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TC Packet 01-26-2021_______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. AVON TOWN COUNCIL MEETING AGENDA TUESDAY, JANUARY 26, 2021 MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) !! SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 AVON TOWN COUNCIL PUBLIC MEETING BEGINS AT 5:00 PM 1. CALL TO ORDER AND ROLL CALL 5:00 2. APPROVAL OF AGENDA 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS 4. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Public comments are limited to three (3) minutes. The speaker may request an additional one (1) minute, which may be approved by a majority of Council. 5. BUSINESS ITEMS 5.1. Presentation: Vista Project (Abby Musfeldt Dallmann and Angelo Fernandez, Eagle County) (20 Minutes) 5.15 5.2. Council Consideration to sign Letter of Support for GOCO application to acquire funding to create a seasonal full-time paid Trail Conservation Crew (Mayor Smith Hymes) (10 Minutes) 5.35 5.3. Work Session: Financial Report and Quarterly RETT Report (Finance Director and Assistant Town Manager Scott Wright) (20 Minutes) 5:45 5.4. Presentation: Departmental Goals for 2021 (Town Manager Eric Heil) (15 Minutes) 6:05 5.5. Overview of Municipal Law (Town Attorney Paul Wisor) (45 Minutes) 6:20 5.6. Public Hearing: Second Reading Ordinance 21-01 Approving Holy Cross Franchise Agreement (Town Attorney Paul Wisor) (10 Minutes) 7:05 5.7. Public Hearing: Second Reading Ordinance 21-03 Approving Municipal Code Amendments related to Wood Burning Devices (Matt Pielsticker) (10 Minutes) 7:15 5.8. Approval of Due Diligence Application for Nottingham Reservoir Conditional Water Right (Moses, Wittemyer, Harrison and Woodruff, P.C., Richard J. Mehren) (10 Minutes) 7:25 5.9. Notice of Award Former Town Hall Demolition (Town Engineer Justin Hildreth) (15 Minutes) 7.35 5.10. Notice of Award Four Variable Message Board Signs (Town Engineer Justin Hildreth) (15 Minutes) 7.50 6. MINUTES 6.1. Approval of January 12, 2021 Regular Council Meeting Minutes (Town Clerk Brenda Torres) (5 Minutes) 8:05 7. WRITTEN REPORTS 7.1. January 5th Planning and Zoning Commission Meeting Abstract (Planner David McWilliams) 7.2. Upper Eagle Regional Water Authority Dec 17, 2020 Meeting Summary (Mayor Smith Hymes) _______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES (15 MINUTES) 8:10 9. ADJOURN 8:25 Public Comments: Council agendas shall include a general item labeled “Public Comment” near the beginning of all Council meetings. Members of the public who wish to provide comments to Council greater than three minutes are encouraged to schedule time in advance on the agenda and to provide written comments and other appropriate materials to the Council in advance of the Council meeting. The Mayor shall permit public comments for any action item or work session item and may permit public comment for any other agenda item, and may limit such public comment to three minutes per individual, which limitation may be waived or increased by a majority of the quorum present. Article VI. Public Comments, Avon Town Council Simplified Rules of Order, Adopted by Resolution No. 17-05. Why Vista? ●Our communities and economies are connected - we’re all in it together ●We continue to undergo significant change, bringing challenges & opportunities ●COVID-19 has impacted our people, businesses and communities, and revealed inequities in our economy ●Too often, important voices and perspectives are left out of local plans and decisions ●We don’t have a shared vision for our future to guide our decisions or respond to change What is Vista? ●Community dialogue about where we are, where we want to go, and how to get there ●A shared vision to guide local plans, policies and decisions ●Strategies and actions to advance that vision ●Work together as a region to recover stronger and more resilient from CO-19 ●An inclusive process that engage all the voices and perspectives in our community ●Primary engagement for Eagle County’s Comprehensive Plan Who is Vista? ●Eagle County, lead sponsor and convener ●Community Builders, nonprofit partner providing assistance and financial support ●The Community, VISTA is fundamentally about engaging the community, including voices that are often left out, in building a vision and strategies for the future. ●The Comprehensive Plan is a blueprint for future growth that informs land use policies, capital investments and other local plans. ●VISTA is being used to develop an update to the Eagle County Comprehensive Plan. It is the chief form of engagement for that plan. ●VISTA intends to allow a much higher level of community engagement and greater level of alignment with other plans. Creating a new Comprehensive Plan What are we trying to accomplish? Project Goals 1.Articulate a shared vision for the future 2.Strengthen the civic capacity and leadership of our community 3.Engage historically disenfranchised and disproportionately impacted communities 4.Enable meaningful progress and impact in addressing inequitable systems 5.Leverage findings into other Eagle County Government planning efforts Process Outcomes 1.Foster an equitable, resilient, and sustainable community 2.Cultivate a diverse team of community partners invested in collaboratively addressing local challenges and opportunities 3.Frame planning and policy decisions around public input and experience 4.Shape actions for community members, anchor institutions, and governments 5.Redesign county systems to support equitable community engagement What are we trying to accomplish? What are we trying to accomplish? 1.A better understanding of where our communities want to be headed as we plan for the future, and make decisions that impact conditions today. 2.Improved ability to work collaboratively, and with the larger community, to make decisions about difficult issues. 3.Improved ability to engage with - and address the needs of - people in our community who are marginalized and have less voice and power in policy and decision making. 4.Make real progress in addressing key local and regional issues. 5.Develop a Comprehensive Plan that offers a blueprint for future growth while responding to more effectively to the needs and wants of our community. What will we get out of this? Activity 1: Groundwork Activity 2: Community Values Activity 3: Community Assessment Vista Project Phasing Activity 4: Goals and Vision Activity 5: Strategies & Action Planning Activity 6: Implementation & Stewardship Phase 1: Where we are today Phase 2: The future we want What are we trying to accomplish? Stewardship Team Purpose: (1) ensure the process and approach are meeting their intended goals and objectives, and (2) helping the project build broad-based community and political support that it will need to be successful Expectations of Team Members ●Encourage and enable an equitable representation of the community ●Provide a diverse range of views and experience within project leadership ●Be champions and ambassadors that can speak to the whole of the community ●Utilize existing connections to networks and leadership structures ●Provide feedback and accountability to ensure that we are meeting project goals How can you get involved? What are we trying to accomplish? Stewardship Team Purpose: (1) ensure the process and approach are meeting their intended goals and objectives, and (2) helping the project build broad-based community and political support that it will need to be successful Expectations of Team Members ●Encourage and enable an equitable representation of the community ●Provide a diverse range of views and experience within project leadership ●Be champions and ambassadors that can speak to the whole of the community ●Utilize existing connections to networks and leadership structures ●Provide feedback and accountability to ensure that we are meeting project goals How can you get involved? What are we trying to accomplish? ●How do you think your organization could utilize Vista for its own planning purposes? ●Is your organization conducting any strategic planning initiatives / goals / concerns we should be aware of? ●Do you foresee any issues or roadblocks that we should be aware of? ●Any feedback on the process? Feedback TO: Honorable Mayor Smith Hymes and Council Members FROM: Ineke de Jong, General Government Manager RE: Letter of Support Great Outdoors Colorado (GOCO) Grant DATE: January 21, 2020 SUMMARY: The Vail Valley Mountain Trails Alliance (VVMTA) is partnering with Eagle County to submit a GOCO application to acquire funding to create a seasonal full time paid Trail Conservation Crew. A brief Executive Summary of what the Trail Conservation Crew (TCC) is, why it's needed, and the work they would do across all public lands in Eagle County, can be found in Attachment A. Town Council is asked to consider signing the sample Letter of Support which can be found in Attachment B. The VVMTA is asking for the letter by January 28th as the grant is due February 2nd. Ernest Saeger, the Executive Director of VVMTA will attend Tuesday’s meeting to present more information and answer Council questions. ATTACHMENTS: A: Executive Summary Trail Conversation Crew (TCC) B: Sample Letter of Support Vail Valley Mountain Trails Alliance PO Box 3986 Avon, CO 81620 www.vvmta.org Trail Conservation Crew (TCC) Executive Summary: Created and Managed by: Vail Valley Mountain Trails Alliance (VVMTA) Executive Summary: The Trail Conservation Crew (TCC) is a seasonal full time trained trail crew of six (6) employed by the VVMTA from April 1 - October 31. The TCC will create six seasonal full time jobs for Eagle County locals who want to improve the public lands and trails that they and our community love. The VVMTA’s Adopt A Trail (AAT) and Wildlife Trail Ambassador (WTA) programs have been incredibly successful maintaining trails, protecting wildlife, and creating local trail stewards. Volunteer stewardship is important and will continue to be a large part of sustaining recreation in Eagle County. However, the pandemic significantly increased trail use and a pure volunteer model cannot keep up with the current and future impacts. At the same time, land managers’ staffing, resources, and funding continue to decline and trails and public lands struggle to be maintained. The development of the TCC is a necessary expansion and natural progression of the AAT and WTA programs to meet the demands of the growing number of trail users and impacts on trails due to the pandemic. The TCC will lead volunteer AAT teams part-time but also collaborate with local land managers and partner organizations to perform and execute recreation and conservation projects throughout all of Eagle County. Their focus will be trail maintenance, protecting seasonal wildlife closures, closing illegal/social trails, designating campsites and closing illegal campsites, communicating fire restrictions, educating trail users at trailheads, removing garbage, and overall mitigating the impact increased recreation is having on trails and our public lands. The VVMTA will host a collaborative meeting with all supporting local land managers to finalize a project list to schedule and guide the TCC’s work plan. The work plan will be strategic based on the time of the year, weather, and identified priority projects. Examples include but are not limited to: ●April/May:​ TCC will begin their work down valley and in areas that dry out early to mitigate impacts of the increased recreation use in these places during this time ATTACHMENT A Vail Valley Mountain Trails Alliance PO Box 3986 Avon, CO 81620 www.vvmta.org ●May/June:​ Positioning themselves at seasonally closed trailheads for extended periods of time with informational and educational materials ●July/August/September:​ Perform trail maintenance projects, reroutes, and spend a significant amount of time at busy trailheads during our peak season educating trail users on trail etiquette and Leave No Trace Principles ●September/October:​ Finish trail and conservation projects and prep trailheads, signage, etc. for the winter season GOCO Resilient Communities Grant: This grant is “In response to the unprecedented disruption caused by the COVID-19 pandemic, Great Outdoors Colorado (GOCO) is launching a one-time, $15 million Resilient Communities Program to help partners advance outdoor recreation, stewardship, and land protection projects in a manner that best reflects community needs and priorities at this moment in time. Through the Resilient Communities Program, GOCO will fund one-time, immediate needs or opportunities that have emerged in direct response to the pandemic all within the context of GOCO’s five program values: resource conservation, outdoor stewardship, community vitality, equitable access, and youth connections.” More information on their ​website here. The final round of funding is due on February 2, 2021 for a decision March 12, 2021. GOCO requires a 10% match (cash and/or in-kind) of which VVMTA is committed to providing with cash and volunteer in-kind hours. The VVMTA is partnering with Eagle County, through their Open Space department, to submit the application for the Trail Conservation Crew. GOCO requires the applicant to be a municipality, county government, and/or land trust. They encourage these applicants to partner with other local organizations and nonprofits to execute and implement programs and projects. VVMTA Will Oversee All Aspects of the Grant and Administration: ●Write and submit the grant application ●Administer all elements of the grant & TCC: hire/pay/manage, coordinate and schedule, insurance/workers comp, provide tools and supplies, etc. Next Steps: As a partner of the VVMTA and a local land manager, we would greatly appreciate your support for the Trail Conservation Crew. If you are on board to support the important and needed addition to our community, please provide a Letter of Support (template and talking points attached) by end of day January 28, 2021. Vail Valley Mountain Trails Alliance PO Box 3986 Avon, CO 81620 www.vvmta.org If you have any questions or concerns please reach out to me at any time. Thank you! Sincerely, Ernest Saeger Executive Director Vail Valley Mountain Trails Alliance ernest@vvmta.org 607-778-0337 Post Office Box 975 100 Mikaela Way Avon, CO 81620 Mr. Chris Yuan-Farrell Great Outdoors Colorado 1900 Grant Street #725 Denver, CO 80203 January 26, 2021 Dear Mr. Yuan-Farrell and GOCO, The Town of Avon strongly supports the efforts of the Vail Valley Mountain Trails Alliance (VVMTA) and Eagle County to obtain grant funding for the Trail Conservation Crew through the GOCO Resilient Communities grant program. The Town of Avon’s trails, specifically the West Avon Preserve (WAP) is the crown jewel of outdoor recreation for our community. Access to high quality trails increases quality of life and improves the physical and mental health of Avon residents. The West Avon Preserve is a significant economic driver for the Town of Avon and its businesses as well. The WAP trail system receives the most trail use of any trail system in Eagle County. Trail users travel to experience the trail system from across Eagle County, neighboring counties, and the Front Range. The Town of Avon did see a significant increase in use of the West Avon Preserve trail system during the pandemic and believe that use will only continue to increase. It is more important than ever to care for our trails, natural resources, and mitigate impacts from increased recreation. The Trail Conservation Crew will be a tremendous resource for our limited trails staff to do this. The VVMTA is a trusted and valuable partner to the Town of Avon. Their Adopt A Trail program has provided important trail maintenance in the West Avon Preserve since 2016 and will only improve with the addition of the TCC. We strongly support GOCO awarding these funds to the VVMTA and Eagle County. Thank you for your consideration. Sincerely, Sarah Smith Hymes, Mayor Town of Avon ATTACHMENT B FISCAL YEAR 2020 FINANCIAL REPORT January 26th, 2021 ______________________________________________________________________________________ 1.Financial Report Cover Memo 2.Sales and Accommodations Tax Reports – YTD through November 3.Accommodations Tax Report – YTD through November 4.Tobacco Tax & Cigarette Tax – YTD through November 5.Real Estate Transfer Tax Report and Monthly Detail – YTD through December 6.Recreation Center Admissions – YTD through December 7.Recreation Center Program Fees - YTD through December 8.General Fund Year-To-Date Expenditures - YTD through December 9.Fleet Maintenance Fund Year-To Date Expenditures - YTD through December 10.Mobility Fund Year-To Date Expenditures - YTD through December To: Honorable Mayor Sarah Smith Hymes, Avon Town Council From: Joel McCracken, Senior Accountant Date: January 26th, 2021 Agenda Topic: Fiscal Year 2020 Financial Report – Year to date revenue collections Revenues SALES TAX Year-to-date sales tax revenue through November totals $7,602,799. This represents a decrease of 0.30% or $22,952 from the previous year and is a 4.44% positive variance over the final cumulative monthly amended budget, which is based on the average of the relative monthly percentages of taxes collected over a 5-year period. The year-to-date total is $96,564 over the original budget estimate. Beginning in May, after the reopening of businesses, sales tax for the 7-month period from May-November is up by $277,130, nearly eclipsing the loss of sales tax for the two months of business shut-down. The month of November sale tax revenues increased by $88,646 or 17.21% over the same period in the previous year. Year to date sales tax collections by industry compared to one year ago have increased $180,227.69 for Home/Garden, $137,147.12 for Grocery-Specialty-Health, $13,096.77 for Sporting Goods Retail-Rental, $23,327.82 for Miscellaneous Retail, $38,051.73 for Liquor Stores, $95,884.82 for E-Commerce Retail, $74,082.52 for Construction Related Materials, $6,943.06 for Digital Medial Suppliers/Sellers, and $26,899.69 for Commercial and Industrial Equipment. Year to date sales tax collections have decreased by $276,615.68 for Accommodations, $200,051.97 for Restaurants/Bars, $87,502.85 for Other, $27,864.37 for Service Related, $26,040.16 for Manufacturing/Wholesale, and $181.02 for Special Events. - 500,000.00 1,000,000.00 1,500,000.00 2,000,000.00 2,500,000.00 Sales Tax Comparison by Industry YTD-2019 YTD-2020 2 Amended Budgeted Revenue Comparison With the adoption of Resolution 20-14 in May, the Town amended the budget for estimated revenues of sales tax, accommodation tax, and recreation center fees due to COVID-19 and the impact to the local economy. The amended budget decreased estimated revenues by $1,591,120 for sales tax, $825,579 for accommodations tax, 703,772 for recreation admissions, and $271,565 for all recreation program fees. Subsequently, the COVID19 impact on Town sales taxes was less severe than these conservative estimates and the final budget was amended back up by $1,320,825 or a 3.05% reduction from the previous years actual sales tax revenues. Licenses Issued 2019 v 2020 2019 2020 Business License - Fixed Location 276 279 Business License - Home Occupation 66 68 Business License - Peddler / Solicitor 4 1 Business License - Short Term Accommodation 202 235 Business License - Special Event 50 85 Business License - Vendor 818 874 Contractor License 217 183 Sales Tax License 448 352 Grand Total 2081 2077 - 750,000.00 1,500,000.00 2,250,000.00 3,000,000.00 3,750,000.00 4,500,000.00 5,250,000.00 6,000,000.00 6,750,000.00 7,500,000.00 8,250,000.00 Sales Tax Accommodation Tax Recreation Admissions Recreation Program Fees Amended Budget v Actual Revenues YTD Comparison Amended Budget (YTD)Actual Revenues (YTD) 3 ACCOMMODATIONS TAX Year-to-date accommodations tax revenue through November totals $1,023,205. This represents a decrease of 19.24% or $243,708 from the previous year yet is a 7.49% positive variance over the final cumulative monthly amended budget, which is based on the average of the relative monthly percentages of taxes collected over a 5-year period. The year-to-date total is $237,116 under the original budget estimate. Since June accommodation taxes are down an average of 11.14% compared to the previous year. The month of November accommodation tax revenues decreased by $19,933 or 28.32% over the same period in the previous year. Year to date accommodation tax collections have decreased for vacation rentals by $11,220, $74,739 for time shares and $159,911 for hotels compared to the previous year. - 100,000.00 200,000.00 300,000.00 400,000.00 500,000.00 600,000.00 700,000.00 800,000.00 Time Shares Hotels Vacation Rentals Accommodation Tax by Type YTD 2019 YTD 2020 4 TOBACCO TAX and CIGARETTE TAX Year-to-date tobacco tax (40% rate) revenues through November total $182,236, an increase of 45.82% from the previous year. Year-to-date tobacco tax revenues have a positive variance of 25.34% compared to the original budget estimate of $160,000 and a positive variance of 8.41% compared to the final revised budget of $185,000. Year-to-date cigarette tax revenues total $236,172.81, an increase of 35.21% from the previous year. The number of packs sold has also increased by 18,569 packs. Year-to-date cigarette tax revenues through November show a positive variance of 14.68% over the original budget estimate of $225,000. - 50,000.00 100,000.00 150,000.00 200,000.00 250,000.00 Tobacco Tax 40% Rate Cigarette Tax Per Pack Fee Tobacco Tax Interest Tobacco Tax Penalty Number of Packs Sold* YTD Tobacco Tax Revenues 2019 v 2020 YTD 2019 YTD 2020 5 REAL ESTATE TRANSFER TAX Real estate transfer tax collections for all of 2020 totaled $5,885,996.38, an increase of 17.37% from the previous year and a positive variance of 95.55% over the cumulative monthly budgets, which is based on average of the relative monthly percentages of taxes collected over a 5-year period. $0 $1,000,000 $2,000,000 $3,000,000 $4,000,000 $5,000,000 $6,000,000 $7,000,000 2016 2017 2018 2019 2020 Year 2016-2020 Real Estate Transfer Tax Yearly Revenues 6 RECREATION CENTER ADMISSIONS YTD recreation admission fees totaled $429,382.96 a 57.17% decrease from the previous year. This is a 53.07% negative variance compared to the monthly original budget and a 6.54% negative variance compared to the final monthly amended budget which is based on average of the relative monthly percentages of taxes collected over a 5-year period. $- $200,000 $400,000 $600,000 $800,000 $1,000,000 $1,200,000 2016 2017 2018 2019 2020 2016 -2020 Recreation Center Admissions Yearly Revenues 7 RECREATION CENTER PROGRAM FEES Year to date recreation center program fees totaled $314,433 which is a 16.59% decrease from the previous year. This is a 16.73% negative variance compared to the monthly original budget and 11.89% positive variance compared to the final monthly amended budget which is based on average of the relative monthly percentages of taxes collected over a 5-year period. $- $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 $450,000 $500,000 2016 2017 2018 2019 2020 2016-2020 Recreation Center Program Fees Yearly Revenues 8 Expenditures Year-to-date General Fund expenditures for 2020 total 85.35% of the total adopted budget. These expenditures include insurance premiums, computer services, events, community grants, equipment replacement, contract services, janitorial and legal services. Year-to-date Fleet expenditures for 2020 total 83.14% of the total budget. These costs include expenditures of stock parts, fleet maintenance, debt service interest, and insurance premiums. Year-to-date Mobility funds expenditures for 2020 total 84.89% of the total budget. These expenditures include costs of diesel, fleet maintenance, equipment replacement, capital lease payments, and insurance premiums. TOWN OF AVON SALES TAX 2020 Actual vs. Budget Budget YTD Collections Budget % of change % change 2015 2016 2017 2018 2019 2020 2020 Variance from 2019 from Budget January 765,195.68$ 743,689.78$ 792,562.03$ 825,816.08$ 819,179.33$ 823,329$ 841,459.85$ 18,130.35$ 2.72%2.20% February 788,999.06 774,754.00 798,923.33 785,412.03 809,165.90 825,585 820,617.44 (4,967.60) 1.42%-0.60% March 875,499.53 945,795.71 918,657.55 1,014,399.70 1,130,669.61 1,019,141 872,489.74 (146,651.52) -22.83%-14.39% April 403,560.42 438,198.18 425,727.85 394,986.15 424,685.32 435,435 349,051.52 (86,383.31) -17.81%-19.84% May 353,840.11 404,872.55 394,689.30 418,628.58 422,685.32 416,149 424,081.54 7,932.51 0.33%1.91% June 570,424.51 693,675.00 650,794.65 757,498.52 725,800.03 708,950 801,965.52 93,015.12 10.49%13.12% July 601,516.82 690,342.23 682,024.81 696,374.00 751,776.85 713,924 700,496.72 (13,427.74) -6.82%-1.88% August 572,647.57 593,398.26 618,515.44 639,569.12 677,421.62 647,064 683,538.19 36,474.67 0.90%5.64% September 595,235.68 667,949.51 690,883.92 680,720.64 903,289.81 738,134 894,037.55 155,903.15 -1.02%21.12% October 423,701.53 451,303.71 458,645.68 490,977.90 445,742.30 473,658 611,080.29 137,422.48 37.09%29.01% November 438,315.55 445,336.04 435,975.05 456,409.92 515,203.70 478,012 603,849.77 125,838.12 17.21%26.33% December 1,159,160.45 1,247,832.82 1,183,666.21 1,264,626.23 1,460,062.64 1,317,544 Total 7,548,096.91$ 8,097,147.79$ 8,051,065.82$ 8,425,418.87$ 9,085,682.43$ 8,596,926$ 7,602,668.13$ 323,286.23$ -0.30%4.44% Actual Collections $6,400,000 $6,600,000 $6,800,000 $7,000,000 $7,200,000 $7,400,000 $7,600,000 $7,800,000 2016 2017 2018 2019 2020 Year 2016 -2020 Year-to-Date Sales Tax Revenues TOWN OF AVON ACCOMMODATIONS TAX 2020 Actual vs. Budget Budget YTD Collections Budget % change % change 2015 2016 2017 2018 2019 2020 2020 Variance 2019 to budget January 164,361.04$ 168,424.63$ 190,207.82$ 181,588.99$ 197,879.22$ 153,832$ 188,669.38$ 34,837.52$ -4.65%22.65% February 175,056.31 185,370.53 194,804.88 186,147.24 203,190.38 161,009 217,069.65 56,060.20 6.83%34.82% March 183,650.29 217,387.54 201,008.55 206,783.36 246,969.61 179,969 128,344.90 (51,624.60) -48.03%-28.69% April 34,825.13 60,916.55 38,340.02 33,275.27 31,824.90 33,952 8,630.96 (25,321.19) -72.88%-74.58% May 28,002.56 37,357.48 39,961.98 42,618.10 47,259.21 33,273 13,289.59 (19,983.71) -71.88%-60.06% June 53,397.46 73,591.08 83,723.31 94,803.78 92,411.81 67,830 51,186.00 (16,643.94) -44.61%-24.54% July 86,301.22 107,595.18 119,300.76 119,458.02 131,645.50 96,190 112,238.30 16,048.71 -14.74%16.68% August 75,107.71 87,674.05 100,628.23 98,193.15 110,203.30 80,423 101,457.62 21,034.41 -7.94%26.15% September 60,417.74 68,139.11 81,837.60 85,257.82 89,362.90 65,629 95,186.71 29,557.78 6.52%45.04% October 38,706.72 45,738.23 48,223.10 53,236.86 45,781.00 39,493 56,679.15 17,186.42 23.80%43.52% November 34,328.47 37,570.50 46,397.08 47,934.88 70,385.29 40,333 50,452.72 10,119.58 -28.32%25.09% December 198,421.26 200,114.56 189,505.28 185,008.67 219,964.12 169,267 - Total 1,132,575.91$ 1,289,879.44$ 1,333,938.61$ 1,334,306.14$ 1,486,877.24$ 1,121,201.00$ 1,023,204.98$ 71,271.19$ -19.24%7.49% 0.88 0.97 1.00 0.90 1.33 Actual Collections $- $200,000 $400,000 $600,000 $800,000 $1,000,000 $1,200,000 $1,400,000 2016 2017 2018 2019 2020 2016 -2020 Year to Date Accommodations Tax Revenues TOWN OF AVON Tobacco Tax Revenue 2020 Actual vs. Budget Budget YTD Collections $ Change % of Change % Variance 2016 2017 2018 2019 2020 2020 2019 2019 to Budget January - - - - 5,487.00$ 7,381$ 12,926.46$ 7,439.46$ 135.58%75.14% February - - - - 21,144.74 28,442 12,212.75 (8,931.99) -42.24%-57.06% March - - - - 7,894.94 10,620 12,613.44 4,718.50 59.77%18.78% April - - - - 15,416.30 20,737 12,340.11 (3,076.19) -19.95%-40.49% May - - - - 4,832.53 6,500 14,952.14 10,119.61 209.41%130.02% June - - - - 11,088.32 14,915 15,920.80 4,832.48 43.58%6.74% July - - - - 13,318.93 17,915 23,534.44 10,215.51 76.70%31.36% August - - - - 15,381.23 20,689 22,980.58 7,599.35 49.41%11.07% September - - - - 12,646.85 17,011 19,330.12 6,683.27 52.85%13.63% October - - - - 8,458.60 11,378 18,295.39 9,836.79 116.29%60.80% November - - - - 9,306.56 12,518 17,130.22 7,823.66 84.07%36.84% December - - - - 12,559.58 16,894 Total -$ -$ -$ -$ 137,535.58$ 185,000 182,236.45$ 57,260.45$ 45.82%8.41% Final Amended Budget 185,000.00 Variance, Favorable (Unfavorable)(2,763.55)$ Actual Collections $0 $50,000 $100,000 $150,000 $200,000 2016 2017 2018 2019 2020 Year-to-Date Tobacco Tax Revenue TOWN OF AVONCIGARETTE TAX REVENUE 2020 Actual vs. BudgetBudget YTD Collections $ Change % of Change % change 2015 2016 2017 2018 2019 2020 2020 2019 2019 to budgetJanuary - - - - 6,649.98$ 7,840.81$ 17,252.91$ 10,602.93$ 159.44% 120.04%February - - - - 23,741.64 27,993.12 17,376.30 (6,365.34)$ -26.81% -37.93%March - - - - 23,073.42 27,205.24 16,659.00 (6,414.42)$ -27.80% -38.77%April - - - - 18,392.25 21,685.80 16,188.00 (2,204.25)$ -11.98% -25.35%May - - - - 28,462.95 33,559.89 23,781.00 (4,681.95)$ -16.45% -29.14%June - - - - 10,050.45 11,850.21 24,732.00 14,681.55$ 146.08% 108.71%July - - - - 18,693.15 22,040.58 28,215.21 9,522.06$ 50.94% 28.01%August - - - - 6,141.15 7,240.86 25,701.00 19,559.85$ 318.50% 254.94%September - - - - 15,846.00 18,683.59 23,972.55 8,126.55$ 51.28% 28.31%October - - - - 15,297.00 18,036.27 22,062.84 6,765.84$ 44.23% 22.32%November - - - - 8,322.00 9,812.24 20,232.00 11,910.00$ 143.11% 106.19%December - - - - 16,157.94 19,051.39 - Total -$ -$ -$ -$ 190,827.93$ 225,000$ 236,172.81$ 61,502.82$ 35.21%14.68%Budget 225,000.00 Variance, Favorable (Unfavorable) 11,172.81$ Actual Collections$0$50,000$100,000$150,000$200,000$250,0002016 2017 2018 2019 2020Year to Date Cigarette Tax Revenue TOWN OF AVONREAL ESTATE TRANSFER TAX 2020 Actual vs. BudgetBudget YTD Collections $ Change % of Change % change 2015 2016 2017 2018 2019 2020 2020 2019 2019 to budgetJanuary 48,640.40$ 64,422.00$ 107,390.00$ 264,063.20$ 72,520.00$ 89,978.07$ 179,460$ 106,940.00$ 147.46% 99.45%February 85,479.08 200,850.86 270,815.26 269,578.51 298,730.16 181,794.79 567,486 268,756.33 89.97% 212.16%March 168,744.22 265,061.65 254,737.53 344,556.74 180,819.76 196,084.73 113,350 (67,469.76) -37.31% -42.19%April 125,266.30 159,046.06 249,938.93 122,312.21 312,899.53 156,597.56 140,135 (172,764.87) -55.21% -10.51%May 237,971.08 184,987.10 377,490.82 351,236.93 278,241.63 230,976.49 100,257 (177,985.07) -63.97% -56.59%June 294,434.84 307,127.24 703,419.85 343,140.71 237,143.93 304,527.49 222,169 (14,974.64) -6.31% -27.04%July 396,838.68 259,977.94 219,208.74 272,420.41 86,755.74 199,522.35 234,702 147,946.42 170.53% 17.63%August 152,380.93 186,483.40 592,467.49 343,249.80 400,027.60 270,499.97 608,328 208,300.76 52.07% 124.89%September 291,223.61 321,957.68 423,013.80 311,022.50 604,158.92 315,206.25 732,112 127,953.18 21.18% 132.26%October 172,855.22 641,688.59 497,642.58 330,671.24 359,782.63 323,486.89 906,843 547,060.37 152.05% 180.33%November 169,328.38 315,109.37 425,402.80 211,818.76 570,245.09 273,293.66 461,399 (108,846.20) -19.09% 68.83%December 225,862.90 588,514.66 227,918.50 196,105.45 1,597,177.98 458,031.73 1,600,283 3,105.40 0.19% 249.38% Total 2,369,025.64$ 3,495,226.55$ 4,349,446.30$ 3,360,176.46$ 4,998,502.97$ 3,000,000$ 5,866,525$ 868,021.92$ 17.37% 95.55%Budget 3,000,000 Variance, Favorable (Unfavorable) 2,866,525 Actual Collections$0$1,000,000$2,000,000$3,000,000$4,000,000$5,000,000$6,000,000$7,000,0002016 2017 2018 2019 2020Year2016-2020 Real Estate Transfer Tax Yearly Revenues TOWN OF AVON RECREATION CENTER ADMISSION FEES 2020 Actual vs. Budget Budget YTD Collections Budget % of change % change 2015 2016 2017 2018 2019 2020 2020 Variance from 2019 from Budget January 62,607.00$ 64,723.00$ 74,674.00$ 88,582.09$ 72,981.86$ 37,959.89$ 79,231.98$ 41,272.09$ 8.56%108.73% February 63,838.00 68,506.00 86,342.00 75,952.60 64,868.20 37,535.87 70,588.43 33,052.56$ 8.82%88.06% March 77,902.00 81,664.00 76,023.00 79,071.20 78,824.90 41,083.52 34,641.33 (6,442.19)$ -56.05%-15.68% April 61,760.00 55,452.00 67,398.00 61,817.56 53,085.20 31,271.93 1,436.70 (29,835.23)$ -97.29%-95.41% May 43,119.00 50,067.40 54,337.00 50,252.60 63,563.00 27,286.23 713.50 (26,572.73) -98.88%-97.39% June 55,052.00 58,430.50 58,044.00 62,135.02 68,601.20 31,559.05 12,372.10 (19,186.95) -81.97%-60.80% July 61,472.00 66,399.80 65,873.60 72,441.40 88,528.43 37,035.59 22,389.96 (14,645.63) -74.71%-39.54% August 63,233.00 66,388.60 76,558.30 73,573.10 70,491.40 36,568.79 23,879.29 (12,689.50) -66.12%-34.70% September 36,846.00 44,719.00 49,017.70 49,315.70 55,598.60 24,588.09 34,484.00 9,895.91 -37.98%40.25% October 75,818.00 61,167.00 51,833.00 59,692.77 58,055.60 32,008.39 28,628.30 (3,380.09) -50.69%-10.56% November 29,570.00 71,384.00 72,114.00 126,981.80 51,281.50 36,682.27 26,028.90 (10,653.37) -49.24%-29.04% December 77,672.00 112,201.00 169,092.78 186,927.10 276,537.00 85,869.37 94,988.47 9,119.10 -65.65%10.62% Total 708,889.00$ 801,102.30$ 901,307.38$ 986,742.94$ 1,002,416.89$ 459,449$ 429,382.96$ (30,066.04)$ -57.17%-6.54% . Actual Collections $- $200,000 $400,000 $600,000 $800,000 $1,000,000 $1,200,000 2016 2017 2018 2019 2020 2016 -2020 Recreation Center Admissions Revenues TOWN OF AVON RECREATION CENTER PROGRAM FEES 2020 Actual vs. Budget Budget YTD Collections Budget % of change % change 2015 2016 2017 2018 2019 2020 2020 Variance from 2019 from Budget January 23,252.13$ 17,133.04$ 28,815.64$ 32,368.50$ 26,095.68$ 19,046$ 27,872.08$ 8,825.85$ 6.81%46.34% February 20,734.70 22,435.59 28,915.58 35,279.57 23,197.74 19,479 25,526.28 6,047.67 10.04%31.05% March 15,184.33 19,132.72 29,016.16 28,669.46 27,280.96 17,796 14,589.59 (3,206.23) -46.52%-18.02% April 18,360.00 18,538.66 26,397.13 45,827.30 31,132.63 20,925 2,152.78 (18,771.85) -93.09%-89.71% May 22,175.69 39,447.85 44,605.22 37,300.42 31,335.76 26,088 7,748.60 (18,339.35) -75.27%-70.30% June 31,443.66 33,369.05 45,885.37 37,231.17 34,568.93 27,227 36,744.13 9,517.38 6.29%34.96% July 29,162.29 44,969.88 46,745.40 49,968.33 43,607.82 31,994 42,860.51 10,866.34 -1.71%33.96% August 31,055.94 46,025.52 52,318.40 64,320.46 49,982.60 36,358 64,082.29 27,724.46 28.21%76.25% September 18,209.25 36,240.11 30,853.05 41,463.74 34,704.93 24,090 34,839.01 10,749.28 0.39%44.62% October 20,380.77 22,068.60 26,881.06 26,782.63 22,588.68 17,709 18,069.54 360.53 -20.01%2.04% November 20,095.40 30,866.78 25,906.72 24,952.65 20,749.47 18,286 13,731.58 (4,554.69) -33.82%-24.91% December 21,918.03 30,294.89 37,309.30 26,328.09 31,740.68 22,019 26,216.53 4,197.55 -17.40%19.06% Total 271,972$ 360,523$ 423,649$ 450,492$ 376,986$ 281,016$ 314,432.92$ 33,416.92$ -16.59%11.89% Actual Collections $- $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 $450,000 $500,000 2016 2017 2018 2019 2020 2016-2020 Recreation Center Program Fees Revenues Dept./Div. 2020 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget General Government: 111 Mayor and Town Council 267,768$ 835$ 255,514$ 11,419$ 95.74% 112 Boards and Commissions 19,650 - 10,291 9,359 52.37% 113 Town Attorney 205,000 - 226,258 (21,258) 110.37% 115 Town Clerk 139,737 2,458 120,669 16,610 88.11% 121 Municipal Court 128,141 2,798 123,006 2,337 98.18% 131 Town Manager 412,154 - 380,790 31,364 92.39% 133 Community Relations 266,211 2,625 214,765 48,821 81.66% 134 Economic Development 143,250 - 121,759 21,491 85.00% 136 Special Events 392,195 42,372 305,557 44,266 88.71% 137 Community Grants 97,000 1,250 92,800 2,950 96.96% COVID-19 477,621 28,886 554,272 (105,536) 122.10% Total General Government 2,548,727 81,223 2,405,679 61,824 97.57% Human Resources Department: 132 Human Resources 570,734 25,810 530,282 14,642 97.43% Finance & IT Department: 141 Finance 986,754 41,719 923,976 21,059 97.87% 143 Information Systems 448,608 17,944 438,928 (8,264) 101.84% 149 Nondepartmental 509,603 49,222 514,467 (54,087) 110.61% Total Finance & IT 1,944,965 108,885 1,877,371 (41,292) 102.12% Total General Gov't Departments 5,064,426 215,919 4,813,333 35,174 99.31% Community Development: 212 Planning 307,254 1,872 299,377 6,005 98.05% 213 Building Inspection 186,392 2 178,585 7,805 95.81% Total Community Development 493,646 1,874 477,962 13,810 97.20% Police Department: 311 Administration 823,448 10,555 789,463 23,430 97.15% 312 Patrol 3,016,868 39,354 2,900,309 77,205 97.44% 313 Investigations 307,778 1,328 305,806 643 99.79% Total Police 4,148,094 51,237 3,995,579 101,278 97.56% Public Works: 412 Engineering 264,624 752 265,483 (1,611) 100.61% 413 Roads and Bridges 2,388,955 51,762 2,244,713 92,480 96.13% 415 Parks 458,975 63,516 308,227 87,232 80.99% 418 Buildings & Facilities 1,204,533 58,026 1,051,718 94,789 92.13% Total Public Works 4,317,087 174,056 3,870,142 272,889 93.68% Recreation Department: 514 Administration 260,856 6,998 250,062 3,796 98.54% 515 Adult Programs 41,118 - 24,664 16,454 59.98% 516 Aquatics 555,055 9,255 474,480 71,320 87.15% 518 Fitness 69,903 - 39,693 30,210 56.78% 519 Guest Services 310,827 4,451 268,673 37,704 87.87% 521 Youth Programs 191,045 994 125,662 64,390 66.30% 523 Community Swim Program 160,603 19 120,142 40,441 74.82% Total Recreation 1,589,407 21,717 1,303,375 264,315 83.37% Contingency - - Operating Transfers 1,875,000 - - 1,875,000 0.00% - TOTAL OPERATING EXPENDITURES 17,487,660$ 464,802$ 14,460,392$ 2,562,466$ 85.35% Department Expenditure Summaries General Fund December 2020 Expenditures to Date Dept./Div. 2020 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES Public Works: 434 Fleet Maintenance 4,053,740$ 28,050$ 3,342,166$ 683,524$ 83.14% Total Operating Expenditures 4,053,740 28,050 3,342,166 683,524 83.14% TOTAL EXPENDITURES 4,053,740$ 28,050$ 3,342,166$ 683,524$ 83.14% Expenditure Summary Fleet Maintenance Enterprise Fund December 2020 Expenditures to Date Dept./Div.2020 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES 431 Mobility Administration 272,647$ 28,967.67 222,686$ 20,994$ 92.30% 432 Mobility Operations 1,194,516 10,703 1,098,758 85,055 92.88% 436 Wash Bay 181,383 1,323 170,576 9,484 94.77% 437 Mobiltity Programs 311,321 1,000 129,661 180,660 41.97% Total Operating Expenditures 1,959,867 41,994 1,621,680 296,193 84.89% TOTAL EXPENDITURES 1,959,867$ 41,994$ 1,621,680$ 296,193$ 84.89% Expenditure Summary Mobility Enterprise Fund December 2020 Expenditures to Date 970.748.4019 jmccracken@avon.org TO: Finance Committee Members FROM: Joel McCracken, Senior Accountant RE: 4th Quarter RETT Sales and Exemption Report DATE: January 28th, 2021 SUMMARY: The 4th quarter has historically generated the most RETT revenues in the entire year. December revenues were significant because of the completion of residencies located on Waterfront Way. Type of Exemption 1st Q 2nd Q 3rd Q 4th Q TOTAL Section (17) 5 3 13 5 26 Section (18) 0 0 0 0 0 Section (19) 0 1 7 3 11 TOTAL 5 4 20 8 37 The following chart shows the 4th quarter sales by month sold, sales amount and the RETT exemption. #1October #2 October #3 November #4 November #5 November #6 November #7 November #8 December $395,000 $1,595,000 $440,000 $400,000 $630,000 $340,000 $399,000 $642,000 (17) $3,200 (17) $3200 (9) 4,400 (17) $3,200 (19) 4,800 (17) $3,200 (17) $3,200 (19) $4,800 The chart (below) shows the RETT activity for 4th quarter 2020 in dollars. Actual RETT 2020 October November December Total RETT Revenue $906,843 461,399 $1,600,283 TOTAL Exemptions 6,400 18,800 4,800 Total RETT 913,243 480,199 1,605,083 Total Sales $45,662,150 $24,009,950 $80,254,150 By comparing the average RETT over 3 years, you can see that Actual RETT activity greatly increased in 4th Quarter 2020 by approximately 67.6% in September, 12.7% in November, and 41.3% in December. 3-Year Average RETT 2018-2020 2018-2020 2018-2020 October November December Total RETT Revenue $532,432 414,488 $1,131,189 TOTAL Exemptions 12,580 11,600 4,800 Total RETT 545,012 426,088 1,135,989 Total Sales $27,250,600 $21,304,400 $56,799,450 Summary of Primary Residence RETT Exemption under Avon Municipal Code Section 3.12.060 Exemptions Section (17) Section (18) Section (19) Amount $160,000 $160,000 $240,000 Home Value Cap None None $700,000 Eagle County Employee N/A Yes Yes Affidavit of Primary Residence Yes Yes Yes Promissory Note 1 year 1 year 3 years Lien Yes Yes Yes 2018‐20202018 2019 2020 2021 20223 Year AverageJanuary 6,350.00       11,700.00   6,400.00      ‐                 ‐               8,150.00          February 16,000.00     6,400.00     3,200.00      ‐                 ‐               8,534.00          March 15,550.00     6,400.00     5,355.00      ‐                 ‐               9,102.00          April 19,200.00      ‐                ‐                ‐                 ‐               6,400.00          May 3,200.00       28,800.00   1,680.00      ‐                 ‐               11,227.00        June 19,200.00     12,650.00   11,200.00    ‐                 ‐               14,350.00        July 31,100.00     16,000.00   34,990.00    ‐                 ‐               27,364.00        August 9,600.00       27,187.00   12,800.00    ‐                 ‐               16,529.00        September 18,512.00     9,600.00     24,160.00    ‐                 ‐               17,424.00        October 18,540.00     12,800.00   6,400.00      ‐                 ‐               12,580.00        November 9,600.00       6,400.00     18,800.00    ‐                 ‐               11,600.00        December 3,200.00       6,400.00     4,800.00      ‐                 ‐               4,800.00          170,052.00  144,337.00129,785.00‐                 ‐               Actual Exemptions Total170,052.00 144,337.00 129,785.00 ‐‐2018 2019 2020 2021 2022Actual Exemptions Total TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager RE: Departmental Goals for 2021 DATE: January 18, 2021 SUMMARY: During the January 12, 2021 meeting, we presented an overview of the many goals and plans of the Town of Avon Departments. This is a very broad topic and the first meeting was meant to be an introduction. Council will have the opportunity to continue the discussion for questions, comments and to provide direction at the January 26 Council meeting and February 9 Council meeting if desired. 2021 DEPARTMENT GOALS: A revised draft of the 2021 Department Goals is presented to Council for further review and discussion. The comments offered during the January 12 meeting have been included. This list of Department Goals presents an ambitious and full list of intended activities in addition to the regular function of each Department. Each Department is in the process of establishing a schedule for implementation which will facilitate coordination across Departments and guide the scheduling of work sessions and action items with Council. A quarterly update will be presented to Council in the same manner as the quarterly update for the Strategic Plan. A sample of this calendar for implementation for General Government Department is attached as Exhibit B. Council input is desired on this list of Department goals and the timelines. If additional goals are identified, then it would be important for Council to provide direction on prioritizing. Additional goals as well as unforeseen matters or projects have the potential to cause delay or inability to complete the goals as presented. REQUESTED DIRECTION: Council review and approval or direction on desired revisions are requested to provide guidance on Department Goals. PROPOSED MOTION: “I move to approve the 2021 Department Goals for the Town of Avon.” ATTACHMENTS: A. 2021 Department Goals [RED LINE COMPARISON] B. 2021 General Government Calendar Sample (excl. changes from Jan 12) 2021 Department Work Plan Adopted January 26, 2021 Page 1 of 10 Town of Avon 2021 Department Goals INTRODUCTION: This document presents specific tasks and projects to be completed, or substantially completed, during 2021. The 2021 Department Goals replaces the former Strategic Plan with regard to identifying specific projects to be completed during the calendar year as well as clarifies the Department responsible for performing the tasks. Quarterly updates will be provided to Council at which time Council members may discuss the 2021 Department Goals and provide direction on revisions, additions, deletions and changes in priority. The 2021 Department Goals provides a foundation for organizing and scheduling Staff work as well as scheduling reports, work session and action items for Council meetings. GENERAL GOVERNMENT 1.Establish a “State of Town” Document or Video: Avon will create a “State of the Town” presentation that will review highlights from 2020 and provide an overview and outlook for significant projects in 2021. 2.Holy Cross Electric Franchise Agreement Renewal: The Holy Cross Electric Franchise Agreement is required to be renewed. This is a twenty-year agreement that expires on February 28, 2021 and needs to be renewed. A report and draft ordinance for first reading will be presented in January to Council. 3.Implement Bang the Table Community Engagement Platform: Council approved the “Bang the Table” Community Engagement Platform in fall of 2020. Staff is preparing a variety of Town projects to post on this new platform. The goal is post approximately nine separate projects by the beginning of February and then review performance, functionality and usage with Council in April. 4.Update Procurement Code: The existing Procurement Code was adopted in 2010. Staff has a working draft of a revised and updated Procurement Code to present to Council at the end of February. Adoption of the revised Procurement Code would occur by Resolution. 5.Update Avon Brand Guidelines: Avon adopted Brand Guidelines in 2016 which establishes colors, fonts and standards for use of the Town logo. Since its adoption, Avon has not used some color formats, has integrated other colors, has returned to the “Heart of the Valley” tag line and has established the Heartbeat Newsletter. The update to the Avon Brand Guidelines document will incorporate current practices for marketing, communications and documents and will bring the document in-house so that it can be updated more easily. 6.Update Contract Archive Procedures: All contracts are public documents and are required to be archived by the Town Clerk. Avon has not established written or uniform procedures for transmitting contracts to the Town Clerk’s office. Staff is currently creating a transmittal letter and uniform process for all Departments to transmit executed contracts to the Town Clerk’s office. We are also exploring ATTACHMENT A 2021 Department Work Plan Adopted January 26, 2021 Page 2 of 10 placing all Town contracts in a designated folder under public records that can be accessible on the Town’s website. 7. Promote Recycling for Multi-Family and Accommodations Buildings in the Town Core: The West Town Center area has the highest concentration of multi-family and accommodations buildings. Staff will develop a contact list, determine existing practices, organize open house meetings with the building managers, and identify opportunities to promote recycling for these properties. 8. Collect Residential Sales Data: Currently, approximately 50% of residences in Avon are occupied by full-time residents as their primary residence. The Avon Community Housing Plan states the goal to preserve this ratio of at least 50% primary residence occupancy of residential properties. In order to monitor and track compliance with this goal, residential sales data should be collected each year to determine the loss or gain in primary residence occupancy as well as to track real estate prices in relationship to affordable and accessible housing. 9. Adopt Recall Procedures by Ordinance: Avon Home Rule Charter states that Avon may adopt Recall Procedures by ordinance. Avon has not adopted Recall Procedures. Other municipalities have adopted Recall Procedures which typically include forms and instructions which are more accessible to the public. 10. Establish a Climate Action Investment Matrix: Avon appropriates and invests funds every year to implement greenhouse gas reduction and advance climate action goals. Establishment of an investment matrix is a carry-over project from 2020. The intent is to summarize various climate action projects, the financial investment for each project, the reduction of greenhouse gas and then provide a comparison of return on investment for various projects. 11. Research Net Zero Communities: Avon endorses the Net Zero Mountain Town 2030 goals of reducing community greenhouse gas emissions to a “net zero” level. This goal involves researching and presenting the actions, economy and lifestyle of communities that have achieved net zero greenhouse gas emissions. 12. Comcast Franchise Renewal: The current Comcast Franchise Agreement expires at the end of 2022. A cable franchise agreement renewal process typically requires a year. The goal is to review the process and then commence by the end of 2021 and conduct the majority of the renewal process in 2022. 13. Trademark Logos and Names: Identify various logos, marks, event names and tag lines used for Avon’s brand and file appropriate action to trademark and protect this branding and marketing intellectual property. 14. Art in Avon: Art in Avon will solicit artists to create outdoor art works that can be displayed in various locations in Avon for a year and then would be replaced each year with new artwork. Artists receive a modest commission to assist with material costs and the artwork is displayed for potential sale. It would be featured each year and would be promoted with self-guided walking tours. 2021 Department Work Plan Adopted January 26, 2021 Page 3 of 10 15. Recreation Center Mural: The Avon Recreation Center has three large blank cinder block walls on the south side of the building facing the Avon Main Street Mall. This area was identified for installation of mural art in a manner similar to Lettuce Shed Lane. 16. Conduct 2021 Community Survey: A biennial survey would be conducted in the late spring to solicit input on Town services and pending policy questions. The community survey will be sent to residents, property owners and business owners in Avon. 17. Conduct Long Range Avon Vision Process to Replace Former Strategic Plan: A vision document will be created that describes how the Avon community desires to see Avon in 10 to 20 years along with strategic policies to achieve this vision. 18. Establish Winter Marketing Plan for 2021-2022 Ski Season: A winter marketing plan will be created which reflects the values of the Avon community and seeks to attract visitors during the winter which are compatible with Avon’s community values. 19. Update discoveravon.org website: The Discover Avon Website will be updated to establish a more attractive and user-friendly destination marketing website ready to serve the Town’s future marketing plan. 20. Research Home Office Licenses: A business license is required for residents working from their home office in Avon. Staff will research best practices in peer communities. FINANCE 1. Implement Tyler Technologies: The Finance Department proceeded with the Tyler Technologies software upgrades to replace Sungard and PowerPlan in the fall of 2020. All of the Town’s accounts will be transferred over and entered into the Tyler Technologies software platform and Staff will be trained on using this new platform for all budgeting and financial matters. An overview of the new platform and functionality will be presented to Council in early 2021. 2. Implement Clear Gov Budget Platform: Council approved the Clear Gov Budget website platform to improve the public’s ability to review and understand the Town’s budget. A presentation to Council will be scheduled in early 2021. 3. Create Public Real Estate Transfer Tax Analysis Document: Questions concerning the Town’s real estate transfer tax arise periodically. A comprehensive analysis of the Town’s real estate transfer tax will be prepared and presented to Council in early 2021. 4. Broadband Planning Project: Town has contracted with HR Green to conduct a Broadband planning analysis, which will include conducting a market assessment, determining community preferences, and analyzing the broadband activities of our peer mountain resort communities. 2021 Department Work Plan Adopted January 26, 2021 Page 4 of 10 5. Research Sales Tax on Vehicle Purchases and Leases: Staff will research the total sales tax paid for vehicle purchases in the Town of Avon in order to present information on the potential financial incentive for sales tax waivers for electric vehicle purchases. 6. Refresh Financial and Budgetary Policies: The Town’s budget includes Financial and Budgetary Policies which are re-adopted each year. Staff will review and present proposed revisions to the Financial and Budgetary Policies to the Finance Committee for inclusion in the draft budget for 2022. 7. Update Financial Comparison of Peer Communities: Town conducted comprehensive comparisons of the Town’s tax structure with neighboring communities in Eagle County. Staff will update those comparisons and expand to include our primary comparator communities of Breckenridge, Frisco, Silverthorne, Snowmass, Steamboat Springs, Telluride and Vail. 8. Research Portion of Avon’s Revenues from Visitor Economy: Staff will conduct an analysis to determine the share of the Town’s revenues that are derived from the visitor economy. 9. Establish Long-Range Planning Projection per Budget Policies: The Budget Policies state that long-range planning projections should be established. Staff will prepare long-range planning projections for presentation and review by the Finance Committee. 10. Establish Improved Public Involvement Process and Budget Schedule: Staff will establish and execute an improved budget schedule for public involvement for the 2022 budget process. 11. Establish Improved Assessment of Revenues and Costs for Identified Activities: Staff will utilize the Tyler Technology platform to identify activity areas, such as Recreation Center, Transit, Fleet operations, and Special Events, and present revenues and expenses with those activity areas to promote understanding of cost and financial goals to balance revenues and expenses in specific activity areas where possible. 12. Present Legal and Financial Analysis of Use Tax: Staff will prepare an overview of sales and use tax as commonly used throughout Colorado, potential revenues, potential dedication of such revenues for designated purposes such as capital improvements or community housing, and present that information to the Finance Committee. 13. Research Marijuana Tax: Staff will research this opportunity and prepare a report and present that information to the Town Council. 14. Research & Implement Blended Virtual/In-Person Format: Council indicated they would like to offer virtual participation as an option once/after Council goes back to meeting in-person in Council Chambers. Staff will research and implement the technology to host such a “blended” meeting. HUMAN RESOURCES 1. Comparison of Benefits in Peer Communities: Staff will conduct a comprehensive review of employee benefits offered in our peer communities, including our primary comparator communities. 2021 Department Work Plan Adopted January 26, 2021 Page 5 of 10 2. Implementation of Customer Service Training Program: Staff will establish and implement a customer service training program that provides uniform training and sets uniform expectations for how Town Staff interacts with the general public. 3. Implementation of Performance Evaluation Training Program: Staff will establish a training program for Directors and Supervisors to conduct performance evaluations with the updated performance evaluation criteria. 4. Implementation of Annual or Semi-Annual Pulse Survey: Staff will establish and implement a ‘pulse survey’ to be sent to all Town employees to gather input on working conditions, concerns, and recommendations for improved practices. 5. Update American with Disabilities Act Coordinator: The Town adopted by resolution designations and processes for an American with Disabilities Act Coordinator in 1993. Staff will update this document in 2021. 6. Assess Human Resources Information Systems (HRIS): Staff will assess the utility, functionality, costs and benefits for a Human Resources Information System in 2021 and propose options and recommendations for adoption in 2022. COMMUNITY DEVELOPMENT 1. Implement Bang the Table for Planning Projects: Approximately half of the Bang the Table projects will be planning and development projects overseen or administered by the Community Development Department. Staff will actively participate in developing content for the Bang the Table platform. 2. Update Avon Community Housing Plan: Staff will update the Avon Community Housing Plan to reflect decisions and direction since its adoption. 3. Implement SmartGov Permit and Planning Software: Staff will implement the SmartGov Permit and Planning Software to improve Department efficiency. 4. June Creek Road Emergency Access: Staff will lead Town’s efforts to coordinate with the Berry Creek Metropolitan District, Eagle River Fire Protection District, Eagle County Emergency Management and other stake holders to pursue establishment of an emergency vehicle access on June Creek road. 5. USFS Road 779: Staff will lead Town’s efforts to solicit community input regarding recreational use of June Creek roadUSFS Road 779, coordinate with the US Forest Service, determine Council direction where appropriate, and implement such direction. 6. Finish Convention Center Footprint Analysis for Old Town Hall Site: Staff will prepare a rough depiction of the footprint of a hypothetical convention center with parking and lodging at the old town hall site to demonstrate scale, feasibility, and limitations of this site. 2021 Department Work Plan Adopted January 26, 2021 Page 6 of 10 7. Swift Gulch Employee Housing Planning: Staff will lead efforts to conduct initial schematic designs, cost estimating and financial options for the development of Town owned employee housing at the Swift Gulch site. 8. Title 7 Development Code updates: Staff will present updates to the Development Code including updates to the Sign Code to address revisions on electronic signs and political signs. 9. Nottingham Park East Planning Project: Staff will lead a community-based design effort to consider improvements to Nottingham Park, including construction of restrooms and related facilities to support events on the main field and the Avon pavilion. 10. Implement Historic Monument Project: Staff will oversee installation of historic photo monuments around Avon and assist with the creation of a walking tour document. 11. Child Care/Housing on Planning Area E: Staff will conduct preliminary outreach to determine regional interest and potential regional financial support for a childcare and housing project on Planning Area E in the Village (at Avon). 11. Early Education Capacity Research: Staff will research child care needs for the Avon Community and capacity of local early education providers. 12. Customer Service Survey: Staff will establish a customer service survey that can be provided to development applicants each year to gauge the Town’s customer service and solicit input on recommendations for improvement. ENGINEERING 1. Implement Capital Improvements Projects Plan for 2021: Provide written status reports on capital improvements projects to Council at first Council meetings in April, June, August, October and December. 2. Create Public Infrastructure Schedule: Staff will establish a comprehensive schedule of the Town’s public infrastructure, with replacement costs for the next 20 years, including roads, buildings and public facilities. 3. Research Best Practices by Peer Communities on Site Security Obligations: Staff will research the best practices for site security obligations for construction projects and present a written report to Council with recommendations. 4. Prepare Grading Regulations for Utility Maintenance Work: Staff will review existing grading regulations for utility maintenance work and provide recommendations for revisions. 5. Add Additional Layers of GIS: Staff will continue to develop and add additional layers of GIS to build the Town’s GIS system. 2021 Department Work Plan Adopted January 26, 2021 Page 7 of 10 6. Village (at Avon) Water Bank: Staff will finalize the Village (at Avon) Water Bank schedule and procedures in cooperation with the Village (at Avon) Development Agreement. 7. Mayor’s Water Challenge: Staff will research what is involved to participate in this national challenge for potential implementation in 2022. 8. Review Water Allocation Map: Staff will review the Avon water rights allocation map to determine if projected water demands for future redevelopment are aligned with water rights and existing water service agreements. PUBLIC WORKS 1. Prepare Level of Service for All Park, Landscape and Streetscape Maintenance: Staff will prepare a document that describes the level of service for park, landscaping and streetscape maintenance that meets the expectations of the Avon community. 2. Create a Schedule of Park, Trails and Streetscape Capital Assets and Maintenance Plan: Staff will create a schedule of Parks, Trails and Streetscape infrastructure that is similar to and will compliment the Public Infrastructure Schedule to be created by the Engineering Department. 3. Implement Timely and Effective Richardson Ground Squirrel Control Program: Staff will implement the control programs for the Richardson Ground Squirrel in spring 2021, before the population grows. 4. Implement Pilot Bio-Char Program: Staff will research and implement a pilot bio-char program to use wildfire mitigation materials and organic yard wastes to create bio-char that can be used as a soil amendment. 5. Install Outdoor Music Equipment: Staff will install outdoor music equipment near the Avon Recreation Center and by the Avon playground in spring, 2021. RECREATION 1. Facilitate Health & Recreation Committee Input on Recreation Questions for Community Survey: Staff will prepare questions for the Community Survey related to Health and Recreation and will submit the questions for review and input by the Health and Recreation Committee. 2. Implement COVID-19 Public Health Orders as Amended: Staff will continue to implement COVID- 19 Public Health Orders as appropriate. 3. Develop Landscape Plan to Improve Outdoor Appearance: Staff will develop a landscape plan to improve the outdoor appearance of the Avon Recreation Center. 2021 Department Work Plan Adopted January 26, 2021 Page 8 of 10 4. Update White Water Park Signs: Staff will provide input, language and graphic content for the installation of updated white-water park signs. 5. Organize Cardboard Boat Regatta: Staff will lead and organize the cardboard regatta which will be coordinated with End of Summer Event. 6. Repair Middle Leisure Pool and Jacuzzi: Staff will oversee and implement re-plaster the middle leisure pools with Diamond Brite finish and will complete jacuzzi leak repairs. 7. Execute Lake Nottingham Ice Skating Program: Staff will execute the opening Lake Nottingham for public ice skating in 2021. 8. Enhance and Expand Adult Programs: Staff will pursue additional group fit options, Zoom class offerings, and transition Spin Studio to martial arts/boxing/kickboxing training room. 9. Enhance Open Water Swim Championships with CASE: Staff will seek to enhance the Open Water Swim Championships, will seek to graduate six senior swimmers to collegiate level swimming, and will apply for USA Swimming Foundation grant to increase subsidized swim programs. 10. Provide Recreational Input for Nottingham Park Improvements: Staff will solicit input from the Health and Recreation Committee on Nottingham Park Improvements. 11. Improve Trash Receptacles Outside Recreation Center: Staff will coordinate with capital improvements and public works to address trash receptacles outside Recreation Center to improve the outdoor appearance of the Recreation Center on the southeast side of the building. 12. Yoga Studio Kitchen Remodel: Staff will propose and oversee a kitchen remodel in the yoga studio to enhance community functionality, including senior programs. POLICE 1. Firearms Training Simulator: Staff will implement the Firearms Training Simulator at the Avon Police Department in partnership with Eagle County Sheriff’s Department and will seek to offer simulator training to other police departments in Eagle County. 2. Implement Requirements of HB 217: Staff will implement procedures and acquisition of equipment as required by House Bill 217, which mandated additional minimum standards for police departments in Colorado. 3. Analysis of Individually Assigned Take-home Vehicles: Staff will prepare a comprehensive analysis of the cost and benefits of individually assigned take-home vehicles. 4. Incorporate Designated Comparator Communities into Annual Report: Staff will incorporate our primary comparator communities into the annual Police Department Report. 2021 Department Work Plan Adopted January 26, 2021 Page 9 of 10 5. Review of ATV Use and Laws for Wildridge Roads: Staff will prepare a review of existing laws for Wildridge Road and a review of ATV laws and practices in our peer communities. 6. Adopt Updated Model Traffic Code: Staff will present adoption of the latest version of the Model Traffic Code. MOBILITY 1. Support Regional Transit Optimization Plan Efforts: Staff will continue to support efforts to research enhance regional transportation in 2021. 2. Update and Prepare Avon Parking Management Plan: Staff will update Avon’s Parking Management Plan and will present plans for implementation of paid parking for such time as when Council deems paid parking is appropriate. 3. Research E-Bike and other Regional Bike Share Programs: Staff will research potential E-Bike programs and participation with regional bike share programs. 4. Implement Electric Buses into the Avon Transit Fleet: Staff will oversee the acquisition and establishment of two new electric busses into Avon’s Transit Fleet, including required electrical upgrades and determining appropriate routes and scheduling for use of electric busses. 5. Federal Transit Authority Triannual Review: Staff will prepare and oversee the triannual review of the Avon Regional Transit Facility. 6. US 6 Pedestrian Crossing Solution: Staff will continue to pursue pedestrian crossing improvements for US Highway 6 between Avon Road and Stonebridge. 7. Create Transit Plan for Village (at Avon): Staff will create a transit plan for the Village (at Avon) that is comparable to the transit service provide in the West Town Center and East Town Center areas. 8. Tennessee Pass Rail Road Project: Staff will participate in an Eagle County based regional group to research the Federal and State approval process for re-activating the Union Pacific Rail Road rail line through Eagle County, to solicit input from the Avon community, and to determine appropriate issues, policies and positions for the Avon community. FLEET 1. Develop Plan to Balance Expenses with Revenues by End of 2022: Staff will continue efforts to balance operational revenues with expenses in the Fleet Department and will establish a plan to achieve break-even financial status by the end of 2022 (i.e. for the 2023 budget). 2021 Department Work Plan Adopted January 26, 2021 Page 10 of 10 2. Update Vehicle/Equipment Replacement Fund: Staff will work with the Finance Department to update the vehicle and equipment replacement fund to reflect current conditions. 3. Track and Update Vehicle Emissions: Staff will continue to track and update vehicle emissions from Avon’s vehicle fleet. 2021 General Government Department Goals (Sample which does not include changes since 1/12)Color Key: Work Council Leadership Team Next Steps To Be Determined Goal CompletedMonth1st Day1-42-13-14-55-35-317-58-29-610-411-112-6Week123456789101112131415161718192021222324252627282930313233343536373839404142434445464748495051521. State of the TownIdentify 2020 & 2021 topicsDraft NarrativeCreate VideoShow to Council (1-26)Post on Website and SocialCompletion2. Holy Cross Electric Franchise Agreement Renewal Council: 1st Reading of Ordinance (1-12)Council: 2nd Reading of Ordinance (1-26)Completion3. Implement Bang the TablePublish Initial 3 ProjectsPublish Additional 6 ProjectsWritten Report to Council on Initial Publication (2-23)Draft Report Reviewing Bang the TableCouncil Work Session to Review (4-13)Next Steps To Be DeterminedCompletion4. Update Procurement CodeReview and Finalize Draft and ReportReview with Leadership Team (2-10)Finalize Materials for CouncilResolution by Council (2-23)Completion5. Update Avon Brand GuidelinesReview and Revise DraftFinalize Materials for CouncilCouncil Work Session (3-9)Completion6. Update Contract Archive ProceduresAdopt Policy and Transmittal FormReview Policy and Forms with Leadership Team (2-9)Post Contracts on WebsiteCouncil Work Session (3-9)Completion7. Promote Recycling for Multi-FamilyContact Multi-Family Projects, Determine Current PracticesResearch Programs in Peer CommunitiesDraft Report on Findings with RecommendationsCouncil Work Session (3-23)Next Steps To Be DeterminedCompletion8. Collect Residential Sales DataIdentify Residential Sales Data to Be CollectedDetermine Form of Reporting and In-House v. Contract Prepare Council ReportCouncil Work Session (3-9)Implement Residential Sales TrackingCompletion9. Adopt Recall ProceduresResearch Samples of Recall ProceduresDraft Report and Ordinance for CouncilCouncil: 1st Reading of Ordinance (3-9)Council: 2nd Reading of Ordinance (3-23)Completion10. Establish Climate Action Investment MatrixReview Information, Research SamplesCreate Draft Matrix for Review with Leadership Team (2-10)Review with Leadership Team (2-10)Revise, Complete, Prepare Report to CouncilCouncil Work Session (4-13)CompletionDecemberJanuary February March April May June July August September October NovemberATTACHMENT B Color Key: Work Council Leadership Team Next Steps To Be Determined Goal CompletedMonth1st Day1-4 2-1 3-1 4-5 5-3 5-31 7-5 8-2 9-6 10-4 11-1 12-6Week1234567891011121314151617181920212223242526272829303132333435363738394041424344454647484950515211. Research Net Zero CommunitiesCollect Information, Reseach CommunitiesPrepare Report and PresentationCouncil Work Session (4-27)Next Steps To Be DeterminedCompletion12. Comcast Franchise Agreement RenewalPrepare Report to Council Describing ProcessCouncil Work Session (11-9)Officially Commence Process (to be completed in2022)13. Trade Mark Logos and NamesIdentify Logos and Names to ProtectFile for ProtectionCreate File for Copyright and Trademark ProtectionsCompletion14. Art Around AvonFinalize LocationsFinalize Request for ProposalsImplement Request for ProposalsWritten Report to Council (1-26)Review Submissions, Select ArtInstall Rotating ArtPrepare Report to CouncilCouncil Work Session (8-24)Completion15. Recreation Center MuralArtist Request for ProposalDeadline for Artist SubmissionsCommittee Review of Artist SubmissionsSelect Artist and Finalize DesignMural InstallationCompletion16. Conduct Biennial Community SurveyReview Draft QuestionsCitizen Committee Input on Draft QuestionsFinalize Materials for CouncilCouncil Work Session 1 (3-23)Council Work Session 2 (4-13)Focus Group Test SurveyFinalize SurveyPost SurveyTabulate ResultsPrepare Council ReportCouncil Work Session (7-13)Publish Final Community Survey ResultsCompletion17. Long Range Strategic VisionPrepare Report on ProcessPresent Process to Council (4-27)Discuss Community Survey ResultsIndentify Topics, Present Draft ConceptsConduct Citizen Open HousesPrepare 1st Draft of Strategy DocumentCouncil Public Hearing #1 (10-19)Revise DocumentCouncil Public Hearing #2 - Adopt by Resolution (11-9)Completion18. Establish Winter Marketing Plan 2021-2022 SeasonPrepare Report with Concept Goals, Methods, CostCouncil Work Session (5-11)Develop Content and Final Winter Marketing PlanImplement Winter Marketing PlanReport to Council on Impact (2022?)CompletionNovember DecemberJune July August September OctoberJanuary February March April May 1 MEMORANDUM To: Honorable Mayor Smith Hymes and Town Councilmembers From: Paul Wisor, Town Attorney Re: Code of Ethics, Ex Parte Contacts and Simplified Rules of Order Date: January 8, 2021 I. Summary The following memorandum provides a broad overview of 1) the Town’s Ethics Code, 2) Councilmembers’ obligations with respect to ex parte contacts and 3) the Avon Town Council Simplified Rules of Order governing Council meetings. No Council action is requir ed, but this memorandum will be discussed at a presentation during the January 12th Council meeting. II. Ethics Code In July 2015, Council revamped the Avon Town Code of Ethics (the “Ethics Code”). In doing so, Council imposed ethical rules that are more specific and more restrictive than the ethical rules that previously governed the Town or are currently in place pursuant to state statute. The purpose of the Ethics Code is to establish guidelines for ethical standards for Councilmembers, staff and appointed members of boards and commissions, and to set forth acts that are incompatible with the best interests of the Town. While the full text of the Ethics Code, attached hereto as Exhibit A, is important, the discussion below highlights the provisions of the Ethics Code most relevant to the day -to-day experience of Councilmembers, namely conflicts of interests and gifts. a. Conflicts of Interest One of the primary concerns addressed in the Ethics Code is conflicts of interest. The Ethics Code addresses current and future conflicts as well as appearances of impropriety. It also sets forth the mechanisms by which such conflicts may be resolved. i. Conflicts of Interest, Generally Precisely defining “conflict of interest” as it applies to municipal decision making is difficult because the existence of a conflict of interest depends in large part on the specific facts of each case. However, the general rule is that a conflict of interest requiring disqualification will be found when an official has a personal, financial, or official stake in the decision evidencing a. Meyerstein v. City of Aspen, 282 P.3d 456, (2011). That interest must be immediate, definite and capable of demonstration; not remote, uncertain or speculative. In short, would a person of “ordinary capacity and intelligence” be influenced by the financial interest? If yes, then the person has a conflict of interest and must not vote on the matter. As noted above, conflicts of interest are highly fact specific, so it is difficult to make direct comparisons between two different situations that may give rise to conflict of interest 2 concerns. However, below are a few examples of where conflicts may, or may not exist.  A councilmember owned an aviation business that was a tenant of the city airport. The councilmember voted to purchase a new tractor for use at the airport and voted to participate in a block grant program for airport expansion. In that case, the state supreme court held that the councilmember did not have a conflict of interest because the councilmember was not himself financially interested, either directly or indirectly, in the contract or the performance of the work. Even though the councilmember could make use of the airport’s facilities, the benefit to the councilmember was no different from the benefits enjoyed by the public at large.  A tenant of a public housing authority was appointed to a two-year term as a commissioner of the same housing authority. There, the state supreme court found the interests of a housing authority commissioner would center on the points at which management policies and functions of the authority come into contact with individual tenants, a conflict of interest existed. The court reasoned the authority of a commissioner could include the selection and retention of tenants, a determination of rents to be charged, the services and other benefits to be furnished, and the enforcement of the rules governing the conduct and rights of the tenants. Therefore, the tenant, as a housing commissioner, would benefit herself by her vote, because her personal interests were always directly or indirectly involved in her vote on the commission.  City commissioners negotiated and approved a settlement of a federal lawsuit against the city. In the settlement they included an arrangement for their own employment with the city. The court found the commissioners had a duty to act in the best interests of the city and to refrain from using their positions as city commissioners for their own personal benefit. The court held the commissioners, in negotiating and approving their own employment with the city, had obtained a personal benefit in violation of state statutes. As these cases demonstrate, a conflict of interest may not exist in some instances where one may think such a conflict would be found. On the other hand, the cases also demonstrate Councilmembers should studiously avoid voting on matters that directly benefit them personally or financially in a way that does not inure to the public at large. ii. Current Conflicts Section 2.30.060(3) of the Ethics Code provides no Councilmember shall perform an “official act which directly and substantially affects to its economic benefit a business or other undertaking in which such Councilmember has a substantial financial interest. A “substantial financial interest” is defined in Section 2.30.050 as 1) an ownership in a business; 2) a creditor interest in a business; 3) an ownership interest in real or personal property; 4) a loan or any other debtor interest; or 5) a directorship or officership in a business. Section 2.30.060(4) prohibits any Councilmember from performing “an official act which directly and substantially affects a business or other undertaking by whom the Councilmember is employed, or by whom such Councilmember is engaged as counsel, consultant, representative or agent.” At a July 2019 Council meeting, Council determined the mere potential of a Councilmember listing of a unit or home that may developed within a 3 project that is the subject of a land use application before Council does not constitute a conflict of interest as defined in the Ethics Code. iii. Future Conflicts In addition to addressing direct and substantial conflicts existing at the time Council votes on a particular matter, the Ethics Code also places a restriction on future activity of Councilmembers by limiting future employment opportunities or sources of compensation. Section 2.30.060(11) prohibits any Councilmember from seeking or obtaining “employment or compensation concerning matters upon which he or she took an Official Act during his or her term of office for six (6) months following expiration or termination of office, if such Official Act occurred less than four years prior to such employment or compensation.” Notwithstanding the foregoing restrictions on future employment and compensation, Section 2.30.060(11) provides any conflict giving rise to the prohibition on future employment or compensation opportunities “may be waived by a majority of the disinterested Town Councilmembers.” It should be noted that in 2020 Town Council voted that the mere possibility of a Councilmember, or a Councilmember’s family member, potentially representing a buyer or seller in a future real estate transaction as a real estate agent does not create a conflict of interest or appearance of impropriety. iv. Appearance of Impropriety The Ethics Code also contains a catchall provision common in many municipal codes throughout Colorado in a variety of iterations that seeks to broadly cover all manner of unethical behavior. Section 2.30.060(8) provides a Councilmember shall not take action “under circumstances which give rise to appearance of impropriety” on the part of the Councilmember. Like “conflicts of interest,” the Ethics Code does not define “appearance of impropriety.” In the local government context, “appearance of impropriety” is generally described actions or decisions which do not qualify as conflict of interest, but reasonably give rise to an implication that an action is self-serving rather than considered solely with respect to its impact on the Town and its citizens. The “appearance of impropriety” provision can be applied quite broadly if one chose to do so. A Town Councilmember may have any number of tangential connections to an issue being considered by Council, particularly in a small community where relationships and activities are consistently interrelated. In evaluating whether the appearance of impropriety exists, Town Councilmembers should focus on whether a reasonable observer would believe the Town Councilmember is acting for their own benefit. Too often, the focus is on the hypothetical outlier who sees nefarious motives behind every action taken by Council. Council should focus on the reasonable person standard, not the outlier who may complain, when determining whether an appearance of impropriety exists. In addition, Section 2.30.070 of the Ethics Code provides a generally applicable exception, 4 but one that is particularly pertinent to issues surrounding appearances of impropriety, that provides a Town Council member may vote on a matter even if there is a conflict of interest of appearance of impropriety if the “officer is similarly situated to other Town residents.” This includes, but is not limited situations where Council adopts general land use regulations, the officer owns property within a special or local improvement district, the officer votes for taxes or bonds, adopting ordinances of general applicability or otherwise acting upon matters involving the common public interest. v. Waiver of Future Conflict While it is rare a Town Councilmember will find themselves in a situation where a matter before Council creates an actual and immediate conflict of interest, Councilmembers rightfully worry about the trickledown effect a particular decision may have on their individual or employer’s economic wellbeing in the future. However, Section 2.30.060(11) of the Code addresses this concern by providing Council may waive any conflict that may arise as a result of any action taken by a Councilmember. The specific time and manner in which this waiver is provided is unclear. That said, there is nothing in the Ethics Code specifically precluding a Councilmember from seeking a waiver at the time action is taken if the Councilmember foresees a potential conflict. vi. Council Acts As Final Arbiter The framework articulated above provides a shield for Councilmembers from accusations that a particular Councilmember is acting in their own self-interest rather than in the interest of the Town. Prior to hearing a particular mat ter, Section 2.30.080 requires a Councilmember to disclose a conflict of interest. Under the Ethics Code, it is then the obligatio n of the remaining Councilmembers to determine if a conflict exists. If no conflict exists, the Councilmember with the perceived conflict is required to vote under Section 5.5 of the Charter. As such, an individual Councilmember can never be faulted for participating in a given matter. That decision is the prerogative of fellow Councilmembers and a requirement of the Charter. It is notable that while nothing prohibits Councilmembers from asking the Town Attorney for guidance, the Town Attorney has no official role in the determination of whether a conflict of interest exists. b. Gifts In 2006, the Colorado voters approved a constitutional amendment imposing certain ethical constraints on elected officials and government officials. In 2015, Council, using its home rule authority, adopted its own regulations related to gifts provided to Councilmembers. Pursuant to Section 2.30.170 of the Avon Municipal Code (the “AMC”), Councilmembers must report any gift in excess of fifty dollars ($50.00) to the Town Clerk as well as the estimated value of such gift. A gift is defined as “any present, or offer of future, individual gift, favor, loan, service of thing of value.” Such gifts only need be reported if they were given as a result of a Councilmember’s status as a member of Council. Gifts provided by relatives or personal friends on special occasions need not be reported. 5 To the extent a gift is reported to the Town Clerk, Council must determine whether such gift constitutes a conflict of interest under the AMC. The Councilmember receiving the gift shall not vote on whether a conflict exists. Section 2.30.170(c) specifically provides gifts given without the intent to influence a Councilmember in connection with an official act does not create the appearance of impropriety. III. Ex Parte Contacts As Council is aware, Council may act three different capacities: legislative, administrative or quasi-judicial. In a legislative capacity, Council is often enacting new laws or making decisions that are generally applicable to the public as a whole. In an administrative capacity, Council is engaging in the basic operation of government, such as approving contracts. When acting in a quasi-judicial role, Council is required to make a determination of the rights, duties or obligations of specific individuals on the basis of the application of facts to existing legal standards pursuant to a hearing conducted by Council. Council most often serves in a quasi-judicial capacity with respect to land use matters. In contrast to hearings on legislative or administrative matters, Coun cil is required to operate as a panel of “judges” rather than legislators. In this capacity, Council must base its decision on any particular matter solely on the evidence presented at a public hearing, and, as a general matter, Councilmembers are prohibited from basing their decision on evidence gathered outside the public hearing. This prohibition extends to contacts between the applicant, proponents or opponents of a particular matter and members of the Council outside of publicly scheduled hearings or meetings. These contacts are known as ex parte contacts, and can be verbal, written or electronic. Ex parte contacts can potentially invalidate the decision of Council if not properly addressed. Councilmembers are to remain impartial with respect to quasi -judicial hearings, and ex parte contacts can have the effect of spoiling such impartiality, thus prejudicing the rights of the applicant or the proponent or opponent of a particular application. Ex parte contacts can also create a situation in which a Councilmember bases their decision on details upon which an applicant, proponent or opponent does not have the opportunity to provide their side or the story or otherwise rebut. In addition, ex parte communications are specifically prohibited by Section 2.30.060(9) of the AMC, which prohibits “ex parte communication or contact concerning a matter which is to be determined after a public hearing without making the contents of such communication or contact a part of the record of such public hearing.” In the event it is revealed Council conducted a quasi-judicial hearing where ex parte contacts occurred, a losing party could appeal the Council’s decision. While it may be difficult to overturn quasi-judicial decisions in some situations, courts are more likely to vacate a Council decision where Council has failed to provide due process. As such, Council should do its best to avoid ex parte contacts. The best practice for Council is not to initiate any conversation or other contact with respect to a quasi -judicial matter. To the extent someone initiates a contact with a Councilmember, it is a Councilmember’s right and obligation to make clear the conversation or contact immediately needs to end, and the person initiating the contact should either express t heir comments to 6 Council through participation at a public hearing or through a written comment. In the event an ex parte contact does occur the law in general, and the AMC specifically, allows a Councilmember to cure the ex parte contact by making the co ntents of the communication or contact a part of the record of any relevant public hearing. Such disclosure must take place at the beginning of the public hearing on the matter. While disclosure of the contents of an ex parte contact is sufficient from the perspective of the AMC, Councilmembers should be mindful of the due process rights afforded those participating in the hearing. As such, the Councilmember disclosing the ex parte contact must be sure to inform the other Councilmembers of all information obtained in the ex parte contact that may be relevant in rendering a decision on the matter. In addition, the Councilmember who engaged in the ex parte contact should participate in the public hearing and vote on the matter only if the Councilmember sincerely believes the ex parte contact did not impair their ability to impartially render a decision on the matter. IV. Simplified Rules of Order In January 2014, Council adopted the Avon Town Council Simplified Rules of Order (the “Simplified Rules”), which Simplified Rules were amended in July 2016. The Simplified Rules were adopted to establish rules and procedures governing Council meetings that are readily accessible and usable by Council and understandable by the public. While the entirety of the Simplified Rules, attached hereto as Exhibit B, should be reviewed in full, this memorandum focuses on rules related to standards of conduct, the Mayor, the agenda and public comment. a. Standards of Conduct In establishing the Simplified Rules, Council sought to provide for open, respectful and informed discussion and debate on matters of public policy while balancing the need for efficiency required for Council to take action on public business. The Simplified Rules provide Councilmembers shall conduct themselves in a mature manner and shall respect one another as well as members of the public. Councilmembers shall refrain from profanity, rude behavior and personal attacks, and shall promptly apologize to both to the Council and the recipient of any such behavior, even if such behavior was temporary. It should be noted Council may not communicate via text or email during Council meetings, and members of Council shall promptly disclose and announce sending or receiving such communications. b. The Mayor The Mayor is tasked with presiding over presiding over every Council meeting. It is the Mayor’s responsibility to moderate Council meetings impartially, and she must attempt to provide other Councilmembers the opportunity to provide their opinion before expressing her own. The Mayor should avoid making a motion or seconding unless it is clear such motion or second is not forthcoming. The Mayor is also tasked with maintaining civility, decorum and order through a Council meeting. 7 In the event the Mayor cannot attend a meeting or has a conflict of interest with respect to a particular matter, the Mayor Pro Tem will fulfill her duties. In the event the Mayor Pro Tem is unable to preside over a meeting for the meeting, Council shall appoint an Acting Mayor. c. Agenda The content of each Council meeting shall be directed by the agenda for such meeting. The Simplified rules provide the Mayor shall determine the conduct of the agenda in consultation with the Town Manager. Council as a whole may, by vote, direct item s be included on a current or future agenda. An individual Councilmember may contact the Mayor to request inclusion of a matter on a future agenda, and it is in the Mayor’s discretion, in consultation with the Town Manager, as to whether such matter reques ted by an individual Councilmember is placed on the agenda. d. Public Comment As Council is aware, public comment is encouraged at all Council meetings. The Simplified Rules provide public comment shall be taken near the beginning of each meeting. Members of the public shall have up to three minutes to provide comments to Council, and members who have comments beyond three minutes are encouraged to schedule time in advance to have a particular item of interest placed on a future agenda. The Mayor may, but is not required to, allow public comment on any agenda item. However, such com ments should not impede the efficient conduct of Town business. V. Conclusion The Ethics Code, ex parte contact and the Simplified Rules are all items Council should keep at the forefront of their mind as they act in their capacity as Councilmembers through out the year. If any Councilmember has concerns or questions with respect to these or any other issues they should feel free to immediately contact the Town Attorney to determine the best course of action. Exhibit A CHAPTER 2.30 - Town Code of Ethics[1] Footnotes: --- (1) --- Editor's note— Ord. No. 15-05 , § 2(Exh.A), adopted July 28, 2015, am ended Ch. 2.30 in its entirety to read as herein set out. Former Ch. 2.30, §§ 2.30.010-2.30.170, pertained to similar subject matter, and derived from Ord. 12-01 §2. 2.30.010 - Citation. This Chapter shall be known and may be cited as the "Avon Town Code of Ethics." ( Ord. 15-05 §2(Exh.A) ) 2.30.020 - Declaration of policy. The proper operation of democratic government requires that public officers be independent, impartial and responsible to the people; that government decisions and policy be made within the proper channels of the governmental structure; that public office not be used for personal gain; and that the public have confidence in the integrity of its government. In recognition of these goals, a code of ethics for all Town Officers is adopted. The purpose of this code is to establish guidelines for ethical standards of conduct for all such officers by setting forth those acts or actions that are incompatible with the best interest of the Town, and by directing disclosure by such officers of private financial or other interests in matters affecting the Town. ( Ord. 15-05 §2(Exh.A) ) 2.30.030 - Finding of local concern. The Town Council finds and determines that the matter of ethical municipal government is a matter of local concern upon which home rule municipalities in Colorado are fully empowered to legislate and to supersede conflicting state statutes. ( Ord. 15-05 §2(Exh.A) ) 2.30.040 - Effect of common law. This Chapter shall supersede and override the common law as to the subject matter of this Chapter. ( Ord. 15-05 §2(Exh.A) ) 2.30.050 - Definitions. As used in this Chapter, unless the context requires otherwise: Business means any corporation, limited liability corporation, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business operated for private profit. Confidential information means all information, whether transmitted orally, electronically or in writing, which is intended to be confidential and which does not constitute a public record under the Colorado Open Records Act set forth in C.R.S. §24-72-200.1 et. seq. including but not limited to attorney-client confidential and privileged communications and information received in an executive sessio n. Council or Town Council means the Town Council of the Town of Avon. Council Member means any member of the Town Council. Officer means any person holding a position by election or appointment in the service of the municipality, whether paid or unpaid, including the members of the Town Council, any other Town board, committee or commission, any employee and any independent contractor. Official act or official action means any vote, decision, recommendation, approval, disapproval or other action, including inaction, which involves the use of discretionary authority. Substantial financial interest means an interest owned or held by an officer which is: a. An ownership interest in a business; b. A creditor interest in a business; c. An ownership interest in real or personal property; d. A loan or any other debtor interest; e. A directorship or officership in a business. An officer shall be presumed to have a substantial financial interest in any of the above-mentioned interests owned, held or controlled by such officer's spouse or dependent children. ( Ord. 15-05 §2(Exh.A) ) 2.30.060 - Conflict of interest. A Town Officer shall not: (1) Disclose or use confidential information acquired in the course of such officer's duties: (a) In order to further a business or other undertaking in which such officer has a substantial financial interest; or, (b) For any use which would be detrimental to the Town. (2) Engage in a substantial financial transaction for his or her private business purposes with a person whom such officer inspects or supervises in the course of his or her official duties. (3) Perform an official act which directly and substantially affects to its economic benefit a business or other undertaking in which such officer has a substantial financial interest. (4) Perform an official act which directly and substantially affects a business or other undertaking by whom the officer is employed, or by whom such officer is engaged as counsel, consultant, representative or agent. (5) Acquire or hold an interest in any business or undertaking which such officer has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by the agency over which he or she has substantive authority. (6) Perform an official act directly and substantially affecting to its economic detriment any business or other undertaking when such officer has a substantial financial interest in a competing business or undertaking. (7) Solicit or accept a present or future gift, favor, loan, service or thing of value from a person under circumstances which would lead a reasonably prudent person to believe that such gift, favor, service or thing of value was made or given primarily for the purpose of influencing or attempting to influence such officer in connection with an official act, or as a reward for official action he or she has previously taken. The provisions of this Paragraph shall not apply to those circumstances described in Paragraph 2.30.070(3). (8) Perform any official act under circumstances which give rise to appearance of impropriety on the part of the officer. (9) Make or accept any ex parte communication or contact concerning a matter which is to be determined after a public hearing without making the contents of such c ommunication or contact a part of the record of such public hearing. (10) Appear on behalf of any private person, business or entity, other than himself or herself, his or her spouse, or minor children, before the Town Council, any Town Commission or the Municipal Court; or, (11) For members of Town Council, seek or obtain employment or compensation concerning matters upon which he or she took an official act during his or her term of office for six (6) months following expiration or termination of office, if such official act occurred less than four (4) years prior to such employment or compensation, provided that this provision may be waived by a majority of the disinterested Town Council members. ( Ord. 15-05 §2(Exh.A) ) 2.30.070 - Exemptions. The provisions of Section 2.30.060 shall not prohibit an officer from: (1) Accepting or receiving a benefit as an indirect consequence of the performance of a n official act. (2) Taking official action when such officer is similarly situated to other Town residents, such as adopting general land use regulations, owning property within a special or local improvement district, voting for taxes or bonds, adopting ordinances of general applicability or otherwise acting upon matters involving the common public interest, except that this exemption shall not apply to interests of Officers of the Avon Urban Renewal Authority in any project or in any property included or planned to be included in any project and the provisions of C.R.S. §31-25- 104(3) shall control. (3) Soliciting or accepting gifts or loans which are: a. Campaign contributions reported as required by law; b. An occasional nonpecuniary gift, insignificant in value; c. A nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; d. Payment of or reimbursement for actual and necessary expenditures for travel and subsistence or attendance at a convention or other meeting at which such officer is scheduled to participate; e. Reimbursement for or acceptance of an opportunity to participate in a social function or meeting which is not extraordinary when viewed in light of the position held by such officer; f. Items of perishable or nonpermanent value, including, but not limited to, meals, lodging, travel expenses or tickets to sporting, recreational, educational, or cultural events; g. Payment for speeches, debates, or other public events, reported as honorariums to the Town Manager; h. A loan at a rate of interest which is not substantially lower than the commercial rate then currently prevalent for similar loans within the Town. (4) Receiving such compensation for his or her services to the Town as may be fixed by ordinance, pay plan, budget or other similar official action. ( Ord. 15-05 §2(Exh.A) ) 2.30.080 - Disclosure of conflict of interest in Town Council action. Any member of the Town Council who believes he or she has a conflict of interest as defined in Section 2.30.060 on any matter proposed or pending before the Town Council shall disclose such potential interest to the Town Council. Any member of the Council who believes that another member of the Council has a conflict of interest shall bring the matter to the attention of the Council prior to Council consideration of the issue involving the alleged conflict. The Council shall determine whethe r a conflict of interest exists. The Council member who has an alleged conflict of interest shall not vote on the determination of whether a conflict of interest exists. If the Council determines that an actual conflict of interest exists, the Council Member shall not attempt to influence other members of the Town Council in connection with such matter, and, except as provided in Section 2.30.100, the Council Member shall not vote upon such matter. The Council Member shall leave the room during Council's discussion and action on the subject, and shall return only when the Council has taken up the next agenda item. ( Ord. 15-05 §2(Exh.A) ) 2.30.090 - Disclosure of conflict of interest in Planning Commission action. Any member of the Planning Commission who believes he or she has a conflict of interest as defined in Section 2.30.060 on any matter proposed or pending before the Planning Commission shall disclos e such potential interest to the Planning Commission. Any member of the Planning Commission who believes that another member of the Planning Commission has a conflict of interest shall bring the matter to the attention of the Planning Commission prior to Planning Commission consideration of the issue involving the alleged conflict. The Planning Commission shall determine whether a conflict of interes t exists. The Planning Commission member who has an alleged conflict of interest shall not vote on the determination of whether a conflict of interest exists. If the Planning Commission determines that an actual conflict of interest exists, the member of the Planning Commission shall not attempt to influence other members of the Planning Commission in connection with such matter, and, except as provided in Section 2.30.100, the member of the Planning Commission shall not vote upon such matter. The member of the Planning Commission shall leave the room during the Planning Commission's discussion and action on the subject, and shall return only when the Planning Commission has taken up the next agenda item. ( Ord. 15-05 §2(Exh.A) ) 2.30.100 - When Council Member or member of the Planning Commission with conflict of interest may vote. Notwithstanding the provisions of Sections 2.30.080 and 2.30.090, a Council member or member of the Planning Commission may vote upon a matter as to which he or she has a conflict of interest if: (1) His or her participation is necessary to obtain a quorum or to otherwise enable the Council or Planning Commission to act, and (2) He or she complies with the disclosure provisions of Section 2.30.110, and (3) A majority of the Council members or Planning Commission members present at a meeting who do not have a conflict of interest find that the participation of such Council member or Planning Commission member will not be contrary to the public interest and vote to permit such Council member or Planning Commission member to vote despite the conflict of interest. ( Ord. 15-05 §2(Exh.A) ) 2.30.110 - Voluntary Disclosure to Secretary of State. A Town Officer may, prior to acting in a manner which may impinge on his or her fiduciary duty and the public trust, disclose the nature of his or her private interest to the Colorado Secretary of State. Such Town Officer shall make the disclosure in writing to the Colorado Secretary of State, listing the amount of his or her financial interest, if any, the purpose and duration of his or her services rendered, if any, and the compensation received for the services or such other information as is neces sary to describe his or her interest. If he or she then performs the official act involved, he or she shall state for the record the fact and summary nature of the interest disclose d at the time of performing the act. Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction under this Town Code of Ethics or any other local, state or other code of ethics or standards of conduct. ( Ord. 15-05 §2(Exh.A) ) 2.30.120 - Public contracts. (a) The Town shall not enter into any contract with a Town Officer (including spouse or minor children of the Town Officer) to provide any compensation from the Town for the provision of goods or services and shall not approve any vendor permit or privilege to conduct commercial business on Town property during such officer's term, appointment or employment with the Town; provided that this restriction shall not apply to compensation provided to any Town Officer for performance of official duties for the Town. This section shall not operate to restrict the Town from entering into contracts or approving vendor permits and privileges to an organization which employs a Town Officer if such Town Officer is not an owner or controlling officer of such organization that receives such compensation, permits or privileges and such Town Officer declares a conflict of interest in accordance with Section 2.30.060(3) and does not participate in any Town decision related to such public contract. For the purposes of this section, ownership in an organization shall include any ownership interest that is greater than one percent (1%). (b) The provisions of Subsection (a) above shall not appl y to: (1) Investments or deposits in financial institutions which are in the business of loaning or receiving money; or, (2) With respect to which the Town Officer has voted therein in accordance with Section 2.30.100. (3) Contracts with, or compensation provided to, members of advisory commissions, committees and boards if the subject matter of such contract or compensation does not relate to the subject matter or advisory role of the commission, committee or board. (c) It shall be a violation of this Chapter for any Town Officer to enter into a contract with the Town or receive compensation or receive vendor permits or privileges from the Town in violation of this section. (d) Any contract approved by the Town or vendor permit or privilege granted by the Town in violation of this section shall be unenforceable against the Town. (Ord. No. 18-09 §2; Ord. 15-05 §2(Exh.A) ) 2.30.130 - Limitation on subsequent employment. A former Town Officer may not, within six (6) months following the termination of his or her office with the Town, contract with or become employed by an employer who contracts with the Town involving matters with which such officer was directly involved during such officer's term of office with the Town. ( Ord. 15-05 §2(Exh.A) ) 2.30.140 - Enforcement. (a) The Town Council shall have the primary responsibility for the enforcement of this Chapter. It shall have the power to investigate any complaint, to initiate any suit and to prosecute any criminal or civil action on behalf of the Town wherein it believes such action is appropriate. (b) The Town Council may direct the Town Attorney to investigate or prosecute any apparent violation of this Chapter or the Council may em ploy or appoint any qualified attorney to investigate or prosecute any violation or series of violations by one (1) or more persons of this Chapter. In the event the alleged conflict of interest involves a Council Member (or multiple Council Members), the Council Member(s) who has an alleged conflict of interest shall not vote upon whether to investigate or prosecute the alleged conflict of interest. (c) Any person who believes that a violation of any portion of this Chapter has occurred may file a complaint with the Town Council, which shall promptly investigate such complaint and take such action thereon as the Council shall deem to be appropriate. (d) The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the gen- eral fund of the Avon Town government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such Town Officer. ( Ord. 15-05 §2(Exh.A) ) 2.30.150 - Penalties and remedies. (a) It is unlawful for any person to violate any provision of, or to fail to comply with any of t he requirements of this Chapter. Any person who violates any provisions of this Chapter shall be punished in accordance with the provisions of Section 1.08.010 of this Code. Additionally, upon conviction such person shall be liable to the Town for such dam ages as may have been suffered or incurred as a result of such violation. (b) Upon conviction for any violation of this Chapter such Officer shall immediately forfeit his or her office or position. Nothing in this Chapter shall be construed to prohibit s uch public officer from being reelected, reappointed or otherwise rehired to any position forfeited under the provisions of this Chapter. (c) Any court of competent jurisdiction called upon to enforce the provisions of this Chapter may, with the consent of the Town Council, exempt from the provisions of this Chapter any conduct of a Town Officer upon the finding that the enforcement of this Chapter with respect to such officer's conduct would not be in the public interest. ( Ord. 15-05 §2(Exh.A) ) 2.30.160 - Distribution of code of ethics. The Town Clerk shall cause a copy of the Avon Town Code of Ethics to be distributed to every officer of the Town within thirty (30) days after enactment of the ordinance adopting this Chapter. Each Town Officer elected, appointed, or engaged thereafter shall be furnished a copy before entering upon the duties of his or her office. ( Ord. 15-05 §2(Exh.A) ) 2.30.170 - Gift reporting. (a) In accordance with Section 7, Article XXIX of the Colorado Constitution, the requirements of Article XXIX of the Colorado Constitution shall not apply to the Town of Avon. It is the intention and purpose that this Section 2.30.170, Chapter 2.30 Avon Town Code of Ethics of the Avon Municipal Code, and any other applicable Avon Home Rule Charter provision, ordinance or resolution adopted by the Town of Avon shall completely address all matters set forth in Article XXIX of the Colorado Constitution. (b) Any Town Officer who receives any present, or offer of future, individual gift, favor, loan, service or thing of value in excess of fifty dollars ($50.00) and such gift is offered due to such person's status as a Town Officer then such officer shall report such gift and the estimated value to the Town Clerk. The Town Clerk shall promptly disclose gifts received, or offer of future gifts, to the Town Council. The failure of a Town Officer to report a gift to the Town Clerk shall constitute a violation of this Chapter. (c) Council shall determine if gifts received or offered in the future constitute a conflict of interest in accordance with this Chapter. Council members who are the recipient or intended recipient of a gift shall not vote on whether such gift constitutes a conflict of interest unless such gift is offered to Council as a whole or offered to Town generally. (d) Gifts which are given by an individual who is a relative or personal friend of the recipient on special occasions shall not be deemed a conflict of interest. Gifts which are given without the purpose or intent to influence a Town Officer in connection with an official act or as a reward for an official act performed and gifts which do not create the appearance of impropriety shall not be a conflict of interest. (e) Gifts which are received which are determined by Council to be a conflict of interest shall be returned. The receipt of a gift or the failure to return a gift or reimburse the equivalent value when Council determines such gift is a conflict of interest shall constitute a violation of this Chapter. ( Ord. 15-05 §2(Exh.A) ) Exhibit B   Adopted  January  28,  2014  by  Resolution  No.  14-­‐‑03   Amended  and  Re-­‐‑Adopted  on  July  26,  2016  by  Resolution  No.  16-­‐‑20   Page  1  of  4     Avon Town Council Simplified Rules of Order These Simplified Rules of Order establish rules and procedures for Avon Town Council meetings. The intent is to set forth simplified rules which are readily accessible and usable by the Avon Town Council members and understandable by the general public. The provisions of the Home Rule Charter, the Avon Municipal Code, or any ordinance adopted by the Avon Town Council shall govern and apply in the event there is any conflict with these Simplified Rules of Order. Unless otherwise indicated, any reference to “Mayor” shall also mean the “Mayor Pro- Tem” or “Acting Mayor” in the absence of the Mayor, as set forth in the Avon Home Rule Charter. I.  Standards of Conduct for Avon Town Meetings: The Avon Town Council finds that the foundation of municipal democracy rests on open, respectful and informed discussion and debate balanced with the necessary efficiency required to take action in the public interest. Reasonable persons will often disagree on many public matters which arise before elected and appointed officials. The process of discussion and debate is essential to the ability of elected and appointed officials to render the best decisions possible for the Avon community. The following standards of conduct are considered the minimum standards for elected and appointed officials. A.  Elected and appointed officials shall conduct themselves in a mature manner that is becoming of public officials, shall respect one another and shall respect members of the public. B.  Elected and appointed officials shall refrain from profanity, rude behavior or personal attacks and shall promptly apologize to both the board and the recipient of any such behavior in the event of a temporary lapse of appropriate behavior. C.  The Mayor shall be responsible for maintaining civility, decorum and order throughout the meeting. D.  Members of the Avon Town Council shall not communicate between or amongst themselves by text message, e-mails or other forms of electronic communication during a Council meeting. E.  Members of the Avon Town Council shall promptly disclose and announce the sending or receipt by a Council member of a text message, e-mail or other form of electronic communication during a Town Council meeting, to or from any person, for any such communication that concerns a matter on the Town Council agenda for that meeting. II.  Mayor: Every meeting of the Avon Town Council shall be presided over by the Mayor. If the Mayor is absent the Mayor Pro-Tem shall preside over the meeting. If the Mayor has a conflict of interest on a matter then the Mayor Pro-Tem shall preside over the meeting for such matter. If the Mayor and Mayor Pro-Tem are absent, or if they both have conflict of interest on a matter, then a quorum of Council members shall appoint an Acting Mayor by motion who shall then preside over the meeting or shall preside over such matter for which the Mayor and Mayor Pro-Tem have conflict of interest. The Mayor shall strive to moderate Council meetings with impartiality, shall strive to allow input from all other Council members on matters before expressing his or her opinion, and shall refrain from making a motion or seconding a motion until it is apparent that no other member of the Council will do so.   Adopted  January  28,  2014  by  Resolution  No.  14-­‐‑03   Amended  and  Re-­‐‑Adopted  on  July  26,  2016  by  Resolution  No.  16-­‐‑20   Page  2  of  4     III.  Agendas: The following rules and procedures shall apply to agendas: A.  The Mayor shall determine the agenda in consultation with the Town Manager. The Town Council may direct items to be included on an agenda. Individual Council members may contact the Mayor to request inclusion of a matter on an agenda. The Mayor shall consult with the Town Manager and exercise discretion to determine if the matter should be included on the agenda as a discussion item or an action item. B.  After roll call, the Council shall approve the agenda by motion by a majority of the quorum present with any additions or deletions Council deems appropriate. C.  The Council may take action by motion at any time during a meeting to schedule discussion or action items on a future agenda which shall be scheduled by Town Staff. D.  Noticing for action items and public hearings shall be in accordance with applicable law. IV.  Motions: All official Town Council actions are initiated by motion. These following rules and procedures apply to motions. There are two basic motions: action motions and procedural motions. Only one action motion may be on the floor at a time. A procedural motion may be proposed, discussed and acted upon when an action motion is on the floor or at any other time. A.  Basic Motion: The basic motion to take action is stated as, “I move to . . . .” Every motion requires a second. Once a motion is made no further discussion can continue until a second is made to support the motion. B.  Discussion: All Council members have the right to discuss the motion on the floor. Discussion cannot be concluded unless (1) all Council members present consent or (2) a majority of Council members present approve a procedural motion to “Call the Question” and end debate. C.  Withdraw a Motion: The maker of a motion may choose to withdraw the motion at any time prior to the vote on the motion and may interrupt a speaker to withdraw the motion and consent of the Council member who seconded the motion is not required. The motion is immediately withdrawn; however, the Mayor may then ask the Council member who seconded the withdrawn motion and any other Council member if such Council member wishes to make the motion. D.  Amendment to Motion: Any Council member may request an amendment to a pending motion. The maker of the pending motion and Council member who seconded the motion must consent to the proposed amendment. Any Council member may also propose a substitute motion to a pending motion which also requires consent of the maker of the pending motion and the Council member who seconded the pending motion. E.  Procedural Motion: A procedural motion may be made at any time and may impose or modify any procedural rule provided that such procedure is not in conflict with the Avon Home Rule Charter, any ordinance adopted by the Town, or any applicable state law. Procedural motions require a majority vote of the quorum present. F.  Motion to Call the Question or End the Discussion: A motion to “call the question” (also known as a motion to end the discussion) is a procedural motion to end debate and discussion. A motion to call the question cannot be made until each Council member has had at least one reasonable opportunity to ask questions and express his or her opinion on   Adopted  January  28,  2014  by  Resolution  No.  14-­‐‑03   Amended  and  Re-­‐‑Adopted  on  July  26,  2016  by  Resolution  No.  16-­‐‑20   Page  3  of  4     the matter. Once a motion to call the question is made and seconded, it shall be the Mayor’s discretion to allow any further discussion on such procedural motion for the purpose of clarifying any technical, procedural or legal issue related to the procedural motion. A motion to call the question requires a majority vote of the quorum present. Once a motion to call the question is approved, the pending action motion on the floor must be voted upon promptly or, if no action motion is pending, the Mayor shall proceed to the next agenda item. G.  Motion to Continue: A motion to continue an agenda item must include a specific future Council meeting date, time and place for the continued matter to be considered again without re-noticing a required public hearing. H.  Motion to Table: A motion to table places the agenda item on hold and does not require a specific time for the return of the agenda item. I.  Motion to Suspend Rules: A motion to suspend rules may allow suspension of any rule in this Simplified Rule of Order. Such motion may be made and requires a supermajority vote of a majority of the quorum present plus one for approval. A motion to suspend rules may not supersede the procedural requirements of the Avon Home Rule Charter, any ordinance adopted by the Town, or any applicable state law. J.  A Motion to Reconsider: A Motion to Reconsider allows the Council to reconsider a vote on a matter. A Motion to Reconsider may only be made and considered if made and acted upon less than twenty-eight (28) days after the date of the Council action to be reconsidered and may be made only by a member of Council who voted in the majority on the motion which is proposed for reconsideration. V.  Meeting Conduct A.  Point of Privilege: A Council member may interrupt the speaker to raise a matter related to the comfort of the meeting, such as room temperature, distractions, or ability to hear speaker. B.  Point of Order: A Council member may raise a Point of Order at any time that the Mayor permits meeting conduct which does not follow these Simplified Rules of Order or otherwise fails to maintain civility and decorum by the Council and the general public. C.  Appeal: A Council member may move to appeal the ruling of the Mayor on any procedural matter or other decision related to the conduct of the meeting. If the motion is seconded and, after debate, it such motion passes by a simple majority vote of the quorum present, then the ruling or conduct of the Mayor shall be overruled and reversed. D.  Call for Orders of the Day: A Council member may call for Orders of the Day when such Council member believes that Council discussion has strayed from the agenda. No second or vote is required. If the Mayor does not return to the agenda, then such ruling may be appealed. E.  Adjournment: The Mayor may announce the meeting adjourned when there are no further items on the agenda which have not been addressed. The Council may adjourn a meeting at any time by motion, second and approval by a majority of the quorum present. VI.  Public Comments: Council agendas shall include a general item labeled “Public Comment” near the beginning of all Council meetings. Members of the public who wish to   Adopted  January  28,  2014  by  Resolution  No.  14-­‐‑03   Amended  and  Re-­‐‑Adopted  on  July  26,  2016  by  Resolution  No.  16-­‐‑20   Page  4  of  4     provide comments to Council greater than three minutes are encouraged to schedule time in advance on the agenda and to provide written comments and other appropriate materials to the Council in advance of the Council meeting. The Mayor may permit public comments during any agenda item provided that such invitation does not hinder the ability of Council to conduct official Town business in an efficient manner. For matters which may involve substantial public comment by numerous members of the public, the Mayor or Council may propose limiting public comment to no less than 3 minutes per individual, which limitation on public comment must be approved by a majority of the quorum present. VII.  Public Hearing: The following general rules shall apply to the order and conduct of public hearings. These rules may be modified or suspended by Motion to Suspend Rules. A.  The Mayor shall open the public hearing by announcing the topic of the agenda item. The Mayor shall at all times during public hearings strive to maintain civility, decorum and order. B.  The Mayor and/or appropriate Town Staff person shall introduce the topic, explain the applicable procedures and laws, and provide any presentation by the Town. C.  The applicant, licensee or appellant shall have the opportunity to present information, provide testimony, or respond to any comments or details in the Town’s presentation. D.  The Council shall have the opportunity to ask technical questions of the appropriate Town staff, Town officials and the applicant, licensee or appellant but Council members shall not express opinions on the matter prior to opening the public hearing for public comment. E.  The Mayor shall officially open the public hearing for public comment and shall allow for members of the public to provide comment to the Council. The Council may approve a time limitation not less than 3 minutes for individual public comment and may approve sign-up sheets or other public comment procedures to promote order and efficiency by a majority vote of the quorum present provided that individuals shall be permitted to yield his or her public comment time to another speaker. After all public comments are received, or if the Council determines that the volume of public comments requires additional time and moves to continue the public hearing, the Mayor shall close the public comment portion of the public hearing. F.  The Council may discuss the merits of the topic of the public hearing and take such action as deemed appropriate after the public comment portion of the public hearing is concluded. If the volume of public comments requires a continuation, if additional information is required to consider the public hearing matter, or if the Council determines that additional time is warranted to consider the matter of the public hearing, the Council may continue the public hearing to a later date and may re-open the public comment portion of the public hearing at any continued public hearing. VIII.  Executive Sessions: Council may convene into executive session at any time by the affirmative vote of 2/3rds of the quorum present and by announcing the specific statutory citation and purpose of the executive session in accordance with the Colorado Open Meetings Law, CRS §24-6-402(4). The Council is not permitted to take official, final action on any matter in executive session. 970-300-4373 pwisor@garfieldhecht.com TO: Honorable Mayor Smith Hymes and Councilmembers FROM: Paul Wisor, Town Attorney RE: Ordinance 21-01 DATE: January 20, 2021 SUMMARY: The Town of Avon entered into a 20 year Franchise Agreement with Holy Cross which will expire next month. Avon Town staff has pursued negotiations with Holy Cross for the last several months. The majority of terms of the Franchise Agreement follow a common form adopted by Holy Cross and the vast majority of communities in Colorado. The Franchise Agreement provides Holy Cross with a non-exclusive right, privilege and authority to locate, build, install, construct, acquire, purchase, extend, maintain, repair and operate into, within and through all of the Town, all necessary and convenient facilities for the purchase, generation, transmission, and distribution of electrical energy. Such grant is made together with the non-exclusive right and privilege to furnish, sell, and distribute said electrical energy to the residents of the Town for light, heat, power and other purposes. Holy Cross is further granted the non-exclusive right, privilege and authority to excavate in, occupy and use any and all streets. Any such excavation, occupation and use must be in accordance with Town standards and regulations, and will be undertaken under the supervision of the properly constituted authority of the Town for the purpose of bringing electrical energy into, within and through the Town and supplying electrical energy to the Town’s residents. In consideration for the grant of the franchise, Holy Cross will pay to the Town a sum equal to three percent (3%) of its gross revenues collected from the sale or delivery of electricity within the Town. The Town may revise the franchise fee to a different percentage of gross revenue prior to October 1 of the even numbered years during the term of the franchise with notice to Holy Cross. In addition, Holy Cross will continue to make contributions to the Community Enhancement Fund established pursuant to the existing Franchise Agreement. Holy Cross will make annual payments to the fund equal to one percent (1%) of its prior year's gross revenues. Money in the Community Enhancement Fund may be used for the following purposes: • Beautification projects; • Energy conservation projects; • Equipment and technology upgrades for schools; • Scholarship funds; • Acquisition of open space and/or park land and development; • Sponsorship of special community events; • Undergrounding of overhead electric and other utilities; • Distributed energy resource projects. • Electric vehicle charging infrastructure. • Participation in the Renewable Energy Purchase Program. Community Enhancement Fund dollars may also be used for other purposes with the written consent of Holy Cross. 970-300-4373 pwisor@garfieldhecht.com In the summer of 2020, some work was done by Holy Cross in the West Avon Preserve that resulted in the degradation and destruction of trails and vegetation. While the work was conducted in Holy Cross’ easement, the Town was not made aware of the work. The franchise agreement makes clear that Holy Cross must not only procure any necessary permits prior to undertaking work on Town-owned land, but Holy Cross must also notify the Town Manager before commencing such work. Any disturbance to public or private improvements must be restored by Holy Cross at their own expense. The grant of the franchise runs twenty (20) years, and will terminate on February 24, 2041. The franchise agreements for the towns for Vail and Aspen also run twenty years. The franchise agreements for the towns of Eagle and Basalt run fifteen years while the Town of Minturn’s agreement runs ten years. FINANCIAL CONSIDERATIONS: Ordinance 21-01 creates no cost to the Town. RECOMMENDATION: Staff recommends adoption of Ordinance 21-01. PROPOSED MOTION: “I move to approve on Second Reading Ordinance 21-01, granting a franchise to Holy Cross Energy for distribution of electrical energy to the residents of the Town of Avon for light, heath, power and other purposes.” Thank you, Paul Wisor ATTACHMENTS: A: Ordinance 21-01 Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 1 of 19 ORDINANCE NO. 21-01 GRANTING A FRANCHISE TO HOLY CROSS ENERGY FOR DISTRIBUTION OF ELECTRICAL ENERGY TO THE RESIDENTS OF THE TOWN OF AVON FOR LIGHT, HEAT, POWER, AND OTHER PURPOSES, AND FIXING THE TERMS AND CONDITIONS THEREOF WHEREAS, the Town of Avon (“Town”) is a Colorado home rule municipality; and WHEREAS, pursuant to Section 17.6 of the Town’s Home Rule Charter and C.R.S. § 31-32- 101, the Town Council shall establish by ordinance the terms, fees, compensation, conditions and any other matters related to the granting of franchises; and WHEREAS, Section 6.5 of the Charter and C.R.S. §§ 31-32-101, et seq. set forth the procedures for reviewing and granting franchises; and WHEREAS, the Town has previously granted a franchise to Holy Cross Energy (“Holy Cross”) for the non-exclusive right, privilege and authority to locate, install, maintain, repair, and operate within and throughout the Town all necessary and convenient facilities for the purchase, generation, transmission, and distribution of electrical energy; and WHEREAS, Town Council desires to enter into a new franchise with Holy Cross for distribution of electrical energy within the Town and finds that doing so will promote the health, safety and general welfare of the Avon community; and WHEREAS, pursuant to C.R.S. §§ 31-32-101, et seq., Holy Cross is responsible for all required statutory notices regarding the granting of franchises, and the Town Council finds that all said notice requirements have been met; and WHEREAS, this Ordinance was considered at duly-noticed public hearings held on January 12, 2021, and January 26, 2021; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirement of Section 6.5(d) of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: ATTACHMENT A Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 2 of 19 Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Approval of Franchise. A franchise is hereby granted to Holy Cross Energy on the terms and conditions as hereinafter set forth: HOLY CROSS ENERGY FRANCHISE 1. Title. This Agreement shall be known and may be cited as the “Holy Cross Energy Franchise.” 2. Definitions a. “Town” is the Town of Avon, Eagle County, Colorado, the home rule municipal corporation as is now constituted or as the same may be enlarged or expanded from time to time through annexation. b. “Company” refers to Holy Cross Energy, a Colorado Corporation, its successors and assigns. c. “Council” refers to the legislative body of the Town, known as the Town Council of the Town of Avon, Colorado. d. “Facilities” refers to all overhead and underground electric facilities, buildings, and structures necessary to provide electricity into, within and through the Town including, but not limited to, such essential apparatus, appliances, plants, systems, substations, works, transmission and distribution lines and structures, anchors, cabinets, cables, conduits, guy posts and guy wires, meters, microwave and communication facilities, overhead and underground lines, pedestals, poles, regulators, sectionalizers, switchgears, transformers, various pad mounted equipment, vaults, wire, and all other related electrical equipment required for the distribution, generation, maintenance, operation, purchase, and transmission of electrical energy. e. “Public Easements” refers to the easements created and available for use by any public utility for its Facilities. f. “Private Easements” refers to the easements created and available only for use by the Company for its Facilities, or by the Company and other selected users or utilities. g. “Residents” refers to and includes all persons, businesses, industry, governmental agencies, and any other entity whatsoever, presently maintaining a residence, business, farm, ranch or other enterprise located within, in whole or in part, the Town. Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 3 of 19 h. Revenues” unless otherwise specified, refers to and are the gross amounts of money that the Company receives from its customers within the Town from the sale of electrical energy for any particular period of time. i. “Streets and other Public Ways” refers to streets, alleys, viaducts, bridges, roads, lanes and other Public Ways in the Town, subject to limitations stated herein. 3. Grant of Franchise. a. Grant of Right to Serve. Subject to the conditions, terms and provisions contained in this Franchise, the Town hereby grants to the Company a non- exclusive right, privilege and authority to locate, build, install, construct, acquire, purchase, extend, maintain, repair and operate into, within and through all of the Town, all necessary and convenient facilities for the purchase, generation, transmission, and distribution of electrical energy. Such grant is made together with the non-exclusive right and privilege to furnish, sell, and distribute said electrical energy to the residents of the Town for light, heat, power and other purposes. b. Scope of Grant. Such grant includes the non-exclusive right and the obligation to furnish electrical energy using the Company’s Facilities or otherwise, on, over, under, along, across and through any and all Streets, and on, over, under, along, across and through any extension, connection with, or continuation of the same and on, over, under, along, across and through all such new Streets as may be hereafter laid out, opened, located, or constructed within the Town. The Company is further granted the non-exclusive right, privilege and authority to excavate in, occupy and use any and all Streets. Any such excavation, occupation and use must be in accordance with Town standards and regulations, and will be undertaken under the supervision of the properly constituted authority of the Town for the purpose of bringing electrical energy into, within and through the Town and supplying electrical energy to the Residents. c. Service to Town Facilities. The Town hereby grants to the Company the non-exclusive right, privilege, and authority to provide street and security lighting to the Town, and to serve all Town owned or operated structures, plants, equipment, or Town apparatus and facilities, including the right, privilege, and authority to furnish, sell and distribute electrical energy necessary for such. d. Underground Policy of the Town. Except for the maintenance, relocation and repair of the Company’s existing overhead Facilities, the Company shall at all times recognize the Towns preference, and mandated policies, including the Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 4 of 19 provisions set forth in the Code, that utilities be located underground. Transformers, switchgears, and other similar equipment associated with underground construction, must, by necessity, be located above ground. The Company’s recognition of such preference and mandated policies shall at all times be subject to Section No. 13 Undergrounding. e. Duration of Franchise. This Franchise shall commence at 12:00 o’clock a.m. on February 25, 2021 and the terms, conditions and covenants hereof shall remain in full force and effect until its termination at 11:59 o’clock p.m. on February 24, 2041. 4. Specific Elements of Grant. a. Recreational Areas. The Company shall not have the right to locate, build or construct Facilities under, across or through public parks or recreational areas, open space or other Town owned property located within the Town except as expressly set forth in this Franchise or with prior written approval grant ed by the Town’s Council. This Ordinance shall never be construed to limit the Company’s rights of eminent domain as provided by law. b. Trees and Shrubs. The Company shall have the right to control the growth of trees and shrubs as may be reasonably necessary to protect its Facilities. The Company may use machinery or other lawful methods to control such growth, but shall not use chemicals for such purpose. Annually, on a date mutually agreed to by both parties, representatives of each party shall meet and/or consult to discuss problems related to the means and methods of controlling such growth. Prior to cutting down or removing any tree, the Company shall consult with the Town Manager or her/his designee for the purpose of determining whether such cutting or removal is the only reasonable and cost effective means of protecting the Company’s Facilities. c. Location of Company’s Facilities. Wherever reasonable and practicable, the Company will endeavor to install its Facilities within Public Easements and Right of Way. The Company shall locate its Facilities within the Town so as to cause minimum interference with any of the Towns property and facilities, including the proper use of Streets, and so as to cause minimum interference with the rights of reasonable convenience of property owners whose property adjoins any of the said Streets and other Public Ways. d. Restoration of Public and Private Improvements. Should it become necessary for the Company, in exercising its rights and performing its duties hereunder, to interfere with any sidewalk, graveled or paved street, road, alley, waterline, sewer line, storm drain, or any other public or private improvement, the Company shall at its own expense and in a quality workmanlike manner, repair or cause to be repaired and restore to its original condition such Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 5 of 19 sidewalk, graveled or paved street, road, alley, water line, sewer line, storm drain, or other public or private improvement after the installation of its Facilities, provided, however, that upon failure of the Company to do such required repairs within a reasonable time and in a workmanlike manner, the Town may perform the required work and charge the Company for all responsible costs thereof, including administrative fees and costs. e. Use of Facilities. The Company shall have the right to make such use of its Facilities and other property owned by the Company, for uses other than the uses contemplated in the Franchise, as it deems proper so long as such other uses do not interfere with its ability to supply electrical energy. f. Changed Conditions – Overhead. If at any time it shall be necessary to change the position of any overhead electrical Facilities of the Company to permit the Town to lay, make or change Street grades, pavements or other Town Works, such changes shall be made by the Company at its own expense, after reasonable notice from the Town. This provision shall not apply to any changes that result from new development within the Town. The costs associated with changing overhead electrical facilities to accommodate such new development shall be borne by the developer, the Town or some other party, but not the Company. g. Compliance with Town Requirements. The Company shall comply with all Town requirements regarding curb and pavement cuts, excavating, digging and related construction, maintenance and operational activities except as otherwise provided for in this Franchise Agreement. h. Town Review of Construction and Design. Prior to construction of any significant Facilities within the Town, the Company shall furnish to the Town the plans for such proposed construction. In addition, the Company shall assess and report on the impact of its proposed construction on the Town environment. Such plans and reports may be reviewed by the Town to ascertain, inter alia, i. That all applicable laws including building and zoning codes and air and water pollution regulations are complied with; ii. That aesthetic and good planning principles have been given due consideration to visual impacts; and iii. That adverse impact on the environment has been minimized. i. Capital Improvement Projects. The Company and the Town shall inform one another of any capital improvement projects anticipated within the Town that may impact the Facilities or operations of either party. The party proposing Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 6 of 19 such capital improvements shall inform the other party of the nature of such improvements within a reasonable time after plans for such improvements have been substantially formulated. Each party shall cooperate in the timely exchange of all necessary information, design data, drawings, and reports to properly assess and evaluate the potential impacts of said improvements. j. Maintenance of Facilities. The Company shall install, maintain, repair, replace, and upgrade its Facilities to insure both the adequacy of, and quality of, electric service to the Town and all Residents. All excavation and construction work done by or under the authority of the Company shall be done in a timely and expeditious manner which minimizes the inconvenience to the Town and all Residents. Notification of all work to be performed on Town property, to include open space and parks, must be given to the Town, to include the full possible impact on Town property, prior to the install, maintain, repair, replace, and upgrade its Facilities. k. Town not Required to Advance Funds. Upon receipt from the Town of an authorization to proceed, and a promise to pay for construction, the Company shall extend its Facilities to the Town for municipal uses therein or for any municipal facility outside the Town and within the Company’s certificated service area, without requiring the Town to advance funds prior to construction. l. Scheduled Interruptions. The Company shall, whenever possible, give notice, either oral or written, to the Town and its affected Residents, of planned service interruptions of significant duration. m. Cooperation with other Utilities. When undertaking a project of undergrounding, the Town and the Company shall work with other utilities or companies to attempt to have all lines undergrounded as part of the same project. The Company shall not be required to pay the costs of any other utility in connection with work under this section. 5. Rates, Regulations, Uniformity of Service, and Upgrades. a. Furnishing Electrical Energy. The Company shall furnish electrical energy within the Town, and to the Residents thereof at the Company’s applicable and effective rates and under the terms and conditions set forth in the Rate Schedules, Standards for Service, Rules and Regulations, and Service Connection and Extension Policies, adopted by and on file with the Company, subject only to regulations thereof as is provided by law. The Company shall not, as to rates, charges, service, Facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any Resident, provided that nothing in this grant shall be taken to prohibit the establishment from time to time of a graduated scale of charges and classified Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 7 of 19 rate schedules to which any customer coming within an established classification would be entitled. b. Facility Upgrades. The Company will, from time to time, during the term of this Franchise make such improvements, enlargements and extensions of its Facilities incorporating, when reasonable and practical, technological advances within the industry as the business of the Company and the growth of the Town justify, in accordance with its Standards of Service, Rules and Regulations, and Service Connection and Extension Policies for electric service concurrently in effect and on file with the Company, subject only to regulations thereof as is provided by law. c. Reliable Supply of Electricity. The Company shall take all reasonable and necessary steps to provide an adequate supply of electricity to its customers at the lowest reasonable cost consistent with long-term reliable supplies. If the supply of electricity to its customers should be interrupted, the Company shall take all necessary and reasonable actions to restore such supply within the shortest practicable time. In the event of the Company’s electric system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore its system to satisfy service within the shortest practical time. d. Maps and Regulations. The Company shall present copies of its Standards for Service, Service Connection and Extension Policies, Rules and Regulations, and maps of its Facilities within the Town to the Town Clerk. All changes in such maps, Standards for Service, Rules and Regulations, and policies, shall be submitted to the Town as the same way from time to time to occur. Such documents need not be a published version, but may be in the form of electronic media, such as GIS files. e. Development Review. The Company shall analyze any subdivisions plats or planned unit development plans submitted to it by the Town and respond to any request by the Town for information regarding the adequacy of its Facilities necessary to serve such proposed plat or plan and answer any other questions posed to the Company by the Town regarding said plat or plan as are within the knowledge of the Company. The Company shall respond to said requests or questions within reasonable time limits set by the Towns Subdivision Regulations. f. Interrelationship of Laws, Rates, Regulations and Ordinances. The Company shall comply with all County, State or Federal laws, and Rules and Regulations related to the subject matter hereof. The Company also agrees to abide by all Ordinances and Resolutions of the Town, unless and except to the extent that this Franchise shall relieve the Company of the obligation to comply with the terms and conditions of such other ordinances or any Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 8 of 19 provisions hereof. The Company, from time to time, may promulgate such rules, regulations, terms and conditions governing the conduct of its business, including the use of electrical energy and the payment therefor, and the interference with, or alteration of, any of the Company’s property upon the premise of its customers as shall be necessary to provide safe, continuous and uninterrupted service to each and all of such customers and the proper measurement thereof and payment therefor. Any such rules, regulations, terms and conditions must not be inconsistent with this Franchise, but no ordinance of the Town may regulate the Company’s rates or charges for the furnishing of electrical energy, or shall lessen the safety of providing such energy to its customer, nor shall any ordinance alter the manner in which service is extended to such customers. 6. Use of Poles by Town. The Town shall have the right, without costs, to jointly use all poles and suitable overhead structures within the Town for the purpose of stringing wires thereon for any reasonable Town authorized use; which use shall not include the distribution or transmission of electricity, provided, however, that the Company Shall assume no liability, nor shall it be out any additional expense, in connection therewith, and said use shall not interfere in any unreasonable manner with the Company’s use of same, or the use thereof by the Company’s permittees, licensees, or other existing users of such Facilities. The Company Agrees to permit Town licensees, permittees and franchises, except those holding an electric utility franchise or license from the Town, to use its Facilities upon reasonable terms and conditions to be contractually agreed upon with the Company, in writing. 7. Joint use of Trenches. If the Company installs new electric underground conduit or opens a trench or replaces such conduit, the Company shall provide adequate advance notice to permit additional installation of similar facilities in the same trench by the Town, or installation of other types of municipal facilities, subject to the applicable rules and regulations. If the Town elects to use the trench it will so notify the Company. The Town shall provide the materials at no expense to the Company. The Town shall reimburse to the Company only those monies paid by the Company to an independent contractor for labor costs to install Town furnished materials by such independent contractor. The Company shall include copies of invoices from the independent contractor to substantiate the Company’s request for reimbursement. If the installation of Town furnished materials is performed solely by the Company’s employees, there will be no labor charge to the Town. Such action by the Town shall not unnecessarily interfere with the Company’s Facilities or delay the accomplishment of the project. The Company shall be responsible for ensuring that required vertical and horizontal separations between its facilities and that of the Company’s is strictly maintained. The Town and Company shall jointly hold each other harmless from any liability or damage resulting from their respective utilities being installed in a joint trench. 8. Indemnification and Police Power. Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 9 of 19 a. Town Held Harmless. The Company shall Indemnify, defend and save the Town, its officials, employees and agents, harmless from and against all liability or damage and all claims or demands whatsoever in nature arising out of the Company within the Town pursuant to this Franchise, and the securing of, and the exercise by the Company of, the Franchise rights granted in this ordinance and shall pay all reasonable expenses arising therefrom. The Town shall provide prompt written notice to the Company of the pendency of any claim or action against the Town arising out of the exercise by the Company of its Franchise rights. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim. Notwithstanding any provision hereof to the contrary, the Company shall not be obligated to indemnify, defend or hold the Town harmless to the extent of any claim, demand, or lien arising out of, or in connection with, any negligent act or failure to act by the Town or any of its officials, employees, or agents unless the Company shall become obligated to indemnify, defend or hold the Town harmless by virtue of the comparative negligence laws of Colorado. b. Police Power Reserved. The right is hereby reserved to the Town to adopt from time to time, in addition to the provisions herein contained, such ordinances as may be deemed necessary in its exercise of its police power, provided that such regulations shall be reasonable and not destructive of the rights herein granted, and not in conflict with the laws of the state of Colorado, or with orders of other authorities having jurisdiction in the premises. 9. Franchise Fee. a. Franchise Fee. In consideration for the grant of this Franchise, the Company shall pay to the Town a sum equal to three percent (3%) of its gross revenues collected from the sale or delivery of electricity within the Town. Electric revenues received from service to the Town facilities will be assessed a 3% fee under this section nor will the Town be paid the 3% fee from such revenues collected from Town facilities. To the extent required by law, the three percent (3%) shall be surcharged to the residents within the Town. This surcharge is in addition to any charges specified in the Company’s Tariffs and any applicable taxes. b. Change of Franchise Fee – Town initiated, the Town expressly reserves the right to notify the Company of a revision to the Franchise Fee to a different percentage of gross revenue prior to October 1 of the even numbered years during the term of the Franchise. The revised Franchise Fee shall become effective on the next billing cycle of the Company commencing on or after January I of the year following the year in which the notification was given by the Town. Provided, however, that the maximum amount of the Franchise Fee shall be (5%) of the revenues collected within the Town. Notification to Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 10 of 19 the consumer shall be given by the Town no less than thirty (30) days prior to January 1, the affective date of the scheduled increase. c. Payment. Payment of the Franchise Fee shall be made by the Company to the Town on or before thirty (30) days after the end of each quarter of each calendar year for the preceding three (3) month period, but shall be adjusted for the portions of the calendar quarters at the beginning and at the end of this Franchise. All payments shall be made to the Town Clerk. d. Revenue Audit. For the purpose of ascertaining or auditing the correct amount to be paid under the provisions of this Article, the Company shall file with the Town Manager, or such other official as shall be designated by the Town from time to time, a statement, in such reasonable form as the Town may require, showing the total gross receipts received by the Company from the sale of electricity to Residents within the Town for the preceding three (3) month period. The Town Manager or any official appointed by the Town Council shall have access to the books of said Company for the purpose of confirming the gross revenues received from operations within the Town. e. Correction of Underpayment/Overpayment. Should either the Company or Town discover either an underpayment or overpayment of the Franchise Fee, the party making such discovery shall inform the other party within a reasonable time. If the error is substantiated as an underpayment, the Company shall make payment of the deficiency within thirty (30) days of the date the error was substantiated. If the error is substantiated as an overpayment, a credit equal to the overpayment will be applied to the next Franchise payment due the Town. f. Occupation Tax Alternative. In the event the said Franchise Fee levied herein should be declared invalid and/or shall be set aside by a Court of competent jurisdiction, then, and in such event, and in lieu thereof, the Town may thereafter levy an occupation tax upon the Company, not to exceed in any one calendar year five (5%) of the gross revenue collected from the sale of electricity within the Town for that calendar year. Such occupation tax shall be adjusted for any Franchise Fees previously paid to the Town in such calendar year. In event the Town shall enact an occupation tax, in lieu of the Franchise Fee, all of the remaining terms, conditions and provisions of this ordinance shall remain in full force and effect for the period stated herein. Such occupation tax ordinance or enactment shall be designed to meet all legal requirements to ensure that it is not construed as an income tax. g. Franchise Fee Payment in Lieu of Other Fees. The Franchise Fee paid by the Company is accepted by the Town in lieu of any occupation tax, Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 11 of 19 license tax, or similar tax on the privilege of doing business or in connection with the physical operation thereof, but does not exempt the Company from any lawful taxation upon its property or any other tax not related to the Franchise or the physical operation thereof and does not exempt the Company from payment of head taxes or other fees or taxes assessed generally upon business. h. Payment of Expenses Incurred by Town in Relation to Ordinance. At the Town’s option, the Company shall pay in advance or reimburse the Town for expenses incurred in publication of notices and ordinances and for photocopying of documents arising out of the negotiations or process of obtaining this Franchise. i. Termination of Franchise. If this Franchise is terminated by either the Company or the Town for whatever reason, or is declared null and void, all Franchise Fees or occupation taxes levied herein shall be suspended as of the date the Franchise is legally terminated. Final payment of any Franchise Fee or occupation tax owed and due the Town shall be made on or before thirty (30) days after the date the Franchise is legally terminated. 10. Reports. a. Reports. The Company shall submit reasonable and necessary reports containing, or based upon, information readily obtainable from the Company’s books and records as the Town may request with respect to the operations of the Company under this Franchise, and shall, if requested, provide the Town with a list of real property within the Town Boundaries which is owned by the Company. Such documents need not be a published version, but may be in the form of electronic media. b. Copies of Tariffs. The Company shall furnish the Town with copies of any tariffs currently in use. Such documents need not be a published version, but may be in the form of electronic media. 11. Administration a. Amendments. At any time during the term of this Franchise, the Town through the Town Council, or the Company, may propose amendments to this Franchise by giving thirty (30) days written notice to the other party of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, shall within a reasonable time, negotiate in good faith in an effort to agree upon a mutually satisfactory amendment(s). No amendment(s) to this Franchise shall be effective until mutually agreed upon in writing by the Town and the Company and until all public notice requirements pursuant to Colorado statutes, and Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 12 of 19 ordinance requirements of the Town, have been met. This section shall not apply to Franchise Fee changes under Section no. 8. b. Revocation of Privileges by Condemnation. In the event, at any time during the term of this Franchise, the Town shall condemn any of the Facilities of the Company within the Town, and thereby revoke all or any part of the privilege and authority herein granted to the Company to serve the Residents within the Town, then and in such event the Town shall pay to the Company just compensation as provided by the laws of the State of Colorado for such rights and facilities by reason of such condemnation. c. Compliance Impaired. Both the Company and the Town recognize there may be circumstances whereby compliance with the provisions of this Franchise is impossible or is delayed because of circumstances beyond the Company's or Town's control. In those instances, the Company or Town shall use its best efforts to comply in a timely manner and to the extent possible. d. Company's Failure to Perform. It is agreed that in case of the failure of the Company to perform and carry out any of the stipulations, terms, conditions, and agreements herein set forth in any substantial particular, wherein such failure is within the Company's control and with respect to which redress is not otherwise herein provided, the Town, acting through the Town Council, may, after hearing, determine such substantial failure; and, thereupon, after notice given the Company of such failure, the Company may have a reasonable time, not less than ninety (90) days, unless otherwise agreed by the parties, in which to remedy the conditions respecting which such notice shall have been given. After the expiration of such time and the failure to correct such conditions, the Town Council shall determine whether any or all rights and privileges granted the Company under this ordinance shall be forfeited and may declare this Franchise null and void. e. Ownership of Facilities. All Facilities used or placed by the Company within the Town shall be and remain the property of the Company. f. Transfer of Rights. The Company shall not transfer or assign any rights under this Franchise to a third party, excepting only corporate reorganizations of the Company not including a third party, unless the Town shall approve in writing such transfer or assignment. Approval of the transfer or assignment shall not be unreasonably withheld. g. Removal of Facilities. Upon the expiration of this Franchise, if thereafter the Company Facilities shall not be used for electric or fiber purposes for a period of twelve (12) successive months, the Town shall have the ·option Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 13 of 19 of having the Company remove such Facilities or claim such Facilities as its own. If the Town should require the Company to remove its Facilities such removal shall only apply to those Facilities that are above ground and have a visual impact on the surrounding area. If the Town elects to have the Company remove the Facilities, it shall give written notice to the Company within thirty (30) days after expiration of the twelve (12) month period above described directing it to remove such Facilities, and the Company shall remove the same no later than ninety (90) days after the date of such notice, unless the Company and the Town agree to a longer period within which removal shall occur. Any Facilities, either underground or overhead, remaining after the twelve (12) month, thirty (30) day, and ninety (90) day periods above described, that have not been expressly claimed by the Town or removed by the Company, shall be deemed to have been abandoned. Any cost incurred by the Town in removing abandoned Facilities, and any liability associated with Facilities abandoned by the Company shall be the liability of the Company. For any Facilities claimed by the Town, any liability associated with such Facilities shall become the liability of the Town. h. Non-renewal of Franchise; Alternative Electric Service. If this Franchise is not renewed, or if it is declared null and void, or the Company terminates any service provided for herein for any reason, and the Town has not provided for alternative electric service to the Residents within the Town, the Company shall not remove its facilities and shall be obligated to continue electric service to the Residents until alternative electric service is provided. The Company will not withhold any temporary services necessary to protect the public. 12. Community Enhancement Fund. a. Purpose. The Company is committed to programs designed to make a difference in people's lives and the communities in which they reside. The Company will voluntarily make monetary resources available to the Town for such programs and/or activities. Programs for which such funds shall be spent shall be limited to: i. Beautification projects; ii. Energy conservation projects; iii. Equipment and technology upgrades for schools; iv. Scholarship funds; v. Acquisition of open space and/or park land and development thereof; Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 14 of 19 vi. Sponsorship of special community events; vii. Undergrounding of overhead electric and other utilities; viii. Distributed energy resource projects. viiii. Electric vehicle charging infrastructure. x. Participation in the Renewable Energy Purchase Program. Funds made available under this Section may be spent for other purposes only with the express written consent of the Company. This program has been initiated solely by the Company; the Town has not made the program a requirement for this Franchise. Funding for this program is not a cost of doing business, but is a voluntary contribution by the Company. • Payments to the Fund. The Company will establish an initial fund amount of $2,000.00. The Company shall then make annual payments to the fund equal to one percent (1%) of its prior year's gross revenues, prorated for the portions of the months at the beginning and end of the term of this Franchise, collected from the sale of electricity within the Town Boundaries, or $2,000.00, whichever amount is greater. Said payments shall be made into the fund no later than February 15th of the year subsequent to the year in which the gross revenues are received by the Company. b. The Fund. The Fund established by the Company shall be maintained in a bank account in the name of the Town, but shall be maintained separately from all other funds and accounts held by the Town. c. Payments from the Fund. All payments from the fund shall be for projects described in Section 12 a. hereof. Prior to any such expenditure, authorization to withdraw from the fund shall be given by Resolution or Ordinance duly enacted by the Town Council, and such resolution shall clearly describe the nature and purpose of the project for which the expenditure is made. Prior to any expenditure, the Town shall notify the Company of its intended use of the funds. Unless the Company objects, in writing, prior to such expenditure, the Company shall have waived its right to object in the future if the funds are expended for the use identified in the notice. d. Audits. The Town may audit the Company's books related to gross revenues collected within the Town at any reasonable time and with reasonable prior notice. The Company may audit the fund account, expenditures from the Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 15 of 19 fund, and resolutions and ordinances authorizing such expenditures at any reasonable time and with reasonable prior notice. e. Forfeiture of Enhancement Funds. The Company shall have the express right to temporarily suspend or terminate in full its annual contributions to the Enhancement Fund if it is determined that Funds allocated and paid to the Town are being, or have been, misappropriated, administered with bias or discrimination, or for other inappropriate actions. f. Advances of Funds. The Company shall consider advances of funds, subject to the provisions of this Section, for all such projects that specifically involve undergrounding of overhead lines or projects acceptable to the Company which are related to the Company's existing Facilities. The Town shall make all reasonable attempts to plan and budget use of the Fund without advancement of future Funds. However, if the Town requests and the Company and the Town agree that it is in the mutual interest of both, the Company shall anticipate Fund amounts to be available for up to three (3) years in advance. Both parties shall enter into a special agreement concerning the advanced Funds. Any amounts advanced shall be credited against amounts to be expended in succeeding years until such advances are eliminated. 13. Undergrounding. a. At Consumer's Request. If a customer within the Town should request that new facilities be installed underground, or for the conversion of existing overhead facilities to underground facilities, or if Town ordinances or resolutions require a customer or customers to install facilities underground, the Company shall proceed in accordance with its Line Extension Policy, located in Section 30.30 of the Holy Cross Energy Tarriffs, as each may from time to time be amended. b. Town Requested Undergrounding. Except for the Company's contributions to the Community Enhancement Fund, which may be used by the Town to pay for the undergrounding of the Company's· facilities, any request, requirement imposed by resolution or ordinance, or other communication from the Town to the Company, asking, or requiring the Company to underground new facilities or existing overhead facilities, or move, remove, or replace existing underground facilities, shall be responded to in accordance with the provisions of the Company's Line Extension Policy, or other customary practice in use by the Company. The Town acknowledges availability of the Line Extension Policy. c. Relocation of Underground Facilities. Nothing hereinabove shall be Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 16 of 19 construed to obligate the Company to pay for the removal and relocation of its Facilities where such is at the request or demand of a person, or a public or private entity under circumstances which require the party requesting or demanding such to pay for the relocation under other provisions hereof, or under the provisions of the Company's Line Extension Policy, or other customary practice in use by the Company. d. Governmental Mandates. This Franchise or the Town Municipal Code, as either may be amended from time to time, shall not prohibit or limit the Company's right to enforce its collection of the cost increase of new underground construction, or conversion, in accordance with the provisions of the Company’s Line Extension Policy, customary practices, or state law. Anything in this Franchise, or in the Municipal Code, that would be a contributing factor to the ultimate effect of causing the Company to convert overhead electric lines or Facilities to underground lines or Facilities, or which would result in new construction of lines or Facilities being placed underground, when such could have been constructed overhead, shall be deemed to be a mandatory requirement of the Town. 14. Miscellaneous. a. Changes in Utility Regulation. In the event new legislation materially affects the terms and conditions of this Franchise, the parties agree to renegotiate the affected terms and conditions in good faith as an amendment hereto. The parties hereto acknowledge that regulatory and legislative changes in the electric utility, gas utility and other energy industries are currently being discussed nationwide and statewide; that some changes in utility industry sectors have already been implemented; and that other changes may be made in the future, during the term of this Franchise. One likely scenario is the implementation of open access to electric customers, and other energy customers, making such customers available to all utilities, thus eliminating or limiting territorial protections. Under this scenario one utility may contract to sell a type of energy to a customer, while another utility transports the energy to the customer for a fee charged to the other utility or the customer. The parties agree, that insofar as future changes in the utility laws will allow, the Company shall always retain the right to bill customers for utility transportation services and energy sales within the Town if it is the provider of either the energy product or the transportation of such product. The parties agree that this will provide the most efficient and convenient utility service to the Residents and provide assurance to the Town of Franchise Fee collection for each component charged for the sale and delivery of energy products within the Town. Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 17 of 19 b. Successors and Assigns. The rights, privileges, Franchises and obligations granted and contained in this Franchise shall inure to the benefit of and be binding upon the Company, its successors and assigns. c. Representatives. Both parties shall designate from time to time in writing representatives to act as franchise agents for the Company and the Town. Such will be the persons to whom notices shall be sent regarding any action to be taken under this Ordinance. Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the persons and addresses are changed at the written request of either party. Until any such change shall hereafter be made, notices shall be sent to the Town Mayor and to the Company's Corporate Executive Officer. Currently the addresses for each are as follows: For the Town: Town of Avon 100 Mikaela Way P.O. Box 975 Avon, Colorado 81620 Attention: Town Manager For the Company: Holy Cross Energy 3799 Highway 82 Post office Box 2150 Glenwood Springs, Colorado 81601 Attention: Corporate Executive Officer d. Severability. Should any one or more provisions of this Franchise be determined to be illegal or unenforceable, all other provisions nevertheless shall remain effective; provided, however, the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft provisions that will achieve the original intent of stricken provisions. e. Entire Agreement. This Franchise constitutes the entire agreement of the parties. There have been no representations made other than those contained in this Franchise. 15. Approval. a. Town Approval. This grant of Franchise shall not become effective until Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 18 of 19 approved by the Town in accordance with its Ordinances and the statutes of the State of Colorado. b. Company Approval. The Company shall file with the Town Clerk its written acceptance of this Franchise and of all its terms and provisions within fifteen (15) business days after the final adoption of this Franchise by the Town. The acceptance shall be in the form and content approved by the Town Attorney. If the Company shall fail to timely file its written acceptance as herein provided, this Franchise shall become null and void. c. Public Health, Safety and Welfare. The Council hereby finds, determines and declares that this Ordinance is necessary and proper for the health, safety and welfare of the Town and the Residents thereof. Section 3. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 4. Effective Date. This Ordinance shall take effect thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 5. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 6. Publication by Posting. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] Ord 21-01 AN ORDINANCE GRANTING A FRANCHISE TO HOLY CROSS ENERGY January 26, 2021 Page 19 of 19 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on January 12, 2021, and setting such public hearing for January 26, 2021, at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ADOPTED ON SECOND AND FINAL READING on January 26, 2021. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney 970-748-4413 mpielsticker@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Matt Pielsticker, AICP, Planning Director RE: PUBLIC HEARING and Second Reading of Ordinance 21-03, Approving Municipal Code Amendments related to Wood Burning Devices DATE: January 26, 2021 SUMMARY: The Town Council approved first reading of Ordinance 21-03 on January 12, 2021. The Ordinance amends the Municipal Code’s Building Chapter to expressly permit new wood burning devices to replace existing devices if they meet new EPA standards. The International Mechanical Code refers to the modern, cleaner burning devices as “New Technology” devices. Additional changes to the definitions are now included to clarify that New Technology devices are in fact wood burning stoves. A public hearing for Ordinance 21-03 is now before the Town Council to finalize these changes. AMENDMENT: Local Avon amendments to Section 902 of the 2015 International Mechanical Code would be amended as follows: "902.1 Definitions New technology device wood stove means a solid-fuel-burning device appliance capable of burning wood fuel which is certified by the EPA and listed in the Colorado Department of Public Heath and Environment’s web page under Air pollution control division, residential burning information. A new technology device wood stove is one which has been EPA-certified and meets the definition of EPA certified wood stove. A new technology device shall also include a pellet stove.” 902.2 Regulations for fireplaces. One (1) New Technology Device wood stove shall be permitted in each dwelling unit constructed or the lobby of any hotel or lodge, provided that no new wood-burning or other solid fuel-burning fireplaces or other similar devices shall be permitted in dwelling units triplex and greater in size after the ordinance codified in this chapter becomes effective. Properties with solid-fuel-burning devices in existence as of February 25, 2021 shall be permitted to be replaced with a new technology wood stove.” AVAILABLE ACTIONS: 1. Continue action pending additional information. 2. Approve the Ordinance on Second and Final Reading. 3. Deny the Ordinance by motion and vote. RECOMMENDEDATION: I recommend that Town Council approve the second reading of Ordinance 21-03 as drafted. Sincerely, Matt Pielsticker ATTACHMENT Ordinance 21-03 ORDINANCE NO. 21-03 AMENDING AVON MUNICIPAL CODE CHAPTER 15.16.060 TO PERMIT THE REPLACEMENT OF EXISTING SOLID-FUEL DEVICES WITH NEW-TECHNOLOGY WOOD STOVES WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, Town Council initiated a code text amendment application to permit replacing non-conforming wood-burning devices that exist in Avon with new EPA-certified devices; and WHEREAS, the code amendments are in conformance with Avon Comprehensive Plan Policy G.3.3, which seeks to limit the number and location of wood burning fireplaces and reduce pollution from existing sources. WHEREAS, the Town Council finds that requiring EPA-certified wood stoves will promote the health, safety and general welfare of the Avon community by improving air quality; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirement of Section 6.5(d) of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendment to Avon Municipal Code Section 15.16.060 – Section 902 Masonry Fireplaces. Chapter 15.16.060-Section 902.2, Regulations for fireplaces, is hereby amended to read as follows with underline indicating language to be added: ""902.1 Definitions New technology device wood stove means a solid-fuel-burning device appliance capable of burning wood fuel which is certified by the EPA and listed in the Colorado Department of Public Health and Environment’s web page under Air pollution control division, residential burning information. A new technology device wood stove is one which has been EPA- Ord 21-03 Chapter 15 Fireplace January 26, 2021 Page 2 of 4 certified and meets the definition of EPA certified wood stove. A new technology device shall also include a pellet stove.” 902.2 Regulations for fireplaces. One (1) New Technology Device wood stove shall be permitted in each dwelling unit constructed or the lobby of any hotel or lodge, provided that no new wood-burning or other solid fuel-burning fireplaces or other similar devices shall be permitted in dwelling units triplex and greater in size after the ordinance codified in this chapter becomes effective. Properties with solid-fuel-burning devices in existence as of February 25, 2021 shall be permitted to be replaced with a new technology stove.” Section 3. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 3. Effective Date. This Ordinance shall take effect thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 4. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 5. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 6. Codification of Amendments. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Ord 21-03 Chapter 15 Fireplace January 26, 2021 Page 3 of 4 Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 7. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. Ord 21-03 Chapter 15 Fireplace January 26, 2021 Page 4 of 4 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on January 12, 2021 and setting such public hearing for January 26, 2021 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ADOPTED ON SECOND AND FINAL READING on January 26, 2021. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney 00238666-2 MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. M E M O R A N D U M TO: Town of Avon Council cc: E. Heil, Town Manager FROM: Richard J. Mehren, Esq. Joshua B. Boissevain, Esq. RE: Status Report on Conditional Storage Water Right Decreed to Nottingham Reservoir and Upcoming Water Court Diligence Filing Deadline DATE: January 18, 2021 This memorandum provides a status report on the Town of Avon’s (“Avon”) conditional storage water right decreed to Nottingham Reservoir and outlines our recommendation that the Avon Town Council pass a resolution to continue the conditional right and direct Avon staff and water counsel to file an application with the District Court for Water Division No. 5 (“Water Court”) to continue this conditional storage water right for another diligence period. In 2013, Avon acquired Nottingham Reservoir and its associated storage water right from Traer Creek Metropolitan District. The remaining conditional portion of the Nottingham Reservoir storage water right — originally decreed by the Water Court on September 23, 1994, in Case No. 94CW113 — comes up for its periodic diligence review in the Water Court at the end of January 2021. On January 18, 2015 in Case No. 14CW3022, the Water Court approved Avon’s application to make absolute 20.1 of the 22 acre-foot storage water right originally decreed to Nottingham Reservoir in Case No. 94CW113. In Case No. 14CW3022, the Water Court also granted a finding of reasonable diligence for the remaining 1.9 acre-foot conditional portion of the Nottingham Reservoir storage water right (the “Nottingham Conditional Water Right”). A copy of the decree entered in Case No. 14CW3022 is attached to this memo as Exhibit A for your reference. To continue the Nottingham Conditional Water Right in full force and effect for an additional six-year diligence period, Avon is required to file an application with the Water Court for Water Division No. 5 for a finding of reasonable diligence on or before January 31, 2021. As part of any such application, Avon will need to demonstrate to the Water Court that it has taken steps to complete the appropriation of the conditional water right in a reasonably expedient and efficient manner under all the facts and circumstances and that it has a specific plan and intent to put the conditional water right to beneficial use. We recommend that Avon preserve and continue the valuable Nottingham Conditional Water Right by filing the necessary application with the Water Court to continue the conditional right for an additional diligence period. As such, we recommend that Town of Avon Council pass a resolution to: (1) continue the Nottingham Conditional Water Right for an additional diligence MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. MEMO TO: Town of Avon January 18, 2021 Page 2 00238666-2 period; and (2) direct Avon staff to work with Avon’s water counsel at Moses, Wittemyer, Harrison and Woodruff, P.C. to prepare, file and prosecute an application with the Water Court to continue the Nottingham Conditional Water Right for an additional diligence period. Page 1 of 1 COURT,DISTRICT COUNTY, COLORADOGARFIELD (GLENWOOD SPRINGS) Court Address: 109 8th Street, Ste. 104, Glenwood Springs, CO, 81601 In the Interest of: TRAER CREEK METROPOLITAN DISTRICT COURT USE ONLY Case Number: 2014CW3022 Division: E Courtroom: Decree: Decree of the Water Court The motion/proposed order attached hereto: GRANTED. Any request for a further finding of reasonable diligence shall be filed in January 2021. Issue Date: 1/18/2015 JAMES BERKLEY BOYD District Court Judge DATE FILED: January 18, 2015 2:18 PM CASE NUMBER: 2014CW3022 EXHIBIT A 00079855-13 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, Colorado 81601 _____________________________________________ CONCERNING THE APPLICATION FOR WATER RIGHT OF THE TOWN OF AVON IN EAGLE COUNTY ▲ COURT USE ONLY ▲ ____________________________ Case No.: 14CW3022 (07CW86) (00CW193) (94CW113) FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT This matter comes before the Water Court upon the Application for Finding of Reasonable Diligence and to Make Absolute for the Town of Avon filed on February 28, 2014 (“Application”), and was referred to the Water Referee for Water Division No. 5, State of Colorado, by the Water Judge of this Court in accordance with C.R.S. §§ 37-92-101, et seq., known as the Water Right Determination and Administration Act of 1969. The undersigned Referee, having made such investigations as are necessary to determine whether the statements in the Application are true, being fully advised with respect to the subject matter of the Application, and having considered the pleadings and the evidence presented, hereby enters the following Findings of Fact, Conclusions of Law, and Ruling of the Referee: FINDINGS OF FACT 1. Applicant: The Town of Avon (“Avon”), c/o Virginia Egger, Town Manager, P. O. Box 975, Avon, CO 81620, Telephone: (970) 748-4010. 2. Application, notice, and jurisdiction: All notices required by law have been timely made, including those required under C.R.S. § 37-92-302(3). The Court has jurisdiction over the application and over all entities or persons who had standing to appear whether or not they have actually appeared. The land and water involved in this case are not within the boundaries of a designated ground water basin. 3. Parties: No statements of opposition or motions to intervene have been filed, and the time for filing such statements has expired. Traer Creek Metropolitan District (“Traer Creek”) was previously a co-applicant with Avon in this matter. Traer Creek conveyed the Nottingham Reservoir water right and structure to Avon on October 9, 2013 as part of a settlement between Avon and Traer Creek. After the settlement was finalized, Traer Attachment to Order - 2014CW3022 Town of Avon Case No. 14CW3022 Page 2 00079855-13 Creek filed a motion to withdraw from this matter on October 14, 2014, and such motion was granted on October 15, 2014. Avon is now the sole applicant in this matter. 4. Landowner: Traer Creek RP-LLC is the owner of the land upon which Nottingham Reservoir is located and upon which water is or will be stored pursuant to this Ruling and Decree. Avon has properly notified this landowner of the filing of the application in this case in accordance with C.R.S. § 37-92-302(2)(b). 5. Description of Application: The Application requested to make absolute in whole the conditional water right for the Nottingham Reservoir (“Subject Water Right”) or, in the alternative, to grant a finding of reasonable diligence for all or a portion of the Subject Water Right. Based on a survey conducted as part of the Response to the Division Engineer, Avon has determined that the current capacity of Nottingham Reservoir is 20.1 acre-feet. Accordingly, Avon has revised its claim to make 20.1 acre-feet of the Subject Water Right absolute and keep 1.9 acre-feet of the Subject Water Right conditional. 6. Report of the Division Engineer: The Report of the Division Engineer, Summary of Consultation, was filed with this Court and served on all parties on May 12, 2014. Traer Creek and Avon responded to the Summary of Consultation on June 30, 2014. Avon filed a supplemental response on December 11, 2014. The Referee has considered the Summary of Consultation, Traer Creek and Avon’s response, and Avon’s supplemental response in accordance with C.R.S. § 37-92-305(6). 7. Description of Subject Water Right: Nottingham Reservoir. a. Original Decree: Case No. 94CW113, entered September 23, 1994, in the District Court for Water Division No. 5, Colorado. b. Previous Decrees: The Water Court awarded findings of reasonable diligence on the conditional portions of the Subject Water Right by decree dated April 16, 2001 in Case No. 00CW193 and by decree dated February 18, 2008 in Case No. 07CW86. c. Location: The decreed location for Nottingham Reservoir is as follows: the point of intersection of the Nottingham Dam axis with the centerline of the easterly spillway is located in the SW1/4 of the NW1/4 of Section 8, Township 5 South, Range 81 West of the 6th P.M. at a point whence the northwesterly corner (BLM Brass Cap) of said Section 8 bears North 27°34ʹ30ʺ West 1800 feet. The decreed location of the Nottingham Reservoir may be supplemented as follows: the centroidal point of the Nottingham Reservoir is located in Section 8, Township 5 South, Range 81 West of the 6th P.M., at a distance of 1,395 feet from the Attachment to Order - 2014CW3022 Town of Avon Case No. 14CW3022 Page 3 00079855-13 northern section line and 675 feet from the western section line. A map showing the location of Nottingham Reservoir is attached as Exhibit A. d. Source: Nottingham Gulch, tributary to the Eagle River, tributary to the Colorado River. e. Appropriation Date: The appropriation date for the absolute decreed uses (irrigation and stock watering) is August 1, 1940. The appropriation date for the remaining conditional decreed uses described below is May 31, 1994. f. Amounts: The amount of water decreed for all uses, both absolute and conditional, is 22 acre-feet. g. Use: Irrigation, stock water, domestic, commercial, industrial, fire protection, sewage treatment, irrigation of open space, parks, lawns and gardens, recreation, fish and wildlife propagation, maintenance of adequate storage reserves and reservoir evaporation, augmentation, replacement, and exchange. 8. Claim for Finding of Reasonable Diligence: Avon seeks a finding of reasonable diligence for 1.9 acre-feet of the Subject Water Right. 9. Finding of Reasonable Diligence: The Referee finds that the verified Application constitutes a sworn statement by Avon detailing work and expenditures of Avon and Traer Creek toward development of the Subject Water Right. The Referee finds that Avon and Traer Creek’s expenditures during the diligence period described in the Application, such as those related to the settlement of litigation between Avon and Traer Creek, expenditures on engineering studies on and maintenance and rehabilitation of Nottingham Reservoir related to the dam inspection performed by the Colorado Division of Water Resources, and expenditures of legal and engineering funds related to protection of water rights, including the Subject Water Right, constitute reasonable diligence. The Referee further finds, based on the recent survey provided by Avon, that the reservoir is capable of storing 20.1 acre feet of water and that silt and debris has probably filled the remainder of the original 22 acre foot capacit y. The Referee further finds that Avon intends to restore the reservoir to its original capacity by dredging as part of future maintenance, that Avon has demonstrated the need to continue 1.9 acre-feet of the Subject Water Right as conditional, and that Avon has the ability to complete the appropriation of that conditional portion and to beneficially use all of the Subject Water Right within a reasonable time. Therefore, the Referee finds that the application for a finding of reasonable diligence should be granted. C.R.S. § 37-92-301(4). Attachment to Order - 2014CW3022 Town of Avon Case No. 14CW3022 Page 4 00079855-13 10. Claim to Make Absolute: Since entry of the conditional decree in Case No. 07CW86, Traer Creek, as Avon’s predecessor in interest, has stored water for all of the decreed beneficial uses under the Subject Water Right as follows: a. Date of application to beneficial use: May 12, 2009. b. Amount: 20.1 acre-feet. c. Type of use: Domestic, commercial, industrial, fire protection, sewage treatment, irrigation of open space, parks, lawns and gardens, recreation, fish and wildlife propagation, maintenance of adequate storage reserves and reservoir evaporation, augmentation, replacement, and exchange purposes. d. Evidence that diversion was made in priority: On May 12, 2009, Traer Creek, as Avon’s predecessor in interest, stored 20.1 acre-feet in priority pursuant to the Subject Water Right. The Division Engineer’s Reservoir Measurement Report and Diversion Comment Report (attached as Exhibit B) demonstrate that this amount of water was diverted into storage in priority on this date. 11. Finding to Make Absolute: The Referee finds that the verified Application and evidence submitted in the form of a survey of the Nottingham Reservoir shows that Avon has completed the appropriation for 20.1 acre-feet of the Subject Water Right for the decreed domestic, commercial, industrial, fire protection, sewage treatment, irrigation of open space, parks, lawns and gardens, recreation, fish and wildlife propagation, maintenance of adequate storage reserves and reservoir evaporation, augmentation, replacement, and exchange purposes. The Referee finds that Avon has exercised reasonable diligence and partially completed the appropriation of water storage rights that were decreed conditionally for Nottingham Reservoir and, therefore, is entitled to entry of a decree making the Subject Water Right absolute for domestic, commercial, industrial, fire protection, sewage treatment, irrigation of open space, parks, lawns and gardens, recreation, fish and wildlife propagation, maintenance of adequate storage reserves and reservoir evaporation, augmentation, replacement, and exchange purposes in the amount of 20.1 acre-feet. CONCLUSIONS OF LAW 12. Incorporation: The foregoing Findings of Fact are incorporated herein by reference. 13. Notice and Jurisdiction: The Water Court for Water Division No. 5 has jurisdiction over the subject matter of this proceeding and over all persons and property that may be affected hereby, whether or not those persons have chosen to appear. C.R.S. §§ 37-92-203 and 37-92-302. The Application and the resume publication of the Attachment to Order - 2014CW3022 Town of Avon Case No. 14CW3022 Page 5 00079855-13 Application placed such persons on notice of the relief requested by the Application and granted by this Ruling and Decree. C.R.S. § 37-92-302(3). 14. Application Contemplated by Law: The Application is complete, covering all applicable matters required pursuant to the Water Right Determination and Administration Act of 1969, C.R.S. §§ 37-92-101, et seq. 15. Authority to Make Absolute: This Court has authority to make the determination that a conditional water right has become an absolute water right by reason of completion of the appropriation, as requested in the Application. C.R.S. §§ 37-92-301(2), 37-92-302, and 37-92-303(1). The capture, possession, and control of water at the decreed storage structure in priority provides a basis to make the Subject Water Right absolute in part for all decreed uses. C.R.S. § 37-92-301(4)(e). 16. Burden of Proof: Avon has fulfilled all requirements for making the Subject Water Right absolute in part and continuing the remaining conditional portion of the Subject Water Right in full force and effect for an additional diligence period and has met all legal standards and burdens of proof, including but not limited to C.R.S. §§ 37-92-302, 37-92-303, 37-92-304, and 37-92-305. Avon is entitled to a decree making the Subject Water Right absolute in the amount of 20.1 acre-feet and a finding of reasonable diligence for the Subject Water Right in the amount of 1.9 acre-feet. RULING OF THE REFEREE 17. Incorporation of Findings of Fact and Conclusions of Law: The Findings of Fact and Conclusions of Law as set forth above are incorporated herein by reference and are hereby modified as necessary to constitute part of the Ruling and Decree. 18. Approval of Claim to Make Subject Water Right Absolute: Avon’s claim to make the Subject Water Right absolute in the amount of 20.1 acre-feet for domestic, commercial, industrial, fire protection, sewage treatment, irrigation of open space, parks, lawns and gardens, recreation, fish and wildlife propagation, maintenance of adequate storage reserves and reservoir evaporation, augmentation, replacement, and exchange purposes is hereby granted. 19. Approval of Finding of Reasonable Diligence: Avon’s claim for finding of reasonable diligence for the Subject Water Right in the amount of 1.9 acre-feet for domestic, commercial, industrial, fire protection, sewage treatment, irrigation of open space, parks, lawns and gardens, recreation, fish and wildlife propagation, maintenance of adequate storage reserves and reservoir evaporation, augmentation, replacement, and exchange purposes is granted and the Subject Water Right is continued in full force and effect in the amount of 1.9 acre-feet, CONDITIONAL. Attachment to Order - 2014CW3022 Town of Avon Case No. 14CW3022 Page 6 00079855-13 20. Diligence Application: If Avon desires to maintain the Subject Water Right, as described herein, an application for finding of reasonable diligence shall be filed on or before the last day of the month six years from the date of the water judge’s order, or a showing made on or before that date that the conditional water right has become absolute by reason of completion of the appropriation, or the conditional portions of said right will be cancelled. 21. Transfer of Conditional Water Right: Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon the sale or other transfer of the conditional water right decreed herein, the transferee shall file with the Division No. 5 Water Court a notice of transfer which shall state: a. The title and case number of this case, Case No. 14CW3022 (07CW86, 00CW193, 94CW113); b. The description of the conditional water right transferred; c. The name of the transferor; d. The name and mailing address of the transferee; and e. A copy of the recorded deed. The owners of the conditional water right shall also notify the Clerk of the Division No. 5 Water Court of any change in mailing address. 22. A copy of this Decree shall be filed with the Division Engineer, Water Division No. 5, and the State Engineer. DATED this 23rd day of December, 2014. BY THE REFEREE: ______________________________ Water Referee, Water Division No. 5 State of Colorado Attachment to Order - 2014CW3022 Town of Avon Case No. 14CW3022 Page 7 00079855-13 DECREE OF THE WATER COURT No protest was filed in this matter. The foregoing ruling is confirmed and approved and is made the Judgment and Decree of this Court. DATED: ____________________________ BY THE COURT: Hon. James Boyd Water Judge Water Division No. 5 State of Colorado Attachment to Order - 2014CW3022 RE N EXHIBIT A 11 Attachment to Order - 2014CW3022 Date Gage Height (FT) Storage (AF) Fill (AF) Release (AF) Evaporative Loss (AF) 5 37 3523Division:Water District:Structure Id:NOTTINGHAM RESStructure Name: HydroBaseState of Colorado Reservoir Measurment Report Location:Q160Q40Q10 Section Twnshp Range PM NWNWSW 8 5S 81W S Distance From Section Lines:From N/S Line:From E/W Line: UTM Coordinates (NAD 83):Northing (UTM y):4388290 Easting (UTM x):372059 Latitude/Longitude (decimal degrees):39.634829 -106.490902 1974-07-12 22.00 28.00 1975-07-15 22.00 28.00 1975-08-06 22.00 28.00 1.00 1977-06-06 28.00 1977-08-08 0.00 1979-05-01 22.00 28.00 1980-11-01 0.00 1981-05-31 28.00 28.00 1981-10-31 0.00 28.00 1982-11-01 0.00 0.00 1983-05-31 22.00 28.00 1983-06-01 28.00 1983-08-31 28.00 1983-09-01 0.00 0.00 1983-11-01 0.00 0.00 1984-06-01 20.00 22.00 22.00 1984-10-30 0.00 0.00 22.00 1984-11-01 0.00 0.00 1985-07-01 22.00 22.00 22.00 1985-08-23 0.00 0.00 22.00 1989-05-04 0.00 1990-07-16 0.00 1990-08-10 0.00 1990-09-10 0.00 1990-10-12 0.00 1992-11-01 0.00 1993-06-01 20.00 20.00 1993-06-30 0.00 19.00 1.00 1993-10-31 0.00 1993-11-01 0.00 1994-06-01 22.00 24.00 2.00 1994-10-31 18.00 4.00 1995-11-01 22.00 1996-06-19 22.00 1996-10-31 22.00 4.00 4.00 1996-11-01 22.00 1997-07-01 22.00 4.00 4.00 1997-10-31 22.00 1997-11-01 22.00 1998-07-01 22.00 4.00 4.00 1998-10-31 22.00 1998-11-01 22.00 1999-07-01 22.00 4.00 4.00 1999-10-31 22.00 1999-11-01 22.00 2000-07-01 22.00 4.00 4.00 2000-10-31 22.00 2014-02-25Report Date:Page 1 of 2 HydroBase Refresh Date:2014-02-05Attachment to Order - 2014CW3022 Date Gage Height (FT) Storage (AF) Fill (AF) Release (AF) Evaporative Loss (AF) 5 37 3523Division:Water District:Structure Id:NOTTINGHAM RESStructure Name: HydroBaseState of Colorado Reservoir Measurment Report Location:Q160Q40Q10 Section Twnshp Range PM NWNWSW 8 5S 81W S Distance From Section Lines:From N/S Line:From E/W Line: UTM Coordinates (NAD 83):Northing (UTM y):4388290 Easting (UTM x):372059 Latitude/Longitude (decimal degrees):39.634829 -106.490902 2000-11-01 22.00 2001-06-13 22.00 4.00 4.00 2001-10-31 22.00 2001-11-01 22.00 2002-04-24 4.00 18.00 2002-05-04 22.00 18.00 2002-10-31 22.00 4.00 4.00 2002-11-01 22.00 2003-06-06 22.00 2.00 2.00 2003-10-31 22.00 2.00 2.00 2003-11-01 22.00 2004-06-01 22.00 2.00 2.00 2004-10-31 22.00 2.00 2.00 2004-11-01 0.00 2005-03-12 0.00 2005-09-27 22.00 27.00 5.00 2005-10-31 22.00 2005-11-01 22.00 2006-08-12 22.00 5.00 5.00 2006-10-31 1.50 20.50 2007-11-01 17.00 2008-07-01 0.00 1.00 17.00 1.00 2008-09-24 0.00 2008-09-26 9.00 9.00 2008-10-01 17.00 8.00 2008-10-31 17.00 2008-11-01 17.00 2009-05-12 17.80 22.00 5.00 2009-10-31 22.00 2.00 2.00 2009-11-01 22.00 2010-05-27 18.40 19.60 3.00 5.40 2010-10-31 17.00 2.60 2010-11-01 17.00 2011-05-25 17.00 2.00 2.00 2011-06-01 14.70 2.30 2011-10-31 14.00 2.00 2.70 2011-11-01 14.00 2012-04-23 18.20 22.00 2014-02-25Report Date:Page 2 of 2 HydroBase Refresh Date:2014-02-05Attachment to Order - 2014CW3022 IYR Diversion Comment Acres IrrigatedNot Used Code Division:Water District:Structure Id: 3523 HydroBase 37 5NOTTINGHAM RESStructure Name: Location:Q160Q40Q10 Section Twnshp Range PM NWNWSW 8 5S 81W S Distance From Section Lines:From N/S Line:From E/W Line: UTM Coordinates (NAD 83):Northing (UTM y):4388290 Easting (UTM x):372059 Latitude/Longitude (decimal degrees):39.634829 -106.490902 Diversion Comment Report State of Colorado NOT ADJUDICATED 1974 NOT USED SKI DEVELOPMENT AREA 1975 UN-ADJ. 1976 85 1977 1978 Water taken but no data available 1979 Water taken but no data available 85 1980 20 1982 22 1983 60 1984 60 1985 RELEASES WATER TO PUDER DITCH ID 765 1986 0 NOT USED THIS YEAR 1987 Water available, but not taken 0 NOT USED THIS YEAR 1988 Water available, but not taken 0 1989 Water available, but not taken 0 NOT USED RANCH FOR SALE 1990 Water available, but not taken 0 NOT USED,RANCH FOR SALE 1991 Water available, but not taken 0 NOT USED,RANCH FOR SALE 1992 Water available, but not taken 0 NOT USED,RANCH FOR SALE 1993 Water available, but not taken 0 NOT USED,RANCH FOR SALE 1994 Water available, but not taken 0 NOT USED,RANCH FOR SALE 1995 Water available, but not taken 0 EVAPORATION AND STOCK ONLY 1996 0 EVAPORATION AND STOCK ONLY 1997 0 EVAPORATION AND STOCK ONLY 1998 0 EVAPORATION AND STOCK ONLY 1999 0 EVAPORATION AND STOCK ONLY 2000 Water available, but not taken 0 EVAPORATION AND STOCK ONLY SEE RESERVOIR REPORT FOR MORE INFO 2001 0 ALL WATER LOST THEN FILLED OUT OF PRIORITY. OUT OF PRIORITY STORAGE 2002 0 ALL WATER LOST THEN FILLED OUT OF PRIORITY. OUT OF PRIORITY STORAGE 2003 0 STAYS FULL 2004 Water available, but not taken 0 ALL WATER LOST THEN FILLED OUT OF PRIORITY. OUT OF PRIORITY STORAGE 2005 0 2006 STAYS FULL WHEN WATE AVAILABLE, WC OBSERVED IN NOVEMBER 2007 2007 Water taken but no data available EMPTIED FOR SPILLWAY WORK REFILLED IN LATE SEPTEMBER 2008 2008 STAYS FULL 2009 DAM INSPECTION MAY 27, 2010. FULL AND SPILLING ESTIMATED 4 CFS. 2010 DAM INSPECTION JUNE 1, 2011. WATER LEVEL IS 1.3' BELOW SPILLWAY. OUTLET 2011 2014-02-27Report Date:Page 1 of 1 HydroBase Refresh Date:2014-02-05Attachment to Order - 2014CW3022 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer RE: Notice of Award – Former Town Hall Demolition Project DATE: January 22, 2021 SUMMARY: Authorize Staff to issue Notice of Award for construction of the Former Town Hall Demolition Project to Tasman Geosciences, Inc. in the amount of $571,235 and direct Staff to amend the project budget to $643,359. DISCUSSION: The Former Town Hall Demolition Project generally consists of asbestos abatement, demolition of the Former Town Hall building and haul off, utility capping, grading and revegetation. A future public restroom including support space for special events in the park is envisioned on the site with construction budgeted in 2022. Staff advertised the Former Town Hall Demolition Project for (5) weeks in local newspapers and on Bidnet.com. The Bid Opening was held on January 21, 2021 and four bids were received: Orion Environmental Inc. with a bid of $714,987, American Demolition, Inc. at $939,654, and Tasman Geosciences, Inc. at $571,235. A fourth bid was received from Premier Environmental LLC but was incomplete and deemed nonresponsive. Asbestos abatement is a specialized business and all submitting contractors are based in the Front Range. Each of the submitting contractors are qualified to construct the project. Construction Schedule: The proposed work is scheduled to begin in early March and is scheduled to be completed by June 1st. The contract documents include assessment of liquidated damages at $900 per day if the project is not completed on time. FINANCIAL CONSIDERATIONS: The Project will be funded from the Former Town Hall Demolition Project in the Town of Avon 2021 Capital Projects Fund, currently budgeted at $525,000. To fully fund the project, the budget will have to be increased to $643,359 in the next Capital Projects Fund budget amendment scheduled for March. There are adequate reserves in the Capital Projects Fund to cover the increaseed project budget. The Project cost estimate is shown in Table 1 below and includes 10 % contingency. Table 1: Former Town Hall Demolition Project Cost Estimate Current Available Funds Budget $525,000 Construction Cost $571,235 Environmental Consulting Services $10,000 Geotechnical Testing Services $5,000 Contingency (10 %) $57,124 Total $643,359 RECOMMENDATION: Staff requests Council authorization to award the Former Town Hall Demolition Project Contract to the low bidder, Tasman Geosciences Inc.in the amount of $571,235. Page 2 of 2 PROPOSED MOTION: “I move to authorize issuance of Notice of Award for the Former Town Hall Demolition Project contract to the low bidder, Tasman Geosciences Inc. in the amount of $571,235 as approved in the Town of Avon 2021 Capital Projects Fund and direct Staff to increase the project budget to $643,359.” Thank you, Justin 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Justin Hildreth, Town Engineer RE: Notice of Award – Variable Messaging Signs DATE: January 22, 2021 SUMMARY: Staff requests Council authorization to issue Notice of Award for construction of the Variable Message Signs (VMS) as approved in the Town of Avon 2021 Capital Projects Fund to Freeman Signs. DISCUSSION: The 2021 Capital Projects Fund budget includes funding for two 13-by-4-foot signs on the railroad bridge over Avon Road, 3-by-5-foot VMSs at Roundabout 1 and Metcalf Road and a 2-sided 5-by- 3-foot VMS south of the Avon Elementary School bus stop and adjacent to the basketball courts. The 3-by- 5-foot VMSs will be the same size as the Walgreens VMS. The signs were bid out together to simplify programming and ease of maintenance. Exhibits of the proposed signs are attached to this memo. Please note the stone veneer shown on the 3- by-5-foot VMS exhibit is only for illustrative purposes. The VMSs located at roundabout 1 and Metcalf Road will have the grey stone used at Riverfront Lane and Avon Road. The VMS near Avon Elementary School will have the tan stone used on the park restrooms and stage. The VMSs are an effective way to communicate to Avon residents and guests along with being more attractive than the portable orange signs. Staff solicited bids from three sign vendors and the bids are summarized below. Freeman Signs $123,564.31 Schlosser Signs $142,754.00 Sign Dealz Bid not responsive Staff recommends issuance of Notice of Award to the low bidder, Freeman Signs. Freeman Signs is based in Denver and has a proven track record of constructing and installing signs in Colorado. The Sign Dealz proposal was not responsive because it did not include the installation of the monument bases. CONSTRUCTION SCHEDULE: We are planning to complete the sign installation before the summer season. The lead time for the signs is approximately three months and construction will begin in the spring once weather permits and signs are delivered. Once delivered, the installation of all the signs is expected to take approximately four weeks. The Town will procure installation of the stone veneer separately. FINANCIAL CONSIDERATIONS: The current Capital Projects Fund (“CPF”) budget includes $150,000 for installation of the VMSs. The Project cost estimate is shown in Table 1 below: Table 1: Variable Message Signs Projects Available Funds in 2021 Budget: $150,000 Construction Cost $123,564 Contingency and Installation of Stone Veneer $ 26,436 Page 2 of 2 Total $150,000 RECOMMENDATION: I recommend Council authorization to award the Variable Messaging Sign Project contract to the low bidder, Freeman Signs, in the amount of $123,564. PROPOSED MOTION: “I move to authorize issuance of the Notice of Award for the Variable Messaging Sign Project contract to the low bidder, Freeman Signs, in the amount of $123,564.” Thank you, Justin Exhibits Variable Messaging Sign Renderings ART SUPERIMPOSED ON PHOTO, SHOWN AT APPROXIMATE RELATIVE SIZE FREEMAN SIGNS IS A UL LISTED SIGN MANUFACTURER NEW S/F 10 MM FULL COLOR EMC SCALE: 1/2" = 1'-0" QUANTITY: 1 EA PER SIDE (2 TOTAL), MANUFACTURE AND INSTALLA TOWN OF AVON 100 Mikala Way. AVON, CO.BENZIE MBENZIE@FREEMANSIGNS.NET 12/26/2019 1/06/21 -ADDED ELECTRICAL NOTES X X X X X X & ELECTRIC 13'-6 1/2"13'-6 1/2"3'-1 1/2"4’-0” (+/-)CONCRETE V.O.7" 2" New S/F 10mm full color Freeman Digital EMC 416x96 matrix, 2” angle iron frame attached to existing concrete over pass, painted black. SIDE VIEW 1 19-568 1 of 1 EMC load is 132 Watt (max draw) per Sq Ft.   5.1Kw (per face)  30-Amp 240-V circuit (per face)    Electrical sign off has to be filled out and signed by the Electric Contractor before we will warranty the EMC Voltage needs to be tested and verified  R1 1 FREEMAN SIGNS IS A UL LISTED SIGN MANUFACTURER NEW S/F 10 MM FULL COLOR EMC SCALE: 1/2" = 1'-0" QUANTITY: 2 EA, MANUFACTURE AND INSTALLA OF 1 Town of Avon 100 Mikala Way Avon, CO.BENZIE MBENZIE@FREEMANSIGNS.NET 21-539 1/11/2021 1 7/15/19 -CHANGED COLOR OF FACES AND CABINET X X X X X X & ELECTRIC 4’-3”7"3'-1 1/2"5'-2 1/2"4’-3”3'-1 1/2"5'-2 1/2"7"7" NEW D/F 10 MM FULL COLOR EMC SCALE: 1/2" = 1'-0" QUANTITY: 1 EA, MANUFACTURE AND INSTALLB 4'-9"1'-6" 4" POLE 4" POLE 1 2 3 New S/F 10mm full color Freeman Digital EMC 416x96 matrix, 2” angle iron frame attached to existing concrete over pass, painted black. 6'-0" 6'-2" STONE BASE CAP BASE EMC EMC1’-8” 2’-0” STONE BASE CAP BASE 2’-0” 2'-4" STONE BASE CAP BASE 1 1/2” angle iron base skinned with durock backer board. (Stone by others) . 1 1/2” angle iron frame with aluminum back (single face only) per forated aluminum sides, painted black. EMC load is 132 Watt (max draw) per Sq Ft. 5.1Kw (per face) 30-Amp 240-V circuit (per face) Electrical sign off has to be filled out and signed by the Electric Contractor before we will warranty the EMC Voltage needs to be tested and verified 4 1 2 2” Stone base cap (by others) 3 4 4” pipe concrete footing 4 3 3 3 1 2 3 1 1 4” pipe concrete footing AVON REGULAR MEETING MINUTES TUESDAY JANUARY 12, 2021 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 1. CALL TO ORDER AND ROLL CALL The meeting was hosted in a virtual format, using Zoom.us. Mayor Smith Hymes called the meeting to order at 5:00 p.m. starting with the Liquor Authority meeting. The regular Council meeting was called to order at 5:20 p.m. A roll call was taken, and Council members present by video/audio were Lindsay Hardy, Scott Prince, Tamra Underwood, RJ Andrade, Chico Thuon and Amy Phillips. Also present were Town Manager Eric Heil, Town Attorney Paul Wisor, Chief of Police Greg Daly, Town Engineer Justin Hildreth, Planning Director Matt Pielsticker, Human Resources Director Lance Richards, Mobility Director Eva Wilson, Public Works Director Gary Padilla, General Government Manager Ineke de Jong, and Town Clerk Brenda Torres. 2. APPROVAL OF AGENDA Video Start Time: 00:20:55 Part One Mayor Smith Hymes asked to add consideration of a letter organized by the Mountain Pact to the President-Elect Biden Administration and Congress as agenda item 5.10. Mayor Pro Tem Phillips moved to approve the agenda as amended. Councilor Underwood seconded the motion and the motion passed unanimously. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:22:29 Part One No conflicts of interest were disclosed. 4. PUBLIC COMMENT Video Start Time: 00:22:40 Part One Mayor Smith Hymes explained to the public how to participate via video/audio, via telephone, or via email for public comments. Sara Cassidy joined the meeting and introduced herself as the Community Liaison for Colorado Midland & Pacific Railway Company, known as CMP. She mentioned CMP has entered into a commercial agreement with Union Pacific Railroad (UP) for the majority of the Tennessee Pass rail line owned by UP and that CMP has filed for common-carrier authority to operate the Tennessee Pass Line with the U.S. Surface Transportation Board, the federal agency that regulates railroads. She said she looks forward to engaging in the transportation planning work already underway to determine how the Tennessee Pass might play a role. Michael Cacioppo commented on the railroad and said houses were shaking back in the day when the railroad was in service. Tom Ruemmler commented that he provided former Council members, the two new Councilors not included, with an explanation of the laws about recall elections. He will also provide this to Councilors Hardy and Andrade for their review. He expressed that anyone going along with the recall lawsuit, is guilty of a misdemeanor. AVON REGULAR MEETING MINUTES TUESDAY JANUARY 12, 2021 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 Town Attorney Paul Wisor clarified that the Town is not deciding on the railroad, this is initiated by private parties with the consent of a federal agency. He also clarified that with regard to the recall effort, the Town has made the decision to file an action for a declaratory judgement. 5. BUSINESS ITEMS 5.1. OVERVIEW OF AVON TOWN GOVERNMENT AND GOALS FOR 2021 (TOWN MANAGER ERIC HEIL) Video Start Time: 00:38:53 Part One Town Manager Eric Heil shared his screen and showed where the Council Handbook and guiding documents are available on the website. He then took Council through the simplified rules of order. Mayor Smith Hymes asked to be most productive in the virtual format, for everyone to stay seated with their video on and to turn their camera off if there is a need to move around and to stay muted until you are ready to speak so she can look out for those who want to speak. Town Manager Eric Heil then presented the 2021 department goals and Council provided comments per department. The Department Directors were virtually present. An updated workplan to Council will be presented on January 26th. 5.2. OVERVIEW OF MUNICIPAL LAW (TOWN ATTORNEY PAUL WISOR) Video Start Time: 00:0 0:01 Part Two Mayor Smith Hymes suggested, given the time, to skip item 5.2 for now, move to the rest of the agenda, and assess after item 5.10 if there is time to come back to it then or continue it to a future meeting agenda. Council agreed. Video Start Time: 02:35:23 Part Two Mayor Smith Hymes asked Town Attorney Paul Wisor, due to the time, to please continue this item. 5.3. ORDINANCE 21-01 APPROVING HOLY CROSS FRANCHISE AGREEMENT (TOWN ATTORNEY PAUL WISOR) Video Start Time: 00:0 1:23 Part Two Town Attorney Paul Wisor explained the Ordinance before Council. Council had questions about the length of the agreement, and he explained this is a 20-year agreement. Mayor Smith Hymes asked for public comment and no public comments were made. Mayor Pro Tem Phillips moved to approve on first reading Ordinance 21-01 Granting a Franchise to Holy Cross Energy for Distribution of Electrical Energy to the Residents of the Town of Avon for Light, Heath, Power and Other Purposes, and setting a Public Hearing for second reading for January 26, 2021. Councilor Hardy seconded the motion and the motion passed unanimously. 5.4. EMERGENCY ORDINANCE 21-02 AMENDMENT TO CHAPTER 3.28 TO PROVIDE FOR TO COLLECTION AND REMITTANCE OF ACCOMMODATION TAXES BY MARKETPLACE FACILITATORS (PROSECUTING ATTORNEY ELIZABETH PIERCE- DURANCE) Video Start Time: 00:14:55 Part Two Prosecuting Attorney Elizabeth Pierce-Durance joined the meeting and explained this Ordinance shifts the responsibility to collect accommodations tax on Short Term Rentals to the third-party vendors instead of homeowners. It makes it easier to collect sales tax and accommodations tax at the same time from the same party instead of having two separate payments by two separate AVON REGULAR MEETING MINUTES TUESDAY JANUARY 12, 2021 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 parties. She clarified that taxes will be collected on the total price including fees such as marketing fees, cleaning fees, etc. The current system is creating quite a bit of confusion and this makes it easier. Town Attorney Paul Wisor explained this is an emergency Ordinance so it can take effect on February 1st instead of having two readings and then have it take effect thirty days after the second reading which would bring us to the end of ski season. Mayor Smith Hymes asked for public comment and no public comments were made. Mayor Pro Tem Phillips moved to approve on first and second reading Ordinance 21-02 Modifying Provisions Relating to the Collection and Remittance of Accommodation Taxes to Improve the Efficiency of Tax Administration for the Benefit of the Town and its Residents. Councilor Hardy seconded the motion and the motion passed unanimously. 5.5. ADOPTION OF 2021 REGULAR MEETING SCHEDULE (GENERAL GOVERNMENT MANAGER INEKE DE JONG) Video Start Time: 00:31:40 Part Two General Government Manager Ineke de Jong presented the proposed 2021 meeting schedule for Council discussion and adoption. After Council discussion they made the following changes: 1) Eliminate the June 11th Council Retreat. There will be a retreat in-person once that is allowed. 2) Swap August 11th for July 27th to have a summer break. 3) In October meet on the 12th and 26th, even though that overlaps with an Eagle County Schools break. Councilor Prince excused himself from the July 13th meeting. Michael Cacioppo commented that Council retreats are not transparent. Mayor Smith Hymes and Town Attorney Paul Wisor explained this could not be further from the truth and this is a transparent meeting and very open to the public. Council agreed that if needed Councilors can meet early at 4:00 p.m. but only when needed and with as much advance notice as possible. Council members agreed that scheduling Executive Sessions at 4:00 p.m. is preferable over scheduling it at the end of the meeting. The adopted meeting schedule can be found on the website. Mayor Pro Tem Phillips moved to approve the adoption of the 2021 regular meeting schedule as amended. Councilor Underwood seconded the motion and the motion passed unanimously. 5.6. APPOINTMENTS TO BOARDS AND COMMISSIONS (GENERAL GOVERNMENT MANAGER INEKE DE JONG) Video Start Time: 01:10:00 Part Two General Government Manager Ineke de Jong presented the 2019-2020 appointments to Boards & Commissions and Council went through it one board and organization at a time to review and make changes. The adopted overview of appointments can be found on the website. AVON REGULAR MEETING MINUTES TUESDAY JANUARY 12, 2021 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 5.7. ORDINANCE 21-03, APPROVING AVON MUNICIPAL CODE AMENDMENTS RELATED TO WOOD BURNING DEVICES (MATT PIELSTICKER) Video Start Time: 01:35:10 Part Two Planning Director Matt Pielsticker presented Ordinance 21-03. Staff put this together per Council direction during the December 8th meeting. Councilor Underwood asked some language to be clarified. Mayor Smith Hymes asked for public comment and no public comments were made. Councilor Underwood moved to approve on first reading Ordinance 21-03 Amending the Wood Burning Device Provisions in the Building Code and direct staff to return with a Public Hearing and second reading at the January 26th regular meeting, as amended. Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 5.8. PUBLIC HEARING, RESOLUTION 21-01, MINOR SUBDIVISION APPLICATION FOR TRACT Y, FILING 3, MOUNTAIN STAR (MATT PIELSTICKER) Video Start Time: 0 1:41:25 Part Two Planning Director Matt Pielsticker introduced the topic. Brian Judge virtually joined the meeting and answered questions from Council. Mayor Smith Hymes asked for public comment and no public comments were made. Councilor Underwood said Council did not have the expertise, but since they cannot continue or ask the Planning and Zoning Commission, she will take the recommendation from staff. Councilor Underwood moved to approve Resolution 21-01 Approving the Minor Subdivision Application for Tract Y, Filing 3, Mountain Star subdivision. Mayor Pro Tem Phillips seconded the motion and the motion passed with a vote of 5 to 2. Councilors Prince and Hardy voted no and said they needed more information to take a decision. 5.9. APPROVAL OF ENGAGEMENT LETTER FOR KAPLAN KIRSCH & ROCKWELL TO PROVIDE LEGAL REPRESENTATION AND STRATEGIC ADVICE IN CONNECTION WITH THE ACTIVATION OF THE TENNESSEE PASS RAIL LINE (TOWN ATTORNEY PAUL WISOR) Video Start Time: 02:17:18 Part Two Town Attorney Paul Wisor introduced the topic and explained this is a partnership in terms of cost share with Eagle County. Mayor Pro Tem Phillips moved to approve the Engagement Letter with Kaplan Kirsch & Rockwell as Special Counsel to Provide Legal and Strategic Advice in Connection with the Proposed Activations of the Tennessee Pass Rail Line. Councilor Prince seconded the motion and the motion passed unanimously. AVON REGULAR MEETING MINUTES TUESDAY JANUARY 12, 2021 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 5.10.ADDED ITEM: DISCUSSION TO SIGN ON TO THE LETTER - MOUNTAIN TOWN/CITY/COUNTY LETTER TO BIDEN ADMINISTRATION AND CONGRESS (MAYOR SARAH SMITH HYMES) Video Start Time: 0 2:30:35 Part Two Mayor Smith Hymes explained there is an option to sign on to this letter as the full Council or individual Councilors can sign on themselves. The full Council was supportive to sign on to the letter from the full Council with Avon Town Council as well as their seven individual names. 6. MINUTES 6.1. APPROVAL OF DECEMBER 8, 2020 REGULAR COUNCIL MEETING MINUTES (DEPUTY TOWN CLERK KENDALL MOORE) Video Start Time: 02:34:00 Part Two Mayor Smith Hymes asked to correct paragraph 9 on page 244, one paragraph needs to be deleted as it has been doubled. Councilor Underwood moved to approve the December 8, 2020 Regular Meeting Minutes as amended. Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 7. WRITTEN REPORTS 7.1. Upper Eagle Regional Water Authority Nov 19, 2020 Meeting Summary (Mayor Smith Hymes) 7.2. Swift Eagle Charitable Foundation Thank You Letter (Pat Hamilton, Executive Director for Swift Eagle Charitable Foundation) 7.3. ¡Mi Casa Avon! Program Update (General Government Manager Ineke de Jong) 7.4. 2020-2021 Winter Operations Update (Mobility Director Eva Wilson) 7.5. December 15th Planning and Zoning Commission Meeting Abstract (Planner David McWilliams) 8. MAYOR AND COUNCIL MOMMENTS & MEETING UPDATES Video Start Time: 02:35:52 Part Two Councilor Thuon expressed God bless to Senator Neguse who was named impeachment manager for the Trump trial. He went on to announce that Rich's Auto Body is no longer, and this marks the end of an era. His final comment was that he received a harsh note from a constituent via Facebook Messenger. He does not use social media and that platform so he did not see the message and he encouraged the public to get in touch via email cthuon@avon.org, or to call/text and expressed that social media is not the right medium/platform to connect about Town business. Councilor Underwood expressed she went ice skating on Sunday night and Recreation Director John Curutchet was there working the cabin. She said it is charming and top notch, it is so authentic and implemented so well and wanted to give a big thank you to staff as it is tremendous. She also wanted to compliment Mobility Director Eva Wilson and Transportation Operations Supervisor Jim Shoun and the full Mobility Department for great transit operations over the peak Holidays. The system worked very well. Mayor Pro Tem Phillips wanted to thank Public Works for scraping the driveway. It was very nice job and she is very thankful. AVON REGULAR MEETING MINUTES TUESDAY JANUARY 12, 2021 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 Mayor Smith Hymes echoed the ice skate comments. She commented the Town hosted another business forum to update business owners about relief that is available. Town Attorney Paul Wisor’s presentation and the recording are available on the website. She expressed there is still Eagle County grant money available for small businesses in Eagle County. She concluded saying that for questions, businesses may contact Town Attorney Paul Wisor. 9. ADJOURN There being no further business before Council, Mayor Smith Hymes moved to adjourn the regular meeting. The time was 9:46 p.m. These minutes are only a summary of the proceedings of the meeting. They are not intended to be comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office, and the video of the meeting, which is available at www.highfivemedia.org. RESPECTFULLY SUBMITTED: Brenda Torres, Town Clerk APPROVED: Sarah Smith Hymes ___________________________________ Amy Phillips Chico Thuon Scott Prince Tamra Underwood Lindsay Hardy RJ Andrade PLANNING AND ZONING COMMISSION MEETING ABSTRACT TUESDAY, JANUARY 19, 2021 VIRTUAL MEETING 1.CALL TO ORDER AND ROLL CALL Vice-Chairperson Jared Barnes called the regular meeting to order at 5:02 p.m. A roll call was taken, and Planning Commission members present were Donna Lang, Sara Lanious, Rebecca Smith and Steve Nusbaum. Also present were Town Planner David McWilliams, Planning Director Matt Pielsticker, Paul Wisor with Garfield Hecht, and Town Manager Eric Heil. 2.ELECTION OF NEW PZC CHAIRPERSON AND VICE-CHAIR Action: Commissioner Lang motioned to elect Jared Barnes as PZC Chairperson. Commissioner Nusbaum seconded the motion and it carried unanimously 5-0. Action: Commissioner Lang motioned to elect Steve Nusbaum as PZC Vice-chair. Commissioner Smith seconded the motion and it carried unanimously 5-0. 3.APPROVAL OF AGENDA Action: Commissioner Nusbaum motioned to approve the agenda with the removal of item 5.5, which was withdrawn. Commissioner Smith seconded the motion and it carried unanimously 5-0. 4.DISCLOSURE OF ANY CONFLICTS OF INTEREST OR EX-PARTE COMMUNICATION RELATED TO AGENDA ITEMS Action: Commissioner Smith noted a conflict with items 5.2 and 5.3. Commissioner Nusbaum motioned to accept the conflict. Commissioner Lanious seconded the motion and it carried unanimously 4-0. 5.BUSINESS ITEMS 5.1. 4311 EAGLEBEND DRIVE – TRACT A AND LOT 1 FILING 2 EAGLEBEND SUBDIVISION – CONTINUED PUBLIC HEARING – PROPOSAL TO AMEND THE SIZE OF TRACT A AND LOT 1 AND REVISE THE LOT LINES OF LOT 1 TO ACCOMMODATE AN ADDITION. (TOWN PLANNER DAVID MCWILLIAMS & ANGELO VERALDI AND JENNA SKINNER) Public Comment: None. Action: Commissioner Lanious motioned to approve Case #PUD20002 with the following findings and conditions: Findings: 1.The application meets the eligibility requirements for a Minor PUD Amendment by not increasing density, increasing the amount of nonresidential land use, or significantly altering any approved building scale or mass of development; 2. The application is complete; 3.The application provides sufficient information to allow PZC to determine that the application complies with ADC §7.16.060(e)(4), Review Criteria. Specifically, for Criteria i: a. the property is unique, with combined ownership of Tract A and Lot 1 b. the rear garage location is unique for the PUD c.the ROWs behind the property are unique 4.The application complies with the goals and policies of the Avon Comprehensive Plan, including Policy A.1.4, A.1.5, B.1.3, E.1.2 and Goal B.2 and C.1; 5. There is no extra demand for public services or infrastructure exceeding current capacity by the Application; 6.The PUD Amendment does not substantively change the character of the development and maintains the intent and integrity of the Eaglebend PUD; and 7.The Minor PUD Amendment is not likely to result in significant adverse impacts upon the natural environment. Conditions: 1. A non-buildable area along the former Tract A - Lot 1 property line is required to preserve unity between potential redevelopment on this property and the surrounding neighborhood; and 2. The non-build area shall be governed by the language suggested in the application narrative. Commissioner Smith seconded the motion and it carried 3-2. 5.2. 950 WEST BEAVER CREEK BOULEVARD – TRACT N, BLOCK 3, BENCHMARK AT BEAVER CREEK SUBDIVISION – LANDSCAPING CONDITION OF APPROVAL ON THE EAGLE RIVER WATER AND SANITATION PROPERTY (TOWN PLANNER DAVID MCWILLIAMS & MELISSA MARTS) Public Comment: None. Action: Commissioner Lang motioned to approve the condition of approval for TEN19001 with the condition that Staff approve the planting plan notes and species before any work is completed. Commissioner Lanious seconded the motion and it carried unanimously 4-0. 5.3. 998 WEST BEAVER CREEK BOULEVARD - LOT 3, BLOCK 3, BENCHMARK AT BEAVER CREEK SUBDIVISION - PUBLIC HEARING MINOR DEVELOPMENT PLAN PROPOSAL TO AMEND LANDSCAPING ON THE LIFTVIEW PROPERTY (TOWN PLANNER DAVID MCWILLIAMS & MELISSA MARTS) Public Comment: None. Action: Commissioner Lang motioned to approve Case #MNR20051 with the following findings: 1. The proposed application was reviewed pursuant to §7.16.080(f), Development Plan, §7.16.090(f), Design Review. The design meets the development and design standards established in the Avon Development Code; 2. The application is complete; 3. The application provides sufficient information to allow the PZC to determine that the application complies with the relevant review criteria; 4. The application complies with the goals and policies of the Avon Comprehensive Plan; 5. The demand for public services or infrastructure exceeding current capacity is mitigated by the application; and 6. The design relates the development to the character of the surrounding community. Commissioner Nusbaum seconded the motion and it carried unanimously 4-0. 5.4. 126 RIVERFRONT LANE- LOT 2 RIVERFRONT SUBDIVISION - PUBLIC HEARING – TEMPORARY USE PERMIT FOR A TENT STRUCTURE AT MAYA RESTAURANT (TOWN PLANNER DAVID MCWILLIAMS & KRIS FURNISS) Public Comment: None. Action: Commissioner Smith motioned to approve Case #TMP21001 with the following findings and condition: Findings: 1. The application qualifies as a Temporary Use Permit subject to review according to §7.16.020 of the Development Code; 2. The application is complete; 3. The application provides sufficient information to allow PZC to determine that the application complies with the relevant review criteria; 4. The application complies with the goals and policies of the Avon Comprehensive Plan; and 5. There is no extra demand for public services or infrastructure exceeding current capacity by the application. Condition: 1. The approval is valid until November 1, 2021. Commissioner Lanious seconded the motion and it carried unanimously 5-0. 6. CONSENT AGENDA 6.1. DECEMBER 15, 2020 MEETING MINUTES 6.2. RECORD OF DECISION FOR FILE #SRU20001 – 371 METCALF ACCESSORY DWELLING UNIT 6.3. VILLAGE (AT AVON) REFERRAL FOR MAVERICK GAS STATION Action: Commissioner Nusbaum motioned to approve the consent agenda. Commissioner Lang seconded the motion and it carried unanimously 5-0. 7. STAFF UPDATES 7.1. PZC VACANCIES 7.2. BANG THE TABLE 7.3. EAST NOTTINGHAM PARK IMPROVEMENTS 8. ADJOURN There being no further business before the Commission adjourned the meeting at 6:33 p.m. These meeting noies are only a summary of the proceedings of the meeting. They are not intended to be comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office. RESPECTFULLY SUBMITTED: David McWilliams, Town Planner M E M O R A N D U M TO: Board of Directors FROM: Catherine Hayes, Board Secretary DATE: Dec. 18, 2020 RE: Summary of Authority’s Dec. 17, 2020, virtual Board Meeting The following is a summary of items discussed at the Dec. 17, 2020, Authority Board Meeting: Board members present and acting were Chair George Gregory, Secretary Kim Bell Williams, Treasurer Geoff Dreyer, Pam Elsner, Sarah Smith Hymes, Mick Woodworth. Administrative Items: The 2021 operations agreement with the Eagle River Water & Sanitation District was approved, as was the resolution designating the meeting place and posting location for 2021. Meetings will be held on the fourth Thursday of the month at 8:30 a.m. and will be held virtually for the foreseeable future. 2020 Budget Amendment David Norris, the District’s director of finance, discussed the need to amend the 2020 budget and noted the applicable laws that require such amendment. The board approved the budget amendment after a public hearing was held. Board Member Input Director Woodworth noted the Edwards Metropolitan District board was still concerned about the quality of water at the Eagle River Village Mobile Home Park. Staff will coordinate outreach to the Eagle County about this topic. Cloudseeding Glenn Porzak noted an inquiry from a previous board member regarding cloudseeding, which Vail Resorts declined to do for the 2020-21 ski season. The board discussed various ways in which regional and local entities could contribute to the effort, which costs approximately $300,000. The Authority board approved a contribution of up to $15,000 if other stakeholders would also contribute funds. COVID-19 Update Linn Brooks updated the board on COVID-19 operations and noted no new cases among staff since her report of Dec. 9. Staff is working with Eagle County public health to determine where frontline District employees are in the vaccination order. Year-End Celebration Update Linn Brooks said it was Administration Celebration week, during which admin departments (admin, HR, finance, and communications) were being honored. Each department is scheduled for a celebration week to celebrate the role each plays in the District’s success. Linn also discussed the previous day’s online town hall, at which values awards were presented to staff and the Authority and District board chairs thanked staff for their efforts during the year. Quarterly Financials David Norris discussed the quarterly financial report and outlined report changes he will implement; directors were welcome to offer feedback. He noted the financials looked strong and revenues were trending upward, even during the pandemic. Net income is solid, and additional tap fees are expected before year end. Summary of Authority’s Dec. 17, 2020, virtual Board Meeting Page 2 of 2 Wastewater Updates Siri Roman noted receipt of draft wastewater discharge permits from the state, which contain several new requirements. Staff is still reviewing these technical permits. Such requirements may have significant cost implications. Siri said the Avon nutrient upgrade project was going well, and the contractor just received a right-of-way for construction from the Union Pacific Railroad, which will greatly assist in project completion. Backflow Program Update Brad Zachman noted the Backflow task force expects to achieve program compliance by Dec. 31, 2020. This was an enormous team effort, and he was very pleased with the progress and achievements of the group dedicated to meeting compliance requirements. The board and staff thanked him for his efforts. Engineering and Water Resources Update Jason Cowles said the Traer Creek Tank project was awarded to DN Tanks. Project completion is expected by the end of 2021. He also noted he serves on an advisory committee that is working on a voluntary, temporary, compensated water demand management program as it relates to Colorado River Compact mitigation. Communications Update Diane Johnson reported that the River District’s ballot issue passed handily in November. This will provide about $5 million in funding for water projects in the River District’s service area. Option Agreement Glenn Porzak discussed the agreement by which the District will provide 25 acre feet of water to the Authority to serve new development. The board unanimously approved the agreement.