
in
building
activity
in
Avon.
The
sales
tax
collected
on
Building
Materials
from
out-‐of-‐town
Retailers
as
relates
to
overall
construction
activity
for
years
2010-‐2015
is
summarizes
as
follows:
EXECUTIVE
SUMMARY
TABLE
OUT-‐OF-‐TOWN
RETAILERS
OF
BUILDING
MATERIALS
Year
Number
of
Out-‐of-‐
Town
Retailers
of
Building
Materials
filing
Sales
Tax
Reports
Sales
Tax
Collected
from
Out-‐of-‐Town
Retailers
of
Building
Materials
Total
Building
Activity
by
Valuation
2010
47
$
44,218.85
$13,021,586
2011
51
$
57,873.18
$
9,334,790
2012
52
$
72,747.72
$13,848,500
2013
85
$100,061.95
$36,149,636
2014
105
$318,821.24
$15,235,900
2015
118
$311,607.95
$34,999,261
Building
Activity
by
Valuation
is
based
on
building
permit
information.
The
purchase
of
Building
Materials
at
retail
and
remittance
of
the
associated
sales
tax
for
such
Building
Materials
may
occur
in
the
succeeding
year
or
later
depending
upon
the
timing
and
progress
of
the
building
project.
Council
has
the
legislative
authority
to
enact
a
variety
of
options
to
exempt,
credit
or
rebate
sales
tax
imposed
on
Building
Materials
generally
or
upon
Building
Materials
sold
by
out-‐of-‐town
Retailers
and
delivered
into
Avon.
The
financial
impact
of
not
collecting
sales
tax
on
Building
Materials
delivered
into
Avon
is
dependent
upon
the
level
of
construction
activity.
The
projected
reduction
in
sales
tax
revenue
in
future
years
is
estimated
to
average
$300,000
annually
based
upon
the
amount
of
sales
tax
collected
in
2014
and
2015.
The
Town
provides
a
sales
tax
credit
on
“taxable
transactions”
in
The
Village
(at
Avon)
that
corresponds
to
a
public
improvement
fee
imposed
in
the
Village
(at
Avon).
The
public
improvement
fee
on
retail
sales
is
the
most
significant
revenue
source
for
Traer
Creek
Metropolitan
District.
Legislative
action
to
provide
an
exemption
from
sales
tax
for
Building
Materials
delivered
into
the
Village
(at
Avon)
may
reduce
the
future
potential
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
4
OF
20
revenues
of
Traer
Creek
Metropolitan
District.
Finally,
uniformity
in
taxation
of
retail
transactions
is
widely
considered
to
be
fair,
efficient,
beneficial
and
preferred,
both
at
the
state
level
and
national
level.
Sales
tax
exemptions
or
tax
relief
which
are
not
uniform
across
Avon
and
other
jurisdictions
can
result
in
a
competitive
disadvantage
for
some
Retailers.
This
Report
is
organized
into
six
sections,
described
as
follows:
I. SALES
TAX
COLLECTIONS
ON
BUILDING
MATERIALS
This
section
includes
basic
terms
and
definitions;
a
chronology
of
the
Town’s
administrative
efforts
to
collect
sales
tax
on
Building
Materials;
a
description
of
the
licensing,
collection
and
reporting
process;
and,
an
overview
of
enforcement
practices.
Also
included
are
examples
of
forms
and
collection
letters
as
attached
exhibits.
II. LEGAL
Town
Attorney
Eric
J.
Heil
addresses
legal
questions
raised
at
the
January
12,
2016,
Council
meeting
regarding
tax
policy
change,
TABOR
issues,
the
2002
Use
Tax
Ballot
question,
Village
at
(Avon)
Annexation
and
Development
Agreement ,
and
legal
considerations
concerning
potential
legislative
options
to
amend
the
Town’s
sales
tax
regulations.
III. SUMMARY
OF
FINANCIAL
INFORMATION
Two
detailed
reports
are
included
in
this
section.
The
first
is
a
summary
of
sales
tax
collections
related
to
Building
Materials
and
the
number
of
return
filers
from
2010-‐
2015.
The
second
report
is
a
ten-‐year
summary
of
building
permit
activity
within
the
Town
of
Avon.
In
addition,
two
credit
ratings
reports,
from
Standard
&
Poor’s
and
Moody’s,
providing
credit
opinions
on
the
Town
of
Avon,
are
included
along
with
a
general
discussion
based
on
their
comments.
IV. LEGISLATIVE
OPTIONS
This
section
identifies
and
discusses
an
array
of
options
the
Town
Council
may
consider
for
a
sales
tax
on
Building
Materials,
considerations
for
potential
outcomes
of
the
option,
and
additional
questions
that
may
be
raised
in
considering
the
action.
V. RECOMMENDATIONS
FOR
SALES
TAX
ADMINISTRATION
IMPROVEMENT
This
section
details
staff’s
recommendations
for
additional
efforts
to
improve
administration
of
the
Town
sales
tax
on
Building
Materials.
VI. EXHIBITS
The
following
Exhibits
referred
to
in
the
above
sections.
1. Exhibit
1
–
Supplier
Verification
Form
2. Exhibit
2
–
Contractor
Letter
3. Exhibit
3
–
1st
Delinquency
Letter
4. Exhibit
4
–
2nd
Delinquency
Letter
5. Exhibit
5
–
Standard
&
Poor’s
Rating
Opinion
Letter
6. Exhibit
6
–
Moody’s
Rating
Opinion
Letter
7. Table
1
–
Sales
Tax
Collections
Related
to
Building
Materials
8. Table
2
–
Commercial
and
Residential
Construction
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
5
OF
20
SECTION
I
SALES
TAX
COLLECTIONS
ON
BUILDING
MATERIALS
Terms
and
Definitions:
• Person
means
an
individual
or
any
recognized
legal
entity.
• Retailer
means
any
person
selling
tangible
personal
property
at
retail.
• Sales
Taxpayer
means
a
person
buying
taxable
goods
from
a
Retailer.
• Business
License
means
a
license
required
by
the
Town
for
any
person
engaged
in
business
in
the
Town.
• Sales
Tax
License
means
the
license
required
by
the
Town
for
any
person
engaged
in
the
business
of
making
retail
sales
within
the
Town.
Chronology
of
Efforts
to
Enhance
Sales
Tax
Compliance
2010
• Electronic
Business
Licenses
&
Sales
Tax
Records
on
File
-‐
The
Records
Retention
Act,
established
by
the
Colorado
State
Archives,
which
is
authorized
by
Colorado
State
Statute,
and
adopted
by
the
Town
of
Avon,
directs
the
disposition
schedules
of
public
documents.
a. Sales
Tax
Return
Records:
Required
to
be
retained
for
four
(4)
years
after
filing
of
the
return.
Electronic
records
are
currently
on
file
for
years
beginning
in
2010.
Since
2010,
the
Town
no
longer
accepts
paper
returns.
Paper
returns,
prior
to
2010,
have
been
destroyed
in
compliance
with
the
Records
Retention
Act.
b. Business
Licenses:
Required
to
be
retained
for
two
(2)
years
after
expiration.
Electronic
records
are
currently
on
file
for
years
beginning
in
2014.
Prior
to
March,
2015,
only
contractors
and
subcontractors,
with
a
fixed
location
in
Avon,
were
required
to
have
a
Business
License.
• Town
administration
relies
on
Retailers
and
businesses
to
understand
that
business
licensing,
sales
tax
licensing
and
other
regulations
apply
when
commencing
or
engaging
in
business
in
Avon.
• Town’s
website
includes
informational
links
both
on
the
www.avon.org
homepage
under
the
button
“Online
Payments”,
as
well
as
under
the
Finance
Department’s
page.
• Enforcement
is
practiced
on
a
limited
basis
when
license
holders
fail
to
file
a
return,
returns
appear
inconsistent
when
filed,
or
the
Finance
Department
becomes
aware
of
a
Retailer
who
did
not
have
a
Business
License.
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
6
OF
20
2012-‐
2013
• Town
hires
new
Accounting
Assistant
–
Additional
duties
included
sales
tax
administration.
• Town
staff
attends
Colorado
Tax
Audit
Professionals
meetings.
Among
current
topics,
discussions
include
how
to
ensure
the
enforcement
and
collection
of
sales
taxes
on
construction
projects
due
to
the
increase
in
building
activity
coming
out
of
the
great
recession.
• Town
staff
researches
the
Town
of
Breckenridge
process,
which
also
has
a
sales
tax
on
Building
Materials
and
no
use
tax.
• Finance
Director
and
Town
Attorney
agree
that
a
process
similar
to
the
Town
of
Breckenridge
for
identifying
suppliers
and
contractors
on
large
building
projects,
called
a
“Supplier
Verification
Form”
should
be
implemented
in
Avon.
• May,
2013
–
Town
of
Avon
Building
Official
notifies
in
writing
all
Building
Permit
recipients
of
the
Town’s
sales
tax
requirements
at
the
time
of
Building
Permit
issuance.
General
Contractors
are
given
a
general
information
letter
and
form
–
see
Exhibits
1
and
2.
• Town
purchases
MUNIRev
software
for
sales
tax
administration.
• Building
Permits
begin
to
increase
with
better
economy.
Wyndham
project
is
approved
and
is
a
significant
construction
project
with
delivery
of
many
Building
Materials.
Town
staff
contacts
the
contractor,
and
subsequently
all
its
subcontractors
and
suppliers,
to
promote
awareness
of
the
Town’s
sales
tax
requirements
and
applicability
to
delivered
Building
Materials.
2014
• Business
License
administration
is
re-‐organized,
with
the
Finance
Department
becoming
responsible
for
all
aspects
of
Business
License
administration,
which
was
previously
the
duty
of
the
Town
Clerk’s
office.
• Finance
Department
begins
the
process
of
transferring
the
administration
of
the
licensing
into
new
MUNIRevs
software.
This
change
of
administration
oversight
brought
together
all
information
needed
to
identify,
track
and
monitor
businesses
and
sales
tax
remittance.
• The
website
is
updated
to
list
the
MUNIRevs
telephone
number
prominently
on
the
web
page
and
to
describe
the
processes
for
obtaining
a
Business
License
and
Sales
Tax
License.
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
7
OF
20
2015
• In
March,
2015,
the
Town
Council
adopted
Ordinance
No.
15-‐02
which
cross-‐
referenced
the
sales
tax
definition
of
“doing
business
in
Town”
for
uniformity
and
thus
required
anyone
doing
business
in
Town
to
obtain
a
Business
License.
Previously,
only
businesses
with
physical
locations
in
Town
were
required
to
get
a
Business
License.
• The
revision
to
the
Business
License
regulations
in
early
2015
resulted
in
the
issuance
of
Business
Licenses
to
approximately
347
new
businesses.
Many
of
the
new
Business
Licenses
are
related
to
the
building
industry,
including
both
Retailers
of
Building
Materials,
contractors
and
sub-‐contractors.
Contractors
with
an
address
outside
of
Avon
who
do
business
in
Avon
must
now
obtain
a
Business
License
in
addition
to
obtaining
a
Contractor’s
License.
• Contractors
are
set
up
in
the
MUNIRevs
with
sales
tax
forms
on
either
a
monthly
or
quarterly
basis
(unless
the
Finance
Department
has
been
informed
by
the
contractor
that
the
respective
business
operations
are
not
subject
to
Avon
sales
tax
(i.e.
service-‐related
only)).
If
there
are
no
taxable
transactions,
a
business
with
a
Sales
Tax
License
must
still
file
a
sales
tax
return
indicating
zero
amount
due.
• For
2015,
the
Finance
Department
has
collected
a
total
of
$76,675
in
Business
License
fees
for
all
businesses
compared
to
$22,300,
in
2014.
SUMMARY:
The
changes
to
the
Town’s
Business
License
Regulations
in
the
Avon
Municipal
Code
and
changes
to
administrative
procedures
along
with
an
overall
increase
in
economic
activity
and
building
activity
have
resulted
in
an
increase
in
the
number
of
Business
Licenses
and
Sales
Tax
Licenses
held
by
out-‐of-‐town
Retailers
of
Building
Materials.
The
number
of
in-‐town
Retailers
of
Building
Materials
has
remained
comparatively
stable
over
the
last
six
years.
The
legislative
and
administrative
changes
over
the
last
several
years
have
resulted
in
a
greater
number
of
Business
Licenses
and
Sales
Tax
Licenses
for
businesses
“doing
business
in
Avon”
have
thereby
advanced
uniformity
in
the
application
of
the
Town’s
sales
tax.
The
change
in
Business
Licenses
and
Sales
Tax
Licenses
for
Retailers
of
Building
Materials
is
summarized
as
follows:
Year
In-‐Town
Retailers
Out-‐of-‐
Town
Retailers
Sales
Tax
from
In-‐Town
Retailers
Sales
Tax
from
Out-‐of-‐Town
Retailers
Total
Building
Activity
by
Valuation
2010
14
47
$166,154
$
44,219
$13,021,586
2011
14
51
$180,254
$
57,873
$
9,334,790
2012
15
52
$258,565
$
72,748
$13,848,500
2013
18
85
$237,766
$100,062
$36,149,636
2014
16
105
$282,976
$381,821
$15,235,900
2015
21
118
$331,503
$311,608
$34,999,261
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
8
OF
20
Process
for
Business
Licenses,
Sales
Tax
Notification,
Collection
&
Enforcement
(May,
2013
–
Present)
With
the
implementation
of
MUNIRevs,
the
Town’s
online
licensing
and
sales
tax
collection
system,
obtaining
a
Business
License,
Sales
Tax
License,
filing
of
returns,
and
payment
of
taxes
is
all
accomplished
in
one
place.
• Registration
of
a
business
is
accomplished
through
the
process
o f
obtaining
a
Business
License.
A
Sales
Tax
License
must
be
performed
prior
to
opening
the
business
and
making
retail
sales.
Business
License
fees
vary
depending
on
the
location
and
type
of
business.
There
is
no
fee
to
obtain
a
Sales
Tax
License.
• Detailed
information
and
instructions
for
registration
are
found
on
the
Town
of
Avon
website
(www.avon.org)
under
both
the
Business
License
and
Sales
Tax
links
under
the
Home
Page
drop -‐down
screen
for
Departments.
In
addition,
there
is
specific
information
regarding
the
collection
of
sales
tax
on
materials
delivered
to
job
sites
within
the
Town.
This
information
has
been
available
since
2014.
• There
are
also
informational
links
both
on
the
www.avon.org
homepage
under
the
button
“Online
Payments”
as
well
as
under
the
Finance
Department’s
page
to
the
MUNIRevs
registration
site.
In
addition,
the
MUNIRevs
telephone
number
is
shown
prominently
on
the
web
page
and
throughout
the
process
for
obtaining
the
Business
and
Sales
Tax
Licenses.
• Once
a
Sales
Tax
License
is
issued,
the
Retailer
must
file
a
sales
tax
return,
which
includes
the
payment
of
tax.
This
process
is
performed
online.
The
Retailer
is
required
to
report
the
amount
of
gross
taxable
sales
made
for
the
reporting
period,
the
amount
of
returned
goods,
and
the
amount
of
retail
sales
that
are
exempt
from
taxation.2
• Sales
tax
returns
are
due
by
the
20
th
day
of
the
month
for
the
sales
activities
occurring
in
the
preceding
calendar
month.
The
Finance
Department
does
allow
quarterly
and
annual
filing
of
returns
for
those
businesses
that
do
not
have
minimal
retail
sales
activity.
• It
is
the
duty
of
each
Retailer
who
obtains
a
Sales
Tax
License
to
keep
and
preserve
adequate
records
of
sales
and
such
other
books
and
accounts
necessary
to
determine
the
amount
of
sales
tax.
Such
books
and
records
of
the
Retailer
may
be
examined
at
any
time
by
the
Director
of
Finance
and
must
be
kept
for
a
period
of
three
(3)
years.3
2
AMC
3.08.120(b)
3
AMC
3.08.200
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
9
OF
20
Enforcement
Enforcement
of
the
Town’s
sales
tax
regulations
generally
follows
these
steps:
1. Written
Notice:
Written
notice
of
a
failure
to
file
is
sent
out
through
the
mail
on
approximately
the
1
st
of
the
month
following
the
due
date
of
the
return.
After
approximately
30
additional
days,
subsequent
mailings
are
sent
out
under
the
Town
Attorney’s
signature
for
failure
to
respond
or
file.
Copies
of
these
collection
letters
are
attached
as
Exhibits
3
and
4.
2. Municipal
Court
Complaint:
If
a
business
does
not
respond
to
the
Town’s
multiple
letter
requests
then
a
municipal
court
citation
is
issued
and/or
a
sales
tax
lien
is
placed
on
a
busine ss.
Often,
the
Sales
Taxpayer
is
instructed
by
the
Court
to
work
out
a
payment
plan
with
the
Finance
Department.
On
only
two
occasions
over
the
past
twenty
years
has
the
Finance
Director
issued
a
distraint
warrant
to
the
County
Sheriff.
A
distraint
warrant
is
an
order
to
seize
and
sell
personal
property
for
payment
of
delinquent
tax
amounts
due.
The
Town
works
cooperatively
with
the
Colorado
Department
of
Revenue
in
matters
involving
collection
of
state
sales
tax
delinquency.
3. Audits:
The
Finance
Direct or
is
responsible
for
examining
returns.
The
Director
performs
an
initial
examination
of
returns
as
taxes
are
remitted
to
determine
if
the
sales
tax
remittance
is
unusual
or
unexpected
considering
the
nature
of
the
business.
The
Director
has
authority
to
order
an
investigation
(i.e.
audit)
of
the
Retailer’s
books.4
Audits
are
sometimes
conducted
as
group
audits
of
large
Retailers
with
other
municipalities.
Audits
may
also
occur
for
a
select
number
of
specific
businesses
within
the
Town.
Businesses
are
selected
based
upon
size
of
the
business
and/or
concerns
identified
by
sales
tax
reports.
The
use
of
audits
is
relatively
rare
in
Avon.
The
Town
has
not
adopted
formal
programmatic
random
audits
for
each
business
category
in
a
manner
similar
to
larger
urban
municipalities.
In
2015,
the
Finance
Department
ordered
audits
of
seven
companies
(none
of
these
audits
involved
any
Retailers
selling
Building
Materials).
Four
of
the
audits
found
that
the
Retailer
was
in
compliance.
The
other
three
audits
resulted
in
additional
tax
assessments
of
$22,549.58.
The
total
cost
of
these
audits
was
$13,919.
The
Town
has
not
conducted
any
recent
audits
of
Building
Materials
suppliers
or
contractors.
An
audit
is
the
only
administrative
procedure
that
authorizes
the
Town
to
obtain
additional
information
on
specific
retail
transactions
beyond
the
general
reporting
of
gross
retail
sales.
Information
obtained
from
audits
is
confidential,
except
that
the
Town
may
publish
statistics
if,
“so
classified
as
to
prevent
the
identification
of
particular
reports
or
returns
or
items
thereof”.5
4
AMC
3.08.170
5
AMC
3.08.200
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
10
OF
20
SECTION
II
LEGAL
SUMMARY:
This
Section
II
–
Legal
has
been
prepared
by
Eric
J.
Heil,
Avon
Town
Attorney.
Avon
Town
Council
met
on
January
12,
2016
to
review
administration
of
the
Town’s
sales
tax
on
building
projects
in
Avon.
Specifically,
Council
discussed
and
reviewed
the
application
of
the
Town’s
sales
tax
to
Building
Materials
sold
by
out-‐of-‐town
Retailers
and
delivered
in
Avon.
Several
additional
legal
questions
were
raised
at
this
meeting
which
are
addressed
in
this
Section.
The
conclusions
in
this
Section
II
-‐
Legal
are
summarized
as
follows:
• Town
staff
has
an
affirmative
duty
to
administer
and
enforce
sales
tax
as
is
legally
permissible.
• A
change
in
administrative
procedures
to
increase
sales
tax
compliance
does
not
constitute
a
tax
policy
change
requiring
advance
voter
approval
where
Town
voters
have
previously
approved
the
Town’s
authority
to
exceed
revenue
limits
set
forth
by
TABOR.
• The
legal
effect
of
enacting
“tax
exemptions”
versus
“tax
credits”
versus
“tax
rebates”
should
be
understood
because
each
results
in
different
restrictions
on
the
legislative
discretion
of
future
Town
councils.
• The
voter
rejection
of
the
referred
Use
Tax
ballot
question
in
2002
does
not
affect,
restrict
or
diminish
the
Town’s
legal
authority
to
impose
and
collect
the
sales
tax
under
the
Town’s
sales
tax
regulations
and
authority.
• The
enactment
of
any
exemption,
tax
credit
or
tax
rebate
for
Building
Materials
will
likely
have
a
financial
affect
on
the
Village
(at
Avon).
The
degree
of
financial
affect
and
potential
financial
impact
depends
upon
the
scope
of
such
exemption,
credit
or
rebate.
• The
Town
Council
has
broad
discretion
to
enact
exemptions,
credits
and
rebates
on
sales
tax
imposed
on
Building
Materials
provided
that
such
tax
relief
is
(1)
for
a
public
purpose,
(2)
does
not
discriminate
against
a
protected
class
and
(3)
does
not
discriminate
against
interstate
commerce,
thereby
violating
the
dormant
commerce
clause.
• The
Town
is
not
liable
for
refunds
of
any
past
sales
taxes
imposed
and
collected
on
Building
Materials
if
Council
adopts
legislation
to
provide
an
exemption,
credit
or
rebate
of
sales
tax
on
Building
Materials.
Specific
legal
topics
are
discussed
as
follows:
TOWN’S
DUTY
TO
ADMINISTER
AND
ENFORCE
SALES
TAX:
Chapter
3.08
–
Sales
Tax
includes
several
provisions
for
enforcement
and
administration
of
the
Town’s
sales
tax
regulations.
Section
3.08.290
–
Administration
states,
“The
administration
of
all
the
provisions
of
this
Chapter
is
vested
in
the
Director
of
Finance,
who
may,
with
the
approval
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
11
OF
20
of
the
Town
Manager,
prescribe
forms
and
reasonable
rules
and
regulations
in
conformity
with
this
Chapter
for
the
making
of
returns,
for
the
ascertainment,
assessment
and
collection
of
the
taxes
imposed
hereunder,
and
for
the
proper
administration
and
enforcement
hereof,
a
copy
of
which
forms,
rules
and
regulations
shall
be
made
available
to
the
public.”
The
Avon
Home
Rule
Charter,
Section
8.3
Powers
and
Duties,
states
the
Town
Manager’s
first
power
and
duty
as,
“(a)
be
responsible
for
the
enforcement
of
laws
and
ordinances
of
the
Town.”
The
Town
Staff,
by
and
through
the
Town
Manager,
has
a
general
affirmative
duty
to
administer
and
enforce
the
collection
of
sales
tax.
TAX
POLICY
CHANGE:
The
Taxpayer’s
Bill
of
Rights
(“TABOR”)
was
an
amendment
to
the
Colorado
constitution
adopted
in
1992
that
established
a
variety
of
circumstances
related
to
increases
in
revenue,
taxation
and
debt
that
required
prior
voter
approval.
Article
X,
Section
20(4)(a)
states
that
[D]istricts
must
have
voter
approval
in
advance
for
.
.
.
any
new
tax,
tax
rate
increase,
mill
levy
above
that
for
the
prior
year,
valuation
for
assessment
ratio
increase
for
a
property
class,
or
extension
of
an
expiring
tax,
or
a
tax
policy
change
directly
causing
a
net
tax
revenue
gain
to
any
district.
[emphasis
added].
As
outlined
in
my
memorandum
of
January
8,
2016,
the
imposition
of
the
Town’s
4%
sales
tax
on
Building
Materials
delivered
into
Avon
is
based
on
the
sales
tax
regulations
properly
adopted
by
Avon
and
pre-‐dating
TABOR.
As
such,
the
imposition
of
the
Town’s
sales
tax
is
not
a
“new
tax”
or
“tax
rate
increase”
as
legally
defined
by
TABOR.
The
Colorado
Supreme
Court
announced
in
2009
Mesa
County
Board
of
County
Commissioners
case
that
a
“tax
policy
change
directly
causing
a
net
tax
revenue
gain
to
any
district”
must
be
considered
in
conjunction
with
Subsection
(7)
of
TABOR
concerning
revenue
limits.6
Where
prior
voter
approval
has
properly
occurred
to
allow
the
District
to
collect
revenues
in
excess
of
TABOR
revenues
limits,
a
subsequent
vote
is
not
required
for
each
tax
policy
change
directly
causing
a
net
tax
revenue
gain.
“We
find
that
a
tax
policy
change
directly
causing
a
net
tax
revenue
gain
only
requires
voter
approval
when
the
revenue
gain
exceeds
the
limits
dictated
by
subsection
(7).”
7
The
Mesa
County
Board
of
County
Commissioners
involved
a
challenge
to
legislation
to
direct
school
district
funds.
In
the
Town
of
Avon,
no
legislative
action
by
Council
has
occurred
with
regard
to
the
imposition
of
sales
tax
to
Building
Materials
delivered
into
Avon.
Rather,
the
imposition
of
the
Town’s
sales
tax
has
resulted
from
changes
in
case
law
and
administrative
efforts
to
increase
compliance
and
uniformity.
TABOR
CONSIDERATIONS:
The
Taxpayer’s
Bill
of
Rights
raises
several
legal
constraints
that
Council
should
understand.
The
Town
may
legally
enact
temporary
“tax
credits,”
which
may
expire
or
may
be
repealed
and
thus
effectively
allow
the
re-‐imposition
of
the
tax
without
constituting
a
“new
tax”
or
“tax
rate
increase”
that
requires
prior
voter
approval.
Tax
credits
may
be
extended
in
the
Council’s
discretion.
The
Town
Council
may
also
enact
“tax
rebates”
whereby
the
tax
continues
to
be
imposed,
is
collected,
and
then
is
rebated
to
the
party
paying
the
tax.
Tax
rebates
are
permissible
where
Council
has
determined
that
the
primary
reason
for
the
rebate
is
a
6 Mesa
County
Board
of
County
Commissioners
v.
State,
203
P.3d
519
(Colo.2009).
7
Mesa
County
Board
of
County
Commissioners,
at
P.529.
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
12
OF
20
public
purpose.
Tax
rebates
can
be
specific
to
a
community
policy
goal
(e.g.
affordable
housing)
or
specific
to
a
project
that
is
expected
to
provide
public
benefits.
Tax
rebates
are
essentially
an
agreement
to
appropriate
an
expenditure
of
revenues
received
and
therefore
must
be
“subject
to
annual
budget
and
appropriation”
or
must
be
new
“special
project
revenues”
in
order
to
comply
with
TABOR’s
restriction
on
multi-‐year
fiscal
obligations.
Alternatively,
the
enactment
of
a
“tax
exemption”
by
ordinance
is
permanent
and
such
exemption
cannot
be
repealed
or
reversed
without
voter
approval
in
compliance
with
TABOR.
EFFECT
OF
USE
TAX
REJECTED
BY
VOTERS:
The
Avon
voters
rejected
a
Use
Tax
in
2002.
The
referred
ballot
question
was
in
the
form
required
by
TABOR
and
asked
if
Town’s
taxes
should
be
increased,
“by
the
imposition
of
a
four
percent
(4%)
use
tax
on
the
privilege
of
using
or
consuming
in
the
Town
any
construction
materials.”
As
stated
in
my
January
8,
2016,
memorandum,
sales
tax
and
use
tax
are
legally
distinct.
Each
tax
has
a
separate
legal
authority
that
authorizes
the
imposition
of
such
tax.
The
scope
of
transactions
subject
to
sales
tax
and
the
scope
of
transactions
subject
to
a
use
tax
overlaps
and
courts
have
long
recognized
that
some
transactions
are
subject
to
both
the
sales
tax
and
use
tax
authority
(but
liable
to
pay
both
sales
tax
and
use
tax).
The
2002
Use
Tax
ballot
question
did
not
in
any
manner
affect
the
Town’s
legal
authority
to
impose
a
sales
tax
on
all
transactions
legally
subject
to
the
Town’s
sales
tax,
including
the
imposition
of
the
Town’s
sales
tax
on
retail
transactions
that
occur
within
the
Town
of
Avon.
Specifically,
the
2002
Use
Tax
did
not
ask
whether
the
use
or
consumption
of
construction
materials
in
Avon
should
be
exempt
from
paying
Avon’s
sales
tax.
The
Use
Tax
Ballot
Question
referred
to
the
voters
in
2002
was
worded
as
follows:
“SHALL
THE
TOWN
OF
AVON
TAXES
BE
INCREASED
$1.6
MILLION
($1,600,000)
ANNUALLY
IN
2003,
AND
BY
WHATEVER
ADDITIONAL
AMOUNTS
ARE
RAISED
ANNUALLY
THEREAFTER,
BY
THE
IMPOSITION
OF
A
FOUR
PERCENT
(4%)
USE
TAX
ON
THE
PRIVILEGE
OF
USING
OR
CONSUMING
IN
THE
TOWN
ANY
CONSTRUCTION
MATERIALS,
SUCH
USE
TAX
REVENUES
TO
BE
APPROPRIATED
AND
SPENT
SOLELY
FOR
TRANSPORTATION
AND
RECREATION
CAPITAL
PROJECTS
AND
SERVICES
AND
INFRASTRUCTURE
RELATED
THEREO
[SIC],
ALL
IN
ACCORDANCE
WITH
ORDINANCE
NO.
02 -‐18
ADOPTED
BY
THE
TOWN
COUNCIL;
AND
SHALL
THE
REVENUES
COLLECTED
FROM
SUCH
TAX
AND
ANY
EARNINGS
FROM
THE
INVESTMENT
OF
SUCH
REVENUES
BE
COLLECTED
AND
SPENT
AS
A
VOTER
APPROVED
REVENUE
CHANGE
AND
AN
EXCEPTION
TO
THE
LIMITS
WHICH
WOULD
OTHERWISE
APPLY
UNDER
ARTICLE
X,
SECTION
20,
OF
THE
COLORADO
CONSTITUTION
OR
ANY
OTHER
LAW?”
VILLAGE
(AT
AVON):
The
Town
of
Avon
originally
entered
into
an
Annexation
and
Development
Agreement
with
the
Village
(at
Avon)
in
1998
that
included
an
agreement
to
provide
a
“Tax
Credit”
on
Town
sales
tax,
accommodations
tax
and
real
estate
transfer
tax.
The
Annexation
and
Development
Agreement
was
amended
several
times,
then
was
substantially
revised
as
part
of
settlement
of
litigation
in
2014.
The
Consolidated,
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
13
OF
20
Amended
and
Restated
Annexation
and
Development
Agreement
for
the
Village
(at
Avon)
(“Development
Agreement”)
includes
the
Town’s
agreement
to
provide
a
credit
on
sales
taxes
on
“Taxable
Transactions”.8
This
Tax
Credit
is
codified
in
the
Avon
Municipal
Code
at
Section
3.08.035.
The
Development
Agreement
establishes
a
multi-‐party
arrangement
whereby
(1)
the
Town
of
Avon
provides
a
Tax
Credit,
(2)
the
non-‐profit
Public
Improvement
Companies
impose
a
“Public
Improvement
Fee”
or
“PIF”
on
retail
transactions
and
remit
those
revenues
to
the
Traer
Creek
Metropolitan
District,
and
(3)
the
Traer
Creek
Metropolitan
District
then
issues
tax
exempt
municipal
bonds
and
constructs
public
improvements
to
serve
development
in
the
Village
(at
Avon).
The
Development
Agreement
does
restrict
the
Town’s
ability
to
take
any
action
that
would
reduce
the
Tax
Credit
on
Taxable
Transactions,
but
does
not
restrict
the
Town’s
legislative
authority
to
enact
exemptions
to
transactions
that
are
subject
to
the
Town’s
sales
tax.
The
definition
of
“Taxable
Transaction(s)”
means
a
retail
sales
transaction
that
is
subject
to
the
Town’s
sales
tax.
[Emphasis
added].
Therefore,
the
Town
may
amend
its
sales
tax
regulation
by
ordinance
to
enact
new
exemptions,
thereby
defining
certain
transactions
that
are
not
subject
to
the
Town’s
sales
tax,
which
exemptions
would
then
apply
in
the
Village
(at
Avon).
Such
action
by
the
Town
would
not
violate
the
Development
Agreement.
However,
it
is
important
to
recognize
that
any
significant
legislative
change
to
the
Town’s
sales
tax
regulations
should
be
coordinated
with
Traer
Creek
Metropolitan
District
due
to
interrelated
financial
relationship.
Council
is
encouraged
to
understand
and
consider
any
potential
negative
consequences
that
new
sales
tax
exemptions
may
have
on
the
revenue
sources
and
ability
of
Traer
Creek
Metropolitan
District
to
service
outstanding
bonds.
DISCRETION
TO
GRANT
EXEMPTIONS:
The
Town
Council
may
adopt
exemptions
which
are
specific
to
certain
transactions
or
industries
provided
that
(1)
there
is
a
public
benefit
or
purpose
to
such
exemption
and
(2)
the
exemption
does
not
violate
constitutional
considerations.
There
are
many
examples
in
the
statutory
tax
authority
for
granting
exemptions,
or
legislatively
defining
certain
transactions
that
are
not
subject
to
a
tax.
Examples
of
sales
tax
exemptions
include
application
to
public
entities,
purchases
of
food,
purchases
of
food
with
food
stamps,
and
purchases
of
medical
supplies.
The
Town’s
existing
sales
tax
regulations
exempt
“medial
supplies”
“prosthetic
devices”
and
“therapeutic
devices”
from
the
imposition
of
sales
tax.9
With
regard
to
real
estate
transfer
tax,
the
Town
provides
an
exemption
for
the
first
$160,000
when
a
property
is
purchased
for
use
as
a
primary
residence.
The
Town
Council
may
grant
an
exemption
when
it
finds
that
the
exemption
will
promote
a
public
purpose.
Council
is
acting
in
a
legislative
capacity
when
enacting
such
exemptions.
8
Sec.
4.2(a)
of
the
Development
Agreement.
9
AMC
3.08.040
SALES
TAX
REPORT
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BUILDING
MATERIALS
February
4,
2016
PAGE
14
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20
Substantial
discretion
is
granted
by
courts
to
the
Town
Council
when
acting
in
a
legislative
capacity
to
determine
what
constitutes
a
valid
public
purpose.
However,
such
legislative
discretion
is
not
without
discretion.
Legal
limits
can
be
found
in
the
following
circumstances:
1. the
true
intent
is
to
provide
a
private
benefit
(i.e.
gift)
in
violation
of
the
gift
clause
of
the
Colorado
Constitution;
2. the
exemption
violates
equal
protection
(i.e.
discriminates
based
upon
a
protected
class
–
e.g.
race,
religion,
gender,
age,
etc.);
and,
3. the
legislation
would
discriminate
against
interstate
commerce
and
violate
the
dormant
commerce
clause
(e.g.
granting
an
exemption
for
Retailers
of
Building
Materials
located
in
Eagle
County
or
in
Colorado
but
imposing
the
sales
tax
on
out-‐
of-‐state
Retailers
that
deliver
Building
Materials
to
Avon).
EXEMPTION
FOR
PUBLIC
ENTITIES:
Section
3.08.050
Exempt
Tax
Payers,
subsection
(1)
provides
a
general
exemption
from
sales
tax
for
public
entities,
but
then
states
in
subsection
(3):
“Nothing
herein
contained
shall
be
deemed
to
exempt
from
the
tax
levied
by
this
Chapter
sales
of
building
material
or
supplies
to
be
used
by
a
contractor
for
the
construction
of
an
improvement
for
any
of
the
institutions
or
agencies
enumerated
in
Subsections
(1)
or
(2)
above.”10
The
language
in
subsection
(3)
differs
from
state
statute
which
does
exempt
public
entities
from
paying
state
and
county
sales
tax
and/or
use
tax
on
construction
materials
used
in
public
projects.
Council
may
adopt
language
that
parallels
state
statute.
EXEMPTION
FOR
AFFORDABLE
HOUSING:
Council
may
adopt
an
exemption
of
sales
tax
on
Building
Materials
for
housing
projects.
The
provision
of
adequate
and
affordable
housing
has
long
been
recognized
as
a
legitimate
public
purpose
for
all
levels
of
government.
It
is
well
within
Council’s
discretion
to
adopt
an
exemption
(or
credit
or
rebate)
on
sales
tax
on
Building
Materials
for
affordable
housing
projects.
Specific
considerations
for
any
sales
tax
exemption,
credit
or
rebate
for
affordable
housing
projects
include:
• Defining
projects
eligible
for
exemption.
Such
as
deed
restricted,
public/non-‐profit
rental
projects,
or
other
housing
projects
intended
to
serve
a
housing
demand.
• Applying
the
exemption
for
all
construction
materials,
whether
purchased
from
in-‐
town
vendors
and
out-‐of-‐town
vendors
who
deliver
materials
to
Avon.
• Adopting
an
exemption
versus
a
“credit”
or
“rebate.”
A
rebate
has
the
advantage
that
it
would
help
a
purchaser
avoid
paying
sales
tax
on
Building
Materials
in
another
municipality
and
a
rebate
could
be
reduced
or
terminated
in
the
future
without
requiring
voter
approval.
LIABILITY
FOR
REFUND
IF
CODE
AMENDED:
The
question
was
asked
if
the
Town
would
be
liable
for
a
refund
to
those
who
have
paid
the
Town
sales
tax
on
Building
Materials
10
This
language
was
adopted
in
1982
by
Ordinance
No.
82-‐27
SALES
TAX
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MATERIALS
February
4,
2016
PAGE
15
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20
delivered
in
the
Town
in
the
past
if
the
Town
amended
its
sales
tax
regulations
to
exempt
such
transactions.
As
stated
in
my
prior
memorandum
dated
January
8,
2016,
it
is
my
legal
opinion
that
existing
sales
tax
regulation
was
properly
adopted
and
may
be
legally
applied
to
the
sale
of
Building
Materials
when
those
retail
transactions
occur
in
Avon,
including
the
transfer
of
possession
or
title
of
such
Building
Material
by
delivery
in
Avon.
The
Town
is
not
legally
or
financially
liable
for
past
administration
and
enforcement
of
a
law,
including
a
sales
tax
regulation,
by
virtue
of
amending
or
partially
repealing
such
law
by
legislative
action.
THREE
YEAR
LIMITATION
OF
ACTIONS:
Section
3.08.330
–
Sales
tax
–
collection
–
limitation
of
actions
states
that
the
Town
may
commence
enforcement
actions
for
unpaid
sales
tax
for
up
to
three
years
after
the
date
on
which
the
tax
was
payable;
however,
when
a
Retailer
has
failed
to
file
a
return,
the
sales
tax
may
be
assessed
and
collected
at
any
time.
Section
3.08.340
–
Sales
tax
–
refunds
–
limitation
of
actions
states
that
an
application
for
refund
of
tax
moneys
paid
in
error
or
by
mistake
must
be
made
within
three
years
after
the
date
of
the
purchase.
If
there
was
a
successful
legal
challenge
the
Town’s
collection
of
sales
tax
on
Building
Materials
sold
by
out-‐of-‐town
Retailers
and
delivered
into
Town,
the
Town
could
be
liable
for
a
refund
of
all
similar
collections
for
the
preceding
three
year
period.
CHANGES
IN
FEDERAL
AND
STATE
LAW:
Federal
and
state
law
is
expected
to
continue
evolving
with
regard
to
the
imposition
of
sales
tax
on
out-‐of-‐jurisdiction
Retailers
who
deliver
goods
into
a
jurisdiction.
The
U.S.
Supreme
Court
Quill
Corp.
strongly
emphasized
that
Congress
has
a
direct
role
in
legislating
on
such
issues.
The
Market
Place
Fairness
Act
was
introduced
in
2010,
which
would
have
required
out-‐of-‐state
Retailers
to
collect
and
remit
sales
tax
on
purchases
shipped
to
residents.
The
Marketplace
Fairness
Act
(a
substantially
similar
bill)
was
introduced
in
2013
and
2015.
Although
Congress
has
not
yet
passed
legislation
requiring
on-‐line
Retailers
to
collect
and
remit
sales
tax,
several
large
internet
retailers
have
already
begun
collecting
and
remitting
sales
tax.
Amazon
recently
announced
that
it
will
collect
Colorado
state
sales
tax
after
an
on-‐going
legal
challenge
to
Colorado’s
law
to
require
consumers
to
pay
sales
tax
and
to
require
on-‐line
Retailers
to
report
sales
to
Colorado
consumers
to
the
Colorado
Department
of
Revenue.
The
national
trend
is
clearly
towards
on-‐line
Retailers
collecting
and
remitting
sales
tax
on
delivered
goods.
Any
change
in
the
national
law
to
legislate
that
sales
tax
may
be
imposed
upon
goods
that
are
delivered
(via
U.S.
mail,
common
carrier
or
any
other
method)
and/or
to
redefine
what
constitutes
“doing
business
in
a
state
or
local
jurisdiction”
will
most
likely
directly
affect
local
sales
tax
regulations.
Council
is
cautioned
to
be
mindful
of
adopting
any
permanent
exemptions
to
Avon’s
sales
tax
which
may
become
inconsistent
with
future
national
law
concerning
out-‐of-‐state
Retailers.
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
16
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20
SECTION
III
SUMMARY
OF
FINANCIAL
INFORMATION
Included
in
this
Section
III
–
Summary
of
Financial
Information
are
two
tables
containing
statistical
information
regarding
building
activity
and
a
discussion
regarding
credit
ratings.
Table
1.
Table
1
is
a
summary
of
sales
taxes
collected
on
Building
Materials
for
the
years
2010
through
2015.
Also
included
is
information
regarding
the
number
of
sales
tax
return
filers,
both
in-‐town
and
out-‐of-‐town,
for
each
Building
Materials
category.
In
addition,
totals
are
provided
for
both
in-‐town
and
out-‐of-‐town
Building
Materials
sales
tax
collections
and
filers.
Finally,
total
sales
tax
collections
for
all
categories
of
sales
taxes
for
both
in-‐town
and
out-‐of-‐town
are
presented.
Table
2.
Table
2
is
a
summary
of
commercial
and
residential
building
activity
including
the
number
of
permits
issued,
total
square
footage
and
value
for
commercial
construction,
and
the
number
of
dwelling
units
and
values
for
residential
construction.
Credit
Ratings.
Even
a
partial
reduction
in
the
Town’s
sales
tax
base
could
have
undesirable
consequences.
The
Town
is
proposing
to
issue
Certificates
of
Participation
for
its
portion
of
the
financing
of
the
joint
Police
/
Fire
Regional
Station
at
Buck
Creek.
In
the
past,
this
type
of
debt
has
been
rated
by
Standard
&
Poor’s
(A+)
and
Moody’s
(Aa3)
(see
attached
Exhibits
5
and
6)
due
primarily
to
the
Town’s
reserves,
consistent
financial
performance,
and
modestly-‐sized
tax
base
based
on
an
adequate
economy
supported
by
good
financial
management.
A
down-‐grade
in
these
ratings
would
undoubtedly
increase
the
interest
cost
of
the
Town’s
debt.
According
to
Moody’s
Credit
Opinion
for
the
Town
of
Avon,
page
4
states
that
both
a
“Deterioration
in
the
Town’s
financial
position”
and
“Substantial
decline
in
tax
base
size”
could
move
the
Town’s
ratings
down.
Enacting
any
sales
tax
exemption
which
is
not
common
for
Colorado
municipalities
and
which
is
viewed
as
a
material
change
to
the
Town’s
tax
base
could
adversely
affect
the
Town’s
credit
rating
from
both
Standard
and
Poor’s
and
Moody’s.
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
17
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20
SECTION
IV
LEGISLATIVE
OPTIONS
This
Section
IV
–
Legislative
Options
outlines
and
describes
options
for
Council
consideration
regarding
the
imposition
of
sales
tax
on
Building
Materials.
Some
of
the
options
may
be
combined
or
may
be
varied
by
Council
direction
and
community
input.
For
all
options,
it
is
assumed
that
the
effect
on
the
Town’s
budget
(either
positive
or
negative)
is
a
relevant
consideration
for
Council;
however,
it
difficult
and
somewhat
speculative
for
Town
staff
to
estimate
or
forecast
the
potential
financial
effect
of
each
option.
1. No
Legislative
Action:
Council
has
the
option
of
not
amending
Chapter
3.08
of
the
Avon
Municipal
Code.
Under
this
option,
Town
staff
would
continue
current
efforts
to
inform,
impose,
collect
and
enforce
the
Town’s
sales
tax
on
the
sale
of
Building
Materials
by
Retailers
located
outside
Avon
and
delivered
into
the
Town
of
Avon.
Town
staff
is
continuing
to
improve
and
update
the
administration,
notification
and
guidance
materials
to
facilitate
understanding
and
compliance
of
the
Town’s
sales
tax
requirements.
Direction
from
Council
would
be
appropriate
on
specific
methods
or
actions
that
would
best
accomplish
the
goal
of
improving
uniformity
and
compliance.
2. Enact
An
Exemption
on
Delivered
“Building
Materials”:
Council
may
amend
Chapter
3.08
to
expressly
exempt
the
application
of
sales
tax
on
Building
Materials
that
are
delivered
to
Avon
AND
where
the
Retailer
does
not
have
a
physical
office
presence
in
Avon.
Specific
considerations
on
the
details
of
such
an
exemption
include:
a. Should
the
definition
of
“Building
Materials”
that
qualify
for
exemption
include
only
Building
Materials
that
are
incorporated
into
the
real
estate
(e.g.
concrete,
lumber,
insulation,
drywall,
fasteners,
etc.)?
Should
the
exemption
apply
to
fixtures
(e.g.
appliances,
toilets,
sinks,
faucets,
furnace,
etc.)?
Should
the
exemption
include
the
sales
of
material
and
equipment
from
“retailer-‐
contractors”?
b. Should
an
exemption
for
delivered
“Building
Materials”
also
apply
to
out-‐of-‐town
Retailers
that
actively
advertise
within
the
Town
of
Avon
or
actively
use
sales
persons
within
the
Town
of
Avon?
(Active
advertisement
and
the
use
of
sales
persons
within
the
jurisdiction
are
facts
which
courts
have
considered
relevant
and
material
when
determining
whether
a
business
is
‘conducting
business’
within
a
jurisdiction
and
therefore
subject
to
that
jurisdictions
taxation).
c. Are
there
any
financial
consequences
to
the
Town’s
credit
rating?
d. Are
there
any
financial
consequences
to
the
Traer
Creek
Metropolitan
District’s
ability
to
service
existing
debt
and
ability
to
issue
new
debt
to
finance
the
construction
of
additional
public
improvements
in
the
Village
(at
Avon).
SALES
TAX
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MATERIALS
February
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2016
PAGE
18
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e. Are
there
any
impacts
to
existing
and
future
in -‐town
Retailers
of
Building
Materials
arising
from
such
an
exemption.
f. Will
this
exemption
result
in
the
contractor
paying
sales
tax
to
another
municipality
when
the
Retailer’s
physical
location
is
in
another
municipality?
3. Enact
an
Exemption
on
all
“Building
Materials”:
Council
may
amend
Chapter
3.08
to
exempt
from
sales
tax
all
Building
Materials,
whether
purchased
from
a
Retailer
located
outside
Avon
and
delivered
into
the
Town
of
Avon
or
purchased
from
a
Retailer
located
in
Avon.
Specific
considerations
on
the
details
of
such
an
exemption
include:
a. The
general
considerations
stated
above
concerning
the
definition
of
Building
Materials;
and,
b. A
comprehensive
exemption
would
significantly
impact
Public
Improvement
Company
fee
revenue
sources
from
Home
Depot
and
other
retailer-‐vendors
in
the
Village
(at
Avon)
which
may
materially
affect
the
existing
Public
Improvement
Fee
revenue
streams
and
the
ability
of
Traer
Creek
Metropolitan
District
to
service
existing
debt
payments.
4. Enact
an
Exemption
on
all
Delivered
Materials:
Council
may
amend
Chapter
3.08
to
exempt
all
tangible
personal
property
from
Town’s
sales
tax
when
sold
by
a
Retailer
located
outside
of
Avon
but
delivered
into
the
Town
of
Avon.
Specific
considerations
on
the
details
of
such
an
exemption
include:
a. Consideration
of
marketing
activities
within
the
Town
by
out-‐of-‐town
Retailer;
and,
b. The
competitive
impact
on
existing
in-‐town
Retailers.
5. Enact
an
Exemption
for
Public
Facilities
and
Projects:
Council
may
amend
Chapter
3.08
to
exempt
the
imposition
of
sales
tax
on
Building
Materials
used
for
public
facilities
and
projects.
Such
exemption
would
simply
repeal
Section
3.08.050(3)
so
that
the
Town’s
sales
tax
regulations
are
consistent
with
the
State’s
sales
tax
regulations.
Such
an
exemption
would
apply
to
both
sales
by
in-‐town
Retailers
and
sales
by
out-‐of-‐town
Retailers
that
deliver
to
Town.
6. Enact
an
Exemption
for
Affordable
Housing
Projects:
Council
may
amend
Chapter
3.08
to
exempt
the
imposition
of
sales
tax
on
Building
Materials
for
affordable
housing
projects.
Specific
considerations
on
the
details
of
such
an
exemption
include:
a. Defining
what
qualifies
as
an
affordable
housing
project
(e.g.
deed
restriction);
and,
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
19
OF
20
b. Whether
to
apply
the
exemption
to
sales
by
both
out-‐of-‐town
and
in-‐town
Retailers.
7. Enact
a
“Credit”
or
“Rebate”
Rather
Than
Exemption:
Council
may
provide
sales
tax
relief
in
the
form
of
a
credit
or
rebate
rather
than
an
exemption.
A
“credit”
or
a
“rebate”
may
be
repealed
or
re-‐defined
in
scope
without
the
requirement
of
advance
voter
approval
as
required
by
the
Taxpayer’s
Bill
of
Rights.
A
credit
or
rebate
may
be
more
appropriate
when
granting
tax
relief
for
affordable
housing
projects
because
the
Council
retains
greater
flexibility
to
update
the
definitions
and
scope
of
the
credit
or
rebate
over
time
depending
upon
circumstances.
8. Enact
a
Temporarily
Reduced
Sales
Tax
on
Delivered
Building
Materials:
Council
may
enact
a
temporary
sales
tax
credit
or
rebate
on
delivered
building
materials
which
is
phased
out
over
time.
The
Town’s
existing
4%
sales
tax
was
originally
phased-‐in
such
that
the
sales
tax
rate
was
1%
for
the
first
year,
2%
the
second
year,
3%
the
third
year,
and
the
full
4%
commencing
on
the
fourth
year.
9. Refer
a
Use
Tax
Ballot
Question
for
Voter
Consideration:
Council
may
refer
a
ballot
question
on
Use
Tax
to
the
next
eligible
TABOR
election
on
November
8,
2016,
which,
if
approved
by
the
Avon
voters,
would
(1)
complement
the
Town’s
sales
tax,
as
widely
recognized
throughout
the
nation,
(2)
would
be
more
comprehensive
in
applying
to
all
goods
used
in
Avon
rather
than
goods
that
are
delivered
in
Avon
or
sold
in
Avon,
and
(3)
would
significantly
simplify
administration,
compliance
and
enforcement.
10. Dedicate
Sales
Tax
on
Building
Materials
to
a
Specific
Purpose:
Council
may
enact
an
ordinance
pledging
the
revenue
from
sales
tax
on
Building
Materials
to
a
specific
purpose
(e.g.
capital
improvement
projects,
affordable
housing).
Council
has
previously
enacted
an
ordinance
pledging
Real
Estate
Transfer
Tax
revenues
to
the
capital
improvement
projects
fund.
An
ordinance
adopting
a
pledge
or
earmark
of
revenues
for
an
identified
purpose
can
be
changed
by
a
future
Council
by
adoption
of
a
new
ordinance.
SALES
TAX
REPORT
ON
BUILDING
MATERIALS
February
4,
2016
PAGE
20
OF
20
SECTION
V
RECOMMENDATIONS
FOR
SALES
TAX
ADMINISTRATION
IMPROVEMENT
Town
staff
provides
the
following
recommendations
to
improve
sales
tax
administration:
1. Meet
with
New
Licensees.
Newly
licensed
contractors
would
be
required
to
meet
with
Finance
Department
representatives
prior
to
being
issued
a
building
permit
to
ensure
they
have
the
proper
business
license,
determine
whether
or
not
they
are
required
to
have
a
sales
tax
license,
and
provide
necessary
assistance
and
guidance
in
these
processes.
2. Create
and
Publish
Administrative
Guidelines.
Administrative
Guidelines
would
be
used
to
provide
more
information
and/or
guidance
on
specific
sales
tax-‐related
issues.
They
can
be
more
detailed
than
the
Municipal
Code
and
can
use
real-‐life
examples.
3. Reach-‐out
to
Potential
New
Licensees.
Conduct
periodic
informational
campaigns
to
inform
the
public
and
potential
new
businesses
about
the
Town’s
licensing
requirements.
4. Work
with
Community
Development
Department.
Coordinate
with
the
Community
Development
Department
to
identify
ways
to
ensure
compliance
with
the
Town’s
licensing
requirements.
5. Website
Improvements.
Continue
to
review
information
provided
on
the
Town’s
website
and
update
when
appropriate
to
improve
it’s
efficiency,
accessibility
and
functionality
for
users.
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
EXHIBIT 5
EXHIBIT 5
EXHIBIT 5
EXHIBIT 5
EXHIBIT 6
EXHIBIT 6
EXHIBIT 6
EXHIBIT 6
TABLE 1
SALES TAX COLLECTIONS RELATED TO BUILDING MATERIALS
2010 - 2015
# of # of # of # of # of # of
Building Materials NAICS Category Amount Filers Amount Filers Amount Filers Amount Filers Amount Filers Amount Filers
Other Foundation, Structure, and Building Exterior Contractors 2,273.07$ 3 2,294.76$ 4 8,398.86$ 4 9,979.07$ 4 3,379.96$ 4 32,451.13$ 8
Other Building Equipment Contractors 14,209.32 15 10,237.09 16 21,712.16 21 19,251.09 33 22,227.27 33 45,839.52 31
Other Building Finishing Contractors 1,818.96 1 2,166.79 1 2,769.98 2 3,348.02 5 46,031.75 7 37,766.96 10
All Other Specialty Trade Contractors 6,340.97 19 10,234.98 17 9,769.90 15 8,709.09 22 92,789.42 33 123,600.94 49
Lumber Merchant Wholesalers 10,393.80 1 21,542.15 2 17,054.55 2 18,983.05 4 30,510.01 4 17,517.59 4
Plumbing & Heating Equip & Supplies Merchant Wholesalers 96,715.12 4 111,142.41 3 122,178.23 3 132,259.19 5 175,269.12 6 174,362.76 5
Floor Covering Stores - 2 - 0 - 0 - 2 49,140.77 9 73,515.17 10
Window Treatment Stores - 1 - 1 - 1 1,483.69 3 1,074.50 3 - 2
Household Appliance Stores - 1 2,064.67 3 57,691.60 3 28,660.05 4 15,958.72 4 18,895.68 4
Home Centers - 2 - 2 - 2 - 2 63,902.97 3 78,357.71 4
Paint and Wallpaper Stores - 0 - 0 - 0 - 2 - 1 - 1
Other Building Material Dealers 78,621.58 12 78,444.13 16 91,737.20 14 115,155.11 17 101,512.48 14 40,803.39 11
Total Sales Tax on Building Materials 210,372.82$ 61 238,126.98$ 65 331,312.48$ 67 337,828.36$ 103 601,796.97$ 121 643,110.85$ 139
In Town vs. Out-of-Town Building Materials
In-Town 166,153.97$ 14 180,253.80$ 14 258,564.76$ 15 237,766.41$ 18 282,975.73$ 16 331,502.90$ 21
Out-of-Town 44,218.85 47 57,873.18 51 72,747.72 52 100,061.95 85 318,821.24 105 311,607.95 118
Total 210,372.82$ 61 238,126.98$ 65 331,312.48$ 67 337,828.36$ 103 601,796.97$ 121 643,110.85$ 139
In Town vs. Out-of-Town - All Categories
In-Town 4,897,186.29$ 90.59%4,838,603.47$ 88.87%5,003,178.47$ 89.58%5,698,370.34$ 89.58%6,091,583.92$ 86.19%6,533,511.26$ 86.56%
Out-of-Town 508,767.08 9.41%606,209.76 11.13%582,045.10 10.42%662,697.53 10.42%976,175.54 13.81%1,014,359.53 13.44%
Total 5,405,953.37$ 100.00%5,444,813.23$ 100.00%5,585,223.57$ 100.00%6,361,067.87$ 100.00%7,067,759.46$ 100.00%7,547,870.79$ 100.00%
Notes:
(1) In those instances where there is less than 3 filers in a category, the sales tax amounts have been added to the
category titled "Other Building Material Dealers" in order to maintain confidentiality.
201520102011201220132014
TABLE 2
COMMERCIAL AND RESIDENTIAL CONSTRUCTION
LAST TEN FISCAL YEARS
Total
Total Building
Permits Square No. of Construction
Year Issued Footage Value Units Value Value
2006 146 26,639 114,860,200$ 12 13,980,955$ 128,841,155$
2007 166 19,242 25,248,538 93 10,970,648 36,219,186
2008 145 11,416 2,525,749 15 11,165,780 13,691,529
2009 91 - 725,000 3 8,683,371 9,408,371
2010 112 16,517 3,215,036 7 9,806,550 13,021,586
2011 125 2,210 922,600 9 8,412,190 9,334,790
2012 126 54,250 11,400,000 8 2,448,500 13,848,500
2013 159 217,293 27,121,876 12 9,027,760 36,149,636
2014 156 - 1,500,000 10 13,735,900 15,235,900
2015 163 179,149 16,207,000 25 18,792,261 34,999,261
Source: Town of Avon Community Development Department
Commercial Construction Residential Construction
TOWN COUNCIL REPORT
To: Honorable Mayor Jennie Fancher and Avon Town Council
From: Justin Hildreth, Town Engineer
Meeting Date: February 9, 2016
Agenda Topic: Fourth Amendment to Intergovernmental Agreement for a Joint Fire-Police Station
Facility between the Town of Avon and the Eagle River Fire Protection District for
Review and Action on Fee Waiver Request by Eagle River Fire Protection District
ACTION BEFORE COUNCIL
To review and approve, approve with changes or deny the Fourth Amendment to the
Intergovernmental Agreement to waive Building Permit fees and planning review fees, allocate
Town of Avon Water Tap Fee to the project, and delay the decision to waive the Exterior Energy
Offset Program fee until the geothermal feasibility study is completed for the proposed Public Safety
Facility (PSF).
PROPOSED MOTION
I move to approve the Fourth Amendment to the Intergovernmental Agreement for a Joint Fire-
Police Station Facility between the Town of Avon and the Eagle River Fire Protection District, which
waives Building Permit fees and planning review fees, and allocates the payment of the Town of
Avon Water Tap Fee to offset the actual water infrastructure costs for the project. Action on the
request to waive the Exterior Energy Offset Program fee will be delayed until the results of the
geothermal feasibility study is completed.
DISCUSSION
The Eagle River Fire Protection District (ERFPD) is requesting that each entity waive respective
development fees for the Public Safety Facility since this is a joint public facility that provides
important benefits to the community. Below is a listing of each fee, what it is used for, how it is
calculated, and a recommendation if it should be waived.
The final land area needed for the Police Station building and associated parking was finalized with
the development of the Schematic Design. Based upon the methodology approved in the Second
Amendment to the IGA, the final calculation resulted in less land needed, and, as such, a lower
purchase amount. This final calculation is provided below.
ERFPD Fees
The ERFPD charges three types of development fees that can be waived for the project:
• Fire Sprinkler Permit and Plan Check Fee cover ERFPD’s expenses in reviewing,
permitting and inspecting fire sprinkler systems. The fee is based on building square
footage and the split will be based on each entities square footage use of the building.
Page 2
• Fire Alarm Permit and Plan Check Fee cover ERFP’s expenses in reviewing, permitting and
inspecting fire alarm systems. The fee is based on building square footage and the split
will be based on each entities square footage use of the building.
• ERFPD Impact Fee, which is included in the Avon Municipal Code and is based on the
water meter size, covers the impact of new development on providing fire protection
services. The fee will be split 50/50 since the water services infrastructure will be split
50%50% as agreed upon in the existing IGA.
Town of Avon Fees
The Town of Avon Building Permit fee and planning fees are split 45% Avon and 55% ERFPD based on
the valuation of the project. The following is a brief description of the fees the Town charges for this
type of development:
• The Building Permit fee is based on the valuation of the project using formulas in the
International Building Code and is intended to cover all Town cost to review and inspect
the building. This fee can be waived by Town Council since the project provides a benefit
to the community. If the fee is not waived, it should be adjusted based on the actual
construction costs of each entity.
• The planning review fees, as outlined in the Avon Municipal Code, cover the Town’s
expenses to provide planning review and approval. This fee can be waived by Town
Council since the project provides a benefit to the community.
• The Town of Avon Water Tap Fee is $4,000 per Single Family Equivalent (SFE) as outlined
in the Avon Municipal Code and must be used to cover water infrastructure costs. The
PSF will have a 2” water meter, which corresponds to 10.30 SFEs, and an Avon Water Tap
Fee of $41,200. The fee would be split evenly between Avon and the ERFPD since it is an
infrastructure cost, which are split evenly in the existing IGA. This fee can be waived or
allocated to cover water infrastructure costs of the project, including the water service
line and piping the Nottingham Puder Ditch.
• The Exterior Energy Offset Program was recently adopted by Town Council. The
program charges $16/SF fee on exterior snowmelt systems. Monies are contributed to a
fund, which is then contributed to other residential projects to lower nonrenewable
energy use. The fund is administered by Eagle County.
The fee and can be reduced when onsite renewable power generation (i.e. geothermal)
is developed and equal to 50% of the energy needs of snowmelt. A feasibility study is
underway for the site and the results should be known and presented at the March 1,
2016, Town Council meeting. Any geothermal benefit would be useable only by the
building, as geothermal cannot be used to melt snow. If geothermal is feasible for the
building, the energy use can be quantified and applied to the exterior snowmelt. If the
study does not result in the nonrenewable offset meeting the code requirements, staff
recommends the fee be paid by both the Town and ERFPD.
Avon Land Cost Reconciliation
As part of the Second IGA Amendment, the final land cost for the Town’s Police Department was
updated to match the revised program. The updated programs, based upon the methodology used
to compute land costs, calculated that the Town’s land cost should be $835,847 versus a previous
estimate of $852,042, a $16,195 reduction. Town Council representatives Jennie Fancher and Buz
Page 3
Reynolds found the amount to be non-substantive, for the purposes of finalizing the Second IGA
Amendment, allowing the continuation of building design to proceed. The Town Council should
make a final determination on how to address the final land cost.
TABLE 1
Summary of Fees Recommended to be Waived
Town of Avon Fees Total Fee Avon Portion ERFPD Portion
Building Permit $ 91,809 $ 41,314 $ 50,495
Planning Review Fee $ 1,400 $ 630 $ 770
Total Avon Fees Waived $ 93,209 $ 41,944 $ 51,265
ERFPD Fees
Fire Sprinkler Permit $ 2,829 $ 1,316 $ 1,513
Fire Alarm Permit $ 1,918 $ 892 $ 1,026
Fire Impact Fee $ 8,857 $ 4,429 $ 4,429
Total ERFPD Fees Waived $ 13,604 $ 6,637 $ 6,968
TOTAL WAIVED FEES $ 106,813 $ 48,580 $ 58,233
Note: Avon is waiving $79,605 more in fees than the ERFPD.
TABLE 2
Summary of Fees Not Recommended to be Waived
Fees Total Fee Avon Portion ERFPD Portion
Avon Water Tap Fee $ 41,200 $ 20,600 $ 20,600
PENDING STUDY: Exterior Energy Off-
Set Program
$ 125,360 $ 15,096 $ 110,264
TOTAL FEES $ 166,560 $ 35,696 $ 130,864
Attachment A: Fourth Amendment to Intergovernmental Agreement for a Joint Fire-Police Station
Facility Between the Town of Avon and the Eagle River Fire Protection District
ATTACHMENT A
ERFPD-Avon Fourth Amendment February 2, 2016 Page 1 of 4
FOURTH AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
FOR A JOINT FIRE-POLICE STATION FACILITY
BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE PROTECTION DISTRICT
THIS FOURTH AMENDMENT TO AN INTERGOVERNMENTAL AGREEMENT
(“Fourth Amendment”) is made and entered into on February 2, 2016, (“Effective Date”) by
the Town of Avon, a home rule municipal corporation of the State of Colorado (“Avon”) and the Eagle River Fire Protection District, a quasi-municipal corporation and political subdivision of
the State of Colorado organized under Title 32 of the Colorado Revised Statutes (“Fire
District”) (collectively, the “Parties,” and each individually a “Party”).
RECITALS
WHEREAS, the Parties have entered into an Intergovernmental Agreement for a Joint Fire-Police Station Facility Between the Town of Avon and the Eagle River Fire Protection District (“IGA”), dated April 28, 2015; and the Parties have entered into a MEMORANDUM OF
AGREEMENT REGARDING COST SHARING FOR PROGRAMMING, DESIGN AND PRE-
CONSTRUCTION MANAGEMENT OF A JOINT FIRE-POLICE STATION FACILITY
BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE PROTECTION DISTRICT dated June 9, 2015 (“MOA”); and the Parties have entered into a SECOND AMENDMENT TO INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE-POLICE
STATION FACILITY BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE
PROTECTION DISTRICT, dated January 11, 2015 (“2nd Amendment to IGA”); and the Parties
have entered into a THIRD AMENDMENT TO INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE-POLICE STATION FACILITY BETWEEN THE TOWN OF AVON
AND THE EAGLE RIVER FIRE PROTECTION DISTRICT, dated February 9, 2016; and,
WHEREAS, the Fire District has submitted a written request to Avon dated January 15, 2016,
requesting, among other matters, Avon to waive water tap and building permit fees as may be
applicable to the joint fire-police station facility project in order to reduce the cost of the project; and,
WHEREAS, the Fire District has agreed to waive its fire sprinkler permit fee, fire alarm permit
fee, and fire impact fee as may be applicable to the joint fire-police station facility project in
order to reduce the cost of the
WHEREAS, Avon desires to accommodate the request of the Fire District to reduce the cost of the regional fire station by waiving the cost of Avon’s building permit and planning review fees
as may be applicable to the joint fire-police station facility; and,
WHEREAS, Paragraph 14 provides that Parties may amend the IGA; and,
WHEREAS, this Third Amendment is authorized pursuant to §29-1-201 and §30-11-101,
Colorado Revised Statutes, as amended, and Article XIV, Section 18, of the Colorado Constitution.
ATTACHMENT A
ERFPD-Avon Fourth Amendment February 2, 2016 Page 2 of 4
NOW THEREFORE, in consideration of the covenants and mutual agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Parties, the Parties hereto agree as follows:
1. Effective Date. This Fourth Amendment shall commence on the Effective Date.
2. Waiver of Fees. As summarized in Exhibit 1, Avon agrees to waive building permit
fees planning review fees in an amount not to exceed $ 93,209 and the Fire District agrees to
waive fire sprinkler fees, fire alarm fees and fire impact fees in an amount not to exceed
$13,604.4 related to the construction of the regional fire and police station facility on Lot 1B,
Buckcreek Subdivision, Town of Avon, CO, subject to the following conditions:
a. The Fire District voters approve a ballot question for financing the construction of the
regional fire station facility on Lot 1B, Buckcreek subdivision, Avon, CO on May 3, 2016;
b. The Avon voters approve a ballot question for financing the construction of a police
station on Lot 1B, Buckcreek subdvision, Avon, CO on May 3, 2016; and,
c. The Fire District submit a complete building permit application by August 1, 2017, that complies in all material respects with the Avon Municipal Code, including but not
limited to, Avon’s building regulations as adopted in Title 15 of the Avon Municipal Code.
3. Other Terms in Full Force and Effect. All other terms in the IGA, as amended by the
MOU and the Second Amendment, shall remain in full force and effect.
EXECUTED as of the date first written above.
TOWN OF AVON, COLORADO
BY: ATTEST: _____________________________________ ______________________________
Jenny Fancher, Mayor Debbie Hoppe: Town Clerk
APPROVED AS TO FORM:
____________________________________
Eric J. Heil, Esq., Avon Town Attorney
ATTACHMENT A
ERFPD-Avon Fourth Amendment February 2, 2016 Page 3 of 4
EXECUTED as of the date first written above.
EAGLE RIVER FIRE PROTECTION DISTRICT
BY: ATTEST:
____________________________________ _____________________________
Jennifer Cartmell Hays, Chairperson Clark Shivley, Secretary APPROVED AS TO FORM:
____________________________________ James P. Collins, Esq.
ATTACHMENT A
ERFPD-Avon Fourth Amendment February 2, 2016 Page 4 of 4
EXHIBIT 1
Town of Avon Fees Total Fee Avon Portion ERFPD Portion
Building Permit $ 91,809 $ 41,314 $ 50,495
Planning Review Fee $ 1,400 $ 630 $ 770
Total Avon Fees Waived $ 93,209 $ 41,944 $ 51,265
ERFPD Fees
Fire Sprinkler Permit $ 2,829 $ 1,316 $ 1,513
Fire Alarm Permit $ 1,918 $ 892 $ 1,026
Fire Impact Fee $ 8,857 $ 4,429 $ 4,429
Total ERFPD Fees Waived $ 13,604 $ 6,637 $ 6,968
TOTAL WAIVED FEES $ 106,813 $ 48,580 $ 58,233
TOWN COUNCIL REPORT
To: Honorable Mayor Jennie Fancher and Avon Town Council
From: Matt Pielsticker, Planning Director Meeting Date: February 9, 2016
Agenda
Topic: Intergovernmental Agreement between Town of Avon and Eagle County for
Plan4Health Project
ACTION BEFORE COUNCIL
Execution/approval of the Intergovernmental Agreement (IGA) between Town of Avon and Eagle
County Government for the Plan4Health project.
PROPOSED MOTION
Approve IGA between Town of Avon and Eagle County for the Plan4Health project.
2016 BUDGET INFORMATION
In exchange for participation in the project, following completion of the policy scan component, the
Town of Avon will receive $5,000 (transfer of funds anticipated during summer, 2016). This project
will require minimal staff time from Town of Avon Staff (Community Development Department).
BACKGROUND
The Healthy Communities Coalition of Eagle County, which is comprised of multidisciplinary
professionals and community members and coordinated by Eagle County Government, received
Plan4Health grant funds to support healthy eating and active living (HEAL) for all in Eagle County.
Through the Plan4Health project, the Coalition will:
• Gain a common understanding of HEAL attributes by examining the comprehensive plans of
six Eagle River Valley Towns (Gypsum, Eagle, Avon, Minturn, Red Cliff, and Vail) and Eagle
County.
• The review of comprehensive plans will inform future resolutions for passage by
municipalities that outline their community’s specific priorities related to HEAL in the built
environment, and Towns will receive recommendations on how to better incorporate HEAL
priorities in to future plans.
• Finally, given that community voice is critical to community planning processes, the Coalition
will seek to understand each municipality’s experience with community engagement and
provide tools and resources to help municipalities with future outreach. In addition, a plan
for more coordinated authentic community engagement efforts and information sharing will
be explored.
Page 2
Katie Haas, Healthy Communities Coordinator, Eagle County Public Health and Environment, will give
a brief presentation to highlight the grant and expected outcomes for local communities.
EXHIBIT
IGA between Town of Avon and the County of Eagle
INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF AVON
AND THE COUNTY OF EAGLE, COLORADO
FOR PLAN4HEALTH PROJECT This Intergovernmental Agreement (“Agreement”) by and between EAGLE COUNTY, a
body politic and corporate of the State of Colorado (“County”) and Town of Avon, a Colorado municipal corporation (“Town”) (collectively the “Parties”) is effective this ____ day of __________, 2016.
WHEREAS §29-20-101 et seq., C.R.S. enables the Parties to enter into Intergovernmental
Agreements and authorizes each of the Parties to perform the functions described herein, as
provided in §29-20-105 C.R.S.; and
WHEREAS, the American Planning Association (“APA”), in partnership with the American Public Health Association received an award from the Centers of Disease Control and Prevention
(the “Sponsor”) as part of the National Dissemination and Implementation program within the
Division of Community Health, Funding Opportunity Announcement #DP14-1418. These funds
have allowed the APA to bring support to local coalitions in efforts to reduce chronic disease in communities across the United States through the APA’s Plan4Health project (the “Plan4Health Project”); and
WHEREAS, the Healthy Communities Coalition of Eagle County (the “Healthy
Communities Coalition”), in conjunction with the Colorado Public Health Association and the
Colorado Chapter of the APA (the “Colorado APA”), applied for funding under the Plan4Health Project; and,
WHEREAS, APA Colorado received an award of grant funds (the “Grant Award”) from the
APA pursuant to the Plan4Health Project Grant Agreement (the “Grant Agreement”); and,
WHEREAS, Eagle County is the subgrantee of such Grant Award and is working
collaboratively with the Healthy Communities Coalition to implement the Plan4Health Project in Eagle County; and
WHEREAS, the Plan4Health project will enable the Healthy Communities Coalition to
further its mission to increase opportunities for healthy eating and active living (HEAL) for all in
Eagle County by 1) enabling a policy scan of municipal comprehensive plans for components
that support or deter HEAL, 2) supporting municipalities to pass resolutions prioritizing HEAL and 3) providing resources to municipalities to support community engagement; and
WHEREAS the Town has determined that it is in the best interest of the Town and its
inhabitants to contribute to the efforts of Eagle County and the Health Communities Coalition in
support of and implementation of Plan4Health Project; and
WHEREAS the Plan4Health Grant Award allows for payment of an administrative fee to the Town in exchange for the Town’s commitment to and participation in the Plan4Health Project; and
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WHEREAS, the Parties desire to enter into this Intergovernmental Agreement to define the
manner in which the Town will participate in the Plan4Health Project.
NOW THEREFORE, in consideration of the mutual rights and obligations as set forth
below, the parties agree to the following:
A. SCOPE OF PROJECT.
1. The County will collaborate with the Town to conduct a policy scan of the
Town’s comprehensive plan to determine existing policies that support and/or prohibit healthy
living in the context of the built environment. The policy scan will be facilitated by a
subcontractor engaged with Plan4Health Grant Funds and managed by the County. The County will additionally collaborate with and support the Town in consideration and adoption of a
resolution to prioritize goals relating to healthy living. The Town will also be encouraged to
consider amendments, modifications and additions to existing local government health related
policies to prioritize healthy living goals.
2. The Town agrees to work with County Representatives, as well as subcontractors engaged with Plan4Health Funds and managed by the County, to facilitate the Plan4Health
Project. The Town’s participation may entail attending occasional meetings, providing access to
requested policy documents (e.g. comprehensive plan), and answering questions relating to those
documents. Total staff time to be devoted by the Town to the Plan4Health Project is anticipated
to be minimal.
3. The Town may participate in additional Project Strategies that may include:
working with County and Plan4Health Grant Project subcontractors to develop a framework and
system for community engagement, participating in learning opportunities about authentic
community engagement, and receiving materials to support municipal community outreach
efforts.
B. TOWN COMMITMENTS. The Town has determined that it is in the best interest of
the Town and its inhabitants to contribute to the efforts of Eagle County and the Healthy
Communities Coalition in support of and implementation of Plan4Health Project. The Town is
committed to participating in the Scope of Project outlined and to collaborate with and support
Eagle County and the Healthy Communities Coalition in implementation of the Plan4Health Project. To the extent applicable, the Town shall be subject to the terms and conditions of the
Plan4Health Grant Agreement between the APA and the Colorado APA.
C. AUTHORIZED REPRESENTATIVES. The County designates Katie Haas, of the Eagle
County Public Health and Environment and Kris Valdez, Eagle County Planner, as its
Representatives for the Agreement. The County’s Representatives are its liaison officers to the Town for all purposes in carrying out the Agreement. The Town designates _______ as its
Representative for the Agreement. The Town’s Representative is its liaison officer to the County
for all purposes in carrying out the Agreement.
D. FUNDING. In exchange for the Town’s commitment to and participation in the
Plan4Health Project and the Scope of Project outlined above, the Town will receive funding from the Grant Award in an amount not to exceed $5,000.00 (the “Project Funds”). The Project
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Funds should be used in support of the Town’s participation in this Agreement and the
Plan4Health Project. Disbursement of the Project Funds will be made to the Town upon
completion of the Project Strategy 1 policy scan, referenced in Section A above. Additional
funds from the Grant Award may be disbursed to the Town for additional projects deemed necessary by the Plan4Health Project. In such case, the Town will submit an invoice and
supporting documentation to the County identifying the additional tasks or projects performed.
Disbursement of additional funds from the Grant Award will be made in accordance with the
Plan4Health financial requirements and guidelines. The Town acknowledges that the County is
not responsible for any payments which may become due to the Town under the Plan4Health Project or this Agreement. Plan4Health Funding is regulated under Code 45 of the Federal
Regulations (CFR) Part 75, Uniform Administrative Requirements, Cost Principles and Audit
Requirements for HHS Awards. As specified in this Code, Project Funds may not be used for
lobbying purposes.
E. PERSONNEL. Every Town officer and employee engaged in performing under this Agreement shall remain an officer or employee of the Town while performing the same. The
relationship of the Town to Eagle County under this Agreement is that of independent political
bodies. This Agreement does not change the status of any employee, contractor or officer of the
Town or County. The Town shall have no authority to bind or commit the County to any
agreement or other obligations.
F. LIABILITY. The County, its officers and employees, shall not be deemed to assume
any liability for intentional or negligent acts, errors, or omissions of the Town or of any officer
or employee thereof. Likewise, the Town, its officers and employees, shall not be deemed to
assume any liability for intentional or negligent acts, errors or omissions of the County or by any
officer or employee thereof.
G. INSURANCE. The County and the Town shall respectively provide its own public
liability, property damage, and errors and omissions insurance coverage as each party may deem
adequate and necessary for any potential liability arising from this Agreement. The County and
the Town, respectively, shall name, subject to the approval of each respective party's insurance
carriers, the other respective party as a co-insured under such insurance policies to the extent of any potential liability arising under this Agreement and, upon reasonable written request, shall
furnish evidence of the same to the other respective party. The Parties further agree, without
waiving any governmental immunity protection to which they and their officials and employees
are entitled under CRS 24-10-101 et seq., to procure and maintain current valid workers
compensation insurance coverage for all subject workers throughout the period of this Agreement.
H. NO WAIVER OF GOVERNMENTAL IMMUNITY. Nothing in this Agreement shall
be construed to waive, limit, or otherwise modify any governmental immunity that may be
available by law to the Town or to the County and their respective officials, employees,
contractors, or agents, or any other person acting on behalf of the Town or the County, and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental
Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
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I. TERM. This Agreement will be effective as of the effective date stated above and
subject to the provisions set forth herein, shall continue in full force and effect through the 30th
day of September 2016.
J. TERMINATION.
1. Termination Due to Unavailability of Funding: The Town understands that the
availability of Project Funds is contingent on appropriations made by the Sponsor. If at any time
the Colorado APA determines that funds are insufficient to sustain existing or anticipated
spending levels, the Town understands that the Colorado APA may reduce, suspend or terminate
any reimbursement, other payments or allocations of funds provided by the Colorado APA for the Plan4Health Project.
2. Termination by Mutual Consent: This Agreement may be terminated in whole
or in part when both Parties agree that continuation is not feasible or would not produce
beneficial results commensurate with the further expenditure of the Project Funds. The parties
must agree on the termination conditions, including effective date and the portion of the Agreement to be terminated.
3. Termination for Cause: In the event of a default or violation of the terms of this
Agreement by the Town or its failure to use the Project Funds for only the purposes set in this
Agreement, the County may take the following action:
i. Suspension: After notice to the Town, suspend this Agreement and withhold any further disbursement or prohibit the Town from incurring additional obligations of Project
Funds, pending corrective action by the Town.
ii. Termination: Terminate this Agreement in whole or in part, at any time before
the date of completion, whenever it is determined that the Town has failed to comply with the
terms and conditions of this Agreement. The County shall promptly notify the Town in writing of the determination and the reasons for the termination together with the effective date.
Disbursements made to the Town or recoveries by the County shall be in accordance with the
legal rights and liabilities of the parties. Disbursements and recoveries may include, but are not
limited to, payments allowed for costs determined to be not in compliance with the terms of this
Agreement. The Town shall return to the County all unencumbered Project Funds. Further, any costs previously paid by the Plan4Health Project which are subsequently determined to be
unallowable through audit and close-out procedures may be recovered pursuant to the closeout
procedures set forth in the Grant Agreement or as designated by APA Colorado or Sponsor.
iii. Recovery of Funds: In the event of default, failure to perform under this
Agreement or violation of the terms of this Agreement, the Town understands that APA Colorado or the Sponsor may institute such action as necessary to reduce, withdraw or recover
all or part of the Project Funds from the Town.
K. FINANCIAL RESPONSIBILITY OF TOWN. The Town assumes sole responsibility
for reimbursement to the Colorado APA or the Sponsor of a sum of money equivalent to the
amount of any expenditures disallowed should the Sponsor or an authorized agency rule through audit exception or some other appropriate means that expenditures from Grant Funds allocated to
5
the Town for were not made in compliance with the regulations of the granting or funding
agency or the provisions of this Agreement.
L. NOTICES AND PAYMENTS. All notices, bills and payments shall be made in writing
and may be given by personal delivery or by mail. Notices, bills, payments sent by mail should be address as follows:
Town of Avon Eagle County
Avon, Colorado Eagle County, Colorado
Attn: Matt Pielsticker Attention: Katie Haas
PO Box 975 500 Broadway
Avon, CO 81620 Post Office Box 850
Telephone: 970-748-4413 Eagle, CO 81631
E-mail: Mpielsticker@avon.org Telephone: 970-328-8855
E-Mail: Katie.haas@eaglecounty.us
With a copy to: Eagle County Attorney
500 Broadway
Post Office Box 850
Eagle, Co 81631
Telephone: 970-328-8685 Facsimile: 970-328-8699
E-Mail: atty@eaglecounty.us
M. MODIFICATION. This Agreement contains the entire agreement between the parties,
and no agreement shall be effective to change, modify, or terminate in whole or in part unless
such agreement is in writing and duly signed by the party against whom enforcement of such
change, modification, or termination is sought. The Parties agree that any amendments to laws or
regulations pursuant to which the Grant Award was made shall result in the correlative modification of this Agreement without the necessity for executing written amendments. Any
written amendment shall be prospective in nature.
N. NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement is
intended to or shall create a contractual relationship with, cause of action in favor of, or claim for
relief for, any third party, including any agent, sub-consultant or sub-contractor of Town or County. 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.
O. VENUE, JURISDICTION AND APPLICABLE LAW. Any and all claims, disputes
or controversies related to this Agreement, or breach thereof, shall be litigated in the District
Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such
6
litigation. This Agreement shall be construed and interpreted under and shall be governed by the
laws of the State of Colorado.
IN WITNESS WHEREOF, each party, by signature below of its authorized representative, herby acknowledges that it has read this Agreement, understands it and agrees to be bound by its
terms and conditions.
EAGLE COUNTY, by and through its Board of County Commissioners
By:_____________________
Kathy Chandler-Henry, Chair
Attest:_________________________
Teak Simonton, Clerk to the Board
TOWN OF AVON
by and through its Town Council
By: _____________________ Jenny Fancher, Mayor
Attest:_________________________
Debbie Hoppe, Town Clerk
Plan4Health Grant Project
Katie Haas
Healthy Communities Coordinator
Eagle County Public Health and Environment
Kris Valdez
Planner
Eagle County
Grant Amount:
$125,000
Grant Term:
January - September, 2016
Implementation:
Healthy Communities Coalition, Coordinated
by Eagle County Government, in partnership
with Eagle River Valley municipalities
Plan4Health Communities Nationally
Red = cohort 1 Blue = cohort 2
Plan4Health Primary Activities
Policy Scan
•Review
comprehensive plans of all Eagle
River Valley communities
HEAL Cities and Towns Campaign
•Support of Towns
to adopt resolutions
and/or policies that improve
healthy living
Community Engagement Support
•Understand
Town’s community
engagement efforts
•Provide tools and resources to
support future engagement
Participating Communities: Towns of Avon, Eagle, Gypsum, Minturn, Red Cliff,
Vail; unincorporated Eagle County communities via Eagle County Government
Healthy Living/Built Environment
Examples
•Access to healthy food - e.g. community gardens, local
grocers
•Access to physical activity – e.g. parks, open space,
recreation centers, sidewalks
•Creating a sense of place
•Access to transportation
•Connectivity
HEAL Cities and Towns Campaign
•https://www.youtube.com/watch?v=pUDt6eNx
EUw
1
Debbie Hoppe
From:Eric Heil <ericheillaw@gmail.com>
Sent:Wednesday, January 27, 2016 9:09 AM
To:Preston Neill; Matt Pielsticker
Cc:Virginia Egger
Subject:Plan4Health
Just to close the circle if it hasn’t been closed already - Eagle County wants the IGA on the Plan4Health project approved sooner than March
so they can get started. I have reviewed the IGA, it is acceptable and it could go on the February 9 agenda.
Suggested Agenda Item:
Approval of Intergovernmental Agreement between the Town of Avon and the County of Eagle, Colorado for Plan4Health Project.
This IGA provides up to $5,000 to (each) Town to assist with cost of participation. Someone (Matt?) would need to prepare a memo
explaining the project - which I have discussed with Matt seems a little fuzzy to me. Town’s obligation is to “participate, collaborate and
support” the County project.
As an FYI - the grant funding is from the national American Planning Association funneled through the Colorado Chapter. I serve on the
Board of Directors of the Colorado Chapter. As the only attorney on the Board serving on a volunteer basis, I reviewed the agreement
between APA Colorado and Eagle County to funnel the grant funds to Eagle County. The APA Colorado Board of Directors is scheduling to
approve this grant funding agreement on Feb 5 and Eagle County BOCC is scheduling its approval on February 9.
As an aside, I don’t think I have a conflict of interest, but I honestly haven’t thought about it too much considering the nature
of the project where the Town receives some funds for participation in a planning effort led by the County and consultants to
be hired by the County. There is one quirk that the County desires to allow anonymous stakeholder input in the agreement
between APA Colo and Eagle County (this term is not in the individual Town IGAs). And then the IGA states, "To the
extent applicable, the Town shall be subject to the terms and conditions of the Plan4Health Grant Agreement between the APA and the Colorado APA.”
So - I will ask APA Colo to allow me to forward the Grant Funding agreement to you and for inclusion in the
Council packet. An agreement that references the terms of second agreement will then require the second
agreement to be available for complete understanding.
Eric
Eric J. Heil, Esq., A.I.C.P.
Heil Law & Planning LLC
1022 Summit Drive
Dillon, CO 80435
Office: (970) 468-0635
Cell: (303) 518-4678
This communication may contain confidential attorney-client privileged information. Unauthorized receipt or use of this communication is not
permitted. If you have received this message in error, please delete the message and contact Heil Law & Planning LLC immediately.
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 Jennie Fancher and Town Council members
FROM: Eric J. Heil, Town Attorney
RE: Mountain Star Water Storage Tank Site Annexation Process
DATE: February 4, 2016
SUMMARY: The Upper Eagle River Water Authority has submitted an application to annex the 5 acre
water storage tank site adjacent to the Mountain Star development into the Town of Avon. This water
storage tank site has a long history that dates back to the original approvals of the Mountain Star
development. The preferred water storage tank site was identified on Forest Service land to the north and
uphill of the Mountain Star development (see the Town of Avon Land Exchange Map). The Upper Eagle
River Water Authority acquired this site along with other water storage tank sites from the U.S. Forest
Service as part of the multi-party land exchange that was completed several years ago. The use of the
property is intended for the construction of a water storage tank to serve the Mountain Star development. It
is generally the practice and preference to annex lands into a municipality that include public infrastructure
serving development in the municipality.
INITIATING THE ANNEXATION PROCESS: The Town follows the annexation process in the Municipal
Annexation Act of 1965. The process begins with the receipt of a complete annexation petition and the
adoption of a resolution to initiate the process. Resolution No. 16-02 is attached. A complete overview of
the entire annexation process is described below.
WAIVER OF FEES: Section 7.36.040(c) of the Avon Municipal Code states that the Town Council may
waive fees for the review of annexation. Resolution No. 16-02 includes a waiver of fees for review of
annexation. The property petitioning for annexation is for public infrastructure serving a portion of Avon
and the anticipated review costs for the annexation are minimal.
PROPOSED MOTION: “I move to approve Resolution No. 16-02 INITIATING ANNEXATION OF THE
MOUNTAIN STAR WATER TANK SITE PROPERTY, FINDING THE PETITION FOR ANNEXATINO TO
BE IN SUBSTANTIAL COMPLIANCE, AND SETTING A PUBLIC HEARING.”
ANNEXATION PROCESS OVERVIEW:
The overall annexation process is simplified because this is a property that will only be used for constrution
of public infrastructure which was designed and planned several decades ago. Development is not
planned for this property; therefore, the more complex and involved annexation review and analysis
concerning impacts to infrastructure and community facilities are not applicable to this application.
1. UERWA creates annexation map of property to annex, signs Petition for annexation, and submits to the
Town of Avon.
2. The Annexation Petition is referred to the Town Council. The Town Council then adopts a Resolution
which does three things: (1) determines if the Petition meets the minimum requirements for allegations
and signatures and is “valid”, (2) formally “initiates” annexation proceedings, and (3) sets a public
hearing. CRS §31-12-108.
3. The public hearing shall be held not less than 30 days nor more than 60 days after the date of the
initiating Resolution. A notice of the public hearing must be published once a week for four (4)
successive weeks in a newspaper of general circulation (Vail Daily). A copy of the published notice,
resolution and petition shall be sent by registered mail to each of the following: (1) the clerk of the
M EMORANDUM & PLANNING, LLC
Avon Town Council
Mountain Star Annexation Process
February 4, 2016
Page 2 of 2
Mountain Star Annexation Process
February 4, 2016
Page 2 of 2
Board of County Commissioners, (2) to the County Attorney, (3) to the school district, and (4) to any
special district having territory within the area to be annexed. The notice must be sent at least 25 days
prior to the date of the hearing. CRS §31-12-108.
4. An “Annexation Impact Report” is not required for this annexation because it is less than ten acres in
total area. CRS §31-12-108.5.
5. The public hearing is held. The Town Council determines whether the Property is eligible for
annexation (1/6 contiguity automatically establishes eligibility, therefore, this step is mostly a formality).
6. If the Town Council determines the property is eligible for annexation, the Town Council then adopts a
second Resolution with formal findings that the property is eligible for annexation.
7. Town Council adopts an Ordinance actually annexing the property. First reading of the Ordinance can
occur on the same evening as the public hearing.
8. Town Council adopts Ordinance that applies zoning. First reading of the Ordinance zoning the
property can occur on the same evening but must be scheduled after the annexation ordinance on the
agenda. By statute, the process of zoning land can begin once the Petition for Annexation is submitted
and the actual zoning must occur within 90 days of the effective date of annexation. It is more
convenient and efficient to run the annexation and zoning process concurrently. The expected zoning
classification is PF – Public Facilities. An amendment or update to the Avon Comprehensive Plan may
also be required, which can occur concurrently with the zoning application.
9. 30 days after adoption ordinances and annexation maps are recorded, and Property is then officially
annexed.
SCHEDULE OF ACTIONS:
Town Council: Resolution Initiating Annexation process (Set Hearing for Mar. 22) February 9, 2016
Publish Notice of Hearing (4 consecutive weeks) Feb 16, Feb, 23, Mar 1
and Mar 8
Deadline for Notice of Public Hearing by Planning Commission on Zoning Feb 19
Send Notice by Registered Mail to BOCC, County Attorney, Special Districts and School
(25 days in advance)
Feb 26 (last date)
Planning Commission: Public Hearing - Review of Zoning March 1
Deadline to Post Notice of Public Hearing on Zoning March 11
Public Hearing: Resolution to Adopt Finding that Property is Eligible for Annexation
Public Hearing: 1st Reading of Ordinance to Annex Property
Public Hearing: 1st Reading of Ordinance to Zone Property
March 22
Public Hearing: 2nd Reading of Ordinance to Annex Property
Public Hearing: 2nd Reading of Ordinance to Zone Property
April 12
Record Ordinances and Annexation Maps May 12
Thank you, Eric
Attachments: Annexation Application
Location Map
Resolution No. 16-02
January 25, 2016
Debbie Hoppe, Town Clerk Town of Avon
1 Lake Street Avon, CO 81620
Dear Debbie,
I have enclosed separate Annexation Plats for Tract WT-1 and WT-2, together containing 5.00 acres, and, on behalf of the Upper Eagle Regional Water Authority (“Authority”), I hereby request serial
annexation of both Tracts to the Town of Avon. I have also enclosed the executed Petition for Annexation from the Authority.
The Authority acquired Lot 16, Section 25, Township 4 South, Range 82 West, 6th Principal Meridian,
Eagle County, Colorado by U.S. Patent in 2013, Reception No. 201309275, from the United States of America in the Eagle County Land Exchange for the specific purpose of constructing a water storage tank
above the Mountain Star Subdivision in the Town of Avon. In order to complete the permitting process for this new tank, it is appropriate that this property first be annexed to the Town. I request that this property
be zoned PF – Public Facilities to be consistent with the proposed use of the property. I also request that the Town waive any fees for review of this Petition for Annexation as it is being submitted by another
governmental entity in which the Town is a Contracting Party.
The Authority plans to begin construction of this water storage tank in April 2016. I therefore request expedited consideration and approval of this Petition for Annexation so that this important project can
proceed to completion as soon as possible.
Sincerely,
Jason Cowles, P.E.
Planner, Upper Eagle Regional Water Authority
Enclosures: Land Development Application Annexation Petition
Annexation Plat List of Property Owners within 300’ of Annexation Parcel
Mailing Envelopes for Adjacent Property Owners
cc: Linn Brooks, General Manager James P. Collins, General Counsel
Virginia Egger, Town Manager Matt Pielsticker, Town Planner
Mailing addresses of all adjacent property owners within 300 feet of the Mountain Star Tank
Parcel proposed for annexation:
• Legal: Mountain Star Lot 37 (1969 Paintbrush)
Owner: SUE C. RUSHMORE TRUST - MICHAEL H. RUSHMORE, JR TRUST
141 E MEADOW DR STE 1000
VAIL, CO 81657-5857
• Legal: Mountain Star Lot 36 (1931 Paintbrush)
Owner: VUKICH, JOHN & CAROLYN
35 BAYSIDE DR
MADISON, WI 53704-5901
• Legal: Mountain Star Tract M (1875 Paintbrush), Mountain Star Tract J, and Mountain
Star Road Rights-Of-Way
Owner: MOUNTAIN STAR ASSOCIATION
C/O EAST WEST RESORTS
PO BOX 5480
AVON, CO 81620-5480
• Legal: Mountain Star Lot 35 (1855 Paintbrush)
Owner: GLASTEIN, DEBORAH
84 W RIVER RD
RUMSON, NJ 07760-1139
• Legal: Mountain Star Lot 34 (1827 Paintbrush)
Owner: POWER, JAMES P.
PO BOX 6010
AVON, CO 81620-6010
This map was produced by the Community Development Department. Use of this map should be for general purposes only. Town of Avon does not warrant the accuracy of the data contained herein.
Author: JKoenig Date: 05/04/11Town of Avon Land Trade 0 3,2001,600 Feet
USFSWest Parcel
USFSEast Parcel
Beaver Creek
Eagle Vail
Wildridge Mountain Star
Land Trade Parcels
Town of Avon Boundary
Roads
Public Land Roads
I-70
HWY 6
Property Boundary
Lakes and Rivers
Res. No. 16-02
February 9, 2016
Page 1 of 1
Res. No. 16-02
February 9, 2016
Page 1 of 1
TOWN OF AVON
RESOLUTION NO. 16-02
INITIATING ANNEXATION OF THE MOUNTAIN STAR WATER TANK SITE
PROPERTY, FINDING THE PETITION FOR ANNEXATION TO BE IN
SUBSTANTIAL COMPLIANCE, AND SETTING A PUBLIC HEARING
WHEREAS, the Upper Eagle River Water Authority owns the Mountain Star Tank Site
property described on the attached Exhibit A: Legal Description of Mountain Star Tank Site
Property (“Property”);
WHEREAS, the Upper Eagle River Water Authority has submitted a Petition for
Annexation and annexation map in accordance with C.R.S. §31-12-107;
WHEREAS, the Town Council of the Town of Avon finds that the Petition for Annexation
is in substantial compliance with the requirements in C.R.S. §31-12-107(1);
WHEREAS, the Town Council of the Town of Avon desires to initiate annexation
proceedings for the Property and set a public hearing in accordance with C.R.S. §31-12-108; and,
WHEREAS, the Town Council of the Town of Avon finds that the waiver of fees for the
review of annexation in accordance with Section 7.36.040(c) is appropriate because the nature of
the annexation is to provide public infrastructure and the actual cost of annexation review by the
Town is minimal.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON the following:
SECTION 1. The Town Council hereby finds that the Petition for Annexation of the Property is
in substantial compliance with the requirements of C.R.S. §31-12-107(1).
SECTION 2. The Town Council hereby sets a public hearing in accordance with C.R.S. §31-
12-108(1) to determine if the annexation complies with §31-12-104 and §31-12-105, such public
hearing is scheduled to be held on March 22, 2016 at 5:00 p.m., or as soon thereafter as possible,
at the Avon Town Hall, located at One Lake Street, Avon, Colorado.
SECTION 3. The Town Council hereby waives fees for the review of the annexation in
accordance with Section 7.36.040(c) of the Avon Municipal Code.
SECTION 4. The Town Clerk is hereby directed to publish notice of the public hearing and
send a copy of the notice of the public hearing by registered mail in accordance with C.R.S. §31-
12-108(2).
ADOPTED on February 9, 2016.
AVON TOWN COUNCIL
By:_______________________________ Attest:___________________________
Jennie Fancher, Mayor Debbie Hoppe, Town Clerk
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY, JANUARY 26, 2016
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 1-27-2016 Minutes Page 1
1. CALL TO ORDER & ROLL CALL
Mayor Fancher called the meeting to order at 5:22 p.m. A roll call was taken and Council members present
were Buz Reynolds, Matt Gennett, Jake Wolf, Megan Burch, Scott Prince and Sarah Smith Hymes. Also
present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager Scott Wright,
Police Chief Bob Ticer, Recreation Director John Curutchet, Executive Assistant to the Town Manager
Preston Neill and Town Clerk Debbie Hoppe.
2. APPROVAL OF AGENDA
There were no changes to the agenda.
3. PUBLIC COMMENT
Michael Cacioppo and Peter Buckley commented.
4. ACTION ITEMS
4.1. PUBLIC HEARING AMPLIFIED SOUND PERMIT APPLICATION FOR WINTERWONDERGRASS MUSIC & BREW
FESTIVAL (DIRECTOR OF FESTIVALS & SPECIAL EVENTS DANITA DEMPSEY)
Mayor Pro Tem Wolf recused himself due to a conflict.
The application was presented by Scott Stoughton. Mayor Fancher opened the Public Hearing and
no comments were made. Councilor Gennett moved to approve the Amplified Sound Permit
application for WinterWonderGrass Music & Brew Festival 2016 striking the second sentence in
paragraph three under background in the Town Council Report. Councilor Smith Hymes seconded
the motion and it passed unanimously by those present. Mayor Pro Tem Wolf abstained from the
vote.
4.2. UPDATE ON 2016 FESTIVALS AND SPECIAL EVENTS AT THE PAVILION, HARRY A. NOTTINGHAM PARK AND MAIN
STREET MALL (DIRECTOR OF FESTIVALS & SPECIAL EVENTS DANITA DEMPSEY)
4.3. ACTION ON FUNDING REQUEST AND SETTING OF DATES FOR THE 2016 APRÈS AVON SPRING CONCERTS AT
POSSIBILITY PLAZA (PRODUCER MIKE O’BRIEN)
Michael Cacioppo commented.
Councilor Reynolds moved to approve the dates of March 18 and March 25, 2016, and to appropriate
$37,000 from the 2016 General Fund Special Events Assigned Fund Balance, to Peak Performances, for
the purpose of producing the 2016 Après Avon Spring Concerts. Mayor Pro Tem Wolf seconded the
motion and it passed on a 5 to 2 vote. Councilor Prince and Councilor Gennett voted no.
4.4. ACTION ON FUNDING REQUEST AND SETTING OF DATES FOR THE AVON LIVE! SUMMER CONCERTS
(PRODUCER MIKE O’BRIEN)
Councilor Smith Hymes moved to approve the dates of August 3, 10, 17 and 24, 2016, and appropriate
$66,000, from the 2016 General Fund Special Events Assigned Fund Balance, to Peak Performances, for
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY, JANUARY 26, 2016
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 1-27-2016 Minutes Page 2
the purpose producing of Avon Live! Summer Concert Series. In addition, Councilor Smith Hymes moved
to appove up to $2,600 of in-kind services. Mayor Pro Tem Wolf seconded the motion and it passed on a
6 to 1 vote. Councilor Prince voted no.
4.5. ACTION ON FUNDING REQUEST AND SETTING OF DATES FOR THE OUTLAWS & LEGENDS MUSIC FESTIVAL
(BACKPORCH PRODUCTIONS, LLC)
Michael Cacioppo commented.
Councilor Burch moved to approve the dates of July 28th through July 31st, 2016, and to appropriate
$72,000 from the General Fund Special Events Assigned Fund Balance to Backporch Productions to
produce the Outlaws & Legends Music Festival. In addition, Councilor Burch moved to approve up to
$10,000 of in-kind services. Councilor Reynolds seconded the motion and it passed on a 4 to 3 vote.
Councilor Prince, Councilor Gennett and Mayor Pro Tem Wolf voted no.
4.6. FIRST READING OF ORDINANCE 16-02 CONSIDERATION OF REQUEST BY EAGLE RIVER FIRE PROTECTION
DISTRICT TO PROVIDE RELIEF FROM SALES TAX ON CONSTRUCTION MATERIALS FOR REGIONAL FIRE STATION
AND CONSIDERATION OF THIRD AMENDMENT TO INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE-
POLICE STATION FACILITY BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE PROTECTION DISTRICT
(TOWN ATTORNEY ERIC HEIL)
Michael Cacioppo commented.
Councilor Prince moved to approve the Consideration of Request by Eagle River Fire Protection
District to Provide Relief from Sales Tax on Construction Materials for Regional Fire Station and
Consideration of Third Amendment to Intergovernmental Agreement for a Joint Fire-Police Station
Facility between the Town of Avon and the Eagle River Fire Protection District. Councilor Gennett
seconded the motion and it passed unanimously by those present.
4.7. PUBLIC HEARING SECOND READING OF ORDINANCE NO. 16-01, AN ORDINANCE AMENDING CHAPTER 3.30
UNCLAIMED PROPERTY OF THE AVON MUNICIPAL CODE (ASSISTANT TOWN MANAGER SCOTT WRIGHT)
Mayor Fancher opened the Public Hearing and no comments were made. Councilor Reynolds
moved to approve the second and final reading of Ordinance No. 16-01, an Ordinance Amending
the Town’s Unclaimed Property Code Chapter 3.30. Councilor Gennett seconded the motion and
it passed unanimously by those present.
4.8. FIRST READING OF ORDINANCE NO 15-11, AN ORDINANCE AMENDING THE AVON MUNICIPAL CODE TABLE
7.16-1 AND SECTION 7.16.060(H)(1) CONCERNING AMENDMENTS TO WILDRIDGE PUD APPLICATIONS NOTE:
STAFF HAS REQUESTED CONTINUATION TO THE MARCH 8, 2016 REGULAR TOWN COUNCIL MEETING
(PLANNING DIRECTOR MATT PIELSTICKER)
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY, JANUARY 26, 2016
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 1-27-2016 Minutes Page 3
Councilor Smith Hymes moved to continue the First Reading of Ordinance No 15-11, to the March 8,
2016, Regular Town Council Meeting. Mayor Pro Tem Wolf seconded the motion and it passed
unanimously by those present.
4.9. MINUTES FROM JANUARY 12, 2016 MEETING
(EXECUTIVE ASSISTANT TO THE TOWN MANAGER PRESTON NEILL)
Councilor Reynolds moved to approve the minutes from January 12, 2016 meeting. Mayor Pro Tem
Wolf seconded the motion and it passed unanimously by those present.
5 WRITTEN REPORTS
5.1 MONTHLY FINANCIAL REPORT (BUDGET ANALYST KELLY HUITT)
6. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
6.1. CAST (COUNCILOR SARAH SMITH HYMES)
7. MAYOR & COUNCIL COMMENTS
8. EXECUTIVE SESSION - THIS SESSION IS NOT OPEN TO THE PUBLIC
8.1. DISCUSSION OF THE PURCHASE AND ACQUISITION OF A REAL PROPERTY INTEREST UNDER C.R.S. §24-6-
402(2)(A) AND A CONFERENCE WITH THE TOWN ATTORNEY FOR THE PURPOSE OF RECEIVING LEGAL
ADVICE UNDER C.R.S. §24-6-402(2)(B) RELATED TO SUCH REAL PROPERTY DISCUSSION 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) RELATED TO SUCH REAL PROPERTY DISCUSSION
8.2. FOR A CONFERENCE WITH THE TOWN ATTORNEY FOR THE PURPOSE OF RECEIVING LEGAL ADVICE UNDER C.R.S.
§24-6-402(2)(B) CONCERNING THE UPPER EAGLE RIVER WATER AUTHORITY.
Mayor Fancher moved to meet in Executive Session for the purpose of a Discussion of the Purchase
and Acquisition of a Real Property Interest under C.R.S. §24-6-402(2)(A) and a Conference with the
Town Attorney for the Purpose Of Receiving Legal Advice under C.R.S. §24-6-402(2)(B) related to
such Real Property Discussion 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) related to such Real Property Discussion as well as a
Conference with the Town Attorney for the purpose of receiving legal advice under C.R.S. §24-6-
402(2)(b) concerning the Upper Eagle River Water Authority. Councilor Reynolds seconded the
motion and it passed unanimously by those present. The time was 8:16 p.m.
Executive session ended at 10:28 p.m.
Council reconvened into regular session at 10:29 p.m.
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY, JANUARY 26, 2016
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 1-27-2016 Minutes Page 4
9. ADJOURNMENT
There being no further business to come before the Council, the regular meeting adjourned at 10:30 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 ________________________________