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TC Packet 08-27-2024_____________________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG MEETING NOTICES ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY INDIVIDUALS WITH DISABILITIES ARE ENCOURAGED TO PARTICIPATE IN ALL PUBLIC MEETINGS SPONSORED BY THE TOWN OF AVON. IF YOU REQUIRE A DISABILITY ACCOMMODATION, PLEASE CONTACT THE TOWN CLERK, MIGUEL JAUREGUI CASANUEVA, AT 970-748-4001 OR MJAUREGUI@AVON.ORG WITH YOUR REQUEST. REQUESTS SHOULD BE MADE AS SOON AS POSSIBLE BUT NO LATER THAN 72 HOURS BEFORE THE SCHEDULED PUBLIC EVENT. AVON TOWN COUNCIL MEETING AGENDA - REVISED TUESDAY, August 27, 2024 MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) Hybrid meeting; in-person at Avon Town Hall or virtually through Zoom Zoom registration is on the header at Avon.org AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:00 PM (See Agenda on page 3) AVON TOWN COUNCIL PUBLIC MEETING BEGINS AT 5:05 PM 1.CALL TO ORDER AND ROLL CALL 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 be given one (1) additional minute subject to Council approval. 5.CONSENT AGENDA 5.1. Approval of August 13, 2024 Regular Council Meeting Minutes (Town Clerk Miguel Jauregui Casanueva) 5.2. Resolution 24-22 Approving a Grant of PEG Funds (Chief Financial Officer Paul Redmond) 6.BUSINESS ITEMS 6.1. Presentation: Eagle Valley Community Foundation Update (EVCF Director of Development and Marketing Grace Anschutz) 6.2. PUBLIC HEARING: Second Reading Ordinance 24-12: Use Tax Ballot Question (Chief Financial Officer Paul Redmond) 6.3. PUBLIC HEARING: Second Reading Ordinance 24-14: Approving Xcel Franchise Agreement (Town Manager Eric Heil) 6.4. Approval of Cost Sharing Agreement with Traer Apartments for Construction of Recreation Trail (Town Manager Eric Heil) 6.5. Work Session: Donorship to Support the MT2030 Foundation Community Campaign (Sustainability Coorinator Sarah Smith Hymes) 6.6. Approval of All-Electric Public Works Garage and update on Photovoltaics and Battery Storage for Swift Gulch (Town Manager Eric Heil and Public Works Director Eva Wilson) 6.7. Approval of Avondale Design Work (Community Development Director Matt Pielsticker) 6.8. Work Session: Homelessness / Unhoused (Town Attorney Nina Williams) 6.9. First reading of Ordinance 24-13: Amending the Avon Municipal Code Regarding Dogs at Events (General Government Fellow Arnell Wade) 6.10. Fitness Court Update (Recreation Director Michael Labagh) 7.WRITTEN REPORTS 7.1. Monthly Financials (Senior Accountant Dean Stockdale) 7.2. Monthly Public Operations Update (Operations Manager Gary Padilla) 7.3. Bi-Monthly Sustainability Update (Sustainability Manager Charlotte Lin) 7.4. Upper Eagle Regional Water Authority July 25, 2024 Meeting Summary (Mayor Pro Tem Tamra Underwood) _____________________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG MEETING NOTICES ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY INDIVIDUALS WITH DISABILITIES ARE ENCOURAGED TO PARTICIPATE IN ALL PUBLIC MEETINGS SPONSORED BY THE TOWN OF AVON. IF YOU REQUIRE A DISABILITY ACCOMMODATION, PLEASE CONTACT THE TOWN CLERK, MIGUEL JAUREGUI CASANUEVA, AT 970-748-4001 OR MJAUREGUI@AVON.ORG WITH YOUR REQUEST. REQUESTS SHOULD BE MADE AS SOON AS POSSIBLE BUT NO LATER THAN 72 HOURS BEFORE THE SCHEDULED PUBLIC EVENT. 7.5. Council Chambers Audio Visual Upgrade Project (Chief Information Officer Robert McKenner) 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES 9. EXECUTIVE SESSION 9.1. For the purpose of conferencing with the Town Attorney for the purpose of receiving legal advice on specific legal questions under C.R.S Section 24-6-402(4)(b), and for the purpose of determining positions relative to matters that may be subject to negotiation, developing strategy for negotiations, and/or instructing negotiators under C.R.S. Section 24-6-402(4)(e), and the following additional details are provided for identification purposes: Legal advice and potential negotiating parameters concerning State Land Board annexation and other related matters 10. ADJOURN 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. AVON LIQUOR LICENSING AUTHORITY MEETING AGENDA TUESDAY, AUGUST 27, 2024 MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) Hybrid meeting; in-person at Avon Town Hall or virtually through Zoom 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 [AN INITIAL THREE (3) MINUTE LIMIT ALLOWED TO EACH PERSON WISHING TO SPEAK. SPEAKER MAY REQUEST MORE TIME AT THE END OF THE THREE (3) MINUTES, WHICH MAY BE APPROVED BY A MAJORITY OF THE COUNCIL.] 5. PUBLIC HEARING FOR A NEW HOTEL & RESTAURANT LIQUOR LICENSE 5:00 5.1. APPLICANT NAME: PROCURED PRODUCED PROVISIONS, LLC D/B/A R FARMER'S MARKET; R FARMER'S KITCHEN LOCATION: 51 BEAVER CREEK PLACE UNITS 3 & 4 TYPE: NEW HOTEL & RESTAURANT MANAGER: RILEY ROMANIN 6. APPROVAL OF THE MINUTES FROM JUNE 11, 2024 LIQUOR LICENSING AUTHORITY MEETING (LIQUOR AUTHORITY SECRETARY MIGUEL JAUREGUI CASANUEVA) 5:05 7. WRITTEN REPORT 7.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS (DEPUTY TOWN CLERK BRENDA TORRES) 8. ADJOURNMENT 5:05 (970) 748-4022 btorres@avon.org TO: Avon Liquor Licensing Authority FROM: Brenda Torres, Deputy Town Clerk RE: PUBLIC HEARING for New Hotel & Restaurant (City) Liquor License for Procured Produced Provisions, LLC ) d/b/a R Farmer’s Market; R Farmer’s Kitchen DATE: August 20, 2024 SUMMARY: Procured Produced Provisions, LLC d/b/a R Farmer’s Market; R Farmer’s Kitchen, as the Applicant, is applying for a new Hotel & Restaurant (City) Liquor License. The Applicant has submitted the appropriate materials required by the State of Colorado Liquor Enforcement Division and all materials are in order. These documents are on file in the Town Clerk’s office. ACTION BEFORE THE LOCAL LIQUOR LICENSING AUTHORITY: Public Hearing will be hosted both in a virtual format, using Zoom.us at Avon.org, and in person at Avon Town Hall – 100 Mikaela Way, Avon, Colorado. Town Council acting as the Local Liquor Licensing Authority is asked to consider the liquor license application for the following new Hotel & Restaurant (City) Liquor License: Applicant: Procured Produced Provisions, LLC d/b/a R Farmer’s Market; R Farmer’s Kitchen Location: 51 Beaver Creek Place Units 3 & 4 Type: Hotel & Restaurant (City) Liquor License Officers: Riley Romanin, Principal Officer John Romanin, Member Manager: Riley Romanin Action: LA Resolution No. 24-02 BACKGROUND: Attached is the “Report of Findings” for this application, which was submitted by the applicant on July 12, 2024. The Deputy Town Clerk and Town Attorney have reviewed the application for complete information and a public notice was posted on the premises, Town website, and published in the Vail Daily as documented in the report of findings. A background investigation has been completed by the Avon Police Department and Colorado Bureau of Investigations. The report is on file with the Clerk and a copy will be provided separately to the Liquor Authority Board. FINDINGS: The information in the report addresses how the applicant has met the criteria outlined in Section 5.08 Liquor Licenses of the Avon Municipal Code and the State Liquor and Beer Code. The report indicates that the applicant has the burden of proving they are qualified to hold the license. The applicant also has the burden of proving that the reasonable requirements of the neighborhood and the desires of the community require the granting of the license. A petition survey has been submitted; this information will assist in the determination of the “desires & needs of the neighborhood”. It is noted that the petition, with 19 signatures, shows 100% (19) in favor for this type of license in this neighborhood. Petition packet sent separately to the Authority. The applicant has submitted a diagram of the premises and the application fees for the liquor licensing and the State of Colorado. If the Authority decides to approve the application, a resolution is attached, which if adopted Page 2 btorres@avon.org takes this action. A motion granting the application is proposed below. If the Authority is considering denial for grounds, the matter should be set for an additional hearing at which time those grounds may be answered by the applicant. The applicant has been notified and will attend the meeting. PROPOSED MOTION: “I move to approve (or deny based upon statutory grounds for denial) Liquor Licensing Authority Resolution 24-02, Approving the application for Procured Produced Provisions, LLC d/b/a R Farmer’s Market; R Farmer’s Kitchen for a New Hotel & Restaurant (City) Liquor License.” Thank you, Brenda NEW LIQUOR LICENSE APPLICATION ATTACHMENTS: The Applicant for the new liquor license has submitted the following materials: • Attachment A: Colorado Liquor Retail License Application (State form DR 8404) • Attachment B: Diagram of Premises • Attachment C: Report of Findings • Attachment D: Resolution No. 24-02, Approving the application for Procured Produced Provisions, LLC d/b/a R Farmer’s Market; R Farmer’s Kitchen for a New Hotel & Restaurant (City) Liquor License. The following documents as part of the application submittal are on file at the Town Clerk’s office: • Lease Agreement • Articles of Organization • Certificate of Good Standing • Full Petition to Avon Liquor Licensing Authority • Individual History Record & Background check reports from Avon Police Department & CBI ADDENDUM TO MEMO FOR NEW LIQUOR LICENSE APPLICATIONS: Background on the Role of Liquor Licensing Authority in Consideration of New Licenses: The Avon Town Council acting as the Local Liquor Licensing Authority has the duty to conduct hearings and make findings of fact as to whether to grant or deny a new local liquor license. The State Licensing Authority cannot grant or issue any "new license" until the Authority has first approved the application by conducting a hearing for such license. If the Authority denies the application, the Executive Director of the State of Colorado cannot override its decision. If the Authority approves a license, the State Licensing Authority cannot refuse to issue the license except upon hearing with a 15-day notice to the applicant and the Authority. Once the state license is received by the Town Clerk's Office and the Certificate of Occupancy has been received from the Building Department, the Town and State licenses can be issued. The Town Clerk, Town Attorney and Police Department handle the review of the liquor license applications administratively. A “Report of Findings” is completed by the Town Clerk & provided to the applicants five days prior to the hearing. The Authority members are provided the application materials when it appears on the Liquor Board Agenda. A public hearing is conducted for all new applications. The Local Authority’s decision is usually given at the conclusion of the hearing although it may be delayed. The decision must be given in writing within 30 days after the date of the hearing and may follow in the form of a resolution. The motion to approve or disapprove Page 3 btorres@avon.org should be explicit stating the exact reasons for denial or approval. A motion to deny a license must be based on evidence presented at the hearing. The Liquor Code of Colorado provides that in making any decision, the Local Licensing Authority must consider the following before approving or denying the application: ▪ Facts & evidence resulting from the investigation & any facts brought to the attention of the Authority. ▪ The reasonable requirements of the neighborhood ▪ The desires of the inhabitants of the neighborhood. ▪ The number, type and availability of liquor outlets located in or near the neighborhood under consideration. ▪ Any other pertinent matters affecting the qualifications of the applicant for the conduct of the type of business proposed. Requests for licenses may be denied for various reasons such as the applicant is not of good moral character, the applicant's character, record, or reputation is unsatisfactory, or the proposed outlet is within 500 feet of any school. Thank you, Brenda. Attachment A Attachment B LOCAL LIQUOR LICENSING AUTHORITY TOWN OF AVON, COLORADO Report of Findings – R Farmer’s Market; R Farmer’s Kitchen. Town of Avon Page 1 of 3 RE THE APPLICATION OF ) PROCURED PRODUCED PROVISIONS, LLC ) D/B/A R FARMER’S MARKET; R FARMER’S KITCHEN ) REPORT OF FINDINGS 51 BEAVER CREEK PLACE UNITS 3 & 4 ) AVON, COLORADO ) FOR A NEW HOTEL & RESTAURANT (CITY) ) TO: THE APPLICANT ABOVE AND OTHER INTERESTED PARTIES SUBMITTED BY: BRENDA TORRES, DEPUTY TOWN CLERK, TOWN OF AVON DATE: AUGUST 21, 2024 PURSUANT to the Statutes of the State of Colorado, the Ordinances of the Town of Avon, and the Rules and Procedures of the Local Licensing Authority, the applicants are hereby advised that with regard to the application for a Hotel & Restaurant (City) Liquor License filed with the Town Clerk’s Office on July 12, 2024, an investigation has been made, and the Report of Findings is as follows: 1.The location of the new establishment, Procured Produced Provisions, LLC d/b/a R Farmer’s Market; R Farmer’s Kitchen is 51 Beaver Creek Place Units 3 & 4, Avon, Colorado. 2.From evidence submitted, the applicant is entitled to possession of the premises as documented by a “Lease Agreement” for each unit separately with a commencement date of June 1, 2020 and expiration date of November 1, 2025 for Unit 3, and a commencement date of April 1, 2024 and expiration date of October 31, 2025 for Unit 4 , and executed between the applicant and Mary Jo Allen Revocable Trust. The applicant has submitted a diagram of the premises showing the floor plan of the building. The premises are approximately 3,067 sq. ft. 3.The operation of a business and sale of liquor in this the proposed location is in an area permitted under the applicable zoning laws of the Town of Avon. The applicant has submitted their sales tax and business license applications to the Finance Department. Fees were paid and both licenses approved. 4.The “neighborhood” has been established by the Avon Liquor Licensing Authority with the adoption of Resolution No. 04-04 on November 23, 2004, defining it as “the neighborhood to be served by any applicant for liquor license of any kind shall be the Town of Avon, including residents of the Town, persons working in the Town and visitors to the Town .” 5.The proposed building in which the liquor is to be sold is not located within 500' of any public or parochial school or the principal campus of any college, university, or seminary. Attachment C LOCAL LIQUOR LICENSING AUTHORITY TOWN OF AVON, COLORADO Report of Findings – R Farmer’s Market; R Farmer’s Kitchen. Town of Avon Page 2 of 3 6.The appropriate documents, i.e. individual history records and fingerprints for the Officers, required to conduct the background investigation, were submitted to the Colorado Bureau of Investigation (“CBI”) and the Avon Police Department. The results will be provided to the Liquor Authority Board separately. Documents for the other Officers are on file at the Clerk’s office. Officers: Title Name Telephone Principal Officer/Manager/Applicant Member Riley Romanin John Romanin (970)390-6195 (970)763-4917 7.The applicant has submitted the appropriate application fees to the Town Clerk for costs associated with a New Concurrent Review application. If the Hotel & Restaurant (City) License is approved by Avon’s Local Liquor Authority, the appropriate executed paperwork will be forwarded to the Liquor Enforcement Division for its approval and issuance of the State license. Upon receipt of the State License, the Deputy Town Clerk will issue the Town license to the applicant. 8.The public hearing on this application will be held by a Hybrid meeting, virtually via Zoom.us and in person on Avon Town Hall, 100 Mikaela Way, on August 27, 2024 at 5:00 p.m. Public Notice was given regarding said application and scheduled hearing date and was published in the Vail Daily and posted on premi ses of the proposed location on August 16, 2024. At said hearing, the applicant shall have an opportunity to be heard regarding all matters related to the application, including all matters set forth herein. The applicant and/or representants have agreed to be present at the virtual hearing. The manager will be present in person. No public comments have been received. 9.At the public hearing, the applicant has the burden of proving that he is qualified to hold the license applied for, and that his character, record, and reputation are satisfactory. The applicant also has the burden of providing prima facie evidence of neighbor hood need for the license requested, which he may do with presentation of petitions, remonstrances, or otherwise. 10.The applicant filed the petition that shows 100% in support of this Hotel & Restaurant (City) Liquor License in this location with a total of 19 signatures. LOCAL LIQUOR LICENSING AUTHORITY TOWN OF AVON, COLORADO Report of Findings – R Farmer’s Market; R Farmer’s Kitchen. Town of Avon Page 3 of 3 11.The applicant is advised to obtain and read a copy of the State of Colorado Liquor and Beer Codes and Regulations and the Town Code Section on Liquor Licenses (Title 5, Chapter 5.08). These regulations can be found on the following websites: https://www.colorado.gov/pacific/enforcement/liquor https://library.municode.com/co/avon/codes/home_rule_charter_and_code?nodeId=CD_TIT5BUT ALIRE_CH5.08LILI _____________________________ Brenda Torres, Deputy Town Clerk E-mailed to applicant on August 21, 2024. LA Resolution 24-02 August 27, 2024 Page 1 of 1 LIQUOR LICENSING AUTHORITY TOWN OF AVON RESOLUTION 24-02 A RESOLUTION APPROVING THE APPLICATION OF PROCURED PRODUCED PROVISIONS, LLC D/B/A R FARMER’S MARKET; R FARMER’S KITCHEN FOR A NEW HOTEL & RESTAURANT (CITY) LIQUOR LICENSE WHEREAS, on July 12, 2024, the Liquor Licensing Authority of the Town of Avon (“the Authority”) did receive and consider the application of R FARMER’S MARKET; R FARMER’S KITCHEN, whose address is 51 Beaver Creek Place Units 3 & 4, Avon, Colorado, for a new Hotel & Restaurant (City) License; and WHEREAS, the Authority found that Notice of Application was published in the Vail Daily on August 16, 2024 and proof of publication by the publisher of the Vail Daily was received; and WHEREAS, the Authority found that the application was in proper form and accompanied by the necessary supplementary evidentiary matter required by law, the regulations of the State of Colorado and the Authority; and WHEREAS, the application was supported by the applicant’s presentation to the Authority and by a petition containing 19 signatures, with a 100% of total signatures in favor; and WHEREAS, the neighborhood to be served by the proposed licensee was determined to be in the Town of Avon, including residents of the Town, persons working in the Town and visitors to the Town as stated in TC Resolution No. 04-04 adopted on November 23, 2004; and NOW, THEREFORE, THE LIQUOR LICENSING AUTHORITY OF THE TOWN OF AVON DO ES FIND: 1.The applicant is of good moral character and reputation. 2.The neighborhood to be served by the applicant is the Town of Avon, including residents of the Town, persons working in the Town and visitors to the Town. 3.There does exist a reasonable requirement in such neighborhood for the type of license for which application is made. 4.The adult inhabitants of the Town desire that the license be granted. ADOPTED THIS AUGUST 27, 2024 BY THE LOCAL LIQUOR AUTHORITY. TOWN OF AVON, COLORADO ______________________________ ________________________________ Amy Phillips, Chairwoman Brenda Torres, Deputy Town Clerk Attachment D AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, JUNE 11, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Page 1 1.CALL TO ORDER AND ROLL CALL The meeting was hosted in person and virtually, via Zoom.us. Chair Amy Phillips called the Avon Liquor Licensing Authority Meeting to order at 5:00 p.m. A roll call was taken, and Board Members present in person were Chico Thuon, Rich Carroll, Lindsay Hardy, Ruth Stanley, Board Vice Chair Tamra Underwood, and Chair Amy Phillips. Board Member RJ Andrade was absent from the meeting. Also present in person were Town Manager Eric Heil, Deputy Town Manager Patty McKenny, Town Attorney Nina Williams, Chief of Police Greg Daly, Chief Administrative Officer Ineke de Jong, and Town Clerk Miguel Jauregui Casanueva. 2.APPROVAL OF AGENDA Video Start Time: 00:00:43 Chair Phillips initiated the meeting with the agenda approval process. No changes were made to the agenda. Board Member Thuon moved to approve the Liquor Licensing Authority Agenda as presented. Board member Stanley seconded the motion. The motion was approved unanimously with a 6-0 vote of those present. 3.DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:01:05 Chair Phillips asked if there were any conflicts of interest related to the Agenda, and none were disclosed. 4.PUBLIC COMMENT – COMMENTS A RE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Video Start Time: 00:01:16 Chair Phillips explained that public comments can be made by participating in the meeting in person, via zoom’s video/audio, via telephone, or via email. She clarified that the public comment section is intended for items not listed in the agenda, and participation by members of the public is limited to 3 minutes. She asked if there was any public comment from those present in the room or virtually, and no public comments were made. 5.PUBLIC HEARING FOR A SPECIAL EVENTS LIQUOR PERMIT Video Start Time: 00:01:58 5.1. Applicant Name: Walking Mountains Science Center Event: A Taste of Nature Date and Time: July 9, 2024, 5:30 pm – 10:30 pm Location: 318 Walking Mountains Lane Type: Special Event Permit Manager: Sherri Hahn The Applicant, Sherri Hahn, was present in person to talk about this application and to respond to any Council questions. Town Clerk Miguel Jauregui Casanueva advised that the application was complete and ready for consideration by the authority. No public comment was received in person nor virtually. AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, JUNE 11, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Page 2 Board Member Hardy moved to approve the Special Events Permit application. Board member Stanley seconded the motion. The motion was approved unanimously with a 6-0 vote of those present. 6.APPROVAL OF THE MINUTES FROM THE MAY 14, 2024 MEETING Video Start Time: 00:24:05 Board Vice Chair Tamra Underwood requested an amendment to the minutes from May 14, 2024, to correct the name of ‘representative for the manager of the event [Evening of the Stars] Wendy Rimmel’ on electronic page 12 of the packet. Ms. Underwood moved to approve the Minutes from Tuesday, May 14, 2024, as amended. Board Member Hardy seconded the motion. The motion was approved unanimously with a 6-0 vote of those present. 9. WRITTEN REPORT 9.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS (DEPUTY TOWN CLERK BRENDA TORRES) 10. ADJOURNMENT The Avon Liquor Licensing Authority Meeting adjourned at 5:06 p.m. These minutes are only a summary of the proceedings of the Local Liquor Licensing Authority 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: ____________________________________ Miguel Jauregui Casanueva, Liquor Authority Secretary APPROVED: Amy Phillips ___________________________________ Tamra Underwood Ruth Stanley Rich Carroll Lindsay Hardy RJ Andrade Chico Thuon (970) 748-4022 btorres@avon.org AVON LIQUOR LICENSING AUTHORITY WRITTEN REPORT To: Avon Liquor Licensing Authority From: Brenda Torres, Deputy Town Clerk Date: August 14, 2024 Topic: REPORT ON RECENT LIQUOR LICENSE ADMINISTRATIVE APPROVALS SUMMARY: The Town’s local liquor licensing regulations allow for administrative review and approval of routine liquor license applications, including: (1) Renewals, (2) Modification of Ownership, (3) Modification of Managers, and (4) Special Event Permits for events already approved by the Town Council. Requirements for administrative approval include that the application is complete, there is no new criminal activity on the background and there are no liquor code violations during the last year. Renewals require notice to be posted for seven days and Special Event Permits for ten days and require the Town Clerk to accept comments and/or requests for a public hearing before the Avon Town Council. In all cases, the Town Clerk has the discretion to refer the application to the Avon Town Council. The Town Clerk is required to report administrative approvals, which is the reason for this written report. Dating back to June 11, 2024, the Town has received 4 Renewal, 1 Renewal and Report of Changes -Change of a board member, 1 Report of Changes -Modification of Premises, and 3 Special Events Permit Applications that have met all the requirements for administrative review and approval and were ultimately approved by the Deputy Town Clerk. No comments, complaints, or request for hearings were received. They are as follows: Renewals: Applicant: Benchmark Liquors INC d/b/a Beaver Liquors Location: 110 E Beaver Creek Blvd. Type: Liquor Store (City) Manager: David Courtney Applicant: Y & Z, LLC d/b/a Nozawa Sushi & Kitchen Location: 240 Chapel Place #B-115 Type: Hotel & Restaurant (city) Manager: Yong Hu Yuan Applicant: Yerf LLC d/b/a Ticino Italian Restaurant Location: 100 W Beaver Creek Blvd. Unit 127 Type: Hotel and Restaurant (City) Manager: Sasha Frey Applicant: Suncor Energy Sales INC d/b/a Shell Location: 0047 Nottingham Road Type: Fermented Malt Manager: Anakut Loya (970) 748-4022 btorres@avon.org Renewal and Report of Changes: Applicant: Cripple Creek Backcountry, INC d/b/a Cripple Creek Backcountry Location: 82 E Beaver Creek Blvd #M102 Type: Beer & Wine (City) Manager: Douglas Mark Stenclik Report of Changes: Applicant: Vistana Colorado Management INC d/b/a Sheraton Mountain Vista Location: 160 Beaver Creek West Type: Hotel & Restaurant (City) Manager: Jesse Larson Special Event Permits: Applicant: Team Evergreen Cycling Event: Triple Bypass Dates: July 13, 2024 12:00 p.m. - 8:00 p.m. Location: 1 Lake Street/Nottingham Park Pavilion Manager of Event: Jennifer Barbour Applicant: Vail Valley Art Guild Event: Avon Arts Celebration Dates: July 26, 27, and 28, 2024 10:00 a.m – 5:00 p.m. Location: 1 Lake Street/Nottingham Park Pavilion Manager of Event: Melissa Nelson Applicant: CASA of the Continental Divide Event: Vail Valley Brew-Au Dates: August 10, 2024 2:30 p.m. - 7:30 p.m. Location: 1 Lake Street/Nottingham Park Pavilion Manager of Event: Lori Engels Thanks, Brenda AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 1 1. CALL TO ORDER AND ROLL CALL The meeting was hosted in a hybrid format, in-person at Avon Town Hall and virtually via Zoom.us. Mayor Amy Phillips called the August 13, 2024, Council regular meeting to order at 5:00 p.m. A roll call was taken, and Councilors present in person were Chico Thuon, Rich Carroll, Lindsay Hardy, Ruth Stanley, RJ Andrade, Mayor Pro Tem Tamra Underwood, and Mayor Amy Phillips. They were joined by Town Manager Eric Heil, General Government Manager Ineke de Jong, Town Attorney Nina P. Williams, Town Clerk Miguel Jauregui Casanueva, Avon Rec Director Michael Labagh, Chief Financial Officer Paul Redmond, Public Works Director Eva Wilson, Community Development Director Matt Pielsticker, Planning Manager Jena Skinner, Sustainability Coordinator Charlote Lin, Communication Manager Liz Wood, and Avon Police Chief Greg Daly. 2. APPROVAL OF AGENDA Video Start Time: 00:00:41 Mayor Phillips initiated the meeting with the Agenda approval process. Mayor Pro Tem Underwood motioned to approve the Agenda, as presented. Councilor Thuon seconded the motion. It was approved unanimously with a 7-0 vote. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:01:04 Mayor Phillips asked if there were any conflicts of interest related to the Agenda, and none were disclosed. 4. PUBLIC COMMENT Video Start Time: 00:01:19 Mayor Phillips explained that public comment can be made by participating in the meeting in person, via zoom’s video/audio, via telephone, or via email. She added that the public comment section is intended for items not listed in the Agenda, and participation by members of the public is limited to 3 minutes. She asked if there was any public comment from those present in the room or virtually and no public comment was made in person nor virtually. 5. CONSENT AGENDA Video Start Time: 00:01:56 Mayor Phillips introduced the approval of the Consent Agenda to include the following: 5.1. Approval of July 23, 2024 Regular Council Meeting Minutes (Town Clerk Miguel Jauregui Casanueva) 5.2. Approval of Intergovernmental Agreement (IGA) for an Amendment of the CDOT Grant for the Avon Road Flashing Beacons (Town Engineer Nicole Mosby) 5.3. Appointing Avon’s Designated Election Official and Authorizing the Execution of the Intergovernmental Agreement (IGA) related to the 2024 Coordinated Mail-Ballot Election (Town Clerk Miguel Jauregui Casanueva) AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 2 5.4. Approval of Intergovernmental Agreement (IGA) for DC Fast Chargers Plazas Grant (Mobility Manager Jim Shoun) 5.5. Resolution 24-21: Ratifying Approval of National Opioid Settlement with Kroger (Town Attorney Nina Williams) Mayor Phillips opened the floor to public comment and no public comment was made in person nor virtually. Without further deliberations, Councilor Stanley presented a motion to approve the Consent Agenda. Councilor Hardy seconded the motion. It was approved unanimously with a 7-0 vote. 6. BUSINESS ITEMS 6.1. Presentation: SpeakUp ReachOut Update (SpeakUp ReachOut Awareness & Brand Manager Leslie Robertson) Video Start Time: 00:02:25 SpeakUp ReachOut Awareness & Brand Manager Leslie Robertson delivered a presentation updating Councilors on the most recent programs and activities at SpeakUp ReachOut. No public comment was made in person nor virtually. As this was a presentation to Council, no motion was requested. 6.2. Presentation: Core Transit (Eagle Valley Transportation Authority) Progress Update (Core Transit Deputy Director Scott Robinson) Video Start Time: 00:17:20 Core Transit Director Tanya Allen delivered a presentation on behalf of Core Transit Deputy Director Scott Robinson updating Councilors on the most recent programs and activities at Core Transit. No public comment was made in person nor virtually. As this was a presentation to Council, no motion was requested. 6.3. Presentation: Update on Early Childhood Education School (Town Manager Eric Heil and Vail Valley Foundation Vice President Mike Imhof) Video Start Time: 00:29:30 Town Manager Eric Heil and Vail Valley Foundation Vice President Mike Imhof delivered a presentation updating Councilors on the Early Childhood Education School, to be built in Planning Area E at the Village at Avon. This included a discussion on the approval process and next steps. No public comment was made in person nor virtually. As this was a presentation to Council, no motion was requested. 6.4. Appeal to Council - Primary Residence Real Estate Transfer Tax Exemption (Chief Financial Officer Paul Redmond) Video Start Time: 00:50:07 Chief Financial Officer Paul Redmond delivered a presentation related to the request for a Primary Residence Real Estate Transfer Tax Exemption for the residences located at 38460 US Hwy 6 Unit 306, Avon CO 81620; 38460 US Hwy 6 Unit 402, Avon CO 81620; 38460 US Hwy 6 AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 3 Unit 411, Avon CO 81620; and, 126 Riverfront Lane #450, Avon CO 81620. It was highlighted that Town Council's granting of this appeal will likely result in an exemption for each of the four primary residences in the amount of $3,200, which would have been approved had they been filed timely with the Town. Council consensus expressed frustration that licensed realtors and title companies are not explaining to residents the existence of this RETT exemption. Councilor Andrade asked if these homeowners were contacted in any way to advise them of the RETT exemption, and Chief Administrative Officer Ineke de Jong advised that Deputy Town Clerk Brenda Torres sends a welcome letter to new homeowners of Avon, advising them of the RETT exemption but it is not sent through certified mail and is directed to the address provided to the County Clerk and Recorder at time of recording, all of which does not guarantee receipt by the purchaser. Mayor Phillips opened the floor to public comment and Ms. Sandy Gaffner, resident of 126 Riverfront Lane #450, took the podium in person to state that she was advised at closing of the purchase of her home that she had 1 year to apply for the RETT exemption and only found out later the window had closed. She asked for Council to consider approving the extension to file the RETT exemption so she can receive the tax benefit. No other public comment was made in person nor virtually. After deliberations, Councilor Carroll motioned to approve the appeal for an extension of time to file an application for primary residence exemption for the property located at 38460 US Hwy 6 Unit 306, Unit 402, Unit 411 and 126 Riverfront Lane Unit 450. Councilor Hardy seconded the motion. It was approved with a 6-1 vote, with Councilor Andrade voting nay. 6.5. Work Session: US6 Pedestrian Safety Design Update (Public Works Director Eva Wilson) Video Start Time: 01:08:00 Public Works Director Eva Wilson delivered a presentation and update to Councilors related to the US6 Pedestrian Safety Design. Council questions included those on cost increases for curb cuts, inlets and culverts. Councilor Carroll asked that whatever option the Town negotiates with CDOT, it is documented in writing and made legally binding. He asked if there was a deadline to spend the money from the grants and was advised if the project shows progress, the grants will stay in place. Councilor Andrade asked if removing the traffic signal will still reduce pedestrian safety. Town Manager Heil stated that the lowered speed limit and signalized pedestrian crossing will make the intersection safer, but likely not as safe as with a stop light. Mayor Pro Tem Underwood asked Ms. Wilson for an update on communication with the neighborhood around the change in the traffic calming plan. Ms. Wilson advised that she has reached out to them, and most are awaiting to hear from Council’s discussion of the topic before expressing their position. AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 4 Mayor Phillips opened the floor to public comment and Mr. Michael Pascal, resident of Avon, took the podium in person to ask how the drainage will work, with concern for filtration of water before it re-enters the river. He also expressed concern over snow plowing operations worsening with medians in place. He noted he speaks for himself because the residents of River Forge are torn on which project they favor. He stated he is personally against the stop light because of the impact it would have on exiting the River Forge property. Mr. Randy Mans, resident of Avon, took the podium in person to state that he is a pedestrian and uses the bus service to get around, specifically in this area. He noted his concerns for pedestrian safety without adequate lighting. He also added that he is not in favor of the stop light because it will slow the process of exiting the River Forge property. Ms. Jean Klein, resident of Avon, took the podium virtually to state that she is a routine bus system user and when she gets offloads at the Stone Bridge Bus Stop at night, it is very dark and on the opposite side of her home on Highway 6. She asked for improvement for pedestrians and was unsure if the stop light was necessary but that reduced 35 MPH speeds would be very helpful if speeding enforcement also takes place. Ms. Kathleen Walsh, resident of Avon, took the podium virtually to state she opposes the stop light given that the new 35 MPH lowered speed limit should provide a sufficient traffic calming effect. She then spoke of the need for bus shelters along Route 6 that should be put back in place to increase pedestrian safety and comfort. No other public comment was made in person nor virtually. Mayor Pro Tem Underwood asked Ms. Wilson to confirm how water would be filtered before being sent to the river and was advised through new water vaults that would remove pollutants from the water before water reaches the river. Mayor Phillips asked Ms. Wilson to speak of lighting that will be added to the crosswalks. She also asked Ms. Wilson to speak of new stop lights that have active and programable traffic monitoring. She noted that the purpose of the now 10-year long project is to get pedestrians across the highway as safely as possible, which is increased by a stoplight versus a crosswalk light. Councilor Thuon spoke of the cost of a life and added that the traffic light’s primary focus was to increase pedestrian safety as much as possible, although an inconvenience to some. He added that saving money should not be put ahead of pedestrian safety in the area. AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 5 Councilor Stanley stated that she was and still is in favor of the stop light since it is the safest option. Councilor Hardy spoke of the curb and drainage and asked staff to contact Vail resorts to help with lighting of pedestrian crossings near them. She stated she was torn on the issue of the stoplight because of the pros and cons it brings. Councilor Andrade stated that he is in favor of the stoplight. Councilor Carroll spoke of being torn on the stop light and asked to get CDOT’s position in writing. Mayor Pro Tem Underwood said she too was torn on the stoplight solution given that it may not be the best alternative and said she would vote with the majority. Mayor Phillips stated she is in favor of the stoplight based on the many benefits she described it would bring. After ample deliberations, Councilor Thuon motioned to support and move forward with revised Option 1: [Continue with the traffic signal and add drainage infrastructure. Increase project cost upwards of $450K (+$1.5M drainage + $250k design - $1.3M CEI). Total projected project cost: $5.65M. Anticipated shortfall: $3.15M]. Councilor Stanley seconded the motion. It was approved unanimously with a 7-0 vote. 6.6. PUBLIC HEARING (QUASI-JUDICIAL): First Reading Ordinance 24-09: REZ24001; Rezoning of the East Avon Preserve to Community Housing (Planning Manager Jena Skinner) Video Start Time: 02:21:17 Planning Manager Jena Skinner delivered a presentation related to the second reading of Ordinance 24-09. Mayor Pro Tem Underwood asked for Town Manager Heil to elaborate on the planning and design work of the water tank that would be paid for by Traer Creek. Ms. Skinner stated that Planning and Zoning Commission is in favor of the rezoning. Mayor Phillips opened the floor to public hearing and no public comment was made in person nor virtually. Councilor Carroll asked if the Ordinance should refer to Community Housing High Density-1 and was advised the correction was already made. After ample deliberations, Councilor Carroll motioned to approve the second reading of Ordinance 24-09. Councilor Hardy seconded the motion. It was approved unanimously with a 7-0 vote. 6.7. First Reading Ordinance 24-12: Use Tax Ballot Question (Chief Financial Officer Paul Redmond) Video Start Time: 02:44:30 Chief Financial Officer Paul Redmond delivered a presentation related to the first reading of Ordinance 24-12. Director Redmond fielded questions from Council on neighboring communities’ construction use tax exemptions, whether $100,000 is a large enough exemption, and if the title could be improved by explaining that Community Housing in the ballot title could be expanded to explain that it encompasses different kinds of housing. Mayor Phillips opened the floor to public comment and no public comment was made in person nor virtually. AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 6 Councilor Carroll commented that this construction use tax home improvement exemption should be increased to $125,000 based on the median. Councilor Hardy agreed. Mayor Pro Tem Underwood agreed and wondered how to include a method applicable to the $125,000 exemption to prevent it from getting stale and increase through time without having to pass an ordinance. Councilor Andrade wondered if it is the right time to try and push this initiative forward again at the ballot this year. Mayor Pro Tem Underwood asked staff to include an exception for single family and duplex home builders to have the option to pay this tax at time of receiving certificate of occupancy. After deliberations, Mayor Pro Tem Underwood motioned to approve the first reading of Ordinance 24-14, as written in the packet but changing the exemption level to $125,000 in the ballot language and in addition, escalation of the exemption threshold over time to the extent recommended by the Town Attorney and with a revised ballot title, and including an allowance to defer its payment generated by single family and duplexes until Temporary Certificate of Occupancy or Certificate of Occupancy is obtained. Councilor Hardy seconded the motion. It was approved with a 6-1 vote, with Councilor Andrade voting nay. 6.8. First reading of Ordinance 24-14: Approving Xcel Franchise Agreement (Town Manager Eric Heil) Video Start Time: 03:17:57 Town Manager Eric Heil introduced the topic of the first reading of Ordinance 24-14. He was joined virtually by Mr. Ken Fellman of the Law Firm Wilson, Williams, Fellman and Dittman who provided a summary of his memo to Council. Mayor Phillips opened the floor to public comment and Ms. Blair McGary, new area representative for Xcel Energy, took the podium in person to thank Council for their partnership with the 20-year franchise agreement that just expired and made herself available to Council by offering her business card in the back of the room. No other public comment was made in person nor virtually. After deliberations, Mayor Pro Tem Underwood motioned to approve the first reading of Ordinance 24-14. Councilor Stanley seconded the motion. It was approved unanimously with a 7-0 vote. 6.9. Resolution 24-17 Amending the Simplified Rules of Order for Avon Town Council Meetings and Adopting Amended Town Council Handbook (Town Attorney Nina Williams) Video Start Time: 03:27:45 Town Attorney Nina Williams delivered a presentation related to Resolution 24-17. She was joined by Chief Administrative Officer Ineke de Jong who summarized the contents of the report to introduce this topic. Mayor Phillips opened the floor to public comment and no public comment was made in person nor virtually. After deliberations, Councilor Thuon motioned to approve Resolution 24-17, with an amendment to Section V of the simplified rules of procedure to limit four remote attendances to council meetings “in a calendar year excluding virtual only meetings”. Councilor Stanley seconded the motion. It was approved unanimously with a 7-0 vote. AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 7 7. WRITTEN REPORTS 7.1. July 16th Health & Recreation Committee Meeting Minutes (Recreation Aquatics Superintendent Kacy Carmichael) 7.2. August 5th Avon DDA Board Meeting Minutes (Chief Administrative Officer Ineke de Jong) 7.3. 2025 Community Grants Program (Communications Manager Elizabeth Wood) ** Indicates topic will be discussed at future agenda’s 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES Video Start Time: 03:40:30 Councilor Stanley shared that the High Five Access Media summer camp was a big success, and attendance more than doubled from last year. She added that students created four short films. She invited the public to visit: www.highfivemedia.org to view them. Mayor Pro Tem Underwood stated the Town had a fantastic Dancing in the Park show and thanked those involved in the production. She added that the mural at Avon Elementary is now finished and fantastic and she invited the public to go see it. Mayor Phillips reminded the public that Core Transit, formerly the Eagle Valley Transit Authority, will have their monthly meeting tomorrow, August 14, 2024, at Council Chambers at Avon Town Hall at noon, 12:00 p.m. She added more than half the fleet now have the new logo on them. She added that on August 24th, 2024, 10 am to 4pm at Nottingham Park, there will be a car show which this year will include a Mayor’s Choice Award. She noted that she intends for her fellow Councilor to participate in casting a vote alongside her and she will cast a vote based on majority from her fellow Councilors to determine who should win the Mayor’s Choice Award. 9. EXECUTIVE SESSION Video Start Time: 03:45:50 Mayor Phillips requested a motion from her fellow councilors to proceed into Executive Session. Mayor Pro Tem Underwood motioned to retire into Executive Session for the purpose of conferencing with the Town Attorney for the purpose of receiving legal advice on specific legal questions under C.R.S Section 24-6-402(4)(b), and for the purpose of determining positions relative to matters that may be subject to negotiation, developing strategy for negotiations, and/or instructing negotiators under C.R.S. Section 24-6-402(4)(e), and the following additional details are provided for identification purposes: Legal advice and potential negotiating parameters concerning State Land Board annexation and other related matters. Councilor Carroll seconded the motion. It was approved unanimously with a 7-0 vote. The time was 8:46 p.m. AVON REGULAR MEETING MINUTES TUESDAY AUGUST 13, 2024 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL AND VIRTUALLY THROUGH ZOOM 8 At the roll call, all members of Council were present. Also present were Town Manager Eric Heil, Deputy Town Manager Patty McKenny, Town Attorney Nina Williams, Chief Administrative Officer Ineke de Jong, Chief of Police Greg Daly, Deputy Chief of Police Coby Cosper, Finance Director Paul Redmond, and Planning Director Matt Pielsticker. The Executive Session started at 8:54 p.m. The Executive Session ended at 9:37 p.m. 10. ADJOURN There being no further business before Council, Mayor Phillips moved to adjourn the regular meeting. The time was 9:37 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: ________________________________ Miguel Jauregui Casanueva, Town Clerk APPROVED: Mayor Amy Phillips ___________________________________ Tamra Underwood Ruth Stanley Lindsay Hardy RJ Andrade Rich Carroll Chico Thuon 970-748-4088 predmond@avon.org TO: Honorable Mayor Phillips and Council members FROM: Paul Redmond, Chief Finance Officer RE: PEG Grant Request DATE: August 14, 2024 SUMMARY: Attached to this report is a grant funding request from J.K. Perry, Executive Director of High Five Access Media, for PEG fees collected by the Town in 2023 in the amount of $8,030. The funds requested would be used to replace a new playout system as described in Attachment B. PROPOSED MOTION: “I move to approve Resolution No. 24-22 Approving a Grant of PEG Funds” ATTACHMENTS: Attachment A: Resolution 24-22 Approving a Grant of PEG Funds Attachment B: Avon PEG Grant Funds Request Res. No. 24-22 Approving a Grant of PEG Funds August 14, 2024 Page 1 of 1 RESOLUTION NO. 24-22 APPROVING A GRANT OF PEG FUNDS WHEREAS, The Town Council of the Town of Avon has collected PEG fees from cable subscribers during the calendar year 2023 in the amount of $8,030; and WHEREAS, a request has been made to the Town of Avon from the local public access television station, High Five Media Access, for an allocation of such funds in the amount of $8,030 for video playout equipment, which is an appropriate purpose as set forth in the Town’s cable franchise agreement. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. That the attached request for a grant of $8,030 of PEG funds is hereby approved. Section 2. That an appropriation in the amount of $8,030 is included in the Town’s 2024 Town of Avon budget. ADOPTED this 27th August, 2024 AVON TOWN COUNCIL By:___________________________ Attest:________________________ Amy Phillips, Mayor Miguel Jauregui Casanueva, Town Clerk High five access media Avon PEG Grant Funds Request 2023 Council and staff, Thank you for the opportunity to present our proposal for PEG Grant funds. Each year, Comcast subscribers in Avon pay a PEG fee that is designated in the Avon/Comcast franchise agreement to be used for capital improvements by the local community access media center. The PEG Grant totals approximately $8,000 a year. This fund is intended for High Five Access Media to purchase video-related equipment for the community. As always, we strive to improve the quality of production and distribution for residents, cable subscribers and internet users. At the same time, we balance our mission to provide the tools and training for the community to produce their own media and express their ideas, advocate for causes and become civically engaged through cable television and the web. The following equipment purchase proposal helps High Five Access Media achieve its mission. In 2020, High Five Access Media put the grant toward the first phase of purchasing a new portable video switcher and accessories (total cost $13,700) to produce both in-house and volunteer, multi- camera live events in the field, such as high school plays, lectures, concerts and community events. In 2021 and 2022, High Five Access Media put the grant toward purchase of a portable video switcher, DSLR camera, JVC camera, and a computer edit bay. For 2023 funds, we request $8,030 for purchase of a new playout system to replace a unit that is up for replacement in our long-term capital improvements plan. The new unit is a Telvue Hypercaster AIO. This is the backbone of our system, providing playout to cable television and the internet, scheduling of programming, and integration with our on demand and streaming video platforms. A quote and brochure describing the system are attached. As always, feel free to contact me if you have any questions or concerns. Thank you, J.K. Perry Executive Director High Five Access Media jk@highfivemedia.org Quote#: Q-018180 Quote Issued: 3/25/2024 Quote Expiration: 4/24/2024 _____________________________________________________________________________________________________________________________________________ www.telvue.com | 16000 Horizon Way, Suite 100, Mt. Laurel, NJ 08054 | Phone: 1-(800)-885-8886 | Email: sales@telvue.com TelVue Quotation – Confidential TelVue Contact Information Prepared for: JK Perry High Five Access Media (Avon, CO) Executive Director jk@highfivemedia.org (970) 949-5657 Ship to address: 281 Metcalf Rd., Unit 203 AVON, CO 81620 USA Prepared by: Denise Rolfe TelVue Corporation Email: drolfe@telvue.com Phone: (800) 885-8886 Fax: (856) 866-7411 email Please use Fax No. to submit signed quote, or orders@telvue.com Special Terms Trade in credit for B100HC-SDI. Existing IP Capture, Archiving and Pro Transcode software licenses will be transferred at NC to new server. *Prior to signing the quote in indication of your acceptance as a purchase order, please confirm the billing contact information and shipping information above. *If you have any questions please contact your TelVue contact (identified above). Customer Acceptance This quote is good for 30 days from date of issue or until any expiration date stated in the special terms field. By signing below, customer accepts quote as purchase order on the above terms: Printed Name: _______________________________ Title: ___________________________________ Signature: __________________________________ Date: __________________________________ Thank you for your business. The following page contains a quote for TelVue products and services. Quote#: Q-018180 Quote Issued: 3/25/2024 Quote Expiration: 4/24/2024 _____________________________________________________________________________________________________________________________________________ www.telvue.com | 16000 Horizon Way, Suite 100, Mt. Laurel, NJ 08054 | Phone: 1-(800)-885-8886 | Email: sales@telvue.com Hardware Qty. Item Name Description TC Elig. List Price Discount Sales Price Unit Net Price Ext. Net Price AIO Series 1 HyperCaster AIO B100-4+ All-in-One Digital Broadcast Video Server. 4 HD-SDI ports, 2 playback or encode I/Os standard, expandable to 5, MAX 2 Playback. SDI & IP Switching, Graphics, Scheduling & Automation. 1RU, 8TB drive. $9,950.00 10.00% $9,950.00 $8,955.00 $8,955.00 $8,955.00 Software Qty. Item Name Description TC Elig. List Price Discount Sales Price Unit Net Price Ext. Net Price 1 HyperCaster Pro Transcoding Integrated Transport Stream transcoding with custom & factory presets. Cablelabs, MPEG-2 & H.264 (SD/HD) video, Layer II/AC-3/AAC audio. Auto transcode to default on import, or manual trigger. Great for consistent file formats on HyperCaster IP channels. $1,000.00 100.00% $1,000.00 $0.00 $0.00 B-Series Optional Items 1 HyperCaster IP Capture Option - Capture HD/SD IP streams on schedule or manually and store as a file for playback or transfer to another device. MPEG-2 TS unicast/multicast/SSM, RTMP, HLS (single rate). Max 2 Captures on B100 and 4 Captures on B1000. $1,500.00 100.00% $1,500.00 $0.00 $0.00 1 HyperCaster Archiving HyperCaster Archiving Module enables integration with any standard NAS running SMB or FTP for advanced archiving workflow. Scheduled archived content will automatically be retrieved to server for playout. $2,000.00 100.00% $2,000.00 $0.00 $0.00 $0.00 Other Qty. Item Name Description TC Elig. List Price Discount Sales Price Unit Net Price Ext. Net Price Quote#: Q-018180 Quote Issued: 3/25/2024 Quote Expiration: 4/24/2024 _____________________________________________________________________________________________________________________________________________ www.telvue.com | 16000 Horizon Way, Suite 100, Mt. Laurel, NJ 08054 | Phone: 1-(800)-885-8886 | Email: sales@telvue.com Other Qty. Item Name Description TC Elig. List Price Discount Sales Price Unit Net Price Ext. Net Price 1 Trade-In Credit Credit For Trade-in Equipment./B100AIO4 $0.00 ($1,000.00) ($1,000.00) ($1,000.00) ($1,000.00) Shipping & Handling Qty. Item Name Description TC Elig. List Price Discount Sales Price Unit Net Price Ext. Net Price B100 Series 1 HyperCaster B100-SHIP Shipping Charge - B100 Series./TPCL $75.00 $75.00 $75.00 $75.00 Sub-total $75.00 Grand Total $8,030.00 A finance / late fee of 1% per month will be added to an unpaid balance each month thereafter. Purchases of equipment outside of the United States require advance payment or letter of credit. Net 30 Days. 2% cash/1% net 15. Credit cards are accepted. HyperCaster® AIO+ B100 The HyperCaster AIO+ (All-In-One Plus) B100 gives you ultimate playback flexibility in a powerful, single-rack unit broadcast server. One to five channels of Playback & Recording, native SDI, NDI & IP Switching, and Graphics all-in-one! Streaming and Transport Stream output options, including SDI/IP Simulcast and multi-destination delivery. Perfect for stations broadcasting to multiple destinations, including Cable, Streaming, OTT, and Social Media. Includes a user-friendly, access-from-anywhere, browser-based interface for scheduling, content management, monitoring, and designing on-air graphics. Powerful, rules-based automation saves you valuable time. Simplify your workflow, trim your equipment, and get the best of both SDI & IP with the HyperCaster AIO+. All-In-One, Configurable PEG & PRO Broadcasting For SDI, IP, and Streaming More broadcasting with less hardware! AND BECAUSE IT’S A TELVUE SERVER, YOU ALSO GET: • Downstream Graphics On All Sources • Logos, Tickers, Snipes, Squeezebacks • Remote Confidence Monitoring/Preview • Built-in Up & Down Conversion • CEA-608/708 Closed Captions • Optional SDI & IP Simulcast • Optional ABR Streaming or IP Output • Optional Real-time CALM Audio Control • 1-4 auto-sensing HD-SDI inputs • Play, Record, and Switch SDI & NDI • StreamThruTM IP Playout & Switching • Optional IP Capture • Import Virtually Any File Format • Streams: RTMP Push/Pull, HLS, DASH, RTSP, SRT, TS, Zoom, Social Media • Resumable Browser-based Uploads INPUTS OUTPUTS • Secure, Easy, Browser-based Content, Scheduling, and Remote Management Tools • Time-saving Automatic Scheduling, Graphics, Streaming, and Workflow Rules • 24/7 Support -- Expandable Design -- Future-Proof Technology -- Reliable Linux OS • Powerful Options ○ Streaming, Mobile Apps & OTT Integration with TelVue CloudCast TM ○ Cloud Contributor Upload & Media Exchange with TelVue Connect TM ○ TelVue InfoVue TM Broadcast Digital Signage & Community Bulletin Board Integration ○ TelVue SmartCaption™ Automatic Live & File Closed Captioning ○ Archive Integration (NAS, Archive.org) 16000 Horizon Way • Suite 100 • Mt. Laurel, NJ 08054 • P 800.885.8886 • sales@telvue.com • www.telvue.com © 2 0 0 3 - 2 0 2 2 Te l V u e C o r p o r a t i o n / AI O + H y p e r C a s t e r B 1 0 0 S S - 0 6 2 2 - V 2 16000 Horizon Way • Suite 100 • Mt. Laurel, NJ 08054 • P 800.885.8886 • sales@telvue.com • www.telvue.com © 2 0 0 3 - 2 0 2 2 Te l V u e C o r p o r a t i o n / AI O + H y p e r C a s t e r B 1 0 0 S S - 0 7 2 2 - V 2 Flexible I/Os IP Inputs NDI, RTMP Push & Pull, HLS, DASH, RTSP, SRT, TS (UDP/RTP), Zoom, Social Media. Optional Capture HD/SD Simulcast Optional SDI/IP Simulcast Optional IP Output ABR Streaming, Transport Stream Video Routing Switch Optional Video Routing Switch Control Storage OS/System SSD Archive Optional Archive to NAS (FTP, CIFS) and Archive.org Content File Formats Import Virtually Any File Format Video Codecs MPEG-2, H.264 SD & HD Audio Codecs MPEG-1 Layer II, AC-3, AAC, MP3, LPCM Upload Protocols Browser Resumable, FTP, CIFS/SAMBA Recording Encode MPEG-2 Transport (MPEG-2 and H.264 SD/HD) IP Capture Optional up to 2 Simultaneous Playback Video Resolutions SD 480i29.97 NTSC & 576i25 PAL, 720p50/59.94/60 1080p23.98/24/25/29.97/30 1080PsF23.98/24/25/29.97/30 1080i25, 1080i29.97, 1080i30 Automatic up/down-conversion Audio Format & Channels 48 kHz, 16 bit, Stereo, 8 or 16 Channel Audio Processing Optional Real-time Audio Loudness Management (CALM Compliant) VANCs CEA-608/708 Closed Captioning, Passthrough Downstream Graphics Bugs/Logos, Tickers, Snipes, Squeezebacks, Emer- gency & RSS/XML Tickers, Overlay Rules Closed Captions File CEA-608/708, Sidecar (WEBVTT, SRT, SCC, MCC), SmartCaption™ File Captioning Integration Live CEA-608/708, Optional SmartCaption™ LIVE Inte- grated Automatic Live Multi-language Captioning Ads Optional SCTE-104 Secondary Events Network Management System Health Notices SNMP, Email, REST API, and Web Browser UI Other Built-in Firewall & Routing Table, Remote Management, Station Timing Locked to NTP Operating System & High Availability Linux, Watchdog Timer, Solid State System Drive Physical Power 100 - 240 VAC/200 Watts Dimensions 17.2"x1.7"x11.3" (WxHxD) Weight 10 lbs. Form Factor 1 RU Rackmount , 19" Standard External Interfaces & Connections (Typically Used) External Reference Blackburst in SD, 720p50, 720p59.94, 1080i50 and 1080i59.94 formats or Tri-Sync in any HD format Copper NICs Dual 10/100/1000 BT Front Panel Power/Fail/Drive LEDs, Power/Reset Switch, LCD Application Software User Interface Integrated, Secure Browser-based Content Management Custom Metadata, Hierarchical Categories, Video Previews, Integrated Editing, Advanced Search, Bulk Actions, Resumable Browser Uploads, Auto- matic Publishing, Archiving & Sharing, Optional Archiving & Archive.org Integration Scheduling Automatic Series Scheduling, Drag & Drop, Copy/ Paste, Block Copy, Bulk Modify, Recur, Ripple, Im- port/Export, Auto fill Program Gaps, Auto Start on Trigger / Stop on Signal Loss, Extend Live Events w/ Join-in-Progress, Pause/Resume Recording, Multi-Destination Streaming Rules, Blackout Rules Graphics Automatic Overlay Rules, Built-in WYSIWYG Editor, Multiple Simultaneous Overlays, Alpha Channel, Drop Shadow Text, Date & Metadata Reports As Run, First/Repeat Run, Missing Files TV Listing Embeddable, Searchable Website Program Guide, TV Guide X-List, XMLTV, Minerva, RSS/XML Traffic & Billing Optional GDP/CCMS Workflow APIs REST, RSS, SNMP User Management Roles, Emergency-only User, Preferences Optional Cloud Services Streaming, Mobile & OTT Apps with TelVue CloudCast™, Cloud Contributor Workflow, Media Exchange, SmartCaption™ Automatic Captioning with TelVue Connect™ Models B100-2+B100-4+ Max Playback 1 2 I/O Mix Playback+Encodes 1 Playout and 1 Encode 2 Total Standard, Expandable to 5 HD-SDI Ports 2 (1 Input, 1 Output)4 (Configurable) Output Options Streaming, TS SD/HD-SDI Simulcast, Streaming, TS Storage 4TB, Single Drive 8TB, Single Drive HyperCaster® AIO+ B100 Specifications Note: Specifications are subject to change without notice. 970.748.4088 predmond@avon.org TO: Honorable Mayor Phillips and Council Members FROM: Paul Redmond, Chief Finance Officer Eric Heil, Town Manager RE: Ordinance No. 24-12 Use Tax on Construction Materials To Fund Community Housing DATE: August 18, 2024 SUMMARY: Ordinance No. 24-12 Use Tax on Construction Materials is presented to Council for second and final reading. Council must conduct a public hearing on second reading in accordance with the Avon Home Rule Charter. Ord. 24-12 would refer a 4% Use Tax on Construction Materials question to the November 5, 2024 election. Tax questions in Avon must be referred to November elections in accordance with the Taxpayer’s Bill of Rights (“TABOR”). TABOR requires ballot content to be certified to the County Clerk for coordinated elections by September 6, 2024. 4% USE TAX ON CONSTRUCTION MATERIALS: The proposed Use Tax would only apply to new construction. The proposed Avon Municipal Code amendment to adopt Chapter 3.09 includes an exemption for $125,000 of work in a calendar year, which is intended to exempt home improve projects and other small projects. This exemption is much higher than exemptions in other communities (Vail has a $10,000 exemption). Council provided direction at first reading to increase the exemption from $100,000 to $125,000. The revised Chapter 3.09 clarifies that the exemption calculation is for “total building materials value” and limits this exemption value of building materials for building permits over a three-year period. VOTER POLLING: The Use Tax question presented in November 2023 failed to receive voter support. There was virtually no outreach conducted in 2023, the voter turn-out was low, and the ballot question did not propose a specific use for the Use Tax. At the March Council meeting, the Council directed Staff to retain a voter polling consultant. A voter polling consultant was selected and conducted voter polling in Avon during the end of June. Staff selected Magellan Strategies to perform the voter opinion research. The survey approach was an online bilingual 22-question survey which could be answered by MMS Text to a respondent’s cell phone number or via the survey link available on our avon.org website. The survey was live from June 17th to July 2nd and was completed by a total of 259 registered voters in Avon. The survey responses show support for the Use Tax. The Use Tax survey results came back statistically tied on the uniformed ballot, however, after learning more about the details of the ballot question, support increased by 17 points to 57% in support of the Use Tax on Construction Materials. Several of the people surveyed agreed with the critical shortage of affordable housing and believed the use tax will generate the necessary funds for community and workforce housing. FINANCE and DDA COMMITTEE’S: Staff presented general information on the Use Tax to the Finance Committee on July 15, 2024 and the DDA Committee on August 8, 2024. Both Committee’s supported Council moving forward to refer the question of the Use Tax to the November 5, 2024 election. VILLAGE (AT AVON): The existing development agreement with Traer Creek LLC includes provisions that address the adoption of a Use Tax by the Town, which are reprinted as follows: 6.4 Rate of Public Improvement Fees. (a) Credit PIF Rates, (iv) Use Tax. If the Town imposes any use tax on building materials during the Term that is not in effect as of the Execution Date, such use tax shall be automatically incorporated into the definition of Taxable Transaction set Page 2 of 3 forth in Exhibit F without the need of any formal action by the Town. The PICs may establish and impose a buildingmaterials use fee, which shall be included in the definition of Credit PIF, corresponding to such use tax and applying to the same transactions and at the same rate as such use tax. The Town may amend its Municipal Code to reflect the automatic Tax Credit for use tax as set forth in this sub-section, but such an amendment shall not be required to implement the automatic Tax Credit. The Parties and any party obligated to pay, collect or remit such use tax shall be entitled to rely and act upon the Tax Credit being applied to such transactions in order to offset the effect of the Credit PIF in the same manner and to the same extent as the Tax Credit applies to retail sales transactions, real estate transfer transactions and accommodations/lodging transactions. Prior to adopting any such use tax, the Town shall coordinate with the PICs and other Parties regarding the implementation of any such use taxes and application of the Tax Credit thereto. The Credit PIF imposed and collected on such Taxable Transactions shall not be deemed to be part of such Taxable Transaction and shall not be subject to application of the corresponding Town use tax. 6.15(a) Use Tax. If the Town enacts and imposes a use tax on building materials, the PICs shall, pursuant to the PIF Covenants and the Financing Plan, impose and apply the Retail Sales Fee to the use of such building materials and the Town shall not impose such Town use tax on the corresponding Retail Sales Fee. Representatives of Traer Creek LLC have indicated that they would amend their covenants to implement a “Building Materials Use Fee” if the ballot question passes. The section in Chapter 3.09 that stated the credit for the Village (at Avon) has been deleted and marked [RESERVE] for now because the treatment of a private Building Materials Use Tax is automatic and does not require an Avon Municipal Code amendment. The intention is that if the Use Tax Ballot question passes, then Staff would coordinate with Traer Creek LLC to consider an amendment to Chapter 3.09.055 to add language that is explanatory and informative. Voter approval of a 4% Use Tax, and corresponding adoption of a Building Materials Use Fee, will increase the revenues credited and pledged to Traer Creek Metropolitan District to finance public improvements in the Village (at Avon). Staff has estimated that a Use Tax/Use Fee in the Village (at Avon) could have generated as much as $1,000,000 additional revenue for recent large projects. Additional revenues from a Use Tax/Use Fee would support additional public infrastructure and would accelerate the repayment of debt obligations backed by Town of Avon tax credits in accordance with the Village (at Avon) Development Agreement. The Village (at Avon) has existing obligations to develop more affordable housing in the future. Once the authorized public infrastructure debts are paid-in-full then the Town’s tax credit obligation is satisfied and the Town of Avon will collect all revenues from Sales Tax, Accommodations Tax, Real Estate Transfer Tax, Water Tap Fees, and the Use Tax. The current annual tax credit is approximately $6 Million per year. Page 3 of 3 ACCOMMODATION FOR SINGLE-FAMILY AND DUPLEX: In response to Council direction at the August 13, 2024 meeting, 3.09.060 was amended to allow deferral of payment for single-family or duplex construction if requested by the building permit applicant. An additional sentence is added to read: A single family or duplex building permit applicant may request deferral of the payment of the Use Tax until completion of construction, at which time payment in full shall then become a condition of issuing a Temporary Certification of Occupancy or Certificate of Occupancy. BALLOT QUESTION: The ballot question was revised to include a maximum amount of revenue increase for the first year, as is required by TABOR. $4,000,000 is suggested which is based on the estimated Use Tax that would be generated by all potential projects that we know at this time and then doubling that estimate in case there are additional projects that pull building permits next year. The general practice with TABOR ballot questions is to estimate the potential revenues on the high side to avoid the complications and administrative costs of tax rebates if the actual revenues from a tax question exceed the amount authorized in the ballot question. PROPOSED MOTION: “I move to approve Ordinance No. 24-12 REFERRING A BALLOT QUESTION REGARDING USE TAX ON CONSTRUCTION MATERIALS TO THE NOVEMBER 5, 2024 ELECTION AND AMENDING THE AVON MUNICIPAL CODE TO ESTABLISH CHAPTER 3.09 USE TAX ON CONSTRUCTION MATERIALS on second and final reading.” Thank you, Paul ATTACHMENT A: Ordinance No. 24-12 Use Tax on Construction Materials ATTACHMENT A Ord 24-12 Use Tax on Construction Materials August 23, 2024 – SECOND READING Page 1 of 2 ORDINANCE NO. 24-12 REFERRING A BALLOT QUESTION REGARDING USE TAX ON CONSTRUCTION MATERIALS TO THE NOVEMBER 5, 2024 ELECTION AND AMENDING THE AVON MUNICIPAL CODE TO ESTABLISH CHAPTER 3.09 USE TAX ON CONSTRUCTION MATERIALS 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 Avon Town Council (“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, Council finds that the referral of a 4% Use Tax on Construction Materials to the Avon electorate is appropriate and beneficial for the Avon community in order to reduce the administrative burden of Town and builders, to adopt a use tax that matches the Town’s sales tax, to increase the collection of revenues related to new construction for general government purposes and to increase revenues in the Village (at Avon) for the purpose of accelerating the satisfaction of the Town’s tax credit obligations; and WHEREAS, the Council finds that adoption of a use tax will promote the health, safety and general welfare of the Avon community; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with 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. Chapter 3.09 Enacted. A new Chapter 3.09 - Use Tax on Construction Materials in the Avon Municipal Code, set forth in EXHIBIT A: Chapter 3.09 attached hereto, is hereby enacted subject to voter approval as described in Section 3 of this Ordinance. Section 3. Election and Effective Date. Under Article X, Section 20 of the Colorado Constitution, the Council refers the tax increase provided in this ordinance to the qualified electors of the Town for approval at the regular Town election scheduled for November 5, 2024. ATTACHMENT A Ord 24-12 Use Tax on Construction Materials August 23, 2024 – SECOND READING Page 2 of 2 If approved by a majority of the electors voting thereon, this ordinance shall become effective when the Town Clerk or other designated election official duly files the required certificate of election, or on January 1, 2025, whichever occurs last. Section 4. Ballot Title and Questions. The ballot title and question submitted to the electors shall be as follows: Ballot Title: USE TAX ON NEW CONSTRUCTION TO FUND COMMUNITY HOUSING Ballot Question: SHALL THE TOWN OF AVON’S TAXES BE INCREASED BY FOUR MILLION DOLLARS ($4,000,000) IN THE FIRST YEAR 2025, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX FOR THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS; AND SHALL SUCH USE TAX REVENUES BE APPROPRIATED FOR COMMUNITY HOUSING; AND SHALL CONSTRUCTION PROJECTS EQUAL TO OR LESS THAN $125,000 IN A CALENDAR YEAR BE EXEMPT FROM PAYING THE USE TAX; ALL IN ACCORDANCE WITH, AND FURTHER DEFINED BY, TOWN OF AVON ORDINANCE NO. 24-12; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WHOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW. INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING by the Avon Town Council on August 13, 2024, and setting such public hearing for August 27, 2024 at the Council Chambers of the Avon Municipal Building, located at 100 Mikaela Way, Avon, Colorado. ADOPTED ON SECOND AND FINAL READING by the Avon Town Council on August 27, 2024, after conducting a public hearing. BY: ATTEST: _____________________________ ___________________________________ Amy Phillips, Mayor Miguel Jauregui Casanueva, Town Clerk APPROVED AS TO FORM: _____________________________ Nina Williams, Town Attorney 1 EXHIBIT A: Chapter 3.09 – Use Tax on Construction Materials CHAPTER 3.09 – Use Tax on Construction Materials 3.09.010 – Title, Purpose, and Applicability. (a)This Chapter shall be known and may be cited as “The Town of Avon Use Tax on Construction and Building Materials.” (b)The purpose of this Chapter is to raise revenue for the Community Housing Fund. The Town Council find that every person who uses or consumes in the Town any construction and building materials is exercising a taxable privilege. (c)Subject only to the exemptions set out at Section 3.09.040, the use tax imposed herein shall apply to any use or consumption in the Town of construction and building materials purchased at retail on or after January 1, 2025. 3.09.020 – Definitions When not otherwise clearly indicated by the context, the following words and phrases, as used in this chapter, shall have the following meanings: Building permit means a permit, issued by the Town, allowing the permit holder to construct, enlarge, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert, or replace any electrical, gas, mechanical, or plumbing system regulated by the adopted building codes of the Town. A building permit shall not include any permit for demolition or dewatering. Charitable organization means any entity which has been certified as a nonprofit organization under Section 501(c)(3) of the Internal Revenue Code. Construction equipment means any equipment, including mobile machinery and mobile equipment, which is used to erect, install, alter, demolish, repair, remodel, or otherwise make improvements to any real property, building, structure, or infrastructure, whether leased or owned. Construction Materials means tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a structure or project including public and private improvements. Construction Materials include, but are not limited to, such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal, site lighting, steel, stone, stucco, tile, trees, shrubs and other landscaping materials, wall board, wall coping, wallpaper, weather stripping, wire netting and screen, water mains and meters, and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral and inseparable part of completed structure or project are not construction materials. 2 Construction valuation means the total value of the work, including labor and construction and building materials, for which a permit is issued, including leased construction equipment, electrical, gas, mechanical, plumbing equipment and permanent systems, as determined by the building department or building official. Consumption means the act or process of consuming, and includes waste, destruction, or use. Consumption is the normal use of property for the purpose for which it was intended. Contractor means any person who shall build, construct, reconstruct, alter, expand, modify, or improve any building, dwelling, structure, infrastructure, or other improvement to real property for another party pursuant to an agreement. For purposes of this definition, Contractor also includes subcontractor. Director means the Chief Finance Officer for the Town or such person’s designee. Person means any individual, firm, partnership, joint venture, corporation, limited liability company, estate or trust, receiver, trustee, assignee, lessee, or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit. Purchase or sale means the acquisition for any consideration by any person of tangible personal property by way of purchase, lease, or rental, including capital leases, installment and credit sales, and lease-purchase, rental or grant of a license to use, which consideration may include money, exchange of property or services, or any other thing of value. Purchase price means the aggregate value in money of anything or things paid or delivered or promised to be paid or delivered by a purchaser to a retailer or any person in the consummation of a retail sale as defined herein, without any deduction therefrom for the cost of the property sold, cost of materials used, labor or service cost, or any other expense whatsoever, and provided that when articles of tangible personal property are sold after manufacture or after having been made to order, the gross value of all materials, labor, service, and profit thereon shall be included in the purchase price; provided that the purchase price shall not include any direct tax imposed by the United States government, the state, or this chapter. Retail Sale or Purchased at Retail means any purchase or sale of tangible personal property, except a wholesale sale or purchase made for taxable resale. Taxpayer means any person obligated to collect and/or pay tax under this Code. Town means the Town of Avon. Use means the exercise, for any length of time, by any person with the Town of any right, power or dominion over tangible personal property or services when rented, leased, or purchased at retail from sources within or with the Town; or tangible personal property used in the 3 performance of a contract in the Town, whether or not owned by the taxpayer. Use also includes withdrawal of items from inventory for consumption. Wholesale sales mean a sale to a licensed retailer, jobber, dealer, or other wholesaler for resale. Sales by wholesalers to consumers, including persons who use or consume construction and building materials, as defined by this Section, are not wholesale sales. Sales by wholesalers to non-licensed retailers are not wholesale sales. Wholesaler means any person selling to retailers, jobbers, dealers, or other wholesalers, for the purpose of resale and not for storage, use, consumption, or distribution. 3.09.030 – Use tax imposed. (a)There is hereby imposed and levied in the Town, and shall be collected and paid, a use tax on the privilege of using or consuming within the Town construction and building materials of every kind and form purchased or leased inside or outside the Town. (b)The use tax imposed by this Chapter shall be at the rate of four percent (4%) of the cost of construction and building materials used or consumed in the Town, including leased equipment. For purposes of this Chapter, the cost of construction and building materials is deemed to be fifty percent (50%) of the construction valuation. (c)Any construction and building material used or consumed on a project which has received all final development review approvals required by Title 7 of the Avon Municipal Code on or before December 31, 2024, shall not be subject to the use tax imposed herein. If any approval expires by its terms after December 31, 2024, such application for development review shall then be subject to the use tax imposed by this Chapter. 3.09.040 – Exemptions. The following are exempt from the use tax imposed by this chapter, provided that the list of exemptions cannot be increased by implication or similarity and the burden of proof is upon the taxpayer to establish an exemption: (a)The use or consumption of construction and building materials the sale of which is subject to a retail sales tax imposed by the Town; (b)The use or consumption of construction and building materials purchased for resale in the Town, either in their original form or as an ingredient of a manufactured or compounded product, in the regular course of business; (c)The use or consumption of construction and building materials by the United States government; by the State, its departments or institutions or political subdivisions thereof in their governmental capacities only; or by the Town; providing, however, that no commercial, industrial or other banking institution, organized or chartered by 4 the United States government, any agency or department thereof, or by the State, shall be considered a governmental institution for the purpose of this exemption; (d)The use or consumption of construction and building materials by charitable organizations in the conduct of their regular charitable functions; except that nothing herein contained shall be deemed to exempt use of construction and building material or supplies used by a contractor for the construction of an improvement for a charitable organization; (e)The use or consumption of construction and building materials by a person engaged in the business of manufacturing or compounding for sale, profit, or use of any article, substance, or commodity, which construction and building materials enters into the processing of or becomes an ingredient or component part of the product or service which is manufactured, compounded, or furnished, and the container, label, or the furnished shipping case thereof; (f)The use or consumption of construction and building materials if a written contract for the purchase thereof was entered into prior to January 1, 2025; (g)The use or consumption of construction and building materials required or made necessary in the performance of any construction contract bid, let, or entered into at any time prior to January 1, 2025; (h) The storage of construction and building materials; (i)A building project or projects, subject to a Town of Avon Building Permit or Permits issued within a three year period, with a total construction valuation building material value of one hundred twenty-five thousand dollars ($125,000.00) or less; (j)The use or consumption of construction and building materials in the Town on which the use tax imposed by this Chapter has already been paid; and (k) Any transaction which the Town is prohibited from taxing under applicable law. 3.09.050 – Credit for taxes paid to another taxing authority. (a)The Town’s use tax shall not apply to the use or consumption of any construction and building materials the sale or use of which has already been subjected to a legally imposed sales or use tax of another statutory or home rule town, city, or city and county equal to or in excess of the use tax imposed herein. (b)A credit shall be granted against the Town’s use tax in an amount equal to lawful tax previously paid by the purchaser or user to another taxing authority, provided that the amount of credit shall not exceed the amount of use tax imposed by this Chapter. (c) The burden of proof is upon the taxpayer to establish the right to any credit claimed. 5 (d) It is the intent of this Chapter for Town taxes to be paid at the time a building permit is issued. Once such permit is issued, persons engaged in construction projects in the Town are considered to be the end users of construction and building materials and must not pay municipal sales tax to a retailer in another jurisdiction for materials to be used or consumed in the Town. No refund or credit of another municipality’s tax will be allowed unless such tax is legally imposed. 3.09.055 – Tax credit for the Village (at Avon). [RESERVED] Notwithstanding any other provisions of this Chapter, there shall be granted to each person owing tax on use or consumption of building materials within The Village (at Avon) a temporary tax credit equal to the amount of any Building Materials Use Fee paid by or on behalf of such person for that same use or consumption. The amount of the credit shall not exceed the amount of use tax owed. This credit shall expire with the termination of the Building Materials Use Fee as set out in the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon), as recorded with Eagle County on August 1, 2014. Neither the ability of the Town to grant the temporary tax credit nor termination of the tax credit shall constitute a tax increase, the imposition of a new tax, or a tax policy change. 3.09.056 - Tax credit for Community Housing. Notwithstanding any other provision of this Chapter, there may be granted a tax credit to each person owing tax on the use or consumption of construction and building materials and fixtures used in a Community Housing project provided that such use tax credit is approved by Council by resolution in accordance with Chapter 3.14. Neither the ability of the Town to grant this tax credit nor the repeal or termination of this tax credit shall constitute a tax rate increase, the imposition of a new tax or a tax policy change. 3.09.057 - Temporary tax credit for renewable energy production components. Notwithstanding any other provision of this Chapter, there shall be granted a temporary tax credit to each person owing tax on the use or consumption of components used in the production of electricity, generation of heat or cooling of air, from a renewable energy source, including but not limited to wind, solar, solar thermal systems, and geothermal energy systems, provided that this temporary tax credit shall commence on the effective date of this ordinance and shall continue until December 31, 2024, whereupon this temporary tax credit shall automatically expire unless extended by adoption of an ordinance. Neither the ability of the Town to grant the temporary tax credit nor the termination of the credit shall constitute a tax increase, the imposition of a new tax or a tax policy change. 3.09.060 – Collection and administration. (a) The administration of this chapter is hereby vested in the Director, who shall prescribe forms and promulgate rules and regulations for the proper administration and 6 enforcement of this chapter. The Director may delegate to any person the power and authority necessary for the proper administration and enforcement of this chapter. (b)The use tax required by this Chapter shall initially be made by estimate, which estimated amount must be paid at or prior to the time any permit for building or construction within the Town is issued. No permit shall be issued by the Town Building Official, or any other town employee, to any person requesting a permit for construction within the Town until such estimated use tax has been paid, except as described below for single-family and duplex residential building permits. The tax estimate shall be made by the Director, working with the Community Development Department to determine the Construction Valuation. A single family or duplex building permit applicant may request deferral of the payment of the Use Tax until completion of construction whereupon payment in full shall be a condition of issuing a Temporary Certificate Occupancy or Certificate of Occupancy. (c)All use taxes due to the Town must be paid in full before a final building inspection may take place and a permanent or temporary certificate of occupancy issued. The Director may determine the amount of use taxes due to the Town before final inspections occur or certificates of occupancy issue. To assist in this determination, the Director may request information from the taxpayer, who shall timely provide it, which information may include proof of actual amounts paid for construction and building materials used or consumed in the building project. (d)A person engaged in a construction project in the Town who does not apply for and have issued a permit or who seeks and obtains prior approval of the Director to remit use taxes in accordance with this Subsection (d) shall, on or before the twentieth day of each succeeding month following the start of construction, file a return with the Director attaching all statements and invoices establishing the price paid for building and construction materials used in the local project, along with a summary sheet for materials purchased the previous month, and shall thereupon pay to the Town the full amount of use tax due for the preceding month or months. Any failure to make such return and payment of such use tax shall be deemed a violation of this Chapter, which may, upon conviction, subject the violator to penalties provided. 3.09.070 – Penalty and Interest. (a) If any person fails, neglects, or refuses to pay the use tax as required by this chapter, or if any taxpayer fails to remit the proper amount of tax or underpays the tax, then penalties and interest shall be imposed in accordance with this section. (b) If a person neglects or refuses to pay any use tax as required by this Chapter within ten (10) days after the same is due, the Director shall make an estimate, based upon such information as may be available, of the amount of use tax due for the period for which the taxpayer is delinquent and shall add thereto a penalty equal to the greater of fifteen dollars ($15.00) or ten percent (10%) of the amount due and interest at the rate 7 of one-and-a-half percent (1.5%) per month from the time delinquent payment was due. (c)If any part of the deficiency is due to fraud with the intent to evade the tax, there shall be added a penalty of one hundred percent (100%) of the total amount of the deficiency, and in such case the whole amount of the tax unpaid, including the additions, shall become due and payable ten (10) days after written notice and demand by the Director, and an additional three percent (3%) per month on said amount shall be added from the date payment was due, until paid. (d)The Director may, for good cause shown, waive any penalty or interest. 3.09.080 – Remedies not exclusive. In addition to enforcement remedies expressly provided in this chapter, the Town may pursue any other remedies available at law or in equity. 3.09.090 – Lien. The tax imposed by this Chapter, together with accrued interest and penalties, shall be a first and prior lien on any real property into which the construction and building materials were incorporated. 3.09.100 – Limitation of Action. Use tax, interest, and penalties shall be assessed, and any action to collect the same shall be commenced, within three (3) years of the issuance of a final certificate of occupancy for the improvement on which the use tax was paid. This period of limitation shall not run for any period of time covered by an audit if written notice of that audit is given to the taxpayer prior to expiration of the limitation period. 3.09.110 – Refunds. (a) Upon completion of construction, the taxpayer may apply to the Director for a refund of overpaid taxes. Such application shall be supported by documentation required by the Director or as needed to establish actual amounts paid for construction and building materials used or consumed as part of a building project. (b)A taxpayer claiming an exemption may pay the use tax under protest. Applications for refund of such protested tax must be made within sixty (60) days of issuance of the building permit for which the use tax was paid under protest. (c)A taxpayer claiming refund for use tax paid by mistake or in error must make that claim within three (3) years of the final inspection or issuance of a permanent certificate of occupancy, whichever comes later, for the improvement on which the use tax was paid. 8 (d) All claims for refund shall be upon forms prescribed by the Director and made in such manner as required by the Director. The Director shall promptly review refund claims and issue a denial in writing, state the reason therefor, or provide the funds requested, after applying any refund amount against outstanding tax liabilities. (e)If a taxpayer disputes a refund denial, the taxpayer shall provide the Director with a written protest, filed within 30 days of the Director’s notice. The protest shall identify specific grounds for dispute, including any necessary documentation, and shall request a hearing before the Director. This protest process, and that of any related appeal, shall be in accordance with Section 29-2-106.1, Colorado Revised Statutes. (e) The right to refund shall not be assignable. 3.09.120 – Audit. (a) The Town may audit, or the taxpayer request an audit, within three (3) years from the issuance of any certificate of occupancy for the improvement on which the use tax was paid. An audit requested by the taxpayer shall be at the taxpayer’s sole cost. (b)If the recomputed use tax is less than the amount of use tax paid by the taxpayer, the difference shall be refunded to the taxpayer within thirty (30) days of the final determination of the Town. If the recomputed use tax is more than the amount of use tax paid by the taxpayer, the difference, along with any interest and penalty imposed by this chapter, shall be due and payable by the taxpayer immediately upon the final determination of the Town with notice to the taxpayer. 3.09.130 – Book, Records, Reports, and Returns. (a)Every person liable for any use tax imposed by this chapter shall keep and preserve, for a period of three (3) years from the date of issuance of a final certificate of occupancy for the improvement on which the use tax was paid, all books, records, reports and returns necessary to determine the amount of tax liability. All such books, records, reports, and returns shall be open for examination at any time by the Director. (b)Any information gained by taxpayer disclosure or as part of an audit or investigation shall be entitled to the same level of confidentiality afford to sales tax information, as set out in Chapter 3.08 of the Avon Municipal Code. (c)For the purpose of determining the amount of tax due from any taxpayer, the Director may hold investigations and hearings concerning any matters covered by this Chapter, and may examine any relevant books, papers, records, or memoranda of any such person, requiring the attendance of such taxpayer, or any officer or employee of such taxpayer, or of any person having relevant knowledge, and taking such testimony and proof as may be necessary to properly ascertain any tax liability. The Director shall 9 have power to administer oaths to any person in the course of such investigations or hearings. Production of documents and attendance of witnesses shall be requested by the Director on his or her own motion or on motion of any party; any request for production or attendance shall inform persons that compliance is voluntary but that, if the request is not complied with, the Director may apply to the Municipal Judge for issuance of a subpoena. (d)The Municipal Judge, upon application of the Director, may compel the attendance of witnesses, the production of books, papers, records or memoranda, and the giving of testimony before the Director or any of his or her duly authorized agents, by the issuance and enforcement of subpoenas, in the same manner as production of evidence may be compelled before the court. 3.09.140 – Violation and Penalty (a)It is a violation of this Chapter for any person subject to the use tax levied by this chapter to submit any false or fraudulent use tax information to the town, to make any false statement on any document used to calculate taxes due under this chapter, to fail or refuse to make payment of any taxes due, to evade the payment of any taxes due, or to aid or abet another in any attempt to evade the payment of any taxes due under this chapter. (b)In addition to any other penalty provided in this Chapter, any person who violates any provision of this Chapter shall be punished in accordance with Section 1.08 of the Avon Municipal Code. 970.748.4088 predmond@avon.org TO: Honorable Mayor Phillips and Council Members FROM: Eric Heil, Town Manager Patty McKenny, Deputy Town Manager RE: Ordinance No. 24-14 Xcel Franchise Agreement DATE: August 23, 2024 SUMMARY: Ordinance No. 24-14 Xcel Franchise Agreement is presented to Council for second and final reading. Council must conduct a public hearing on second reading in accordance with the Avon Home Rule Charter. Companies that provide utility service through facilities located in the Town’s rights of way are required to obtain a franchise agreement from the Town. Regulatory authority over a utility like Xcel is shared with the State. Many of Xcel’s business activities are regulated by the Public Utilities Commission. The Town’s regulatory authority is generally limited to Xcel’s access to and use of the public rights of way, public utility easements and any other Town property where utility facilities are located. The Town first granted a 20-year franchise to Xcel in 1983. After a 1-year extension, a new 20-year franchise was adopted in 2004. It is not uncommon for gas or electric franchises to have terms of 20 years. This is the term proposed in the new agreement. PROPOSED MOTION: “I move to approve Ordinance No. 24-14 - GRANTING A FRANCHISE BY THE TOWN OF AVON TO PUBLIC SERVICE COMPANY OF COLORADO FOR THE NON-EXCLUSIVE RIGHT TO PROVIDE, SELL, AND DELIVER GAS TO THE TOWN AND ITS RESIDENTS THROUGH THE NON- EXCLUSIVE REASONABLE USE OF TOWN STREETS, PUBLIC UTILITY EASEMENTS, AND OTHER TOWN PROPERTY on second and final reading.” Thank you, Eric ATTACHMENT A: Memo from Wilson Williams Fellman and Dittman dated August 8, 2024 ATTACHMENT B: Ordinance 24-14 - Granting a Franchise by the Town of Avon to Public Service Company of Colorado for the non-exclusive right to provide, sell, and deliver gas to the town and its residents through the non-exclusive reasonable use of town streets, public utility easements, and other town property. ATTACHMENT C: 2024 Franchise Agreement ATTACHMENT D: Ordinance 04-06 - Granting a Franchise Agreement to Public Service Company of Colorado, its affiliates, successors and assigns, the right the use the streets within the Town to furnish, sell, transport and distribute gas to the Town and to all reisdents of the Town, granting the right to acquire, construct, install, locate, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to furnish, sell, transport and distribute gas within and through the Town; and fixing the terms and conditions thereof. ATTACHMENT E: 2004 Executed Franchise Agreement. To: Hon. Mayor and Members of Town Council CC: Eric Heil, Town Manager Patty McKenny, Deputy Town Manager Nina Williams, Town Attorney From: Ken Fellman, Special Counsel Date: August 8, 2024 Subject: Public Service Company of Colorado, dba Xcel Energy gas franchise Background At your meeting on August 13th, you will consider the ordinance approving a new Xcel Energy gas franchise on first reading. Companies that provide utility service through facilities located in the Town’s rights of way are required to obtain a franchise agreement from the Town. Regulatory authority over a utility like Xcel is shared with the State. Many of Xcel’s business activities are regulated by the Public Utilities Commission. The Town’s regulatory authority is generally limited to Xcel’s access to and use of the public rights of way, public utility easements and any other Town property where utility facilities are located. The Town first granted a 20-year franchise to Xcel in 1983. After a 1-year extension, a new 20-year franchise was adopted in 2004. It is not uncommon for gas or electric franchises to have terms of 20 years. This is the term proposed in the new agreement. Key Provisions in New Franchise and How they Compare to Current Franchise What follows is a brief description of the most significant differences in the proposed Franchise compared to the current franchise. It is not all inclusive and we can discuss any issues of concern to you at the Council meeting. 1.Definitions. There are additional terms defined in the new Franchise that were not included in the current franchise. This includes terms like “Industry Standards,” “Open Space,” “Other Town Property,” “Parks,” “Public Project,” and “Relocate.” The context in which these terms are used is addressed below. 2.Grant of Franchise, Section 2.1. In the current franchise, Xcel had the right to locate in Town Streets, and the term “Streets” was defined to include what we traditionally consider streets, public utility easements and any other public property where it was convenient for Xcel to local their infrastructure. That would include parks and open space and similar properties that in reality are not “streets” and where the Town might not want these facilities located. The new franchise defines these other terms and makes clear that Xcel does not have the right to locate facilities in “Parks,” “Open Space” and “Other Town Property” without first coming to the Town seeking permission to use these other properties, and then only after the ATTACHMENT A 1314 Main Street, Suite 101, Louisville, CO 80027 (303) 376-8510 wwfdlaw.com 2 Town reached agreement on the terms of such use. The Town has sole discretion to say ‘no’ to the use of these other properties. The result is the franchise grant is truly limited to rights of way and public utility easements. 3.Town Police Powers, Article 3. The current franchise has limited language requiring compliance with the Town’s police powers. These provisions are now set forth in Article 3 of the new Franchise. In the franchise Xcel originally submitted to the Town, it proposed that it would only be obligated to comply with the Town Code and related regulations if those Town requirements were consistent with “Industry Standards.” This would have, in effect, given away your legislative authority and substituted whatever Xcel tells us are standards common in its industry. We objected to that relinquishment of local authority and had the language modified (in a manner that Xcel has agreed to in other jurisdictions that have demanded it) so that the Town will make good faith efforts to have its regulations be consistent with what Xcel provides to us indicating “Industry Standards,” but that ultimately, it is within the Town’s sole authority to deviate from those standards if you believe it is appropriate. 4.Franchise Fees, Section 4. The new Franchise has more robust language regarding franchise fees and the Town’s authority. If the franchise fee is ever voided by a court or otherwise, the new Franchise provides Xcel still has the obligation to pay a comparable amount to the Town as partial consideration for the use of the rights of way. It provides that the Town does not pay a franchise fee on the services it receives from Xcel. It provides that if a Town audit of franchise fees shows an underpayment of 2% or more, in addition to paying the correct amount owed, Xcel will be responsible to pay all costs of the Town audit. None of these provisions are in the current agreement. 5.Coordination of Work, Section 5.3. There is significant new language that did not exist in the current agreement, requiring Xcel to coordinate its work with the Town. 6.Supply, Construction and Design, Article 6. This Article has more robust language requiring how outages are dealt with, obligations of Xcel’s contractors, requirements that Xcel provide as-built drawings of its facilities, and restoration of property impacted by Xcel’s work in Town property. One of the most beneficial changes is that the new Franchise has more detailed requirements of Xcel’s relocation obligations. Relocations of Xcel facilities necessitated by public projects must now be completed at Xcel’s expense within 120 days (Section 6.6). There is no deadline for relocation in the current franchise. 7.Reliability, Article 7. The new Franchise language requiring Xcel to provide reliable service and to maintain its facilities consistent with industry standards is not included in the current franchise. 8.Xcel’s Performance Obligations, Article 8. The obligations of these provisions do not appear in the current franchise. In the new Franchise, Xcel must perform its required obligations within a fixed time period. This section also provides detail on the kind of supporting documentation Xcel needs from the Town in order to do its work, and this additional detail will avoid uncertainty in determining when the period of time in which Xcel needs to act began to run. 9.Breach, Section 14.2. The new Franchise provides more detailed provisions on how claims of a breach of Franchise provisions are to be addressed by the parties. Unlike the current franchise, which is silent on this issue, it allows the Town to seek specific performance in court to force Xcel to comply or alternatively to recover actual damages from any breach. The current franchise does not allow the Town to terminate the franchise until it holds an evidentiary hearing on the matter and then only after a vote of no less than 75% of all Town Council members. The new franchise allows for termination for material breaches of the Franchise upon the vote of a simple majority of Council. 10.Equal Opportunity and Economic Development, Article 16. The new Franchise contains 1314 Main Street, Suite 101, Louisville, CO 80027 (303) 376-8510 wwfdlaw.com 3 an article on Equal Opportunity which includes Sections on Economic Development and Employment, and contains mostly aspirational goals and efforts by Xcel to promote these activities in these areas. 11.Confidential or Proprietary Information, Section 17.6. The new Franchise contains provisions recognizing the need for Town compliance with the Open Records Act. It specifically provides that if Xcel asks the Town to protect any of its confidential information from disclosure, and if a court were to subsequently determine that disclosure was improper and enters an award of costs and attorney’s fees against the Town, Xcel will defend, indemnify and hold the Town harmless from these kinds of claims and any award of damages. There are no such provisions in the current franchise. 12.Conveyance of Town Streets, Public Utility Easements or Other Town Property where utility facilities are located, Section 17.21. The new Franchise provides that if the Town were to sell or vacate any of this kind of property where Xcel facilities are located, the Town will reserve an easement in favor of Xcel to allow its continued use of the property being conveyed. Should you have any questions or concerns before the Council meeting that you would like me to be prepared to address, please share them through Eric, Patty or Nina. I look forward to discussing these issues with you on August 13th. Ord 24-14 Adopting PSCO Franchise Agreement August 27, 2024 Page 1 of 3 ORDINANCE NO. 24-14 GRANTING A FRANCHISE BY THE TOWN OF AVON TO PUBLIC SERVICE COMPANY OF COLORADO FOR THE NON-EXCLUSIVE RIGHT TO PROVIDE, SELL, AND DELIVER GAS TO THE TOWN AND ITS RESIDENTS THROUGH THE NON-EXCLUSIVE REASONABLE USE OF TOWN STREETS, PUBLIC UTILITY EASEMENTS, AND OTHER TOWN PROPERTY WHEREAS, Public Service Company of Colorado (“Xcel”) provides gas service within the corporate boundaries of the Town of Avon (“Avon”) to persons, businesses, industries, and governmental agencies including Avon residents; and WHEREAS, the Company has filed an application with Avon requesting Avon grant a non- exclusive gas franchise to it; and WHEREAS, Chapter 17, Section 17.6 of the Avon’s Home Rule Charter provides that all franchises shall be granted only by ordinance; and WHEREAS, the Company and Avon have negotiated a Franchise Agreement (“Franchise Agreement”), a copy of which is attached hereto and incorporated herein by reference; and WHEREAS, the Franchise Agreement grants the Company a non-exclusive right to provide, sell, and deliver gas to Avon and its residents through the non-exclusive reasonable use of Avon’s streets, public utility easements, and other Town of Avon property as provided in the Franchise Agreement; and WHEREAS, the Avon Town Council (“Council”) finds that approval of the Franchise Agreement promotes the public health, safety and welfare. WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the 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 Council, or any member of the 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. ATTACHMENT B Ord 24-14 Adopting PSCO Franchise Agreement August 27, 2024 Page 2 of 3 Section 2. Approval of Franchise Agreement. Council hereby approves the Franchise Agreement, attached hereto as EXHIBIT A: FRANCHISE AGREEMENT and the Mayor is hereby authorized and directed to execute the attached Franchise Agreement and the Town Clerk shall attest to the Mayor’s signature. 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. 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. Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 6. 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 7. 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 24-14 Adopting PSCO Franchise Agreement August 27, 2024 Page 3 of 3 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING by the Avon Town Council on August 13, 2024 and setting such public hearing for August 27, 2024 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ___________________________________ Amy Phillips, Mayor Miguel Jauregui Casanueva, Town Clerk ADOPTED ON SECOND AND FINAL READING by the Avon Town Council on August 27, 2024. BY: ATTEST: ____________________________ ___________________________________ Amy Phillips, Mayor Miguel Jauregui Casanueva, Town Clerk APPROVED AS TO FORM: ____________________________ Nina Williams, Town Attorney Gas Franchise Agreement FRANCHISE AGREEMENT BETWEEN THE TOWN OF AVON, COLORADO AND PUBLIC SERVICE COMPANY OF COLORADO DEFINITIONS AND PRINCIPLES OF CONSTRUCTION ..................................1 GRANT OF FRANCHISE .......................................................................................4 TOWN POLICE POWERS ......................................................................................5 FRANCHISE FEE ....................................................................................................6 ADMINISTRATION OF FRANCHISE ..................................................................9 SUPPLY, CONSTRUCTION AND DESIGN .......................................................10 RELIABILITY........................................................................................................16 COMPANY PERFORMANCE OBLIGATIONS ..................................................16 BILLING AND PAYMENT ..................................................................................18 PURCHASE OR CONDEMNATION .................................................................19 TRANSFER OF FRANCHISE .............................................................................19 CONTINUATION OF UTILITY SERVICE .......................................................20 INDEMNIFICATION AND IMMUNITY ...........................................................20 BREACH ..............................................................................................................21 AMENDMENTS ..................................................................................................22 EQUAL OPPORTUNITY ....................................................................................22 MISCELLANEOUS .............................................................................................24 ATTACHMENT C i Town of Avon - PSCo Gas Franchise Agreement FINAL TABLE OF CONTENTS DEFINITIONS AND PRINCIPLES OF CONSTRUCTION ..........................................1 Section 1.1 Defined Terms. ................................................................................................1 Section 1.2 Singular/Plural. ................................................................................................4 Section 1.3 Mandatory/Permissive. ....................................................................................4 GRANT OF FRANCHISE ...............................................................................................4 Section 2.1 Grant of Franchise............................................................................................4 Section 2.2 Conditions and Limitations. .............................................................................5 Section 2.3 Effective Date and Term. .................................................................................5 TOWN POLICE POWERS ..............................................................................................5 Section 3.1 Police Powers. ..................................................................................................5 Section 3.2 Regulation of Streets and Other Town Property. .............................................6 Section 3.3 Compliance with Laws. ...................................................................................6 Section 3.4 Industry Standards. ..........................................................................................6 FRANCHISE FEE ............................................................................................................6 Section 4.1 Franchise Fee. ..................................................................................................6 Section 4.2 Remittance of Franchise Fee. ...........................................................................7 ADMINISTRATION OF FRANCHISE ..........................................................................9 Section 5.1 Town Designee. ...............................................................................................9 Section 5.2 Company Designee. .........................................................................................9 Section 5.3 Coordination of Work. .....................................................................................9 SUPPLY, CONSTRUCTION AND DESIGN ...............................................................10 Section 6.1 Purpose. ..........................................................................................................10 Section 6.2 Supply. ...........................................................................................................10 Section 6.3 Charges to the Town for Service to Town Facilities. ....................................10 Section 6.4 Restoration of Service. ...................................................................................10 Section 6.5 Obligations Regarding Company Facilities. ..................................................10 Section 6.6 As-Built Drawings. ........................................................................................12 Section 6.7 Excavation and Construction. ........................................................................12 Section 6.8 Restoration. ....................................................................................................13 Section 6.9 Relocation of Company Facilities. .................................................................13 Section 6.10 New or Modified Service Requested by Town. .............................................15 Section 6.11 Service to New Areas.....................................................................................15 Section 6.12 Town Not Required to Advance Funds. ........................................................15 Section 6.13 Technological Improvements.........................................................................16 RELIABILITY................................................................................................................16 Section 7.1 Reliability. ......................................................................................................16 Section 7.2 Franchise Performance Obligations. ..............................................................16 ii Town of Avon - PSCo Gas Franchise Agreement FINAL Section 7.3 Reliability Reports. ........................................................................................16 COMPANY PERFORMANCE OBLIGATIONS ..........................................................16 Section 8.1 New or Modified Service to Town Facilities. ................................................16 Section 8.2 Adjustments to Company Facilities. ..............................................................17 Section 8.3 Third Party Damage Recovery. ......................................................................17 BILLING AND PAYMENT ..........................................................................................18 Section 9.1 Billing for Utility Services. ............................................................................18 PURCHASE OR CONDEMNATION .........................................................................19 Section 10.1 Municipal Right to Purchase or Condemn. ....................................................19 TRANSFER OF FRANCHISE .....................................................................................19 Section 11.1 Consent of Town Required. ...........................................................................19 Section 11.2 Transfer Fee. ..................................................................................................19 CONTINUATION OF UTILITY SERVICE ...............................................................20 Section 12.1 Continuation of Utility Service. .....................................................................20 Section 12.2 Compensation. ...............................................................................................20 INDEMNIFICATION AND IMMUNITY ...................................................................20 Section 13.1 Town Held Harmless. ....................................................................................20 Section 13.2 Governmental Immunity Act. ........................................................................20 BREACH ......................................................................................................................21 Section 14.1 Change of Tariffs. ..........................................................................................21 Section 14.2 Breach. ...........................................................................................................21 AMENDMENTS ..........................................................................................................22 Section 15.1 Proposed Amendments. .................................................................................22 Section 15.2 Effective Amendments. ..................................................................................22 EQUAL OPPORTUNITY ............................................................................................22 Section 16.1 Economic Development. ................................................................................22 Section 16.2 Employment. ..................................................................................................23 Section 16.3 Contracting. ....................................................................................................23 Section 16.4 Coordination. .................................................................................................24 MISCELLANEOUS .....................................................................................................24 Section 17.1 No Waiver. .....................................................................................................24 Section 17.2 Successors and Assigns. .................................................................................24 Section 17.3 Third Parties. ..................................................................................................24 Section 17.4 Notice. ............................................................................................................24 Section 17.5 Examination of Records. ................................................................................25 Section 17.6 Confidential or Proprietary Information. .......................................................26 Section 17.7 List of Utility Property. ..................................................................................27 iii Town of Avon - PSCo Gas Franchise Agreement FINAL Section 17.8 PUC Filings. ...................................................................................................27 Section 17.9 Information. ...................................................................................................27 Section 17.10 Payment of Taxes and Fees. ...........................................................................27 Section 17.11 Conflict of Interest. ........................................................................................28 Section 17.12 Certificate of Public Convenience and Necessity. .........................................28 Section 17.13 Authority. .......................................................................................................28 Section 17.14 Severability. ...................................................................................................28 Section 17.15 Force Majeure. ...............................................................................................28 Section 17.16 Earlier Franchises Superseded. ......................................................................28 Section 17.17 Titles Not Controlling. ...................................................................................28 Section 17.18 Applicable Law. .............................................................................................28 Section 17.19 Payment of Expenses Incurred by Town in Relation to Franchise Agreement. ....................................................................................29 Section 17.20 Costs of Compliance with Franchise. ............................................................29 Section 17.21 Conveyance of Town Streets, Public Utility Easements or Other Town Property. ....................................................................................29 Section 17.22 Audit. .............................................................................................................29 Section 17.23 Land Use Coordination. .................................................................................29 Section 17.24 Counterpart Signature. ...................................................................................29 1 Town of Avon - PSCo Gas Franchise Agreement FINAL PUBLIC SERVICE COMPANY OF COLORADO AND THE TOWN OF AVON, COLORADO GAS FRANCHISE AGREEMENT DEFINITIONS AND PRINCIPLES OF CONSTRUCTION In addition to the capitalized terms defined elsewhere in this Franchise, the following capitalized words and phrases shall have the meanings set forth below. Words not defined in this Article 1 or elsewhere in this Franchise shall be given their common and ordinary meaning. “Town” means the Town of Avon, a municipal corporation of the State of Colorado. “Town Designee” has the meaning ascribed in Section 5.1. “Company” means Public Service Company of Colorado, a Colorado corporation, and an Xcel Energy company and its successors and assigns including affiliates or subsidiaries that undertake to perform any of the obligations under this Franchise. “Company Designee” has the meaning ascribed in Section 5.2. “Company Facilities” refer to all facilities of the Company which are reasonably necessary or desirable to provide gas service into, within and through the Town, including but not limited to plants, works, systems, substations, transmission and distribution structures and systems, lines, equipment, pipes, mains, conduit, transformers, underground lines, gas compressors, meters, meter reading devices, communication and data transfer equipment, control equipment, gas regulator stations, street lights, wire, cables and poles as well as all associated appurtenances. “Council” refers to and is the legislative body of the Town. “Effective Date” has the meaning ascribed in Section 2.3. “Franchise” or “Franchise Agreement” means this franchise agreement by and between the Town and Company. “Franchise Fee” has the meaning ascribed in Section 4.1(A). “Force Majeure Event” means the inability to undertake an obligation of this Franchise Agreement due to a cause, condition or event that could not be reasonably anticipated by a party, or is beyond a party’s reasonable control after exercise of best efforts to perform. Such cause, condition or event includes but is not limited to fire, strike, war, riots, terrorist acts, acts of governmental authority, acts of God, floods, pandemics, epidemics, quarantines, labor disputes, unavailability or shortages of materials or equipment or failures or delays in the 2 Town of Avon - PSCo Gas Franchise Agreement FINAL delivery of materials. Neither the Town nor the Company shall be in breach of this Franchise if a failure to perform any of the duties under this Franchise is due to a Force Majeure Event. “Gross Revenues” refers to those amounts of money the Company receives from the sale of gas within the Town under rates authorized by the Public Utilities Commission, as well as from the transportation of gas to its customers within the Town, as adjusted for refunds, net write-offs of uncollectible accounts, corrections, expense reimbursements or regulatory adjustments. Regulatory adjustments include, but are not limited to, credits, surcharges, refunds, and pro-forma adjustments pursuant to federal or state regulation. “Gross Revenues” shall exclude any revenues from the sale of gas to the Town or the transportation of gas to the Town. “Industry Standards” refers to standards developed by government agencies and generally recognized organizations that engage in the business of developing utility industry standards for materials, specifications, testing, construction, repair, maintenance, manufacturing, and other facets of the electric and gas utility industries. Such agencies and organizations include, but are not limited to the U.S. Department of Transportation, the Federal Energy Regulatory Commission (FERC), the North American Electric Reliability Corporation (NERC), the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Colorado Public Utilities Commission, the American National Standards Institute (ANSI), the American Society for Testing and Materials (ASTM), the Pipeline Research Council International, Inc. (PRCI), the American Society of Mechanical Engineers (ASME), the Institute of Electric and Electronic Engineers (IEEE), the Electric Power Research Institute (EPRI), the Gas Technology Institute (GTI), the National Fire Protection Association (NFPA), and specifically includes the National Electric Safety Code (NESC). “Open Space” refers to privately-owned property protected by real covenant, or publicly- owned property protected by covenant and/or designated by ordinance or resolution of the Town Council, which covenant or designation designates the property for use as one (1) or more of the following: a community buffer; a wildlife corridor and habitat area; a wetland; a view corridor; agricultural land; an area of archeological, historical, geologic or topographic significance; an area containing significant renewable and/or nonrenewable natural resources; and/or other undesignated, typically non-irrigated, undeveloped land uses. Open Space shall not include Parks. “Other Town Property” refers to the surface, the air space above the surface and the area below the surface of any property owned by the Town or directly controlled by the Town due to the Town’s real property interest in the same or hereafter owned by the Town, that would not otherwise fall under the definition of “Streets,” but which provides a suitable location for the placement of Company Facilities when specifically approved in writing by the Town. Other Town Property does not include Public Utility Easements. “Parks” refers to land area owned by the Town, either independently or with another governmental or quasi-governmental entity, that is developed and maintained for active or passive recreational use and is open for the general public’s use and enjoyment; which, by way 3 Town of Avon - PSCo Gas Franchise Agreement FINAL of example only, may include public playfields, courts, and other recreation facilities, or may include greenways, water features, picnic areas, or natural areas. “Private Project” refers to any project not included in the definition of Public Project. “Public Project” refers to (1) any public work or improvement within the Town that is wholly owned by the Town; or (2) any public work or improvement within the Town where at least fifty percent (50%) or more of the funding is provided by any combination of the Town, the federal government, the State of Colorado, or any Colorado county, but excluding all entities established under Title 32 of the Colorado Revised Statutes. “Public Utilities Commission” or “PUC” refers to the Public Utilities Commission of the State of Colorado or other state agency succeeding to the regulatory powers of the Public Utilities Commission. “Public Utility Easement” refers to any platted easement over, under, or above public or private property, expressly dedicated to, and accepted by, the Town for the use of public utility companies for the placement of utility facilities, including but not limited to Company Facilities. “Relocate” and “Relocation,” and any variation thereof, means a temporary or permanent change or alteration by the Company in the position of any Company Facilities. “Residents” refers to all persons, businesses, industries, governmental agencies, including the Town, and any other entity whatsoever presently located or to be hereinafter located, in whole or in part, within the territorial boundaries of the Town. “Streets” or “Town Streets” refers to the surface, the air space above the surface and the area below the surface of any Town-dedicated or Town-maintained streets, alleys, bridges, roads, lanes, access easements, and other public rights-of-way within the Town, which are primarily used for motorized vehicle traffic. Streets shall not include Public Utility Easements and Other Town Property. “Supporting Documentation” refers to all information reasonably required or needed in order to allow the Company to design and construct any work performed under the provisions of this Franchise. Supporting Documentation may include, but is not limited to, construction plans, a description of known environmental issues, the identification of critical right-of-way or easement issues, the final recorded plat for the property, the date the site will be ready for the Company to begin construction, the date gas service and meter set are needed, and the name and contact information for the Town’s project manager. “Tariffs” refer to those tariffs of the Company on file and in effect with the PUC or other governing jurisdiction, as amended from time to time. “Utility Service” refers to the sale of gas to Residents by the Company under Tariffs approved by the PUC, as well as the delivery of gas to Residents by the Company. 4 Town of Avon - PSCo Gas Franchise Agreement FINAL Unless the context otherwise requires, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural. The words “shall” and “will” are mandatory and the word “may” is permissive. GRANT OF FRANCHISE (A) Grant. The Town hereby grants to the Company, subject to all conditions, limitations, terms, and provisions contained in this Franchise, the non-exclusive right to make reasonable use of Town Streets, Public Utility Easements (as applicable) and Other Town Property: (1) to provide Utility Service to the Town and to its Residents under the Tariffs; and (2) to acquire, purchase, construct, install, locate, maintain, operate, upgrade and extend into, within and through the Town all Company Facilities reasonably necessary for the generation, production, manufacture, sale, storage, purchase, exchange, transportation, transmission and distribution of Utility Service within and through the Town. (B) New Company Facilities in Other Town Property, Excluding Parks and Open Space. For all Other Town Property that is not a Park or Open Space, the Town’s grant to the Company of the right to locate Company Facilities in, on, over or across such Other Town Property shall be subject to the Company’s already having or first receiving from the Town approval of the location of such Company Facilities, in the Town’s reasonable discretion; and the terms and conditions of the use of such Other Town Property shall be governed by this Franchise as may be reasonably supplemented to account for the unique nature of such Other Town Property. By way of illustration and example only, the Town may want to condition the use of Other Town Property that is a golf course upon the Company not constructing Company Facilities in fairways or greens or during peak golf season. Nothing in this Error! Reference source not found. shall modify or extinguish pre-existing Company property rights. Further, this paragraph shall not prohibit the Company from modifying, replacing or upgrading Company Facilities already located in Parks or Open Space in accordance with the terms and conditions of the Town license agreement, permit or other agreement that granted the Company the right to use such Other Town Property or, if there is no such license agreement, permit or other agreement, in accordance with this Franchise. (C) New Company Facilities in Other Town Property that are Parks or Open Space. The Town’s grant to the Company of the right to locate Company Facilities in, on, over 5 Town of Avon - PSCo Gas Franchise Agreement FINAL or across Other Town Property that is a Park or Open Space shall be subject to (i) the Company’s already having or first receiving from the Town a revocable license, permit or other agreement approving the location of such Company Facilities, which the Town may grant or deny in its sole discretion; and (ii) the terms and conditions of such revocable license agreement, permit or other written agreement. Nothing in this Section 2.1(C) shall modify or extinguish pre-existing Company property rights. Further, this paragraph shall not prohibit the Company from modifying, replacing or upgrading Company Facilities already located in Parks or Open Space in accordance with the terms and conditions of the Town license agreement, permit or other agreement that granted the Company the right to use such Parks or Open Space or, if there is no such license agreement, permit or other agreement, in accordance with this Franchise. (A)Scope of Franchise. The grant of this Franchise and the terms and conditions hereof shall extend to the jurisdictional boundaries of the Town as it is now or hereafter constituted that are within the Company’s PUC-certificated service territory; however, nothing contained in this Franchise shall be construed to authorize the Company to engage in activities other than the provision of Utility Service. (B)Subject to Town Usage. The Company’s right to make reasonable use of Town Streets and Other Town Property to provide Utility Service to the Town and its Residents under this Franchise is subject to and subordinate to any Town usage of said Streets and Other Town Property. (C)Prior Grants Not Revoked. This grant and Franchise is not intended to and does not revoke any prior license, grant, or right to use the Streets, Other Town Property or Public Utility Easements, and such licenses, grants or rights of use are hereby affirmed. (D)Franchise Not Exclusive. The rights granted by this Franchise are not, and shall not be deemed to be, granted exclusively to the Company, and the Town reserves the right to make or grant a franchise to any other person, firm, or corporation. This Franchise shall take effect on May 12, 2024 (the “Effective Date”) and shall supersede any prior franchise grants to the Company by the Town. This Franchise shall terminate on May 11, 2044, unless extended by mutual consent. TOWN POLICE POWERS The Company expressly acknowledges the Town’s right to adopt, from time to time, in addition to the provisions contained herein, such laws, including ordinances and regulations, as it may deem necessary in the exercise of its governmental powers. If the Town considers making any substantive changes in its local codes or regulations that in the Town’s reasonable opinion will significantly impact the Company’s operations in the Town’s Streets, Public Utility Easements and Other Town Property, it will make a good faith effort to 6 Town of Avon - PSCo Gas Franchise Agreement FINAL advise the Company of such consideration; provided, however, that lack of notice shall not be justification for the Company’s non-compliance with any applicable local requirements. The Company expressly acknowledges the Town’s right to enforce regulations concerning the Company’s access to or use of the Streets and/or Other Town Property. In addition, the Company acknowledges the Town’s right to require the Company to obtain permits for work in Streets, Other Town Property, and Public Utility Easements. The Company shall promptly and fully comply with all laws, regulations, permits and orders lawfully enacted by the Town. Nothing herein provided shall prevent the Company from legally challenging or appealing the enactment or applicability of any laws, regulations, permits and orders enacted by the Town. To the extent that the Company believes that any Town regulations, permits and orders are inconsistent with Industry Standards, the Town agrees to meet with the Company upon the Company’s written request for consideration of the matters at issue within a reasonable period of time. In enacting laws and regulations and issuing permits that affect the Company’s access to or use of the Streets, Other Town Property and Public Utility Easements, the Town agrees to make good faith efforts to make its regulations and permit conditions consistent with Industry Standards to the extent practicable, and the Company agrees to make good faith efforts to advise the Town of Industry Standards that affect the Company’s operations within the Town. Without limiting the Town’s police power in any way, the Town will take into consideration any input from the Company on new regulations and permit conditions that the Company believes unnecessarily increase its costs of operations within the Town. FRANCHISE FEE (A)Fee. In consideration for this Franchise Agreement, which provides the certain terms related to the Company’s use of Town Streets, Public Utility Easements and Other Town Property, which are valuable public properties acquired and maintained by the Town at the expense of its Residents, and in recognition of the fact that the grant to the Company of this Franchise is a valuable right, the Company shall pay the Town a sum equal to three percent (3%) of Gross Revenues (the “Franchise Fee”). To the extent required by law, the Company shall collect the Franchise Fee from a surcharge upon Town Residents who are customers of the Company. (B)Obligation in Lieu of Franchise Fee. In the event that the Franchise Fee specified herein is declared void for any reason by a court of competent jurisdiction, unless prohibited by law, the Company shall be obligated to pay the Town, at the same times and in the same manner as provided in this Franchise, an aggregate amount equal to the amount that the Company would have paid as a Franchise Fee as partial consideration for use of the Town Streets, Public Utility Easements and Other Town Property. Such payments shall 7 Town of Avon - PSCo Gas Franchise Agreement FINAL be made in accordance with applicable provisions of law. Further, to the extent required by law, the Company shall collect the amounts agreed upon through a surcharge upon Utility Service provided to Town Residents who are customers of the Company. (C)Changes in Utility Service Industries. The Town and the Company recognize that utility service industries are the subject of restructuring initiatives by legislative and regulatory authorities and are also experiencing other changes as a result of mergers, acquisitions, and reorganizations. Some of such initiatives and changes may have an adverse impact upon the Franchise Fee revenues provided for herein. In recognition of the length of the term of this Franchise, the Company agrees that in the event of any such initiatives or changes and to the extent permitted by law, upon receiving a written request from the Town, the Company will cooperate with and assist the Town in making reasonable modifications of this Franchise Agreement in an effort to provide that the Town receives an amount in Franchise Fees or some other form of compensation that is the same amount of Franchise Fees paid to the Town as of the date that such initiatives and changes adversely impact Franchise Fee revenues. (D)Utility Service Provided to the Town. No Franchise Fee shall be charged to the Town for Utility Service provided directly or indirectly to the Town for its own consumption unless otherwise directed by the Town in writing and in a manner consistent with Company policy. (A)Remittance Schedule. Franchise fee revenues shall be remitted by the Company to the Town as directed by the Town in monthly installments not more than thirty (30) days following the close of each calendar month. (B)Correction of Franchise Fee Payments. In the event that either the Town or the Company discovers that there has been an error in the calculation of the Franchise Fee payment to the Town, either party shall provide written notice of the error to the other party. Subject to the following sentence, if the party receiving written notice of the error does not agree with the written notice of error, that party may challenge the written notice of error pursuant to Section 4.2(D) of this Franchise; otherwise, the error shall be corrected in the next monthly payment. However, if the error results in an overpayment of the Franchise Fee to the Town, and said overpayment is in excess of Five Thousand Dollars ($5,000.00), correction of the overpayment by the Town shall take the form of a credit against future Franchise Fees and shall be spread over the same period the error was undiscovered or the Town shall make a refund payment to the Company. If such period would extend beyond the term of this Franchise, the Company may elect to require the Town to provide it with a refund instead of a credit, with such refund to be spread over the same period the error was undiscovered, even if the refund will be paid after the termination date of this Franchise. All Franchise Fee underpayments shall be corrected in the next monthly payment, together with interest computed at the rate set by the PUC for customer security deposits held by the Company, from the date when due until the date paid. Subject to the terms of the Tariffs, in no event shall either party be required to fund or refund any 8 Town of Avon - PSCo Gas Franchise Agreement FINAL overpayment or underpayment made as a result of a Company error which occurred more than five (5) years prior to the discovery of the error. (C)Audit of Franchise Fee Payments. (1)Company Audit. At the request of the Town, every three (3) years commencing at the end of the third calendar year of the Term of this Franchise, the Company shall conduct an internal audit, in accordance with the Company’s auditing principles and policies that are applicable to electric and gas utilities that are developed in accordance with the Institute of Internal Auditors, to investigate and determine the correctness of the Franchise Fees paid to the Town. Such audit shall be limited to the previous three (3) calendar years. The Company shall provide a written report to the Town Clerk summarizing the audit procedures followed along with any findings. (2)Town Audit. If the Town disagrees with the results of the Company’s audit, and if the parties are not able to informally resolve their differences, the Town may conduct its own audit at its own expense, in accordance with generally accepted auditing principles applicable to gas utilities that are developed in accordance with the Institute of Internal Auditors, and the Company shall cooperate by providing the Town’s auditor with non-confidential information that would be required to be disclosed under applicable state sales and use tax laws and applicable PUC rules and regulations. (3)Underpayments. If the results of a Town audit conducted pursuant to Section 4.2(C)(2) above concludes that the Company has underpaid the Town by two percent (2%) or more, in addition to the obligation to pay such amounts to the Town, the Company shall also pay all reasonable costs of the Town’s audit. The Company shall not be responsible for the costs of the Town’s audit when the underpayment is caused by errors from information provided by an entity certified by the Colorado Department of Revenue as a “hold harmless entity” or other similar entity recognized by the Department of Revenue. (D)Fee Disputes. Either party may challenge any written notification of error as provided for in Section 4.2(B) of this Franchise by filing a written notice to the other party within thirty (30) days of receipt of the written notification of error. The written notice shall contain a summary of the facts and reasons for the party’s notice. The parties shall make good faith efforts to resolve any such notice of error before initiating any formal legal proceedings for the resolution of such error. (E)Reports. To the extent allowed by law, upon written request by the Town, but not more than once per year, the Company shall supply the Town with a list of the names and addresses of registered natural gas suppliers and brokers of natural gas that utilize Company Facilities to sell or distribute natural gas within the Town. The Company shall not be required to disclose any confidential or proprietary information. 9 Town of Avon - PSCo Gas Franchise Agreement FINAL (F)Franchise Fee Payment Not in Lieu of Permit or Other Fees. Payment of the Franchise Fee by Company to Town does not exempt the Company from any other lawful tax or fee imposed generally upon persons doing business within the Town, except that the Franchise Fee provided for herein shall be in lieu of any occupation, occupancy or similar tax or fee for the Company’s use of Town Streets, Public Utility Easements or Other Town Property under the terms set forth in this Franchise. ADMINISTRATION OF FRANCHISE The Town Manager shall designate in writing to the Company an official or officials having full power and authority to administer this Franchise (whether one or more, the “Town Designee”). The Town Manager may also designate one or more Town representatives to act as the primary liaison with the Company as to particular matters addressed by this Franchise and shall provide the Company with the name(s) and telephone number(s) of said Town Designee. The Town Manager may change these designations by providing written notice to the Company. The Town’s Designee shall have the right, at all reasonable times and with reasonable notice to the Company, to inspect any Company Facilities in Town Streets and Other Town Property. If the Town Manager does not make such a designation, the Town Manager shall be considered the Town Designee. The Company shall designate a representative to act as the primary liaison with the Town and shall provide the Town with the name, address, and telephone number for the Company’s representative under this Franchise (“Company Designee”). The Company may change its designation by providing written notice to the Town. The Town shall use the Company Designee to communicate with the Company regarding Utility Service and related service needs for Town facilities. (A)Company and Town agree to coordinate their activities in Town Streets, Public Utility Easements and Other Town Property. The Town and the Company will meet annually upon the written request of the Town designee to exchange their respective short- term and long-term forecasts and/or work plans for construction and other similar work which may affect Town Streets, including but not limited to any planned Town Streets paving projects. The Town and Company shall hold such meetings as either deems necessary to exchange additional information with a view toward coordinating their respective activities in those areas where such coordination may prove beneficial and so that the Town will be assured that all applicable provisions of this Franchise, applicable building and zoning codes, and applicable Town air and water pollution regulations are complied with, and that aesthetic and other relevant planning principles have been given due consideration. (B)In addition to the foregoing meetings, the Company and the Town agree to use good faith efforts to provide notice to one another whenever (i) the Company initiates plans to significantly upgrade its infrastructure within the Town, including without limitation the 10 Town of Avon - PSCo Gas Franchise Agreement FINAL replacement of utility poles and overhead lines; and (ii) third-party applicants within the Town initiate private land uses and projects or the Town initiates a Public Project that requires significant upgrade to future gas and/or electric utility development by the Company, in order to allow for mutual Town and Company input and consultation for beneficial coordination of activities. SUPPLY, CONSTRUCTION AND DESIGN The Company acknowledges the critical nature of the municipal services performed or provided by the Town to the Residents that require the Company to provide prompt and reliable Utility Service and the performance of related services for Town facilities. The Town and the Company wish to provide for certain terms and conditions under which the Company will provide Utility Service and perform related services for the Town in order to facilitate and enhance the operation of Town facilities. They also wish to provide for other processes and procedures related to the provision of Utility Service to the Town. Subject to the jurisdiction of the PUC, the Company shall take all reasonable and necessary steps to provide a sufficient supply of gas to Residents at the lowest reasonable cost consistent with reliable supplies. No charges to the Town by the Company for Utility Service (other than gas transportation which shall be subject to negotiated contracts) shall exceed the lowest charge for similar service or supplies provided by the Company to any other similarly situated customer of the Company. The parties acknowledge the jurisdiction of the PUC over the Company’s regulated intrastate electric and gas rates. All charges to the Town shall be in accord with the Tariffs. (A)Notification. The Company shall provide to the Town daytime and nighttime telephone numbers of a Company Designee from whom the Town may obtain status information from the Company on a twenty-four (24) hour basis concerning interruptions of Utility Service in any part of the Town. (B)Restoration. In the event the Company’s gas system within the Town, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore such system to satisfactory service within the shortest practicable period of time, or provide a reasonable alternative to such system if the Company elects not to restore such system. (A)Company Facilities. All Company Facilities within Town Streets, Public Utility Easements and Other Town Property shall be maintained in good repair and condition. 11 Town of Avon - PSCo Gas Franchise Agreement FINAL (B)Company Work within the Town. All work within Town Streets and Other Town Property performed or caused to be performed by the Company shall be performed: (1)in a high-quality manner that is in accordance with Industry Standards; (2)in a timely and expeditious manner; (3)in a manner that reasonably minimizes inconvenience to the public; (4)in a cost-effective manner, which may include the use of qualified contractors; and (5)in accordance with all applicable Town laws, ordinances and regulations, unless the same are preempted by the Tariffs. (C)No Interference with Town Facilities. Company Facilities shall not unreasonably interfere with any Town facilities, including water facilities, sanitary or storm sewer facilities, communications facilities, or other Town uses of the Streets or Other Town Property. Company Facilities shall be installed and maintained in Town Streets and Other Town Property so as to reasonably minimize interference with other property, trees, and other improvements and natural features in and adjoining the Streets and Other Town Property in light of the Company’s obligation under Colorado law to provide safe and reliable utility facilities and services. (D)Permit and Inspection. The installation, renovation, and replacement of any Company Facilities in the Town Streets or Other Town Property by or on behalf of the Company shall be subject to permit, inspection and approval by the Town in accordance with applicable Town laws. Such permitting, inspection and approval may include, but shall not be limited to, the following matters: location of Company Facilities, cutting and pruning of trees and shrubs and disturbance of pavement, sidewalks and surfaces of Town Streets or Other Town Property; provided, however, the Company shall have the right to cut, prune, and/or remove vegetation in accordance with its standard vegetation management requirements and procedures. The Company agrees to cooperate with the Town in conducting inspections and shall promptly perform any remedial action lawfully required by the Town pursuant to any such inspection. (E)Compliance. Subject to the provisions of Section 3.3 above, the Company and all of its contractors shall comply with the requirements of applicable municipal laws, ordinances, regulations, permits, and standards lawfully adopted, including but not limited to requirements of all building and zoning codes, and requirements regarding curb and pavement cuts, excavating, digging, and other construction activities. The Company shall use commercially reasonable efforts to require that its contractors working in Town Streets and Other Town Property hold the necessary licenses and permits required by law. 12 Town of Avon - PSCo Gas Franchise Agreement FINAL (A)Within thirty (30) days after written request of the Town Designee, but no sooner than fourteen (14) days after project completion, the Company shall commence its internal process to permit the Company to provide, on a project by project basis, as-built drawings of any Company Facility installed within the Town Streets or contiguous to the Town Streets. The Company shall provide the requested documents no later than forty-five (45) days after it commences its internal process. (B)If the requested information must be limited or cannot be provided pursuant to regulatory requirements or Company data privacy policies, the Company shall promptly notify the Town of such restrictions. The Town acknowledges that the requested as-built drawings are confidential information of the Company and the Company asserts that disclosure to members of the public would be contrary to the public interest. Accordingly, the Town shall deny the right of inspection of the Company’s confidential information as set forth in C.R.S. § 24-72-204(3)(a)(IV), as may be amended from time to time (the “Open Records Act”). If an Open Records Act request is made by any third party as-built drawings that the Company has provided to the Town pursuant to this Franchise, the Town will immediately notify the Company of the request and shall allow the Company to defend such request at its sole expense, including filing a legal action in any court of competent jurisdiction to prevent disclosure of such information. In any such legal action the Company shall join the person requesting the information and the Town. In no circumstance shall the Town provide to any third-party as-built drawings provided by the Company pursuant to this Franchise without first conferring with the Company. Provided the Town complies with the terms of this Section, the Company shall defend, indemnify and hold the Town harmless from any claim, judgment, costs or attorney fees incurred in participating in such proceeding. (C)As used in this Section 6.6, “as-built drawings” refers to hard copies of the facility drawings as maintained in the Company’s business records and shall not include information maintained in the Company’s geographical information system. The Company shall not be required to create drawings or data that do not exist at the time of the request. Subject to Section 3.3, the Company shall be responsible for obtaining, paying for, and complying with all applicable permits, in the manner required by the laws, ordinances, and regulations of the Town. Although the Company shall be responsible for obtaining and complying with the terms of such permits when performing Relocations requested by the Town under Section 6.9 of this Franchise, the Town will not require the Company to pay the fees charged for such permits. Upon the Company submitting a construction design plan, the Town shall promptly and fully advise the Company in writing of all requirements for the restoration of Town Streets in advance of Company excavation projects in Town Streets, based upon the design submitted, if the Town’s restoration requirements are not addressed in publicly available standards. 13 Town of Avon - PSCo Gas Franchise Agreement FINAL (A)Subject to the provisions of Section 6.5(D), when the Company does any work in or affecting the Town Streets or Other Town Property, it shall, at its own expense, promptly remove any obstructions placed thereon or therein by the Company and restore the affected surface of such Town Streets or Other Town Property to a condition that is substantially the same as existed before the work, in accordance with applicable Town standards. (B)If weather or other conditions do not permit the complete restoration required by Section 6.8(A), the Company may with the approval of the Town, temporarily restore the affected Town Streets or Other Town Property, provided that such temporary restoration is not at the Town’s expense and provided further that the Company promptly undertakes and completes the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. (C)Upon the request of the Town, the Company shall restore the Streets or Other Town Property to a better condition than existed before the Company work was undertaken, provided that the Town shall be responsible for any incremental costs of such restoration not required by then-current Town standards, and provided the Town seeks and/or grants, as applicable, any additional required approvals. (D)If the Company fails to promptly restore the Town Streets or Other Town Property as required by this Section 6.8, and if, in the reasonable discretion of the Town, immediate action is required for the protection of public health, safety or welfare, the Town may restore such Streets or Other Town Property or remove the obstruction therefrom; provided however, Town actions do not interfere with Company Facilities. The Company shall be responsible for the actual cost incurred by the Town to restore such Town Streets or Other Town Property or to remove any obstructions therefrom. In the course of its restoration of Town Streets or Other Town Property under this Section 6.8, the Town shall not perform work on Company Facilities unless specifically authorized by the Company in writing on a project-by-project basis and subject to the terms and conditions agreed to in such authorization. (A)Relocation Obligation. The Company shall Relocate any Company Facility in Town Streets or in Other Town Property at no cost or expense to the Town whenever such Relocation is necessary for the completion of any Public Project. The Company shall Relocate any Company Facilities in a Public Utility Easement which is located in Town Streets or Other Town Property. In the case of Relocation that is necessary for the completion of any Public Project in a Public Utility Easement which is not located in Town Streets or Other Town Property, the Company shall not be responsible for any relocation costs. For all Relocations, the Company and the Town agree to cooperate on the location and Relocation of the Company Facilities in the Town Streets or Other Town Property in order to achieve Relocation in the most efficient and cost-effective manner possible. Notwithstanding the foregoing, once the Company has completed a Relocation of any 14 Town of Avon - PSCo Gas Franchise Agreement FINAL Company Facility at the Town’s direction, if the Town requests a Relocation of the same Company Facility within two (2) years, the subsequent Relocation shall not be at the Company’s expense. Nothing provided herein shall prevent the Company from recovering its Relocation costs and expenses from third-parties. (B)Private Projects. Subject to Section 6.9(F), the Company shall not be responsible for the expenses of any Relocation required by Private Projects, and the Company has the right to require the payment of estimated Relocation expenses from the party causing, or responsible for, the Relocation before undertaking the Relocation. (C)Relocation Performance. The Relocations set forth in Section 6.9(A) of this Franchise shall be completed within a reasonable time, not to exceed one hundred twenty (120) days from the later of the date on which the Town Designee requests, in writing, that the Relocation commence, or the date when the Company is provided all Supporting Documentation. The Company shall receive an extension of time to complete a Relocation where the Company’s performance was delayed due to Force Majeure or the failure of the Town to provide adequate Supporting Documentation. The Company has the burden of presenting evidence to reasonably demonstrate the basis for the delay. Upon written request of the Company, the Town may also grant the Company reasonable extensions of time for good cause shown and the Town shall not unreasonably withhold or condition any such extension. (D)Town Revision of Supporting Documentation. Any revision by the Town of Supporting Documentation provided to the Company that causes the Company to substantially redesign and/or change its plans regarding Company Facility Relocation shall be deemed good cause for a reasonable extension of time to complete the Relocation under this Franchise. (E)Completion. Each such Relocation shall be complete only when the Company actually Relocates the Company Facilities, restores the Relocation site in accordance with Section 6.9 of this Franchise or as otherwise agreed with the Town, and properly abandons on site all unused Company Facilities, equipment, material and other impediments, consistent with any permit issued by the Town for such Relocation. “Unused” for the purposes of this Franchise shall mean the Company is no longer using the Company Facilities in question and has no plans to use the Company Facilities in the foreseeable future. (F)Scope of Obligation. Notwithstanding anything to the contrary in this Franchise, the Company shall not be required to Relocate any Company Facilities from property (i) owned by the Company in fee; or (ii) in which the Company has a property right, grant or interest, including without limitation an easement but excluding Public Utility Easements, which are addressed in Section 6.9(A). (G)Coordination. 15 Town of Avon - PSCo Gas Franchise Agreement FINAL (1)When requested in writing by the Town designee or the Company, representatives of the Town and the Company shall meet to share information regarding anticipated projects which will require Relocation of Company Facilities in Town Streets and Other Town Property. Such meetings shall be for the purpose of minimizing conflicts where possible and to facilitate coordination with any reasonable timetable established by the Town for any Public Project. (2)The Town shall make reasonable best efforts to provide the Company with two (2) years advance notice of any planned Street repaving. The Company shall make reasonable best efforts to complete any necessary or anticipated repairs or upgrades to Company Facilities that are located underneath the Streets within the two-year period if practicable. (H)Proposed Alternatives or Modifications. Upon receipt of written notice of a required Relocation, the Company may propose an alternative to or modification of the Public Project requiring the Relocation in an effort to mitigate or avoid the impact of the required Relocation of Company Facilities. The Town shall in good faith review the proposed alternative or modification. The acceptance of the proposed alternative or modification shall be at the discretion of the Town. In the event the Town accepts the proposed alternative or modification, the Company agrees to promptly compensate the Town for all additional costs, expenses or delay that the Town reasonably determines resulted from the implementation of the proposed alternative. The conditions under which the Company shall install new or modified Utility Service to the Town as a customer shall be governed by this Franchise and the Company’s Tariffs. If the territorial boundaries of the Town are expanded during the term of this Franchise, the Company shall, to the extent permitted by law, extend service to Residents in the expanded area at the earliest practicable time if the expanded area is within the Company’s PUC-certificated service territory. Service to the expanded area shall be in accordance with the terms of the Tariffs and this Franchise, including the payment of Franchise Fees. Upon receipt of the Town’s authorization for billing and construction, the Company shall install Company Facilities to provide Utility Service to the Town as a customer, without requiring the Town to advance funds prior to construction. The Town shall pay for the installation of Company Facilities once completed in accordance with the Tariffs. Notwithstanding anything to the contrary, the provisions of this Section to allow the Town to not advance funds prior to construction shall apply unless prohibited by PUC rules or the Tariffs. The parties agree that as of the date of execution of this Agreement, Company Gas Tariff Sheets R36 and 39 governs the terms of installation of Company Facilities for the Town and allows installation of Company Facilities without the Town advancing funds prior to construction. 16 Town of Avon - PSCo Gas Franchise Agreement FINAL The Company shall use its best efforts to incorporate, as soon as practicable, technological advances in its equipment and service within the Town when such advances are technically and economically feasible and are safe and beneficial to the Town and its Residents. RELIABILITY The Company shall operate and maintain Company Facilities efficiently and economically, in accordance with Industry Standards, and in accordance with the standards, systems, methods and skills consistent with the provision of adequate, safe and reliable Utility Service. The Company recognizes that, as part of its obligations and commitments under this Franchise, the Company shall carry out each of its performance obligations in a timely, expeditious, efficient, economical and workmanlike manner. Upon written request, the Company shall provide the Town with a report regarding the reliability of Company Facilities and Utility Service. COMPANY PERFORMANCE OBLIGATIONS In providing new or modified Utility Service to Town facilities, the Company agrees to perform as follows: (A)Performance. The Company shall complete each project requested by the Town within a reasonable time. Where the Company’s performance obligations are governed by Tariff, the parties agree that a reasonable time shall not exceed one hundred eighty (180) days from the date upon which the Town designee makes a written request and provides the required Supporting Documentation for all Company Facilities, including a copy to the Area Manager as designated in Section 17.4 below. Provided that the Town provides the Company’s designated representative with a copy of the Supporting Documentation, the Company shall notify the Town within twenty (20) days of receipt of the request if the Supporting Documentation is sufficient to complete the project. The Company shall be entitled to an extension of time to complete a project where the Company’s performance was delayed due to Force Majeure. Upon request of the Company, the Town Designee may also grant the Company reasonable extensions of time for good cause shown and the Town shall not unreasonably withhold any such extension. (B)Town Revision of Supporting Documentation. Any revision by the Town of Supporting Documentation provided to the Company that causes the Company to substantially redesign and/or substantially change its plans regarding new or modified service to Town facilities shall be deemed good cause for a reasonable extension of time to complete the Relocation under this Franchise. 17 Town of Avon - PSCo Gas Franchise Agreement FINAL (C)Completion/Restoration. Each such project shall be complete only when the Company actually provides the service installation or modification required, restores the project site in accordance with the terms of this Franchise or as otherwise agreed with the Town and properly abandons on site any unused Company Facilities, equipment, material and other impediments. The Company shall perform adjustments to Company Facilities that are consistent with Industry Standards, including manhole rings and other appurtenances in Streets and Other Town Property, to accommodate Town Street maintenance, repair and paving operations at no cost to the Town. In providing such adjustments to Company Facilities, the Company agrees to perform as follows: (A)Performance. The Company shall complete each requested adjustment within a reasonable time, not to exceed thirty (30) days from the date upon which the Town makes a written request and provides to the Company all information reasonably necessary to perform the adjustment. The Company shall be entitled to an extension of time to complete an adjustment where the Company’s performance was delayed due to a Force Majeure Event. Upon request of the Company, the Town may also grant the Company reasonable extensions of time for good cause shown and the Town shall not unreasonably withhold any such extension. (B)Completion/Restoration. Each such adjustment shall be complete only when the Company actually adjusts and, if required, readjusts, Company Facilities to accommodate Town operations in accordance with Town instructions following Town paving operations. (C)Coordination. As requested by the Town or the Company, representatives of the Town and the Company shall meet regarding anticipated Street maintenance operations which will require such adjustments to Company Facilities in Streets or Other Town Property. Such meetings shall be for the purpose of coordinating and facilitating performance under this Section. (A)Damage to Company Facilities. If any individual or entity damages any Company Facilities, to the extent permitted by law the Town will notify the Company of any such incident of which it has knowledge and will provide to the Company within a reasonable time all pertinent information within its possession regarding the incident and the damage, including the identity of the responsible individual or entity. (B)Damage to Company Facilities for which the Town is Responsible. If any individual or entity damages any Company Facilities for which the Town is obligated to reimburse the Company for the cost of the repair or replacement, to the extent permitted by law, the Company will notify the Town of any such incident of which it has knowledge and will provide to the Town within a reasonable time all pertinent information within its possession regarding the incident and the damage, including the identity of the responsible individual or entity. 18 Town of Avon - PSCo Gas Franchise Agreement FINAL (C)Meeting. The Company and the Town agree to meet periodically upon written request of either party for the purpose of developing, implementing, reviewing, improving and/or modifying mutually beneficial procedures and methods for the efficient gathering and transmittal of information useful in recovery efforts against third-parties for damaging Company Facilities. BILLING AND PAYMENT (A)Monthly Billing. Unless otherwise provided in the Tariffs, the rules and regulations of the PUC, or the Public Utility Law, the Company shall render bills monthly to the offices of the Town for Utility Service and other related services for which the Company is entitled to payment. (B)Address for Billing. Billings for service rendered during the preceding month shall be sent to the person(s) designated by the Town and payment for same shall be made as prescribed in this Franchise and the applicable Tariffs. (C)Supporting Documents. To the extent requested by the Town, the Company shall provide all billings and any underlying Supporting Documentation reasonably requested by the Town in an editable and manipulatable electronic format that is acceptable to the Company and the Town. (D)Annual Meetings. The Company agrees to meet with the Town Designee on a reasonable basis at the Town’s request, but no more frequently than once a year, for the purpose of developing, implementing, reviewing, and/or modifying mutually beneficial and acceptable billing procedures, methods, and formats which may include, without limitation, electronic billing and upgrades or beneficial alternatives to the Company’s current most advanced billing technology, for the efficient and cost effective rendering and processing of such billings submitted by the Company to the Town. (E)Payment to Town. In the event the Town determines after written notice to the Company that the Company is liable to the Town for payments, costs, expenses or damages of any nature, and subject to the Company’s right to challenge such determination, the Town may deduct all monies due and owing the Town from any other amounts currently due and owing the Company. Upon receipt of such written notice, the Company may request a meeting between the Company’s designee and a designee of the Town to discuss such determination. The Town agrees to attend such a meeting. As an alternative to such deduction and subject to the Company’s right to challenge, the Town may bill the Company for such assessment(s), in which case, the Company shall pay each such bill within thirty (30) days of the date of receipt of such bill unless it challenges the validity of the charge. If the Company challenges the Town determination of liability, the Town shall make such payments to the Company for Utility Service received by Town pursuant to the Tariffs until the challenge has been finally resolved. 19 Town of Avon - PSCo Gas Franchise Agreement FINAL PURCHASE OR CONDEMNATION (A)Right and Privilege of Town. The right and privilege of the Town to construct, own and operate a municipal utility, and to purchase pursuant to a mutually acceptable agreement or condemn any Company Facilities located within the territorial boundaries of the Town, and the Company’s rights in connection therewith, as set forth in applicable provisions of the constitution, statutes and case law of the State of Colorado relating to the acquisition of public utilities, are expressly recognized. The Town shall have the right, within the time frames and in accordance with the procedures set forth in such provisions, to condemn Company Facilities, land, rights-of-way and easements now owned or to be owned by the Company located within the territorial boundaries of the Town. In the event of any such condemnation, no value shall be ascribed or given to the right to use Town Streets or Other Town Property granted under this Franchise in the valuation of the property thus sold. (B)Notice of Intent to Purchase or Condemn. The Town shall provide the Company no less than one (1) year’s prior written notice of its intent to purchase or condemn Company Facilities. Nothing in this Section 10.1 shall be deemed or construed to constitute a consent by the Company to the Town’s purchase or condemnation of Company Facilities, nor a waiver of any Company defenses or challenges related thereto. TRANSFER OF FRANCHISE The Company shall not transfer or assign any rights under this Franchise to an unaffiliated third party, except by merger with such third party, or, except when the transfer is made in response to legislation or regulatory requirements, unless the Town approves such transfer or assignment in writing. The Town may impose reasonable conditions upon the transfer, but approval of the transfer or assignment shall not be unreasonably withheld, conditioned or delayed. In order that the Town may share in the value this Franchise adds to the Company’s operations, any transfer or assignment of rights granted under this Franchise requiring Town approval, as set forth herein, shall be subject to the condition that the Company shall promptly pay to the Town a transfer fee in an amount equal to the proportion of the Town’s then-population provided Utility Service by the Company to the then-population of the City and County of Denver provided Utility Service by the Company multiplied by one million dollars ($1,000,000.00). Except as otherwise required by law, such transfer fee shall not be recovered from a surcharge placed only on the rates of Residents. 20 Town of Avon - PSCo Gas Franchise Agreement FINAL CONTINUATION OF UTILITY SERVICE In the event this Franchise is not renewed at the expiration of its term or is terminated for any reason, and the Town has not provided for alternative utility service, the Company shall have no obligation to remove any Company Facilities from Streets, Public Utility Easements or Other Town Property or discontinue providing Utility Service unless otherwise ordered by the PUC, and shall continue to provide Utility Service within the Town until the Town arranges for utility service from another provider. The Town acknowledges and agrees that the Company has the right to use Streets, Other Town Property and Public Utility Easements during any such period. The Company further agrees that it will not withhold any temporary Utility Services necessary to protect the public. The Town agrees that in the circumstances of this Article 12, the Company shall be entitled to monetary compensation as provided in the Tariffs and the Company shall be entitled to collect from Residents and, upon the Town’s compliance with applicable provisions of law, shall be obligated to pay the Town, at the same times and in the same manner as provided in this Franchise, an aggregate amount equal to the amount which the Company would have paid as a Franchise Fee as consideration for use of the Town’s Streets and Other Town Property. Only upon receipt of written notice from the Town stating that the Town has adequate alternative utility service for Residents and upon order of the PUC shall the Company be allowed to discontinue the provision of Utility Service to the Town and its Residents. INDEMNIFICATION AND IMMUNITY The Company shall indemnify, defend and hold the Town harmless from and against claims, demands, liens and all liability or damage of whatsoever kind on account of or directly arising from the grant of this Franchise, the exercise by the Company of the related rights, but in both instances only to the extent caused by the Company, and shall pay the costs of defense plus reasonable attorneys’ fees. The Town shall (a) give prompt written notice to the Company of any claim, demand or lien with respect to which the Town seeks indemnification hereunder; and, (b) unless in the Town’s judgment a conflict of interest may exist between the Town and the Company with respect to such claim, demand or lien, shall permit the Company to assume the defense of such claim, demand, or lien with counsel reasonably satisfactory to the Town. If such defense is assumed by the Company, the Company shall not be subject to liability for any settlement made without its consent. If such defense is not assumed by the Company or if the Town determines that a conflict of interest exists, the parties reserve all rights to seek all remedies available in this Franchise against each other. Notwithstanding any provision hereof to the contrary, the Company shall not be obligated to indemnify, defend or hold the Town harmless to the extent any claim, demand or lien arises out of or in connection with any negligent or intentional act or failure to act of the Town or any of its officers, agents or employees or to the extent that the Town is acting in its capacity as a customer of record of the Company. Nothing in this Article 13 or any other provision of this Franchise shall be construed as a waiver of the notice requirements, defenses, 21 Town of Avon - PSCo Gas Franchise Agreement FINAL immunities and limitations the Town may have under the Colorado Governmental Immunity Act (C.R.S. § 24-10-101, et. seq.) or of any other defenses, immunities, or limitations of liability available to the Town by law. BREACH The Town and the Company agree to take all reasonable and necessary actions to assure that the terms of this Franchise are performed. The Company reserves the right to seek a change in its Tariffs, including but not limited to the rates, charges, terms, and conditions of providing Utility Service to the Town and its Residents, and the Town retains all rights that it may have to intervene and participate in any such proceedings. (A)Notice/Cure/Remedies. Except as otherwise provided in this Franchise, if a party (the “Breaching Party”) to this Franchise fails or refuses to perform any of the terms or conditions of this Franchise (a “Breach”), the other party (the “Non-Breaching Party”) may provide written notice to the Breaching Party of such Breach. Upon receipt of such notice, the Breaching Party shall be given a reasonable time, not to exceed thirty (30) days, in which to remedy the Breach or, if such Breach cannot be remedied in thirty (30) days, such additional time as reasonably needed to remedy the Breach, but not exceeding an additional thirty (30) day period, or such other time as the parties may agree. If the Breaching Party does not remedy the Breach within the time allowed in the notice, the Non-Breaching Party may exercise the following remedies for such Breach: (1)specific performance of the applicable term or condition to the extent allowed by law; and (2)recovery of actual damages from the date of such Breach incurred by the Non- Breaching Party in connection with the Breach, but excluding any special, punitive or consequential damages. (B)Termination of Franchise by Town. In addition to the foregoing remedies, if the Company fails or refuses to perform any material term or condition of this Franchise (a “Material Breach”), the Town may provide written notice to the Company of such Material Breach. Upon receipt of such notice, the Company shall be given a reasonable time, not to exceed sixty (60) days in which to remedy the Material Breach or, if such Material Breach cannot be remedied in sixty (60) days, such additional time as reasonably needed to remedy the Material Breach, but not exceeding an additional sixty (60) day period, or such other time as the parties may agree. If the Company does not remedy the Material Breach within the time allowed in the notice, the Town may, in its sole discretion, terminate this Franchise. This remedy shall be in addition to the Town’s right to exercise any of the remedies provided for elsewhere in this Franchise. In the event of the termination of this Franchise by the Town pursuant to this Section 14.2(B), the Company 22 Town of Avon - PSCo Gas Franchise Agreement FINAL shall continue to provide Utility Service to the Town and its Residents in accordance with Article 12 above. (C)Company Shall Not Terminate Franchise. In no event does the Company have the right to terminate this Franchise. (D)No Limitation. Except as provided herein, nothing in this Franchise shall limit or restrict any legal rights or remedies that either party may possess arising from any alleged Breach of this Franchise. AMENDMENTS At any time during the term of this Franchise, the Town or the Company may propose amendments to this Franchise by giving thirty (30) days written notice to the other of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, will, within a reasonable time, negotiate in good faith in an effort to agree upon mutually satisfactory amendment(s). However, nothing contained in this Section shall be deemed to require either party to consent to any amendment proposed by the other party. No alterations, amendments or modifications to this Franchise shall be valid unless executed in writing by the parties, which alterations, amendments or modifications shall be adopted with the same formality used in adopting this Franchise, to the extent required by law. Neither this Franchise, nor any term herein, may be changed, modified or abandoned, in whole or in part, except by an instrument in writing, and no subsequent oral agreement shall have any validity whatsoever. Any amendment of the Franchise shall become effective only upon the approval of the PUC, if such PUC approval is required. EQUAL OPPORTUNITY The Company is committed to the principle of stimulating, cultivating and strengthening the participation and representation of persons of color, women and members of other under-represented groups within the Company and in the local business community. The Company believes that increased participation and representation of under-represented groups will lead to mutual and sustainable benefits for the local economy. The Company is committed also to the principle that the success and economic well-being of the Company is closely tied to the economic strength and vitality of the diverse communities and people it serves. The Company believes that contributing to the development of a viable and sustainable economic base among all Company customers is in the best interests of the Company and its shareholders. 23 Town of Avon - PSCo Gas Franchise Agreement FINAL (A)Programs. The Company is committed to undertaking programs that identify, consider and develop persons of color, women and members of other under-represented groups for positions at all skill and management levels within the Company. (B)Businesses. The Company recognizes that the Town and the business community in the Town, including women and minority owned businesses, provide a valuable resource in assisting the Company to develop programs to promote persons of color, women and members of under-represented communities into management positions, and agrees to keep the Town regularly advised of the Company’s progress by providing the Town a copy of the Company’s annual affirmative action report upon the Town’s written request. (C)Recruitment. In order to enhance the diversity of the employees of the Company, the Company is committed to recruiting diverse employees by strategies such as partnering with colleges, universities and technical schools with diverse student populations, utilizing diversity-specific media to advertise employment opportunities, internships, and engaging recruiting firms with diversity-specific expertise. (D)Advancement. The Company is committed to developing a world-class workforce through the advancement of its employees, including persons of color, women and members of under-represented groups. In order to enhance opportunities for advancement, the Company will offer training and development opportunities for its employees. Such programs may include mentoring programs, training programs, classroom training and leadership programs. (E)Non-Discrimination. The Company is committed to a workplace free of discrimination based on race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability or any other protected status in accordance with all federal, state or local laws. The Company shall not, solely because of race, creed, color, religion, gender, sexual orientation, marital status, age, military status, national origin, ancestry, or physical or mental disability, refuse to hire, discharge, promote, demote or discriminate in matters of compensation, against any person otherwise qualified. (F)Board of Directors. The Company shall identify and consider women, persons of color and other under-represented groups to recommend for its Board of Directors, consistent with the responsibility of boards to represent the interests of the Shareholders, customers and employees of the Company. (A)Contracts. It is the Company’s policy to make available to minority and women owned business enterprises and other small and/or disadvantaged business enterprises the maximum practical opportunity to compete with other service providers, contractors, vendors and suppliers in the marketplace. The Company is committed to increasing the 24 Town of Avon - PSCo Gas Franchise Agreement FINAL proportion of Company contracts awarded to minority and women owned business enterprises and other small and/or disadvantaged business enterprises for services, construction, equipment and supplies to the maximum extent consistent with the efficient and economical operation of the Company. (B)Community Outreach. The Company agrees to maintain and continuously develop contracting and community outreach programs calculated to enhance opportunity and increase the participation of minority and women owned business enterprises and other small and/or disadvantaged business enterprises to encourage economic vitality. The Company agrees to keep the Town regularly advised of the Company’s programs. (C)Community Development. The Company shall maintain and support partnerships with local chambers of commerce and business organizations, including those representing predominately minority owned, women owned and disadvantaged businesses, to preserve and strengthen open communication channels and enhance opportunities for minority owned, women owned and disadvantaged businesses to contract with the Company. Town agencies provide collaborative leadership and mutual opportunities or programs relating to Town based initiatives on economic development, employment and contracting opportunity. The Company agrees to review Company programs and mutual opportunities responsive to this Article with these agencies, upon their request, and to collaborate on best practices regarding such programs and coordinate and cooperate with the agencies in program implementation. MISCELLANEOUS Neither the Town nor the Company shall be excused from complying with any of the terms and conditions of this Franchise by any failure of the other, or any of its officers, employees, or agents, upon any one or more occasions, to insist upon or to seek compliance with any such terms and conditions. The rights, privileges, and obligations, in whole or in part, granted and contained in this Franchise shall inure to the benefit of and be binding upon the Company, its successors and assigns, to the extent that such successors or assigns have succeeded to or been assigned the rights of the Company pursuant to Article 11 of this Franchise. Upon a transfer or assignment pursuant to Article 11, the Company shall be relieved from all liability from and after the date of such transfer, except as otherwise provided in the conditions imposed by the Town in authorizing the transfer or assignment and under state and federal law. Nothing contained in this Franchise shall be construed to provide rights to third parties. Both parties shall designate from time to time in writing representatives for the Company and the Town who will be the persons to whom notices shall be sent regarding any action to be taken under this Franchise. Notice shall be in writing and forwarded 25 Town of Avon - PSCo Gas Franchise Agreement FINAL by certified mail, reputable overnight courier 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, delivered in person or by certified mail. Notice shall be deemed received (a) three (3) days after being mailed via the U.S. Postal Service, (b) one (1) business day after mailed if via reputable overnight courier, or (c) upon hand delivery if delivered by courier. Until any such change shall hereafter be made, notices shall be sent as follows: To the Town: Town Manager Town of Avon 100 Mikaela Way P.O. Box 975 Avon, CO 81620 With a copy to: Town Attorney Town of Avon 100 Mikaela Way P.O. Box 975 Avon, CO 81620 To the Company: Director, Community Relations Public Service Company of Colorado P.O. Box 840 Denver, Colorado 80201 With a copy to: Legal Department Public Service Company of Colorado P.O. Box 840 Denver, Colorado 80201 and Area Manager Public Service Company of Colorado P.O. Box 840 Denver, Colorado 80201 Any request involving any audit specifically allowed under this Franchise shall also be sent to: Audit Services Public Service Company of Colorado P.O. Box 840 Denver, Colorado 80201 (A)The parties agree that any duly authorized representative of the Town and the Company shall have access to and the right to examine any directly pertinent non- 26 Town of Avon - PSCo Gas Franchise Agreement FINAL confidential books, documents, papers, and records of the other party involving any activities related to this Franchise. All such records must be kept for a minimum of the lesser of three (3) years or the time period permitted by a party’s record retention policy. To the extent that either party believes in good faith that it is necessary in order to monitor compliance with the terms of this Franchise to examine confidential books, documents, papers, and records of the other party, the parties agree to meet and discuss providing confidential materials, including without limitation providing such materials subject to a reasonable confidentiality agreement that effectively protects the confidentiality of such materials and complies with PUC rules and regulations. (B)With respect to any information requested by the Town which the Company identifies as “Confidential” or “Proprietary”: (1)The Town will maintain the confidentiality of the information by keeping it under seal and segregated from information and documents that are available to the public; (2)The information will be used solely for the purposes stated in the Town’s request; (3)The information shall only be made available to Town employees and consultants who represent in writing that they agree to be bound by the provisions of this subsection; and (4)The information shall be held by the Town for such time as is reasonably necessary for the Town to address the Franchise issue(s) that generated the request and shall be returned to the Company when the Town has concluded its use of the information. The parties agree that in most cases, the information should be returned within one hundred twenty (120) days. However, in the event that the information is needed in connection with any action that requires more time, including, but not necessarily limited to litigation, administrative proceedings and/or other disputes, the Town may maintain the information until such issues are fully and finally concluded. If an Open Records Act (C.R.S. § 24-72-201 et seq.) request is made by any third-party for confidential or proprietary information that the Company has provided to the Town pursuant to this Franchise, the Town will promptly notify the Company of the request and shall allow the Company to defend such request at its sole expense, including filing a legal action in any court of competent jurisdiction to prevent disclosure of such information. In any such legal action the Company shall join the person requesting the information and the Town. In no circumstance shall the Town provide to any third-party confidential information provided by the Company pursuant to this Franchise without first conferring with the Company. Provided the Town complies with the terms of this Section, the Company shall defend, indemnify and hold the Town harmless from any claim, judgment, costs or attorney fees incurred in participating in such proceeding. Unless otherwise agreed between the parties, the following information shall not be provided by the Company: confidential 27 Town of Avon - PSCo Gas Franchise Agreement FINAL employment matters, specific information regarding any of the Company’s customers, information related to the compromise and settlement of disputed claims including but not limited to PUC dockets, information provided to the Company which is declared by the provider to be confidential and which would be considered confidential to the provider under applicable law. Upon written request by the Town, but in no event more than once every two (2) years, the Company shall provide the Town a list of gas utility- related real property owned in fee by the Company within the County in which the Town is located. The list shall include the legal description of the real property, and where available on the deed, the physical street address. If the physical address is not available on the deed, if the Town requests the physical address of the real property described in this Section 17.7, to the extent that such physical street address is readily available to the Company, the Company shall provide such address to the Town. All such records must be kept for a minimum of three (3) years or such shorter duration if required by Company policy. Upon written request by the Town, the Company shall provide the Town non-confidential copies of all applications, advice letters and periodic reports, together with any accompanying non-confidential testimony and exhibits, filed by the Company with the Public Utilities Commission. Notwithstanding the foregoing, notice regarding any gas and electric filings that may affect Utility Service rates in the Town shall be sent to the Town upon filing. Upon written request, the Company shall provide the Town Clerk or the Town Clerk’s designee with: (A)A copy of the Company’s or its parent company’s consolidated annual financial report, or alternatively, a URL link to a location where the same information is available on the Company’s website; (B)Maps or schematics indicating the location of specific Company Facilities (subject to Town executing a confidentiality agreement as required by Company policy), including gas or electric lines, located within the Town, to the extent those maps or schematics are in existence at the time of the request and related to an ongoing project within the Town. The Company does not represent or warrant the accuracy of any such maps or schematics; and (C)A copy of any report required to be prepared for a federal or state agency detailing the Company’s efforts to comply with federal and state air and water pollution laws. (A)Impositions. Except as otherwise provided herein, the Company shall pay and discharge as they become due, promptly and before delinquency, all taxes, assessments, rates, charges, license fees, municipal liens, levies, excises, or imposts, whether general or special, or ordinary or extraordinary, of every name, nature, and kind whatsoever, including all governmental charges of whatsoever name, nature, or kind, which may be levied, 28 Town of Avon - PSCo Gas Franchise Agreement FINAL assessed, charged, or imposed, or which may become a lien or charge against this Franchise (“Impositions”), provided that the Company shall have the right to contest any such Impositions and shall not be in breach of this Section so long as it is actively contesting such Impositions. (B)Town Liability. The Town shall not be liable for the payment of late charges, interest or penalties of any nature other than pursuant to applicable Tariffs. The parties agree that no official, officer or employee of the Town shall have any personal or beneficial interest whatsoever in the services or property described herein and the Company further agrees not to hire or contract for services any official, officer or employee of the Town to the extent prohibited by law, including ordinances and regulations of the Town. The Town agrees to support the Company’s application to the PUC to obtain a Certificate of Public Convenience and Necessity to exercise its rights and obligations under this Franchise. Each party represents and warrants that except as set forth below, it has taken all actions that are necessary or that are required by its ordinances, regulations, procedures, bylaws, or applicable law, to legally authorize the undersigned signatories to execute this Franchise on behalf of the parties and to bind the parties to its terms. The persons executing this Franchise on behalf of each of the parties warrant that they have full authorization to execute this Franchise. The Town acknowledges that notwithstanding the foregoing, the Company requires a Certificate of Public Convenience and Necessity from the PUC in order to operate under the terms of this Franchise. Should any one or more provisions of this Franchise be determined to be unconstitutional, illegal, unenforceable or otherwise void, all other provisions nevertheless shall remain effective; provided, however, to the extent allowed by law, the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft one or more substitute provisions that will achieve the original intent of the parties hereunder. Neither the Town nor the Company shall be in breach of this Franchise if a failure to perform any of the duties under this Franchise is due to a Force Majeure Event, as defined herein. This Franchise shall constitute the only franchise between the Town and the Company related to the furnishing of Utility Service, and it supersedes and cancels all former franchises between the parties hereto. Titles of the paragraphs herein are for reference only and shall not be used to construe the language of this Franchise. Colorado law shall apply to the construction and enforcement of this Franchise. The parties agree that venue for any litigation arising out of this Franchise shall be in the District Court for Eagle County, State of Colorado. 29 Town of Avon - PSCo Gas Franchise Agreement FINAL The Company shall pay for expenses reasonably incurred by the Town for the adoption of this Franchise, limited to the publication of notices, publication of ordinances, and photocopying of documents and other similar expenses. The parties acknowledge that PUC rules, regulations and final decisions may require that costs of complying with certain provisions of this Franchise be borne by customers of the Company who are located within the Town. In the event the Town vacates, releases, sells, conveys, transfers or otherwise disposes of a Town Street, or any portion of a Public Utility Easement or Other Town Property in which Company Facilities are located, the Town shall reserve an easement in favor of the Company over that portion of the Street, Public Utility Easement or Other Town Property in which such Company Facilities are located. The Company and the Town shall work together to prepare the necessary legal description to effectuate such reservation. For the purposes of Section 6.9(A) of this Franchise, the land vacated, released, sold, conveyed, transferred or otherwise disposed of by the Town shall no longer be deemed to be a Street or Other Town Property from which the Town may demand the Company temporarily or permanently Relocate Company Facilities at the Company’s expense. For any audits specifically allowed under this Franchise, such audits shall be subject to the Tariff and PUC rules and regulations. Audits in which the auditor is compensated on the basis of a contingency fee arrangement shall not be permitted. The Town shall coordinate with the Company regarding its land use planning. This coordination shall include meeting with the Company and identifying areas for future utility development. This Franchise may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Franchise, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures of the parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals. (Signature page follows.) IN WITNESS WHEREOF, the parties have caused this Franchise to be executed as of the dates indicated below, effective as of the Effective Date. ATTEST: Clerk, Town of Avon TOWN OF AVON Mayor, Town of Avon APPROVED AS TO FORM: (if applicable) Town Attorney, Town of Avon Date: , 2024 PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation By: Robert Kenney, President STATE OF COLORADO ) )ss. COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this day of , 20 by Robert Kenney, President, Public Service Company of Colorado, a Colorado corporation. WITNESS MY HAND AND OFFICIAL SEAL. Notary Public My Commission expires: _______________. (SEAL) TOWN OF AVON, COLORADO ORDINANCE NO. 04-06 SERIES 2004 AN ORDINANCE OF THE TOWN OF AVON, EAGLE COUNTY, COLORADO, GRANTING BY FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT TO USE THE STREETS WITHIN THE TOWN TO FURNISH, SELL, TRANSPORT AND DISTRIBUTE GAS TO THE TOWN AND TO ALL RESIDENTS OF THE TOWN, GRANTING THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH THE TOWN ALL FACILITIES REASONABLY NECESSARY TO FURNISH, SELL, TRANSPORT AND DISTRIBUTE GAS WITHIN AND THROUGH THE TOWN; AND FIXING THE TERMS AND CONDITIONS THEREOF. WHEREAS, Public Service Company of Colorado has filed it application with the Town of Avon, Colorado, for the granting to it by the Town of Avon of a franchise in terms as hereinafter set forth; and BE IT ORDAINED BY THE TOWN COUNCIL OF AVON, EAGLE COUNTY, COLORADO: ARTICLE 1 DEFINITIONS 1.1 For the purpose of this franchise agreement, the following words and phrases shall have the meaning given in this article. When not inconsistent with context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined in this article shall be given their common and ordinary meaning. 1.2 "Council" or "Town Council" refers to and is the legislative body of the Town of Avon, Eagle County, Colorado. 1.3 "Company" refers to and is Public Service Company of Colorado, its successors, assigns, affiliates and subsidiaries. 1.4 "Facilities" refer to and are all apparatuses reasonably necessary for the Company to provide gas service into, within and through the Town, including but not limited to plants, works, systems, substations, equipment, pipes, mains, conduit, gas compressors, Ordinance No. 04-06 Page 1 of 13 ATTACHMENT D meters, meter reading devices, communication and data transfer equipment, control equipment, gas regulator stations,. 1.5 "Party" or "Parties" refers to and includes the Company and the Town, either singly or collectively as the context requires. 1.6 "Public Utilities Commission" or "PUC" refers to and is the Public Utilities Commission of the State of Colorado or other state agency succeeding to the regulatory powers of the Public Utilities Commission. 1.7 "Residents" refers to and includes all persons, businesses, industry, governmental agencies, and any other entity whatsoever, presently located or hereinafter to be located, in whole or in part, within the territorial boundaries of the Town. 1.8 "Revenues" refer to and are those amounts of money which the Company receives from its customers within the Town from the sale of gas under rates authorized by the Public Utilities Commission as well as from the transportation of gas to its customers within the Town and represents amounts billed under such rates as adjusted for refunds, net write- off of uncollectible accounts, corrections or regulatory adjustments. Regulatory adjustments refer to, by way of explanation, but not limitation, credits, surcharges, refunds and pro-forma adjustments pursuant to federal or state regulation. 1.9 "Streets" refer to and are streets, alleys, viaducts, bridges, roads, lanes and other public rights-of-way in the Town. "Streets" shall also include public easements and other public places within the Town that are suitable locations for the placement of Facilities. 1.10 "Town" refers to and is the municipal corporation designated as the Town of Avon, Eagle County, Colorado. ARTICLE 2 GRANT OF FRANCHISE 2.1 Grant of Franchise. The Town hereby grants to the Company the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the Town. The Town also hereby grants to the Company the right to Ordinance No. 04-06 Page 2 of 13 acquire, construct, install, locate, maintain, operate and extend into, within and through the Town all Facilities reasonably necessary to furnish, sell, transport and distribute gas within and through the Town. These rights shall extend to all areas of the Town as it is now constituted and to additional areas as the Town may increase in size by annexation or otherwise. If the boundaries of the Town are expanded during the term of this franchise, the Company shall extend service to Residents in the expanded area at the earliest practicable time and in accordance with the Company's extension policy. Service to the expanded area shall be in accordance with requirements of the PUC and the terms of this franchise, including payment of franchise fees. The rights granted by this franchise are not, and shall not be deemed to be, granted exclusively to the Company, and the Town reserves the right to make or grant a similar franchise to any other person, firm, or corporation. Except as otherwise specifically provided herein, the Town retains the right through the exercise of its police power to use, control, and regulate the use of the Streets, and the space above and beneath said Streets. The Town retains the right to impose such other regulations as may be determined by the Town to be necessary in the reasonable exercise of its police power to protect the health, safety, and welfare of the public. 2.2 Term of Franchise. This franchise shall take effect upon its adoption and shall supersede any prior franchise grants to the Company by the Town. The term of this franchise shall be twenty (20) years. AR9PICT F A FRANCHISE FEE 3.1 Franchise Fee As consideration for the franchise rights granted herein, and in recognition of the fact that the grant to the Company of the right to use Town Streets is a valuable right, the Company shall pay the Town a sum equal to three percent (3%) of all Ordinance No. 04-06 Page 3 of 13 Revenues received from the sale and transportation of gas within the Town, excluding revenues received from the Town for the sale of gas to the Town. 3.2 Surcharge of Franchise Fees. The Company shall charge a franchise fee to all Town residents that use facilities of the Company in Town Streets to obtain gas. No franchise fee shall be charged to the Town for gas service provided to the Town for its own consumption. 3.3 Remittance Schedule. Franchise fees that are collected from Residents shall be remitted by the Company to the Town in monthly installments not more than thirty (30) days following the close of each month. All payments shall be made to the Finance Director. In the event that either the Town or the Company discovers that there has been an error in the calculation of the franchise fee payment to the Town, the error shall be corrected in the next monthly payment, subject to the following provisions: In the event an error by the Company results in an overpayment of the franchise fee to the Town in excess of 5,000, credit for the overpayment shall be spread over the same period the error was undiscovered; if the overpayment is $5,000 or less, credit shall be taken against the next payment. In no event shall either Party be required to refund any over- or underpayment more than 3 years from the date of the over- or underpayment. 3.4 Audit Rights; Protection of Confidential Information. The Finance Director, or his or her agent, shall have access to the metering records of the Company during normal business hours upon reasonable notice for the purpose of auditing to ascertain that the franchise fee has been correctly computed and paid. Except as provided in Section 3.6, all information obtained by the Finance Director during a franchise fee audit shall be kept confidential and shall be utilized for the sole purpose of verifying that the franchise fee has been correctly computed and paid. 3.5 Enforcement of Town Sales and Use Tax Laws. The Town may use the metered information obtained from franchise fee audits for the purpose of enforcing its sales and use tax laws. Upon request by the Town, the Company shall supply the Town with a list Ordinance No. 04-06 Page 4 of 13 of all suppliers of gas that utilize Company Facilities within the Town Streets to sell gas to Town Residents. 3.6 Franchise Fee Payment in Lieu of Certain Taxes and Other Fees. The Town accepts payment of the franchise fee by the Company in lieu of any occupation tax, occupancy tax, license tax, or similar tax or fee the Town might charge the Company or its subcontractors for the privilege of doing business in the Town, for the use or occupation of Town Streets, or for the installation, operation and maintenance of Company Facilities. Payment of the franchise fee does not exempt the Company from any lawful taxation upon its property or from any other tax not related to the franchise or the occupation or use of Town Streets, including the payment of head taxes, sales taxes or other fees or taxes assessed generally upon businesses. ARTICLE 4 SUPPLY, CONSTRUCTION AND DESIGN 4.1 Obligations Regarding Company Facilities. The Company shall install, maintain, repair, renovate and replace its Facilities with due diligence in a good and workerlike manner. Company Facilities shall not interfere with the Town's water mains, sewer mains or other municipal uses of the Streets. The Company shall construct and maintain its Facilities in such a way as to minimize interference with trees and other natural features. The Company shall install underground all gas pipelines serving new residential subdivisions. 4.2 Excavation and Construction. All excavation and construction work performed by the Company shall be done in a manner that minimizes inconvenience to the public. All property disturbed by Company excavation or construction activities shall be restored by the Company at its expense to substantially its former condition. 4.3 Relocation of Company Facilities. The Company shall relocate, at its expense, Facilities in the Streets that interfere with a public project undertaken and paid for by the Town with public funds. The Town shall provide at its expense sufficient right-of-way for the Company to relocate its Facilities. The Company shall relocate its Facilities at the Ordinance No. 04-06 Page 5 of 13 request of the Town or other person to avoid interference with other non-publicly- financed projects, but the expense of the relocation and the new right-of-way shall be paid in advance by the Town or by the person conducting the project and requesting the relocation. Relocation shall be completed within a reasonable time after a request and payment therefore is made (if applicable). In the event that the Town requests the Company to relocate the same Facilities within five (5) years of completion of a prior relocation, the subsequent relocation shall be at the Town's expense. Underground Facilities shall be relocated underground. Above ground Facilities shall be relocated above ground, unless the Town pays the additional cost of relocating above-ground Facilities underground . 4.4 Town Not Required to Advance Funds. Upon receipt of the Town's authorization for billing and construction, the Company shall extend its Facilities to provide gas to the Town for municipal uses within the Company's certificated service area, without requiring the Town to advance funds prior to construction. Nothing in this section shall release the Town from the obligation to pay for the extension of Facilities once complete, in accord with the Company's gas tariffs on file with the Public Utilities Commission. ARTICLE 5 COMPLIANCE 5.1 Compliance with Applicable Laws. The Company and all of its contractors shall comply with all applicable Town laws, ordinances and regulations. The Company shall require its contractors working in the streets to hold the necessary licenses and permits required by the Town. 5.2 Compliance with Town Requirements. The Company will comply with all Town building and zoning codes and requirements regarding curb and pavement cuts, excavating, digging and related construction activities. Ordinance No. 04-06 Page 6 of 13 5.3 Inspection. The Town shall have the right to inspect any portion of the Company's Facilities in the Town Streets. The Company agrees to cooperate with the Town in conducting the inspection. ARTICLE 6 PUBLIC UTILITIES COMMISSION REGULATION 6.1 Compliance with Orders by the Public Utilities Commission. The provision of gas service by the Company is regulated in whole or in part by regulatory agencies including the Public Utilities Commission. The Company is obligated by law to comply with all lawful PUC orders, rules, and regulations. The Town shall impose no obligation on the Company that interferes with the Company's ability to comply with lawful regulatory orders, rules, and regulations. 6.2 Certificates to Exercise Franchise Rights. The Town agrees to assist the Company, if necessary, in obtaining PUC approval of a certificate to exercise the franchise rights conferred under this Franchise, including negotiating a change to any provision of this franchise agreement which the PUC may require in order to obtain the certificate. ARTICIX.. 7 TOWN USE OF COMPANY FACILITIES 7.1 Trenches Available for Town Use. If the Company opens a trench to install its Facilities, the Company shall provide advance notice to the Town to permit the Town to install Town Facilities in the same trench at the Town's expense. The Town's installation of its Facilities shall not interfere with the Company's Facilities or delay the commencement or completion of the Company's construction project. ARTICLE 8 INDEMNIFICATION OF THE TOWN 8.1 Town Held Harmless and Indemnified. The Company shall indemnify, defend and hold the Town harmless from and against all liability or damage and all claims or demands Ordinance No. 04-06 Page 7 of 13 arising out of Company's operations within the Town pursuant to this franchise. 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 shall be permitted, at its own expense, to appear and defend or to assist in defense of such claim. The Company shall not be obligated to indemnify, defend, or hold the Town harmless to the extent any claim, demand or lien arises out of or in connection with any intentional or negligent act or failure to act of the Town or any of its officials, agents or employees, or to the extent that any claim, demand, or lien arises out of or in connection with the use of Town facilities. 8.2 Payment of Ordinance Expenses. The Company shall reimburse the Town for actual out- of-pocket expenses incurred in publishing notices and ordinances and conducting elections related to this franchise. AID T11-1 F Q TRANSFER OF FRANCHISE 9.1 Consent of Town Required. The Company shall not transfer or assign any rights under this franchise to an unaffiliated third party, except by merger with such third party, or, except when the transfer is made in response to legislation or regulatory orders, unless the Town shall approve in writing such transfer or assignment. Approval of the transfer or assignment shall not be unreasonably withheld. 9.2 Transfer Fee. In order that the Town may share in the value this franchise adds to the Company's operations, any transfer or assignment of rights under this franchise requiring the approval of the Town under §9.1 shall be subject to the condition that the transferee shall promptly pay to the Town a transfer fee, which shall be calculated by multiplying one million dollars by a fraction of which the numerator equals the then population of the Town of Avon which is served by the Company, and the denominator equals the then population of the City and County of Denver. Such transfer fee shall not be recovered from a surcharge placed only on the rates of Town Residents. Ordinance No. 04-06 Page 8 of 13 ARTICLE 10 MUNICIPALIZATION 10.1 Town's Right to Condemn. During the term of this franchise, the Town agrees not to condemn the Facilities of the Company or to otherwise restrict the Company's opportunity to conduct business in the Town, except as specifically provided in C.R.S. 31-15-707. 10.2 Operation of a Municipal Utility or Competing Distributors. If, during the term of this franchise, the Town operates a municipal gas utility or issues to another entity a franchise to use the Streets for the placement of gas Facilities, the Company shall no longer be required to collect and pay franchise fees under Article 3 unless substantially the same terms and conditions apply to the service provided by the Town or by the other entity. In addition, the following sections of this franchise shall no longer apply to the Company unless substantially the same provisions are applicable to all other gas distributors, including the Town: Articles 3.3, 3.4, 3.5, 4.1, 4.2, 4.3, 5.1, 5.2, 5.3, 7.1, 9.1 and 9.2. ARTICLE 11 UNCONTROLLABLE FORCES 11.1 Uncontrollable Forces. Neither the Town nor the Company shall be in breach of this franchise ordinance if a failure to perform any of the duties under this franchise is due to uncontrollable forces, which shall include but not be limited to accidents, breakdown of equipment, shortage of materials, acts of God, floods, storms, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government and other causes or contingencies of whatever nature beyond the reasonable control of the party affected, which could not reasonably have been anticipated and avoided. Ordinance No. 04-06 Page 9 of 13 ARTICLE 12 BREACH 12.1 Breach. If the Company fails to perform any of the terms and conditions of this franchise and such failure is within the Company's control, the Town may notify the Company of the specific failure and shall allow the Company a reasonable time within which to remedy the failure. If the Company does not remedy the failure and the failure is of a substantial nature, the Town Council may terminate this franchise after a full evidentiary hearing. Termination of the franchise shall be by no less than 75% vote of all members of the Town Council. 12.2 Judicial Review. Any such termination of the franchise shall be subject to judicial review as provided by law. ARTICLE 13 AMENDMENTS 13.1 Amendments to Franchise. This franchise may be amended only by a writing signed by both the Company and the Town, which is approved in the same manner as is required for the passage of this ordinance. ARTIC ,F. 1d. MISCELLANEOUS 14.1 Successors and Assigns. The rights, privileges, franchises and obligations, in whole or in part, granted and contained in this ordinance shall inure to the benefit of and be binding upon Public Service Company, its successors, assigns, affiliates and subsidiaries. 14.2 Third Parties. Nothing contained in this franchise shall be construed to provide rights to third parties. 14.3 Representatives. Both parties shall, from time to time, designate, in writing, represen- tatives for the Company and the Town to whom notices shall be sent regarding any action to be taken under this ordinance. Notice shall be delivered in person or by certified mail to the persons and addresses hereinafter stated, unless the persons and addresses are Ordinance No. 04-06 Page 10 of 13 changed at the written request of either party. Until any such change shall be made, notices shall be sent as follows: To the Town: Town Clerk Town of Avon, Colorado P.O. Box 975 Avon, CO 81620 To the Company: Cynthia Evans Vice President Public Service Company of Colorado P. O. Box 840 Denver, CO 80201 14.4 Surcharge to Town Residents. The Company shall be permitted to surcharge to residents of the Town the franchise fee payments it makes to the Town. The Company shall be permitted to surcharge to residents of the Town any other payments it makes to the Town only to the extent and in the manner permitted by law or as otherwise ordered by the PUC. 14.5 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 a substitute term that will achieve the original intent of the Parties hereunder. 14.6 Entire Agreement. This franchise constitutes the entire agreement of the Parties with respect to the matters contained herein and supersedes any and all prior written or oral agreements, negotiations, correspondence, understandings and communications with respect to this franchise. 14.7 Headings for Reference Only. The headings in this franchise are for reference only and convey no substantive rights or impose no substantive obligations on the Parties. Ordinance No. 04-06 Page 11 of 13 14.8 Responsibility for Language. The Town and the Company hereby acknowledge that each bears co-extensive and identical responsibility for the language in this franchise. In case of ambiguity, there shall be no presumptions based upon responsibility for drafting this franchise. 14.9 No Waiver of Rights. Neither the Town nor the Company waives any rights under the statutes and constitution of the State of Colorado or of the United States except as otherwise specifically set forth herein. 14.10 Prevailing Party. In any judicial or administrative action to enforce any of the terms or conditions of this franchise, the prevailing party shall be entitled to recover its costs and expenses incurred in such action, including reasonable attorney fees. 14.11 Approval of Franchise. The Company shall promptly file, in writing, its acceptance of this franchise and of any amendment of this franchise following the Town's final approval of the same. The failure to file such an acceptance within 45 days of said final adoption shall be deemed an acceptance of such franchise or amendment thereof. INTRODUCED, READ, PASSED ON FIRST READING AND ORDERED POSTED THIS DAY OF QP~ 200 A PUBLIC HEARING ON THIS ORDINANCE SHALL BE HELD AT THE REGULAR MEETING OF THE TOWN COUNCIL ON THE I0-'-' DAY OF , 20 0"(.AT 5:30 PM IN THE COUNCIL CHAMBERS, AVON MUNICIPA BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO 11 OF Albert D. Reynolds, MayorElA If~~ ATTEST: Patty cK nny, To n C1 rk Ordinance No. 04-06 Page 12 of 13 INTRODUCED, PASSED, ADOPTED AND APPROVED ON SECOND READING AND 11 ORDERED POSTED THIS DAY OF m , 200 . ATTEST: Albert D. 9 E A , Pat ~ Mc enny, Town n C®~ ~ .-z APPROVED AS TO FORM: Ut % To n Attorney Publication Dates: ACCEPTED: PUBLIC SERVICE COMPANY OF COLORADO By:_ Print Name & Title: Ordinance No. 04-06 Page 13 of 13 Memo To: Thna: From: Date: Re: Honorable Mayor and Town Council Larry Brooks, Town Manager\) Scott Wright, Finance Director� May 6, 2004 Public Hearing -Gas Franchise Ordinance No. 04-06 Summary: Town of Avon The Town's current twenty-year gas franchise agreement with Public Service Company of Colorado ("PSCo") expires May 31, 2004. Staff has been working with Wade Haerle from Xcel Energy (the DBA name for PSCo) in drafting a new franchise agreement. Council, at it s last meeting, adopted on 1st reading this new franchise agreement. fu summary, the franchise agreement conveys the right to PSCo to provide public utility service (in this case natural gas) within Town of Avon boundaries and allow the use of Town rights-of-way for the location of utility facilities and equipment, in exchange for the payment of a franchise fee. These rights are non-exclusive and the Town reserves the right to make or grant a similar franchise to any other company. The Town reserves the right to control and regulate the use of its streets and to impose other regulations to protect the health, safety and welfare of the public. PSCo shall not interfere with municipal uses of the streets and must comply with all Town building and zoning codes and requirements. The franchise agreement is for a term of twenty years. A CML survey indicated that most gas franchises are for twenty or twenty-five year terms. The franchise fee is equal to three percent (3%) of revenues. This is the typical approach and percentage found in most existing franchises. Xcel Energy paid $47,404 and $38,322 in franchise fees for 2003 and 2002, respectively. Town Manager Comments: ·., Page 1 ATTACHMENT E STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 11T" DAY OF MAY 2004, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF THE FOLLOWING ORDINANCE: Ordinance No. 04-06, Series of 2004, An Ordinance of the Town of Avon, Eagle County, Colorado, Granting by Franchise to Public Service Company of Colorado, its affiliates, successors and assigns, the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the town, granting the right to acquire, construct, install, located, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to furnish, sell, transport, and distribute gas within and through the Town; and fixing the Terms and conditions thereof. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours, Monday through Friday, 8 AM - 5 PM. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: Patty McKenny Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON APRIL 30, 2004. AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY STATE OF COLORADO ) COUNTY OF EAGLE) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO ADOPTED ON THE 11TH DAY OF MAY 2004 THE FOLLOWING ORDINANCE: Ordinance No. 04-06, Series of 2004, An Ordinance of the Town of Avon, Eagle County, Colorado, Granting by Franchise to Public Service Company of Colorado, its affiliates, successors and assigns, the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the town, granting the right to acquire, construct, install, located, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to furnish, sell, transport, and distribute gas within and through the Town; and fixing the Terms and conditions thereof. A copy of said Ordinance is attached hereto, and are also on file at the office of the Town Clerk, and may be inspected during regular business hours, Monday through Friday, 8 AM 5 PM. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: Patty McKenny Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON MAY 14, 2004 AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY 4P STATE OF COLORADO ) COUNTY OF EAGLE) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO ADOPTED ON THE 11TH DAY OF MAY 2004 THE FOLLOWING ORDINANCE: Ordinance No. 04-06, Series of 2004, An Ordinance of the Town of Avon, Eagle County, Colorado, Granting by Franchise to Public Service Company of Colorado, its affiliates, successors and assigns, the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the town, granting the right to acquire, construct, install, located, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to furnish, sell, transport, and distribute gas within and through the Town; and fixing the Terms and conditions thereof. A copy of said Ordinance is attached hereto, and are also on file at the office of the Town Clerk, and may be inspected during regular business hours, Monday through Friday, 8 AM 5 PM. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: Patty McKenny Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON MAY 14, 2004 AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY 1* - r TOWN OF AVON, COLORADO ORDINANCE NO. 04-06 SERIES 2004 AN ORDINANCE OF THE TOWN OF AVON, EAGLE COUNTY, COLORADO, GRANTING BY FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT TO USE THE STREETS WITHIN THE TOWN TO FURNISH, SELL, TRANSPORT. AND DISTRIBUTE GAS TO THE TOWN AND TO ALL RESIDENTS OF THE TOWN, GRANTING THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH THE TOWN ALL FACILITIES REASONABLY NECESSARY TO FURNISH, SELL, TRANSPORT AND DISTRIBUTE GAS WITHIN AND THROUGH THE TOWN; AND FIXING THE TERMS AND CONDITIONS THEREOF. WHEREAS, Public Service Company of Colorado has filed it application with the Town of Avon, Colorado, for the granting to it by the Town of Avon of a franchise in terms as hereinafter set forth; and BE IT ORDAINED BY THE TOWN COUNCIL OF AVON, EAGLE COUNTY, COLORADO: A RTTf T .F. 1 DEFINITIONS 1.1 For the purpose of this franchise agreement, the following words and phrases shall have the meaning given in this article. When not inconsistent with context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined in this article shall be given their common and ordinary meaning. 1.2 "Council" or "Town Council" refers to and is the legislative body of the Town of Avon, Eagle County, Colorado. 1.3 "Company" refers to and is Public Service Company of Colorado, its successors, assigns, affiliates and subsidiaries. 1.4 "Facilities" refer to and are all apparatuses reasonably necessary for the Company to provide gas service into, within and through the Town, including but not limited to plants, works, systems, substations, equipment, pipes, mains, conduit, gas compressors, Ordinance No. 04-06 Page 1 of 13 v meters, meter reading devices, communication and data transfer equipment, control equipment, gas regulator stations,. 1.5 "Party" or "Parties" refers to and includes the Company and the Town, either singly or collectively as the context requires. 1.6 "Public Utilities Commission" or "PUC" refers to and is the Public Utilities Commission of the State of Colorado or other state agency succeeding to the regulatory powers of the Public Utilities Commission. 1.7 "Residents" refers to and includes all persons, businesses, industry, governmental agencies, and any other entity whatsoever, presently located or hereinafter to be located, in whole or in part, within the territorial boundaries of the Town. 1.8 "Revenues" refer to and are those amounts of money which the Company receives from its customers within the Town from the sale of gas under rates authorized by the Public Utilities Commission as well as from the transportation of gas to its customers within the Town and represents amounts billed under such rates as adjusted for refunds, net write- off. of uncollectible accounts, corrections or regulatory adjustments. Regulatory adjustments refer to, by way of explanation, but not limitation, credits, surcharges, refunds and pro-forma adjustments pursuant to federal or state regulation. 1.9 "Streets" refer to and are streets, alleys, viaducts, bridges, roads, lanes and other public rights-of-way in the Town. "Streets" shall also include public easements and other public places within the Town that are suitable locations for the placement of Facilities. 1.10 "Town" refers to and is the municipal corporation designated as the Town of Avon, Eagle County, Colorado. ARTICLE 2 GRANT OF FRANCHISE 2.1 Grant of Franchise. The Town hereby grants to the Company the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the Town. The Town also hereby grants to the Company the right to Ordinance No. 04-06 Page 2 of 13 a E acquire, construct, install, locate, maintain, operate and extend into, within and through the Town all Facilities reasonably necessary to furnish, sell, transport and distribute gas within and through the Town. These rights shall extend to all areas of the Town as it is now constituted and to additional areas as the Town may increase in size by annexation or otherwise. If the boundaries of the Town are expanded during the term of this franchise, the Company shall extend service to Residents in the expanded area at the earliest practicable time and in accordance with the Company's extension policy. Service to the expanded area shall be in accordance with requirements of the PUC and the terms of this franchise, including payment of franchise fees. The rights granted by this franchise are not, and shall not be deemed to be, granted exclusively to the Company, and the Town reserves the right to make or grant a similar franchise to any other person, firm, or corporation. Except as otherwise specifically provided herein, the Town retains the right through the exercise of its police power to use, control, and regulate the use of the Streets, and the space above and beneath said Streets. The Town retains the right to impose such other regulations as may be determined by the Town to be necessary in the reasonable exercise of its police power to protect the health, safety, and welfare of the public. 2.2 Term of Franchise. This franchise shall take effect upon its adoption and shall supersede any prior franchise grants to the Company by the Town. The term of this franchise shall be twenty (20) years. ARTICLE 3 FRANCHISE FEE 3.1 Franchise Fee. As consideration for the franchise rights granted herein, and in recognition of the fact that the grant to the Company of the right to use Town Streets is a valuable right, the Company shall pay the Town a sum equal to three percent (3%) of all Ordinance No. 04-06 Page 3 of 13 Revenues received from the sale and transportation of gas.within the Town, excluding 3.2 3.3 3.4 3.5 revenues received from the Town for the sale of gas to the Town. Surcharge of Franchise Fees. The Company shall charge a franchise fee to all Town residents that use facilities of the Company in Town Streets to obtain gas. No franchise fee shall be charged to the Town for gas service provided to the Town for its own consumption. Remittance Schedule. Franchise fees that are collected from Residents shall be remitted by the Company to the Town in monthly installments not more than thirty (30) days following the close of each month. All payments shall be made to the Finance Director. In the event that either the Town or the Company discovers that there has been an error in the calculation of the franchise fee payment to the Town, the error shall be corrected in the next monthly payment, subject to the following provisions: In the event an error by the Company results in an overpayment of the franchise fee to the Town in excess of 5,000, credit for the overpayment shall be spread over the same period the error was undiscovered; if the overpayment is $5,000 or less, credit shall be taken against the next payment. In no event shall either Party be required to refund any over- or underpayment more than 3 years from the date of the over- or underpayment. Audit R i ¢hts• Protection of Confidential Information. The Finance Director, or his or her agent, shall have access to the metering records of the Company during normal business hours upon reasonable notice for the purpose of auditing to ascertain that the franchise fee has been correctly computed and paid. Except as provided in Section 3.6, all information obtained by the Finance Director during a franchise fee audit shall be kept confidential and shall be utilized for the sole purpose of verifying that the franchise fee has been correctly computed and paid. Enforcement of Town Sales and Use Tax Laws. The Town may use the metered information obtained from franchise fee audits for the purpose of enforcing its sales and use tax laws. Upon request by the Town, the Company shall supply the Town with a list Ordinance No. 04-06 Page 4 of 13 of all suppliers of gas that utilize Company Facilities within the Town Streets to sell gas to Town Residents. 3.6 Franchise Fee Payment in Lieu of Certain Taxes and Other Fees. The Town accepts payment of the franchise fee by the Company in lieu of any occupation tax, occupancy tax, license tax, or similar tax or fee the Town might charge the Company or its subcontractors for the privilege of doing business in the Town, for the use or occupation of Town Streets, or for the installation, operation and maintenance of Company Facilities. Payment of the franchise fee does not exempt the Company from any lawful taxation upon its property or from any other tax not related to the franchise or the occupation or use of Town Streets, including the payment of head taxes, sales taxes or other fees or taxes assessed generally upon businesses. A W1PYPT F A SUPPLY, CONSTRUCTION AND DESIGN 4.1 Obligations Regarding Company Facilities. The Company shall install, maintain, repair, renovate and replace its Facilities with due diligence in a good and workerlike manner. Company Facilities shall not interfere with the Town's water mains, sever mains or other municipal uses of the Streets. The Company shall construct and maintain its Facilities in such a way as to minimize interference with trees and other natural features. The Company shall install underground all gas pipelines serving new residential subdivisions. 4.2 Excavation and Construction. All excavation and construction work performed by the Company shall be done in a manner that minimizes inconvenience to the public. All property disturbed by Company excavation or construction activities shall be restored by the Company at its expense to substantially its former condition. 4.3 Relocation of Company Facilities. The Company shall relocate, at its expense, Facilities in the Streets that interfere with a public project undertaken and paid for by the Town with public funds. The Town-shall provide at its expense sufficient right-of-way for the Company to relocate its Facilities. The Company shall relocate its Facilities at the Ordinance No. 04-06 Page 5 of 13 request of the Town or other person to avoid interference with other non-publicly- financed projects, but the expense of the relocation and the new right-of-way shall be paid in advance by the Town or by the person conducting the project and requesting the relocation. Relocation shall be completed within a reasonable time after a request and payment therefore is made (if applicable). In the event that the Town requests the Company to relocate the same Facilities within five (5) years of completion of a prior relocation, the subsequent relocation shall be at the Town's expense. Underground Facilities shall be relocated underground. Above ground Facilities shall be relocated above ground, unless the Town pays the additional cost of relocating above-ground Facilities underground . 4.4 Town Not Required to Advance Funds. Upon receipt of the Town's authorization for billing and construction, the Company shall extend its. Facilities to provide gas to the Town for municipal uses within the Company's certificated service area, without requiring the Town to advance funds prior to construction. Nothing in this section shall release the Town from the obligation to pay for the extension of Facilities once complete, in accord with the Company's gas tariffs on file with the Public Utilities Commission. ARTICLE 5 COMPLIANCE 5.1 Compliance with Applicable Laws. The Company and all of its contractors shall comply with all applicable Town laws, ordinances and regulations. The Company shall require its contractors working in the streets to hold the necessary licenses and permits required by the Town. 5.2 Compliance with Town Requirements. The Company will comply with all Town building and zoning codes and requirements regarding curb and pavement cuts, excavating, digging and related construction activities: Ordinance No. 04-06 Page 6 of 13 5.3 Inspection. The Town shall have the right to inspect any portion of the Company's Facilities in the Town Streets. The Company agrees to cooperate with the Town in conducting the inspection. ARTICLE 6 PUBLIC UTILITIES COMMISSION REGULATION 6.1 Compliance with Orders by the Public Utilities Commission. The provision of gas service by the Company is regulated in whole or in part by regulatory agencies including the Public Utilities Commission. The Company is obligated by law to comply with all lawful PUC orders, rules, and regulations. The Town shall impose no obligation on the Company that interferes with the Company's ability to comply with lawful regulatory orders, rules, and regulations. 6.2 Certificates to Exercise Franchise Rights. The Town agrees to assist the Company, if necessary, in obtaining PUC approval of a certificate to exercise the franchise rights conferred under this Franchise, including negotiating a change to any provision of this franchise agreement which the PUC may require in order to obtain the certificate. ARTICLE 7 TOWN USE OF COMPANY FACILITIES 7.1 Trenches Available for Town Use. If the Company opens a trench to install its Facilities, the Company shall provide advance notice to the Town to permit the Town to install Town Facilities in the same trench at the Town's expense. The Town's installation of its Facilities shall not interfere with the Company's Facilities or delay the commencement or completion of the Company's construction project. ARTICLE 8 INDEMNIFICATION OF THE TOWN 8.1 Town Held Harmless and Indemnified. The Company shall indemnify, defend and hold the Town harmless from and against all liability or damage and all claims or demands Ordinance No. 04-06 Page 7 of 13 arising out of Company's operations within the Town pursuant to this franchise. 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 shall be permitted, at its own expense, to appear and defend or to assist in defense of such claim. The Company shall not be obligated to indemnify, defend, or hold the Town harmless to the extent any claim, demand or lien arises out of or in connection with any intentional or negligent act or failure to act of the Town or any of its officials, agents or employees, or to the extent that any claim, demand, or lien arises out of or in connection with the use of Town facilities. 8.2 Payment of Ordinance Expenses. The Company shall reimburse the Town for actual out- of-pocket expenses incurred in publishing notices and ordinances and conducting elections related to this franchise. ARTICLE 9 TRANSFER OF FRANCHISE 9.1 Consent of Town Required. The Company shall not transfer or assign any rights under this franchise to an unaffiliated third party, except by merger with such third party, or, except when the transfer is made in response to legislation or regulatory orders, unless the Town shall approve in writing such transfer or assignment. Approval of the transfer or assignment shall not be unreasonably withheld. 9.2 Transfer Fee. In order that the Town may share in the value this franchise adds to the Company's operations, any transfer or assignment of rights under this franchise requiring the approval of the Town under §9.1 shall be subject-to the condition that the transferee shall promptly pay to the Town a transfer fee, which shall be calculated by multiplying one million dollars by a fraction of which the numerator equals the then population of the Town of Avon which is served by the Company, and the denominator equals the then population of the City and County of Denver. Such transfer fee shall not be recovered from a surcharge placed only on the rates of Town Residents. Ordinance No. 04-06 Page 8 of 13 ARTICLE 10 MUNICIPALIZATION 10.1 Town's Right to Condemn. During the term of this franchise, the Town agrees not to condemn the Facilities of the Company or to otherwise restrict the Company's opportunity to conduct business in the Town, except as specifically provided in C.R.S. 31-15-707. 10.2 Operation of a Municipal Utility or Competing Distributors. If, during; the term of this franchise, the Town operates a municipal gas- utility or issues to another entity a franchise to use the Streets for the placement of gas Facilities, the Company shall no longer be required to collect and pay franchise fees under Article 3 unless substantially the same . terms and conditions apply to the service provided by the Town or by the other entity. In addition, the following sections of this franchise shall no longer apply to the Company unless substantially the same provisions are applicable to all other gas distributors, including the Town: Articles 3.3, 3.4,.3.5, 4.1, 4.2, 4.3, 5.1, 5.2, 5.3, 7.1, 9.1 and 9.2. ARTICLE 11 UNCONTROLLABLE FORCES 11.1 Uncontrollable Forces. Neither the Town nor the Company shall be in breach of this franchise ordinance if a failure to perform any of the duties under this franchise is due to uncontrollable forces, which shall include but not be limited to accidents, breakdown of equipment, shortage of materials, acts of God, floods, storms, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government and other causes or contingencies of whatever nature beyond the reasonable control of the party affected, which could not reasonably have been anticipated and avoided. Ordinance No. 04-06 Page 9 of 13 ARTICLE 12 BREACH 12.1 Breach. If the Company fails to perform any of the terms and conditions of this franchise and such failure is within the Company's control, the Town may notify the Company of the specific failure and shall allow the Company a reasonable time within which to remedy the failure. If the Company does not remedy the failure and the failure is of a substantial nature, the Town Council may terminate this franchise after a full evidentiary hearing. Termination of the franchise shall be by no less than 75% vote of all members of the Town Council. 12.2 Judicial Review. Any such termination of the franchise shall be subject to judicial review as provided by law. ARTICLE 13 AMENDMENTS 13.1 Amendments to Franchise. This franchise may be amended only by a writing signed by both the Company and the Town, which is approved in the same manner as is required for the passage of this ordinance. ARTICLE 14 MISCELLANEOUS 14.1 Successors and Assigns. The rights, privileges, franchises and obligations, in whole or in part, granted and contained in this ordinance shall inure to the benefit of and be binding upon Public Service Company, its successors, assigns, affiliates and subsidiaries. 14.2 Third Parties. Nothing contained in this franchise shall be construed to provide rights to third parties. 14.3 Representatives. Both parties shall, from time to time, designate, in writing, represen- tatives for the Company and the Town to whom notices shall be sent regarding any action to be taken under this ordinance. Notice shall be delivered in person or by certified mail to -the persons and addresses hereinafter stated, unless the persons and addresses are Ordinance No. 04-06 Page 10 of 13 changed at the written request of either party. Until any such change shall be made, notices shall be sent as follows: To the Town: Town Clerk Town of Avon, Colorado P.O. Box 975 Avon, CO 81620 To the Company: Cynthia Evans Vice President Public Service Company of Colorado P. O. Box 840 Denver, CO 80201 14.4 Surcharge to Town Residents. The Company shall be permitted to surcharge to residents of the Town the franchise fee payments it makes to the Town. The Company shall"be permitted to surcharge to residents of the Town any other payments it makes to the Town only to the extent and in the manner permitted by law or as otherwise ordered by the PUC. 14.5 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 a substitute term that will achieve the original intent of the Parties hereunder. 14.6 Entire Agreement. This franchise constitutes the entire agreement of the Parties with respect to the matters contained herein and supersedes any and all prior written or oral agreements, negotiations, correspondence, understandings and communications with respect to this franchise. 14.7 Headings for Reference Only. The headings in this franchise are for reference only and convey no substantive rights or impose no substantive obligations on the Parties. Ordinance No. 04-06 Page 11 of 13 14.8 Responsibility for Language. The Town and the Company hereby acknowledge that each bears co-extensive and identical responsibility for the language in this franchise. In case of ambiguity, there shall be no presumptions based upon responsibility for drafting this franchise. 14.9 No Waiver of Rights. Neither the Town nor the Company waives any rights under the statutes and constitution of the State of Colorado or of the United States except as otherwise specifically set forth herein. 14.10 Prevailing Party. In any judicial or administrative action to enforce any of the terms or conditions of this franchise, the prevailing party shall be entitled to recover its costs and expenses incurred in such action, including reasonable attorney fees. 14.11 Approval of Franchise. The Company shall promptly file, in writing, its acceptance of this franchise and of any amendment of this franchise following the Town's final approval of the same. The failure to file such an acceptance within 45 days of said final adoption shall be deemed an acceptance of such franchise or amendment thereof. INTRODUCED, READ, PASSED ON FIRST READING AND ORDERED POSTED THIS L 200 CL(. A PUBLIC HEARING ON THISDAYOF040' I ORDINANCE SHALL BE HELD AT THE REGULAR MEETING OF THE TOWN COUNCIL ON THE I ~1+ DAY OF -111 20 04.AT 5:30 PM IN THE COUNCIL CHAMBERS, AVON MUNICIPA BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO L ? , y ,_'ua r'i:. a a Patty cK nny, To C1 rk C(S1 g~o'm ••~4 a ATTEST: MC Albert D. Reynolds, Mayor Ordinance No. 04'-06 Page 12 of 13 INTRODUCED, PASSED, ADOPTED AND APPROVED ON SECOND READING AND ORDERED POSTED THIS DAY OF '2004. ATTEST: J Patty Mcrenny, Town er J, Town Attorney Publication Dates: ACCEPTED: PUBLIC SERVICE COMPANY OF COLORADO Rv- Print Name & Title: Ordinance No. 04-06 Page 13 of 13 APPROVED AS TO FORM: 61 STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE I IT" DAY OF MAY 2004, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF THE FOLLOWING ORDINANCE: Ordinance No. 04-06, Series of 2004, An Ordinance of the Town of Avon, Eagle County, Colorado, Granting by Franchise to Public Service Company of Colorado, its affiliates, successors and assigns, the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the town, granting the right to acquire, construct, install, located, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to furnish, sell, transport, and distribute gas within and through the Town; and fixing the Terms and conditions thereof. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours, Monday through Friday, 8 AM - 5 PM. . Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado . TOWN OF AVON, COLORADO BY: Patty McKenny Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON APRIL 30, 2004. AVON MUNICIPAL BUILDING, MAIN LOBBY' ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From. Scott Wright, Finance Director Date: May 6, 2004 Re: Public Hearing - Gas Franchise Ordinance No. 04-06 Summary: The Town's current twenty-year gas franchise agreement with Public Service Company of Colorado ("PSCo expires May 31, 2004. Staff has been working with Wade Haerle from Xcel Energy (the DBA name for PSCo) in drafting a new franchise agreement. Council, at it s last meeting, adopted on 1St reading this new franchise agreement. In summary, the franchise agreement conveys the right to PSCo to provide public utility service (in this case natural gas) within Town of Avon boundaries and allow the use of Town rights-of-way for the location of utility facilities and equipment, in exchange for the payment of a franchise fee. These rights are non-exclusive and the Town reserves the right to make or grant a similar franchise to any other company. The Town reserves the right to control and regulate the use of its streets and to impose other regulations to protect the health, safety and welfare of the public. PSCo shall not interfere with municipal uses of the streets and must comply with all Town building and zoning codes and requirements. The franchise agreement is for a term of twenty years. A CML survey indicated that most gas franchises are for twenty or twenty-five year terms. The franchise fee is equal to three percent 3%) of revenues. This is the typical approach and percentage found in most existing franchises. Xcel Energy paid $47,404 and $38,322 in franchise fees for 2003 and 2002, respectively.Z Town Manager Comments: , i Page 1 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO IN THE MATTER OF THE APPLICATION ) OF PUBLIC SERVICE COMPANY OF 1 COLORADO FOR AN ORDER GRANTING TO ) Docket NO. p5A -0m F6 IT A CERTIFICATE OF PUBLIC ) CONVENIENCE AND NECESSITY TO ) EXERCISE FRANCHISE RIGHTS IN THE ) TOWN OF AVON, COLORADO ) Public Service Company of Colorado, hereby applies for a certificate of public convenience and necessity for authority to exercise franchise rights granted by the Town of Avon, Colorado. In support of this Application, and in accordance with Rule 55 of the Commission's Rules of Practice and Procedure, Public Service respectfully states: 1. Public Service's principal office is located at 1225 Seventeenth Street, Denver, Colorado 80202. Publi c Service is a Colorado corporation. A certified copy of Public Service's Restated Articles of Incorporation, with all amendments thereto, is on file with the Commission. Attached as Exhibit 1 is a list of the directors and officers of Public Service and the name of its Colorado agent for service of process. All operations conducted by Public Service under the Certificate of Public Convenience and Necessity sought by this Application shall be conducted under the name of Public Service Company of Colorado. 2. Copies of all notices and other correspondence should be sent to: Fredric C. Stoffel, Vice President Policy Development Xcel Energy Services, Inc. 1225 Seventeenth Street Suite 1000 Denver, Colorado 80202 (303) 294-2013 and Dudley P. Spiller, Esq. Gorsuch Kirgis LLP Tower I, Suite 1000 1515 Arapahoe Street Denver, Colorado 80202 (303) 376-5000 3. Public Service hereby requests the Commission to issue an order granting it a Certificate of Public Convenience and Necessity to exercise franchise rights in t he Town of Avon, Colorado. Pursuant to Ordinance No. 83 -20, adopted May 24, 1983, the Town granted to Public Service a 20 year franchise to provide gas services in the municipality. Pursuant to Ordinance No. 89-13, adopted October 10, 1989, a new Section 2 of Article V was enacted for the Town to change the franchise fee and other franchise terms. Pursuant to Ordinance No. 03 -09, adopted May 27, 2003, the Town granted Public Service an extension of its franchise to provide gas service in the Town for a per iod not to exceed 1 year, to May 31, 2004. Certified copies of the franchise ordinances described above are attached as Exhibit 2. Pursuant to Ordinance No. 04 -06, adopted May 11, 2004, the Town granted Public Service a new franchise to provide gas service in the Town for a period of 20 years, to May 11, 2024. A certified copy of the franchise ordinance is attached as Exhibit 2-A. A map of the area is attached as Exhibit 3. Public Service provides service in the adjacent municipalities of Redcliff and Vail. A full listing of Public Service's existing operations and service area is set forth in Public Service's tariffs on file with the Commission. 4. On August 21, 2001, New Century Energies completed a merger with Northern States Power Company, forming a new holding company, Xcel Energy, Inc. Xcel Energy, Inc., has many subsidiaries that are affiliated with Public Service Company. See Exhibit 4 for a list of affiliated companies. Neither Public Service nor any of its affiliates holds authority duplicating the authority sought by this Application. 5. Public Service has the financial ability and is qualified and competent to provide the service required by this franchise ordinance as evidenced by the Company's balance sheets, income statements, and statements of retained earnings, attached as Exhibits 5 and 6. Public Service respectfully requests that these financial statements be accepted as proof of financial ability, in lieu of a feasibility study, as permitted by Rule 55 (c) (5) . 6. Public Service's tariffs that ar e currently on file with this Commission will be utilized for service under this Application. 7. A copy of the Company's most recent balance sheet is attached as Exhibit 5. 8. A copy of the Company's statements of income and retained earnings is attached as Exhibit 6. 9. The names of public utilities and other entities of like character providing similar service in or near the area involved in the Application are KN Energy and Colorado Natural Gas Company. 10. The Exhibits attached to this Application will be presented at the hearing to show Public Service's qualifications to conduct the utility operations described in this Application. 11. The public convenience and necessity is served by the grant of this Application. Public Service Company has received a franchise from the Town of Avon to provide gas service to the Town and its residents. No other utility provides gas service in this municipality. Public Service has facilities in adjacent municipalities. Extensions can be cost effectively made to serve gas customers in the Town of Avon. 12. Not applicable. 13. Not applicable. 14. A certified copy of the franchise ordinance and acceptance by Public Service is attached as Exhibit 2A. Proof of publication and adoption are attached as Exhibit 7. The approximate population of the municipality is 5,712. 15. Public Service requests that any hearing on this Application be held at the offices of the Commission in Denver, Colorado. 16. Public Service understands that the mere filing of this Application does not, by itself, constitute authority to operate. 17. If authority is granted, Public Service will operate in accordance with all applicable Commission Rules and Regulations. 18. An affidavit signed by an officer verifying the contents of this Application and its attachments is attached as Exhibit 8. 19. A c opy of the notice required by Rule 55 (d) is attached as Exhibit 9. 20. If this Application is non contested and unopposed, Public Service respectfully requests that it be granted, without hearing, in accordance with C.R.S. § 40-6-109(5) and Rule 24 of the Commission's Rules of Practice and Procedure. In compliance with Rule 24, Public Service has verified this Application and the supporting exhibits by the attached Affidavit (Exhibit 8). WHEREFORE, Public Service requests the Commission to enter an order grant ing it a Certificate of Public Convenience and Necessity to exercise franchise rights in the Town of Avon, Colorado. DATED at Denver, Colorado, this /@ day of PUBLIC SERVICE COMPANY OF COLORADO Tower I, Suite 1000 1515 Arapahoe Street Denver, Colorado 80202 (303) 376-5000 EXHIBIT 1 PUBLIC SERVICE COMPANY OF COLORADO (First Tier Subsidiary through Xcel Energy Inc.) 1225 Seventeenth Street Denver, Colorado 80202 Corporate Secretary's Office Contact Denver - 303-294-2800 Minneapolis - 61 2-2 1 5-5344 Public Service Company of Colorado (Company No. 3) was incorporated in Colorado on September 3, 1924. (Also qualified to do business in Montana on 8/3/00 and Alberta, Canada on 311 3/03.) Tax ID No. 84-0296600. DUNS #OO-691-5953. Reaistered Aaent: Corporation Service Company, 1560 Broadway, Denver, CO 80202. Business Purpose: Public utility. Authorized Capital Stock: 10,000,000 shares of Preferred Stock with par value of $.01 per share; 100 shares of Common Stock, par value $.01 per share. 100 shares of Common Stock are issued and outstanding and held by Xcel Energy Inc. DIRECTORS: *Wayne H. Brunetti *Richard C. Kelly Gary R. Johnson *Executive Committee (316198) OFFICERS: Chairman of the Board CEO President & COO VP and General Counsel Vice President Vice President Vice President Vice President Vice President VP and Secretary Vice President CFO Vice President & Treasurer VP and Controller Assistant Secretary Assistant Secretary Assistant Secretary Assistant Treasurer Assistant Treasurer Wayne H. Brunetti Wayne H. Brunetti Richard C. Kelly Gary R. Johnson Paul J. Bonavia Raymond E. Gogel Cynthia L. Lesher Patricia Vincent David M. Wilks Cathy J. Hart Benjamin GS Fowke Ill Benjamin GS Fowke Ill George E. Tyson II Teresa S. Madden Patrice D. Blaeser Catherine A. Jones Carol J. Peterson Judith A. Delaney Mary P. Schell Effective Date 612811 994 811 I1 997 812012002 EXHIBIT 2 7aiN OF AVON FRAKHlSE AGREEHEN1 SERIES OF 1983 4N UtBINUCE GRANTING A FRAKHISE DY THE TOWN Q AVON. CCLDRAW TO PUBLIC KRVICE CMPANY a camrrm. ITS =S!3RS AH) ASSIGNS, TO LOCATE, WILD, MNSTRIXT, ACWlRE, mRCH4Y. EXTEH), MfNlAlN AH) OPERATE INTO, WITHIN AH) TRDUDI THf TOWN OF AVW, EAGLE CUTY, CDLORAW, A RAW1 W RmTS, Am WORKS FOR TI€ PURCHASE Of US, EITHER NATURAL, ARTlf ICIU, (R MIXED, W(r TO FURNISH, SELL IYN) DISTRIBUTE %ID US TO TE 1- Gf AVcH Am TE IMM8ITANfS TEEOF, fW MATING, COOUING. OR OTMR PIWPOYS BY rEANS ff PIPES, WfPb, OR OTnERwlSE, OVER mR, ALONG, AtROSS Ahll ;HIOUCH MY AH) KL STREETS, ULFYS, VIAOLCTS, BRIDGES, RMDS, UHES ilEO OTHER WIG WAYS rr~ PLACES IN srm raw IT AVW AH) FIXIH~ TI€ TERKS AH) eOH)ITIOuS THEREOF. WEREAS, Public Senice b.pq of tolormdo hm flld Itm . application with tha Town of AVM, Colorado, Tor th. granting to it by the Ton of AVM of a fr~ehire In term aa tmrdnfter rat fortk; and . . BE IT QIMllYD BY THE TOWN WCIL Q AVON, EK;LE COLNTY, UILORAM: ARTICLE 1 Section 1. Short Title. Thia Ordinme8 ohm11 ba knan snd my b8 cited . as the Vublic Setvim Company af Colorarh franchire Ordinamem. Section 2. Definitions. For the purpose of thi8 Ordimnee, the follwing terms shall have the meaning given herein. 'Ton' la the Torn of Awn, Eagle County, Colorado, the grantor of right. unoer this franchise. Kompanf ,is Public Service Company of Colorado the grantee of right8 under this franchi re. "Perron* is any person, firm, partnership, msociation, corporation, cmny, or any oqanisation of my kind. "toluissiong i8 the Public Utilitier tomnir8ion of th8 State of toiorado or it8 tuctessor in interest and authority over public utilities. Sectim 1. Grant of Authority. There ia hereby grmnted by tho Torn to tha Company the right, privilepa and authority to locata, build, mnatruct, YquIre, p~rchali~, exlcnd, moantatn, and operata Into, within arb5 thro-h tha Tom 8 plant or plants, works, ryst~c facilities for tha prrchasc, - Unufacturc, trmmmiaaion and distribution of qaa, aithar mtural. attiflcikl or mined, with tha tight and privil.9. for tha perid and upon tarm cnnditi~s kreinftar rpacifird to furmsh, ull md dlatributa pa to tha lom, and ita inhabitants, fw hating, emking or other aimilar purpoaaa, by run of piper, uina, or otlwrwiaa, orar, mdar, along, uroaa and throqh any and 811 atraeta, allcya, viducta, bridgn, mda, lama ud other prblic may ud plwu in tl?a lorn md we?, ulder, along, uroaa ed thro@~ my extanaim, connction mith or continuation of the - knd bvar, under, acmm and thrargn my uld all m streeta, 8llqa. viabeta, bridge., roads, 1.n. r~ Other public rya and placoa aa yy ba hereiftar laid wt, opened, Incatad or construetad within the territory fw or hcta8ft~t included in the bDumar&es of the Torn; provided, hmcrer, that tk ~4any shall have no right to construct any building, drellirq, or mnufactoring facility upon my arch street, pa. amanat or other public pmperty. . Section 2. mnmr of U8e and Reoair. The Company ia furthr granted tha right, privilqa .and authority to arcavata In, orrr~y and uu my and dl atmts, all+, V~MUC~S. bridqaa, roads; lama, parhraya, and othar public vaya anb pluea undcr tha wpeniaim of tha properly conatitutod authority for tne prrpnaa 01 bringing gaa into, within and through tha Tom, ad wpplying gas to tk Tom and its inkabitanta and in the territory adjacent tkreto; prwida, brever, that the Company .hall m locate its plmta, .orb, tranrnissim and distribution atruturaa, equipant, maim, and pipaa within the Tom in accordanca mith Ordinmea includirq digging and trenchin) ordinmets ad Reqolatinna of the Torn and ita sister gwerramts ud further . in locating said facilities ski1 & so in such a runner aa to cause minim interfersr;ce with the proper uaa of atreeta, alleya and other public ways and placer. and to cause mln&mum interferema with the right. of reawnable convenrure of property omers how pmperty adjoins my of tha ~tr~ts, allcyr. or otner public uays and places. Should It becow rrceasary for tha Cw/, an cxercisinp its rights and performing its duties hereunder, to %tcrfcre with my sidewalk, gravelled or paved streets, roads or alleys, or my other mlic or private improveaunt, tb Cmputy ahall proaptly repair at its ur. expenre In a *orknanlika apmr nd in accordance with Ordinances and Rcgulstiam of th lorn and its sister goverments, ms91 sidewalk, gravelled ", p".- .L,CC.) ."'-, " ..., ". -...-. ..-,-.-. .. ...-..- -.--. -..---me----.. -. it. pipea or other structures. The Ccmpany shnll use due care not to .interfere wltn or denaqe any water niru mora, or other structures Mu in plmem or which my nereafter ba placed in meid mtreata, alleya or othmr public plats. and the Compmny ahall. at Ita an expmnr repair in l rorkmanlike unnrr uld in accord~co with ordinma of the lorn end its sister gaemcnta, my of arch nter rim, u*.ra or othr atructurme lhich are emamgod through th wtim of th Coapmy. In thm .vent th Compmy fail. to wce mid repair8 within a rrsomblm ti-, Cor~prny termby wltharizea the Torn to aurw, in dmlm or in part end at th apmr of tha Corpmny. Um work of rapiriq plblic improvrenta, sibwalka, atroots, alleys, roads, highya, or other urfuea excwet00, btokm, torn up, or othhriu d.uged by th C-. Upm the gronting of a fr~chiae mder this 4rrensnt, tha Company ahall d.poait with tha Clerk of tb Torn of Avon, ad aha11 maintain in forcl thrarpn the term of this fr~chlre, s an of $3,000, hich dl1 ba in addition to any bonds required uM.r this Apre-t frm whlch thm Tom shall 6. reimbrad for any coat or mxpen~ incurred in rcpairiq mny prblic i.prwment, aideulk, rtrcet, alley, road. highlay or other wr face excavated or otherwine dmapcd in tha ment that the Company should hi1 to prrmptly rcpmir tfm we in rccordancm with the Ordimeem and Regulations of the Town Corncil, or in m. avent the Tow uaues th rork of rkiq thmam rmprira. fh Coqmy ahall never excavmt~ or tear up my public improvamt, sidewalk, street. alley, road, highray or other wrrfmce wlthwt pecmiaaion frm the Torn Council Or Torn CMagCr or his authorized representative, given in writing, except in event of metgency hen the Torn officea are cloasd. The pe'rnission of th Torn C0~il Or Tom Manager shall not be unr.caorubly withheld. Thia gmntiq of authority shill aM:y to a11 atreeta DM allep presently platted or otharwir8 of record. a11 gas earcmcntr presently owned by or dalicated to tk lm or to the public within thm Tom limita, and -11 eatend to future atreeta, alleys, 98s casements within territory annexed by th Town unlesa rervcd by another Cmpany or the TOHI mtifira tha Company in writing that itm frrnchiae shall mt ba rutmatically crterdad to arch mMurd tarritory. The Coapsn). sbll be reaponsiblc to remedy any defmcta in repair ark do^ by the Coapsny for a pcria8 Of tm years after mletim. Th Torn ski1 have the right to inspect ad supervise any ark on Tom property and improvemanta. Sectaon 3. lnrn Hrld Ilarmlrss. the Company ahall so maintain ita stretures, apparatus, aa&ns, pipes and \er aquipent as to afford a11 reouruble protation qalnst injury 06 -90 to persons or property thrrmfrm. urd th Canpmny oh011 aavo the Torn tmrmlomm frm all liability or 0au90 ma mll r08~~ble -panoes rrceosarIly wcruinq against the tom oriming out of the aercimo bt th Corap.ny of tho riphtm and privilqem hereby qrmtad; prowidod th8t th. Wny -11 have bd -tic0 of tho pondmy of my wtim wain8t th tom arisirq out of ouch oxarcire by tb Coqxny of mid rrgkta ud privilcgom and bo permittad at it8 m mtp.no0 to oppaar and Ocfand or assist In the dofo~c of tho rslr. Upon th granting of a franchiao mder Ulir AgrOa8nt. ttu Cmny -11 rrntmin plblic llobillty inwranc8 in M mutt rnt her than SSOO,OOO, with on rabr8llr for mt lrm thn Sl,OW).000, ud ohm11 furnish a certificate to th tan m mhaiq rhkh insunnca moll cover th Compsny'a liability dor thi8 Aqromant. In lieu of mid certificota. th8 tompany may furnish tha Totm cnidmca in writing of mrlf inwrom oc8ting th murts act forth inedlately abova, togethr with the -8 of itm inmuranee carrier ond ~aowto of public 1i.bility inwranco for nwtr in ocou of ito melf inurrancr. Section 4. Chmngea at Company Expense. If at any tiw it ahall bo ;weaaury for th Cmy to relocat. my focility within, on, war, dor, acrnu or Wvo my mtrrat or public wy to pemit tho Torn to rpb my public iqra-ant or build my Vlic project, including tha inatallation or replaement of MY rlter or rclhr lines, mco by the Torn or its sister povermantal bndia. mh relocation shall be mda by the Company, at ita own nperur. prmptly after request by the Tom. Such relocation shall be ac~liohcd by tlm C~npmy after cmsul tation with and approvol of tlm To*n .nd sbll accomplished in such a manner as to bo consistant with the use of the plblic ways as herein provided. Section 5. Non-Exclusive Nature of the Franchise. Tho right to use and occupy the Street¶. alloys, public eaym and places for the purposes herein met forth shsll not be exclusive and tha lom rrservcs the right to grant similar uae8 art other usas by way uf franchise. rev~cabla pemit, or aa otherwise ~thorizcd by law in rid streets aM public waym to any other pcrmn, partnership or corporation. ARTICLE 11 1 faction I. Sewice StaMlrd5 and C a. Th Colnpmy ohell mintern ud a#rate rta plants end rystn and mrrber ufe, .d.qcate, continuour end efficimt urviem in 1ccotd8nce with ttm rule. and rquletiw of tM Couiaaron ud the terms and caditlone of thin Ordinanca, including apreificelly, but mitMut limitetim, th. rollaing nquirmonta: a. Wetirq value. US sold. upplied md delivermd rnder this frurlriu rhll ha uintairk et 8 mnthly ever.9. of mt 10.. that 950 British Thmrrl Unite Of hat V~UO per Nbic foot. A cdic hot of gu mum thmt -mt of gee hich rhcn roturrtd with meter vmpor at l tmpereture of 8ixty dqrrrs (6D.1 rehrenkit ud wbjeet to an mblolutr premrs .quai to mirty irehas (30.) or aercury, 8t thirty-two dqrre (32.) rehrenhait (14.73 pode per squrre inch) occupres 8 voluar of me (1) c&ic foat. t.8 add der thie franchise shall be acruretely aesulrd utilizing .staring .quipent of 8 type 8~prov.d by the Cou8riw1, and tha toap.ny ahall provide tha Town with opia of celorirrter 4W prrerure mp0rtS m rrqwet. b. Preamre. Caa prceurra, aa m~emur~d rt tho outlet of Vu Caprry'a renice to any conamer *ell naver be lne than nquirad by tha rqulationa of 'tta Coaiuion. me Coqeny ahall rintain a prephie recording preuurr pup at l point in the dlatributim ayatmm to b. daaigmtad by tha Tom ma typical of 8vereqc pressure. Clurtr from tho =me 8hllll be amde ~~eil~ble to ttn Tor, periodicelly at its request. Th Company shall elso keep ml uintmln 8 portable graphic recording gsqa which shall be used at tha request of the Town or of my custmaer of tlm Collpmy within the limit8 or Avm. ta test the preaaure at 8ny point in the distribution system *here it connccte with tha service of 8 custoner. A copy of the testa DM reports from thcr prugn shll a. kept and shall be .Pbe 8veilsble for insepction in the hams of th? Cog.ny and in the office of the Tom Clerk by any custmer cuncarned theremitn. c. Ezpense of ndjwtmmt. If, after natural gas has been mde aveilable, It stnuld later be necessary ta revert to mmufactured, artificiel, or othr auiteble, or mixed 9.8, the &.lp.ny sh.11 defray all ncesrry cxpmaes incidmt to th 8dju~hnt of dmertic, comnercial and gwerrnental eppliancaa, IncloQrnp the Ch.nping or rcdrillinp of orifice8 and burners. 0. Hainternnee of System. TI-r Company ahall rsintain its qes plant aquipent and diatributim syatm ,od condition ad repair at 111 timer. e. Repira - Notica of Interruptions. Chenrvar it 11 mce-ary to .hrt off or interrupt aervica for tm purpor of rkinp repaira or installation. the b-ny -11 do m at ouch time em mi11 emu- thr luat wvrt of incorvanimco to it1 patrma. and unlearn urh rmpaira are unforsum and inadiate1y mcalury, it -11 piwe rmsonmble mtico theroof to the mat-ua. If tk. Cvuy ia mblm to cmfirm receipt of wch notice to my -tour prior to th. intarrupti~ of yrvico to that M~WC, thon in m went mall mieo to that NltolOr be matorad until wch tin aa that customer her bean notifid of the intorruptlon. I. Rwpair After Destruction. In can th. myatem of th. Cmy -11 be partly or *holly deatroyd or incapacitatad, th Coapany rhll at m mpair raid aptem m ea to nnd8r utiafutory mice within tho adtorteat pr.ctie.010 time. g. Meter kmraey. A11 gaa rrrieo ahall k upplied throqh matars which abll accurately mmaure the uornt of 9- upplied to my emrrcr. Th. Company -11 at my ti- .hen requastad by a conamor nko l .=st of ttm Kcurq of my gar service meter free of charge; provided first thmt much meter ha not ben tested within the trlvbmnth period prior to ach rmquest, and aed, that the cmsmer will ogre to accept the result of such test made by the brprny aa th. beaia for settling differences claimed. A written report giving th. reaulta of crery much test shall be mmdm to the mnutr 3ro requested it. the original record being kept on file at the offin of tm Cmpmy fm a period of at leaat two yura. The Cmpmy ahall rake periodic test of meters in AVM in aceoidure with tha requirunenta of Wm Coaission. Any meter found inrcc;rate upon my teat beyond a tolerance of tm percent shall rot be returned to service rntil properly adjusted. The Cmpmy shall mike wailabla at my tilo. to the Ton statmentr indicatiq the rpuber of metera removed for a11 tests and the rwpber -wed for mmp1.int 'eats. topother with tb meter cmnplornts received and th. rswlta of testa on vters thet are the wbJat of complsrnt. h. lhp.. Iha -my Wall prepare and #&bit to tb Board a map hiq the loeation of ita astribution ayah, showing locatron of shutoff vdvcr and gates. IM a11 appurtenansea incident to th? distributim systm, so Iar 8s WCII facilities on reasonably be projuted. The lDsp sh.11 be kept current By addition of tlm Infomatior :cby rtguired as the system 18 atewad or revised. lf the CMp.ny hi18 to keep uch mbp current nd providm th. required infomatlm, th. Torn can cruse arh work to be dom, md cbrqa dl coat thereof to ttm Company. i. Th Cmny mhall uka rdeqwta prwisim hr providiw wtvica to cmtmera, arrd it mall k tk. mspmsibllty of th. Cag.ny, in accordonce dth it. urvica ntuuion mlicy m film ad in aIfact with tho Comhaion, to atand gn lirrs to the property lins of cuat-rr rho have orderad gas. kctien 2. Adwwcy of Supply. Tha Coq.ny will at .I1 thn bring the tam of thlo frnchiu taka all rmmnablm atepa to inrun n MOQUD~D supply of mtural gas, but if uubla lo raa.snbiy procure ~u me, tha comprny shall be md in hrcby authorized end raquird to arpply en edequata aount of rrtiflciel or aixd 0.8 to wtiefy the requitemants of the Tom and It8 i~rbitmnta. ftm tonparty ma11 hmi the right ud o~ipatim to wrpply. artificial ot mixed 9as, at period8 of peak rruqe or at uch other timas or for rub other purposas as wlll malt in efficie~ir in oparatian of the Cmpmny's system, provided that the supply of said othw pa will rpt impair memica to tte Cmpmyms custmmers tux unrmacnebly incream Lh ratas or ch.rqea to mid ~to#rs. Such other gas, or mirturea thereof, shall be -lied by thc Cmnpany in wcordance with applicable rulea ud ordarr of the Couirsion. If tha Cospony, within r reasonmble period aftar Vw hilure of tho aupply of natural 9ra. .hall hi1 to mpply artificial or mixd gas, to its th.n existi- customers or to a srrbst8ntial nubar of the then msiQmts of AVM requcstifq pas nrwirr, the franchime right. granted herein ahall b. termi~td 8nd the Torn uy &quire Uu C-nyer proprty and facilities upon pyment of just cwpenaation as herein defined in Seetima 1 and 2 of Articla VI . Section 1. Rates - Regulation. Th tolp~y -11 furnish gea within the corporata limits of the Tor, or my Udition thereto, except an proridad m Article 11, Seetion 2. to the Town and it8 inh.bitnt8, and to my persm or perms or corporation ding busincar in tha Tom or any ddition thereto, st tha rate8 ad under thc tern md conditions set forth in ttm Rste Schedulu, Standator for Service, Rulcs and Rcgulat ion., and Setvlre Connoellon mnd Extenrim Policies rs ore from time t 'me filed with or firred by the 1 bimsion. In the event that my tequlrsory per pramently vested in the Comirrion oh011 hororftmr be m loqer within rid Comiuion'8 authority, or my rrrceuor .gbncy, then mid pwar ohm11 bm ded vested in thm Town touneil of Avor, or in such .geq ma my bm dmd utumlly occeptmble to thm kctian 2. ho Dircrimimtion. Ihm Conpony -11 mt, me to rmtmm, chlqu, rrvicm, fuilitimm, rulmm, rbgulmtloru or in my other rmrpcct ukm nothim In this gmnt -11 ba Lkon to prohibit tho estrbli8lnmt frm tL.8 to ti- of l grMu8tcd wmlm of chaqeo ud clomrifibd rrtm =hoddam to rhlch my eumtmw mang within mn establirhsd clmuifiemtion cauld ba antitlad. Sction 3. Sewinor to Custmnerr. 1f brticp ttw tom of thim franchim8 ttu eomt to thm Cosp.ny of my mturml, artificiol or mixd gmm mld udmr this frurhima im dbCrrBed Dy th federal Enrqy Rapulmtory Comimoim or my body bring coqetmt jurisdiction belw the comt prmviocnly eotoblished by th Tamrml Pormr Coanirrion, the Company qrm that it dl1 pama m Lo it8 cmurerm heretnder and reknd to them all my8 by credit to thr conunerm' ailla or othcniu arising frm such reduction or rmfund, indtding my ercaol mmucm raaulting from pass-m ineraareo *hem Incramad rmv.nuco havm uce.dcd tk incrmmed cost of 90s. in accordance with tha Rulu ond Regulations of thm Co~aisrion. Section 4. E~tmsions. Ihe Comprny shall frm time to timm &ring the tea of this franchise make such anlPrgement8 mnd axtentiom of it8 dirtribution iyrtn 8s the kninems of th. Company and the grorth or tho Torn justify, in reeordance with its Standsmr for Smmiee, Rules ~d Regulmtima, and Semite Connection and Extension Policie~ far g.8 service currently in effect and m file and mr ore from tin to tiu filed with or fixed by tho Comiuion or other competent wthority hvinq jurimdittion of the prcei~m. Sertion 5. Conolimnee. ?he Colpany, prior to construction a major rcplwmmt of mny gas distribution or trrnsaisoion lim8, regdotory station a 0th.~ rtructum within tb ares of Ivon, including the Torn llsitm, ohall furnish b the To*n ploru for arch facility or facilities and the landscaping pmpomd thetafor. Such plam ohm11 bm revimwd by tho Torn to ~wra that a11 app~~cablc laws. ~ncruo~ng buLrolrq BM mmng mats ano aLr eno ucer pollutim tcgulrtims. we camplied ritn , '. further, thrt resthetic rnd good a plrmang praneiplw hsve brm glva he c- ,rdrrrtlon. Th Cmpmy, in the canrtrvctim ud mrintenurr of all its grr marks end f.cilitirr. rill install, oparrtr and rrintrin dl mch fmcllitier to comply with rpplica1r lrn ud rogulrtionr of ~oer~, strtr ud fmrrrl gwermrnti. Section 6. Coop8ntion With Other Utllitlrr. The Company, *on undertakrrq r project of cmrtrrrtim. mprlr or c8pl.caat involving thr inrtallrtlon of frcilitlms vdrrgrmd or upon Uu urfrcr, 3ull maperrtr with tm Torn ad utilities having frilltin in ttm ur arrr with the aprw derstmnding Uut h Tocner instrllrtim upon ud balor gromd rtull hwr priority in the public ryr ud 8tmtS. Section 7. Ruler mnd Re~ulationr. Tha Company frm tlmr to time my prnmlprte such rules, regulrtions, tern md eonditiorm govrrning th conduct of its hsiners. including the utilizrtion of gar rrd payment therefor, rM the intrrfrma with, or rlterrtim of my of ths Coapmyes property uprm tha promiser of it8 mrtomrs, ar shall ba mwnry to inmrr r continmur and uninterrupta rcmfcr to rwh rnd m11 of It8 custarrr ad ths proper n8sur-t thereof and plmt thrmfor, prwidod that thr Company shall mlu rvrilable to th Torn Clerk of tte Torn upm request Pnd in tte Conpony'r offitu in temer, blorulo, rvdl.ble to Uu pblic, copier of it8 Rate Schcaulcs, Standrrdr for Semla, Ruler Repulatiom, ad Servin Connection and Extension Policirr concurrently in effect end as filed with the . Comirrion or other competent authority having juridictim in the premises. Section 8. Contrrcts rvailabilfty. A mpy of any mntrut to which the Cmputy 1s r party for the purehare of gor frm r pipeline cumpimy or producer of natural par to providr utlity semire under this frmchisr and 8 copy of every other such contract of t- CoPpany filed with my state or federal regulatory agency shall be made avul.ble to the Tow upon its request. Thc Cwpny aprnr that if the lorn acquires the property of the Compmy rnder the :ems of thir fr8~hi~8 the Tam shall be entitled to rlro rquirr, rt its option, an interrrt in said mntrwts to wpply gas that represents the pro rata sNre of pas currently being mcd to provide utility ~ervice under this framhir, to th extent pemisrlblr under said catrrtr ad current finurial obliprtions of bmpany applicable to tho- contruts. The lorn Ccmc8l or any of its uuthorrred rgents cM11 have Uccrs at all res.m.bl8 hour8 to the bmkr and rocorr < th Cmpny which in my uy dd with or' record th gu ~p.catims of the iorprny udtr thla rramhise. Srtion 9. Reoorts. In additlon to npocta that uy bm 0th8fd88 rtqdcr4 by ordiluncm or chartor of tha Torn or by rtato or foderal regulatory bdia, Ch Cmpany rhll .ubsit ruch otbr rrportr ra th Tom Cwnci 1 my frm timm to tin nqurt with rm8p8ct to th mper~tio~ of the Co-pmny rnder this fraehir and all provib. to Vu Tom, ita qloyeor and agent., thm detaflr of th8 plm oplrationr as my bm r8qurrt.d by thm offieialr or. 8qrntr of th Tom. Setion 1. rrurchisa Payment. A8 a further conaid~ntim for thi8 frurhiae. and rccptmd by the Tom in liw of all occupation ud lic.ru8 tua, eha-a and all 0th.r .p.cial tums, aasesmenta, exeirr or other iqoutlond levid by tha Tom a th. right to do budruu or upon th. pips, main&, rctara, or other proporty of th Cmpnny, or other lwiea oneopt uao tann or any pO~it charge or inmpaction ho that might bo iopoeed. mith.r a8 a frmhieo tu, ocm~ation tax, liewr tax, or otherrim, tho Capury ahall pay to the Tom aa frane11so psymta a w equal to t rme percent (SLLof tha &iir\ I~hn5~0ft %%- amd gnu rnenua derived frm tho ral(of pas, to e.ch curtcmer at one location. Ttu Company shall pay thn franchise foe aomt on a rmthly bmair pyala on or befor8 tha thirtieth (30th) day of erh month, for the duration of the franchiso agroament, for tho imaadiatcly prececding mth. Inttiml and final ppmtr shall be prorated for the portiona of ttn montha at tho bqiming MO ud of this franchiro. MjusLMntr for my overpmyment or udcrprmt previoudy mdc dull bc CorrtCtcd with the imdiotely following athly p~ymt. for the prtpso of a8eertaini;q or auditing th. correct mmunt to b. poid uwer th. provlriorv of Chi8 ptrgraph, any official or outhorlrrd .gat of tha Tom ah811 hove access to the books of tho Comp8ny for the purpose of chcckiq the grosa revenur received from operations mi thin said tom. It 18 vlderstood that psyment of Wch frmchise charge doem rpt excuse th Coqmy frm ppent of either sales and use tsrea, ar property tua, as ruch taxer are levied frm time to tire. The to.p3ny shall bo required to mtain my e~eavstlon pemit, or building peroit, if required by Town 'regulat~ona ma pay Ieco required Lo obtain the permit, ~uch poyaont to be In aditron to Crmnchiao py~nts. The'toa "grou mmm" 88 u5.d hrein atnll b8 conatrud to rmn my rwmu dorivd wdor authorizmd rstnl,s pfoyq~ peromnt, within tha -fir - .I 6 ..i \ Tom frm th. ule of gas after the mt mritcoff of mcollcctiblo wcountr and correctiuu to bills thoretofore rerdored. Section 1. Puretun Dptim. At my tia after fire yoarm frm the off.ctivo &to of this fr.ncNao, aa continuing for the balurco of thm tom of rueh fronchiw or my extauim ther~f, th Tom all hawe the right, option 8nd privi1.g. of purctmaing the mny's mtire plmt ond distributim syrtm operatinq in th Town for a purctmn price mpresentinp the fair market valw of Um mystem (the entire rystm 3ull inelud. all 8ddition8 ud extmsi- to tho origins1 systa). If the partlea are not &lo to qroo to tb fair mrket vduc, a~~h wlu sh8U be dotomind through biMing arbitratim. In e8n of such arbitratim, orh p8rty ahall chooae on araitrator, vld th to arbitrators sm mun stall *or a third arbitratoi, m shall b. chaiaan of th arbitration pa-1. Tim costs of arbitration aholl be divided eqdly betren the partiea. Tho Compny and tho Tow agree to negotiate mean8 to limit severance dmaga, inddlng rqulsitlon of sy6te.r was custorarr artsrae ttm lorn. . Section 2. Acouisltion Of Complw Property. Tho purcluse price of the sptm set forth in Seetion 1 of this Article is a method of rquisition of tho systa by the Toun, hieh is altemrtive to any other lawful meam of wquirirq title to tho system by the Tom, and said right and privilege of purctmsing tlm Company's entire syrtm ohsll be in 8dUition to all of the riphtr ad privileges grurted ard rcaorwsa to the Tom by tb. law8 of the State of Colorado in Sil mttars nlatirq to franehiaea. The Tom torncil may authorize th uquiaition of such property by ordinma. The Tom retains the right to uquire property outside the Torn linits by condcnrvtlon or Lhrwir, as grmtd by tb Color& Cmstitutim, rapardleso of whether tho aymtum w~thin ctu Tom is =wired purwsnt to this ketion by condmrution or ottetriae. Sect~on 3. Ten-f ffrct ~vc Ihtc. 1h1r ord1nnnCc sh.11 be In full force a* affect frm and after its pasap, e~ a1 and publlcatian, aa requ~red by lr, ad tm terms, cowit~ons and mvwunta hereof hll rmdn in full force ad affct for a period of twenty (20) yara frm ud after the effutivr 'htr follo~mq final pansa~e. Saction 4. Proewurr After Ternination or Revocation. If the Torn Cwncil shall at my ti- rWOk@ this frurhiar or at the end of th taro tha Tom Corncil -11 drtamrn (6) uh8th.r the -y shall continu to op.ratr ond urntain iU plant arb4 ayatr Cot diatributim to pr~idc 9~s rniea to th. raudmta of Avm, pending tha duiaim of the micipdity ar to rrlettinp th franchiu or th purehme by th. Tom of said plant d distribution ryatu, (b) &thr tha plant ud dirtribtion syatr -11 ba token over ad maintained ad operatd by th Tom in trurt for Lh. Compmy until such decision Ma hen reached, or (c) tdmthtr thr Tor, Cou~til ah11 draipnte ulothr party to taka mar, maintain ad operata said plant and distribution pending uCh decision. Saction 5. Reawl. Upon thc upiration of this franchiu, if th. Eapmy shall not hmr rqufrrd an atmaim or rammal thrrmf ad accepted --, it ir Mmby grantrd thr right to nter upon thr atreeta, dleya, dribpn, ri.duet., rods, lama and 0Lh.r public places of th Tom for the purpon of mmminp any or all of ita plmt., atructurre, piper, uina, or . . cquipent prrtainirq tkrrto, at my tima after th Torn ba received writtan mtlce of the Companyea intent to raw# my of th. above md the Torn he .bd uaplr tiam and opportunity to putcbec, condam or rtplace them. Prior to the rmovrl of my of its plants, structures, pipla, mains or equipment, th. Caqmy shall pat a bond with ttu Tom Clerk in m mrnt equal to tw (2) tima the estimated cost of runoval and restoration. Thr Tonn Courcil shll have th right to ruim and adjust my such estiutes of the cost of removal md restoration. In so rming mid pipes, maim or other property, ths Cmpy shall, et its om expenae, and in -a rorkmalike manner and in atcordrncc ~rtn lorn Ordinances and Regulations and those of its dater narmentr, refill my seavations that shall be made by th tol~psny in thr gravelled or paved strecta, alleys, bridges, viaductr, rouh, Isma and other puslic placer after th removal of its maim, pipea or otbr structures. If th Compny tus not squired an extension or rrraul of its frnnchiar dthin one year after its termination and tus not rmoved itn plants, atructurcr, at rto optim requim th Cmpmy to rm said faeilltioa ot ttm Compmyma bpona,'or Uu Tom my wire 011 th. right. of tho Company in mid proputy in uco- with Sctiono 1 and 2 of this Article. Section 6. m. Lteo clurged by tho tompony for oorvico kredor dm11 be fair ord ruoMlblo ord designad to mat 011 nreosory mot. of oerrice, including 0 hir r~te of roturn On tho mt volurtion ot it. pmpwtin dwotad thmto, vder rfficimt and .co~licol urugunt. Tho Coq.ny qreco Uut lt oh011 bo rubJct Lo all outhorlty mu or hrooftor pasumad by .ny rqulotory body hovirq juriodlctlm Lo fix juot, ruomablo, .nd --tory p.0 rotu. Tlu Colp.~ further 4meo that tha oyotr ohm11 be dni~nd ord nnotructod ord murcm or 0.0 utilizod u to providn th mot teowic dnelopont md tovoroble mte otrrrture poosiblo, takirq into =aunt deliverability of goo, resmro ord othor pertlrmt mnditim. Section 1. Aaaiq-t. Th Co.p.ny arm11 mt oooign thlo Cronehim, or tho right. grmtsd horewder, witbut firot obtoinirq urittrn opprovol of tho tom Couull; praidd, bmovor, thot thio cordition oh11 not bo conotrued to rmrtrict or pmmt th io~m ot Wo, d~ontureo or other widones of ird&t.bru, or tho iooum of odditionol stock, needed or umful for tho wrpor of finncirq tha ryotr or my portion of it. Section 8. E. Within fifte~ (15) drys rftrr thm tom hom. edoptd trua Frurhix Agreoaent, tlm Cmpq ohall deposit with the tom Cle* 0 bond in the pen1 ma of fifty Thousand Dolloro (SS0,OM.m) executed by tha Capony with wrcty to be approved by th town, conditloncd upm cmpllonco rlth the terms of this Ordinvlce end further mMitioncd thot the Company ond ito surety shall py to the Town a11 Casts, apanoeo on6 domopu reaultirq to trm Tom from tho friluro of the bapny to colnply with the tcrao of thio Ordirunce, ord further conditioned that tk ton ohdl r.Fover a11 mato ond espmar incurred in enforcing mllection of mid bond. Such knd rblL br mintrind rn full tarem rrd eftatt durinp tb period of thio trsnchioe, and dditionml security uy b. required fraa tin to time, or mcurity may b. rdjwtod, revload m urbotitutad upm writtan cmrnt ot the torn. Section 9. forfeiture. the Torn mservoo tho riqht to declare 0 forfeiturn of thio fmrchise for the breach af 0 odmtontiol and mrteriol provision thmrwf. h forfeiture aha11 be declared mtil tho eorpsny oh11 hova hod .n opportunity to b. herd and to corroct tb 0llog.d brcrh. Upm failure of the Company to exercise r' ?onable dilligence to correct such cgnditiop, Che Town may declare thfr anchire forfeited. In the event that this franchise ia forfeited, then the Company agrees to continue to render service for a period of sir(6)laontJm to give the Town time to decide upon its course of action. Section 10. Severability. If any portion of this Ordinance is for any mason held invalid or unconstitutional by any court of competent jurisdiction. auch portioa shall be deemed a separate distinct and independent provision, and much holding sh.11 not affect the validity of tho remaining portion of thia Ordinance. Section 11. Resewed fights. The right is hereby reserved to the Town to adopt, from time to time, in addition to the provisions herein , antained, auch srdinmcms aa may be dammed mcesoary in the exercise of its police power, provided that such mgulstions shall be reason- able and not deatructivc of the rights herein grsnted.4 and not in conflict with the law8 of the State of Colorado, or wit? orders of other authorities having jurisdiction in the premises, except as pedtted in the exercise of the Town's ghome ruleg powers granted by Azticle XX oof the Colora&~Conatitution. This franchise shall be subject to a11 valid and effective provisions of the Town Charter whether enumerated herein or not. ASSED on first reading this 26th day of April , 1983. PASSED on second reading this 24th day of Hay , 1983. Patricia J. ORDINANCE NO. 89-13 AN ORDINANCE AMENDING A GASEOUS FUEL FRANCHISE GRANTED BY THE TOWN OF AVON, EAGLE COUNTY, COLORADO, TO PUBLIC SERVICE COMPANY OF COLORADO, ITS SUCCESSORS AND ASSIGNS Be it ordained by the Town Council of the Town of Avon, Eagle, County, Colorado: Section I. Ordinance No. 83-20 Series of 1983, pertaining tc th2 Public Service Conpany franchise is hereby amended as follows: A. Article V, Section 1. Franchise Pavaent is repealed and re-enacted as follows: Section 1. Franchise Pavrect. As a further consideration for this franchise, and acceptsd by the Town in lieu of all occupztion and 1Fcease tax~s, charges and all other special taxes, assesnents, excises or other impositions levied by the Town on the right to do business. or upon the pipes, mains, meters, or other property of the Company, or other levies except use taxes or any perziit chsrge or inspection fe~ that tight be irposed, either as a frs.r,chis~ tax, occupztion tax, licence t~i:, or otherwise, the Conpany shall pay to the Town as frenchise paynents a sua equal to three perc~nt (3%) of the annual gross revenues derived frox the sale an2 transportation of gas, to each customer at cne location. Thc Cozpany shall pay the franchise . fee axount on a monthly basis payable on or before the thirtieth (30th) dty of each aocth, for the durztion of the franchise agreezent, for the Inredlareiy preczeding aonth. Initial and final payments shall be prorated for the portions of the r.onths at the becinning and end of this franchise. Adjust~ents for any ~verpayrrent or underpayn!ent previously nade shall be ccrrected with the inmedietel;- fcllowing cionthly payzent. For the purpose of ascertaining or auditing the correct aXoant to bc paid under the provisions of this paragraph, any official or authorize6 agent 3f the Town shz.11 have access to the books of the Cozp~ny fcr the purpose of checking the gross rever~ue r~c2ive6 fro? operzticns wit2in said Town. It is understood that FZ~IEC~ O: SUC~ franchise charge does not excuse the Cozpany fro= payzent of either sales and use taxes, or property tzxes, as such taxes zre levied fror ti~2 to tine. The Cos?any shall be required to obtain any ~xcavation p~rzit, or bullding perzit, if required by Town regulations and p~y fees reqaired to obtain the permit, such pzy~ent to be in addi~icn to franchise paynentr. The tera "gross revenue" 2s used herein shall be construed to ZeaZ any revenxe derived xnder authorize6 rates, tenporary or perranent, nith:~ tke rn A.~~n frox ths sale and tra2spcrtztion c~f gas after the net write-off of urcoll~ctible accoucts an5 correc:ions to bills theretofore renderee. B. X new Section 2 of J-rticle V Is enacted as follows: term, the Town Council, upon giving thirty (30) days notice to the Conpany of its intenticn so to do say review and change thc consideration the Town nay be entitled to receivc 2s a part cf the frznchise; provided, however, the Council ray only chasgc tk consideration to be received by th2 Tcwn undcr th~ tcrzs of this franchise to t.5~ equivalent of tt:~ consideration paid by the Conpanp to any city c.r town in tbe Stcte of Colorado ir. whi'ch the Coxpar~y supplies gas scrvice under fracchise. The Coxpay stall, :Lpcn reqzest, report to the Tow> wicliir. sixty (60) days of the execution of a subsequent franchise or of any change of franckise in other ~unicipalities that could have a significant financial irpact on the consideration ro be 6 k.- the Cozpany to the TOWE hereunder. If the T2wr: Cocacil decides the consideration 'shall SE so changcS, it shall prcvi2c fcr scch change by ordinance; provided, h~wever, that any change in the franchise fee is t?ien allow~d to be surcharged by t3~ Coz?any; and provice?, furthzr, rhzt the con side ratio^ is not high~r than 2 hich?st co~sideration paid by the Cor.pzny to any mnicipzlity within the State of Colorado. . . For purpos~s c: zs Secr ior-. co~sid~ratior: ?:sans ths franchise fee estzbliz!-:cd in ;.rticle V, Secticn 1, and also includes any 0th~- ?rc.vision which is of siriilar significant fir~?.nci?l bczefi: :o thc Town. section 11. This Ordinance is deemd necessary for the protection of the health, safety and welfare of the citizens of Xvon. Section 111. ff any article, section, paragraph, sentence, clause or phrase of this Ordinance is held to b? unconstitutional or invalid for ar,y ressoz, such decisioz shall not affect the validity or constitutl~zslity of the reraining portions of this Ordinanc~. The Town Council h~reby cj~cla1-e~ that it would hzvc passee this O-dinancc and each part or parts her~of irres~ective of the facr thzt any onc part or parts hcreof be declar~d c~consticutional or In-,:slid. INTRODUCED, REA3 A1.13 PASSSD OK FIZST READIIJG AT A REGULAR MEETING TEE T3WY COUNCIL OF THE TOW!: OF AVO!:, COLORADO, this 12th dey of September , i989. ?.:-c:~ ~0~1.: COUlICIZ; OF THE TOW!.: OF AVOIJ, COLORADO, this 10th day cf October , 1989. ORDINANCE NO. 03-09. SElUES OF 2003 AN ORDINANCE AMENDING ORDINANCE NO. 83-20, SERIES OF 1983, GRANTING A FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Section 3 of Article VI of Ordinance No. 83-20, Series of 1983, is amended to provide as follows: "Section 3. Term-Effective Date. This ordinance shall be in full force and effect from and after its passage, approval and publication, as required by law, and the terms, conditions and covenants hereof shall remain in full force and effect through May 3 1,2004." INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED the 13th day of May, 2003, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on the 27th day of May, 2003, at 520 P.M. in the Council Chambers, Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. Albert D. Reynolds, ~ayk INTRODUCED, FINALLY APPROVED, PASSED ON SECOND READING AND ORDERED POSTED the 27th day of May, 2003. APPROVED AS TO FORM: Jo W. Dunn, Town Attorney m EXHIBIT 2-A TOWN OF AVON, COLORADO ORDINANCE NO. 04-06 SERIES 2004 AN ORDINANCE OF THE TOWN OF AVON, EAGLE COUNTY, COLORADO, GRANTING BY FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT TO USE THE STREETS WITHIN THE TOWN TO FURNISH, SELL, TRANSPORT AND DISTRIBUTE GAS TO THE TOWN AND TO ALL RESIDENTS OF THE TOWN, GRANTING THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH THE TOWN ALL FACILITIES REASONABLY NECESSARY TO FURNISH, SELL, TRANSPORT AND DISTRIBUTE GAS WITHIN AND THROUGH THE TOWN; AND FIXING THE TERMS AND CONDITIONS THEREOF. WHEREAS, Public Service Company of Colorado has filed it application with the Town of Avon, Colorado, for the granting to it by the Town of Avon of a franchise in terms as hereinafter set forth; and BE IT ORDAINED BY THE TOWN COUNCIL OF AVON, EAGLE COUNTY, COLORADO: ARTICLE 1 DEFINITIONS For the purpose of this franchise agreement, the following words and phrases shall have the meaning given in this article. When not inconsistent with context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined in this article shall be given their common and ordinary meaning. Touncilft or "Town Council" refers to and is the legislative body of the Town of Avon, Eagle County, Colorado. "Company" refers to and is Public Service Company of Colorado, its successors, assigns, affiliates and subsidiaries. "Facilities" refer to and are all apparatuses reasonably necessary for the Company to provide gas service into, within and through the Town, including but not limited to plants, works, systems, substations, equipment, pipes, mains, conduit, gas compressors, Ordinance No. 04-06 Page 1 of 13 meters, meter reading devices, communication and data transfer equipment, control equipment, gas regulator stations,. ''Party1I or "Parties" refers to and includes the Company and the Town, either singly or collectively as the context requires. "Public Utilities Commission" or "PUC" refers to and is the Public Utilities Commission of the State of Colorado or other state agency succeeding to the regulatory powers of the Public Utilities Commission. "Residents" refers to and includes all persons, businesses, industry, governmental agencies, and any other entity whatsoever, presently located or hereinafter to be located, in whole or in part, within the territorial boundaries of the Town. "Revenues" refer to and are those amounts of money which the Company receives from its customers within the Town from the sale of gas under rates authorized by the Public Utilities Commission as well as from the transportation of gas to its customers within the Town and represents amounts billed under such rates as adjusted for refunds, net write- off of uncollectible accounts, corrections or regulatory adjustments. Regulatory adjustments refer to, by way of explanation, but not limitation, credits, surcharges, refunds and pro-forma adjustments pursuant to federal or state regulation. "Streets" refer to and are streets, alleys, viaducts, bridges, roads, lanes and other public rights-of-way in the Town. "Streets" shall also include public easements and other public places within the Town that are suitable locations for the placement of Facilities. "Town" refers to and is the municipal corporation designated as the Town of Avon, Eagle County, Colorado. ARTICLE 2 GRANT OF FRANCHISE $2.1 Grant of Franchise. The Town hereby grants to the Company the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the Town. The Town also hereby grants to the Company the right to Ordinance No. 04-06 Page 2 of 13 acquire, construct, install, locate, maintain, operate and extend into, within and through the Town all Facilities reasonably necessary to furnish, sell, transport and distribute gas within and through the Town. These rights shall extend to all areas of the Town as it is now constituted and to additional areas as the Town may increase in size by annexation or otherwise. If the boundaries of the Town are expanded during the term of this franchise, the Company shall extend service to Residents in the expanded area at the earliest practicable time and in accordance with the Company's extension policy. Service to the expanded area shall be in accordance with requirements of the PUC and the terms of this franchise, including payment of franchise fees. The rights granted by this franchise are not, and shall not be deemed to be, granted exclusively to the Company, and the Town reserves the right to make or grant a similar franchise to any other person, firm, or corporation. Except as otherwise specifically provided herein, the Town retains the right through the exercise of its police power to use, control, and regulate the use of the Streets, and the space above and beneath said Streets. The Town retains the right to impose such other regulations as may be determined by the Town to be necessary in the reasonable exercise of its police power to protect the health, safety, and welfare of the public. 52.2 Term of Franchise. This fianchise shall take effect upon its adoption and shall supersede any prior franchise grants to the Company by the Town. The term of this franchise shall be twenty (20) years. ARTICLE 3 FRANCHISE FEE 3 Franchise Fee. As consideration for the franchise rights granted herein, and in recognition of the fact that the grant to the Company of the right to use Town Streets is a valuable right, the Company shall pay the Town a sum equal to three percent (3%) of all Ordinance No. 04-06 Page 3 of 13 Revenues received from the sale and transportation of gas within the Town, excluding revenues received from the Town for the sale of gas to the Town. Surcharge of Franchise Fees. The Company shall charge a franchise fee to all Town residents that use facilities of the Company in Town Streets to obtain gas. No franchise fee shall be charged to the Town for gas service provided to the Town for its own consumption. Remittance Schedule. Franchise fees that are collected from Residents shall be remitted by the Company to the Town in monthly installments not more than thirty (30) days following the close of each month. All payments shall be made to the Finance Director. In the event that either the Town or the Company discovers that there has been an error in the calculation of the franchise fee payment to the Town, the error shall be corrected in the next monthly payment, subject to the following provisions: In the event an error by the Company results in an overpayment of the franchise fee to the Town in excess of $5,000, credit for the overpayment shall be spread over the same period the error was undiscovered; if the overpayment is $5,000 or less, credit shall be taken against the next payment. In no event shall either Party be required to refund any over- or underpayment more than 3 years from the date of the over- or underpayment. Audit Rights; Protection of Confidential Information. The Finance Director, or his or her agent, shall have access to the metering records of the Company during normal business hours upon reasonable notice for the purpose of auditing to ascertain that the franchise fee has been correctly computed and paid. Except as provided in Section 3.6, all information obtained by the Finance Director during a franchise fee audit shall be kept confidential and shall be utilized for the sole purpose of verifying that the franchise fee has been correctly computed and paid. Enforcement of Town Sales and Use Tax Laws. The Town may use the metered information obtained from franchise fee audits for the purpose of enforcing its sales and use tax laws. Upon request by the Town, the Company shall supply the Town with a list Ordinance No. 04-06 Page 4 of 13 of all suppliers of gas that utilize Company Facilities within the Town Streets to sell gas to Town Residents. 93.6 Franchise Fee Payment in Lieu of Certain Taxes and Other Fees. The Town accepts payment of the franchise fee by the Company in lieu of any occupation tax, occupancy tax, license tax, or similar tax or fee the Town might charge the Company or its subcontractors for the privilege of doing business in the Town, for the use or occupation of Town Streets, or for the installation, operation and maintenance of Company Facilities. Payment of the franchise fee does not exempt the Company from any lawful taxation upon its property or from any other tax not related to the franchise or the occupation or use of Town Streets, including the payment of head taxes, sales taxes or other fees or taxes assessed generally upon businesses. ARTICLE 4 SUPPLY, CONSTRUCTION AND DESIGN 4.1 Obligations Regarding Company Facilities. The Company shall install, maintain, repair, renovate and replace its Facilities with due diligence in a good and workerlike manner. Company Facilities shall not interfere with the Town's water mains, sewer mains or other municipal uses of the Streets. The Company shall construct and maintain its Facilities in such a way as to minimize interference with trees and other natural features. The Company shall install underground all gas pipelines serving new residential subdivisions. 54.2 Excavation and Construction. All excavation and construction work performed by the Company shall be done in a manner that minimizes inconvenience to the public. All property disturbed by Company excavation or construction activities shall be restored by the Company at its expense to substantially its former condition. 54.3 Relocation of Company Facilities. The Company shall relocate, at its expense, Facilities in the Streets that interfere with a public project undertaken and paid for by the Town with public funds. The Town shall provide at its expense sufficient right-of-way for the Company to relocate its Facilities. The Company shall relocate its Facilities at the Ordinance No. 04-06 Page 5 of 13 request of the Town or other person to avoid interference with other non-publicly- financed projects, but the expense of the relocation and the new right-of-way shall be paid in advance by the Town or by the person conducting the project and requesting the relocation. Relocation shall be completed within a reasonable time after a request and payment therefore is made (if applicable). In the event that the Town requests the Company to relocate the same Facilities within five (5) years of completion of a prior relocation, the subsequent relocation shall be at the Town's expense. Underground Facilities shall be relocated underground. Above ground Facilities shall be relocated above ground, unless the Town pays the additional cost of relocating above-ground Facilities underground . 54.4 Town Not Required to Advance Funds. Upon receipt of the Town's authorization for billing and construction, the Company shall extend its Facilities to provide gas to the Town for municipal uses within the Company's certificated service area, without requiring the Town to advance funds prior to construction. Nothing in this section shall release the Town from the obligation to pay for the extension of Facilities once complete, in accord with the Company's gas tariffs on file with the Public Utilities Commission. ARTICLE 5 COMPLIANCE 55.1 Compliance with Applicable Laws. The Company and all of its contractors shall comply with all applicable Town laws, ordinances and regulations. The Company shall require its contractors working in the streets to hold the necessary licenses and permits required by the Town. 55.2 Compliance with Town Requirements. The Company will comply with all Town building and zoning codes and requirements regarding curb and pavement cuts, excavating, digging and related construction activities. Ordinance No. 04-06 Page 6 of 13 85.3 Inspection. The Town shall have the right to inspect any portion of the Company's Facilities in the Town Streets. The Company agrees to cooperate with the Town in conducting the inspection. ARTICLE 6 PUBLIC UTILITIES COMMISSION REGULATION 6.1 Compliance with Orders bv the Public Utilities Commission. The provision of gas service by the Company is regulated in whole or in part by regulatory agencies including the Public Utilities Commission. The Company is obligated by law to comply with all lawfbl PUC orders, rules, and regulations. The Town shall impose no obligation on the Company that interferes with the Company's ability to comply with lawful regulatory orders, rules, and regulations. 86.2 Certificates to Exercise Franchise Rights. The Town agrees to assist the Company, if necessary, in obtaining PUC approval of a certificate to exercise the franchise rights conferred under this Franchise, including negotiating a change to any provision of this franchise agreement which the PUC may require in order to obtain the certificate. ARTICLE 7 TOWN USE OF COMPANY FACILITIES 7.1 Trenches Available for Town Use. If the Company opens a trench to install its Facilities, the Company shall provide advance notice to the Town to permit the Town to install Town Facilities in the same trench at the Town's expense. The Town's installation of its Facilities shall not interfere with the Company's Facilities or delay the commencement or completion of the Company's construction project. ARTICLE 8 INDEMNIFICATION OF THE TOWN 8.1 Town Held Harmless and Indemnified. The Company shall indemnify, defend and hold the Town harmless from and against all liability or damage and all claims or demands Ordinance No. 04-06 Page 7 of 13 arising out of Company's operations within the Town pursuant to this franchise. 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 shall be permitted, at its own expense, to appear and defend or to assist in defense of such claim. The Company shall not be obligated to indemnifl, defend, or hold the Town harmless to the extent any claim, demand or lien arises out of or in connection with any intentional or negligent act or failure to act of the Town or any of its oficials, agents or employees, or to the extent that any claim, demand, or lien arises out of or in connection with the use of Town facilities. 58.2 Pavment of Ordinance Expenses. The Company shall reimburse the Town for actual out- of-pocket expenses incurred in publishing notices and ordinances and conducting elections related to this franchise. ARTICLE 9 TRANSFER OF FRANCHISE 9.1 Consent of Town Required. The Company shall not transfer or assign any rights under this franchise to an unaffiliated third party, except by merger with such third party, or, except when the transfer is made in response to legislation or regulatory orders, unless the Town shall approve in writing such transfer or assignment. Approval of the transfer or assignment shall not be unreasonably withheld. 89.2 Transfer Fee. In order that the Town may share in the value this franchise adds to the Company's operations, any transfer or assignment of rights under this franchise requiring the approval of the Town under 59.1 shall be subject to the condition that the transferee shall promptly pay to the Town a transfer fee, which shall be calculated by multiplying one million dollars by a fraction of which the numerator equals the then population of the Town of Avon which is served by the Company, and the denominator equals the then population of the City and County of Denver. Such transfer fee shall not be recovered from a surcharge placed only on the rates of Town Residents. Ordinance No. 04-06 Page 8 of 13 ARTICLE 10 MUNICIPALIZATION $10.1 Town's Riaht to Condemn. During the term of this franchise, the Town agrees not to condemn the Facilities of the Company or to otherwise restrict the Company's opportunity to conduct business in the Town, except as specifically provided in C.R.S. tj 31-15-707. $10.2 Operation of a Municipal Utility or Competing Distributors. If, during the term of this franchise, the Town operates a municipal gas utility or issues to another entity a franchise to use the Streets for the placement of gas Facilities, the Company shall no longer be required to collect and pay franchise fees under Article 3 unless substantially the same terms and conditions apply to the service provided by the Town or by the other entity. In addition, the following sections of this franchise shall no longer apply to the Company unless substantially the same provisions are applicable to all other gas distributors, including the Town: Articles 3.3,3.4,3.5,4.1,4.2,4.3, 5.1, 5.2,5.3, 7.1,9.1 and 9.2. ARTICLE 11 UNCONTROLLABLE FORCES tj 1 1.1 Uncontrollable Forces. Neither the Town nor the Company shall be in breach of this franchise ordinance if a failure to perform any of the duties under this franchise is due to uncontrollable forces, which shall include but not be limited to accidents, breakdown of equipment, shortage of materials, acts of God, floods, storms, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government and other causes or contingencies of whatever nature beyond the reasonable control of the party affected, which could not reasonably have been anticipated and avoided. Ordinance No. 04-06 Page 9 of 13 ARTICLE 12 BREACH 5 12.1 Breach. If the Company fails to perform any of the terns and conditions of this franchise and such failure is within the Company's control, the Town may notify the Company of the specific failure and shall allow the Company a reasonable time within which to remedy the failure. If the Company does not remedy the failure and the failure is of a substantial nature, the Town Council may terminate this franchise after a hll evidentiary hearing. Termination of the franchise shall be by no less than 75% vote of all members of the Town Council. 5 12.2 Judicial Review. Any such termination of the franchise shall be subject to judicial review as provided by law. ARTICLE 13 AMENDMENTS 513.1 Amendments to Franchise. This franchise may be amended only by a writing signed by both the Company and the Town, which is approved in the same manner as is required for the passage of this ordinance. ARTICLE 14 MISCELLANEOUS 514.1 Successors and Assigns. The rights, privileges, franchises and obligations, in whole or in part, granted and contained in this ordinance shall inure to the benefit of and be binding upon Public Service Company, its successors, assigns, affiliates and subsidiaries. 5 14.2 Third Parties. Nothing contained in this franchise shall be construed to provide rights to third parties. 514.3 Representatives. Both parties shall, from time to time, designate, in writing, represen- tatives for the Company and the Town to whom notices shall be sent regarding any action to be taken under this ordinance. Notice shall be delivered in person or by certified mail to the persons and addresses hereinafter stated, unless the persons and addresses are Ordinance No. 04-06 Page 10 of 13 changed at the written request of either party. Until any such change shall be made, notices shall be sent as follows: To the Town: Town Clerk Town of Avon, Colorado P. 0. Box 9 75 Avon, CO 81620 To the Company: Cynthia Evans Vice President Public Service Company of Colorado P. 0. Box 840 Denver, CO 80201 $14.4 Surcharge to Town Residents. The Company shall be permitted to surcharge to residents of the Town the franchise fee payments it makes to the Town. The Company shall be permitted to surcharge to residents of the Town any other payments it makes to the Town only to the extent and in the manner permitted by law or as otherwise ordered by the PUC. $14.5 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 a substitute term that will achieve the original intent of the Parties hereunder. $14.6 Entire Ameement. This franchise constitutes the entire agreement of the Parties with respect to the matters contained herein and supersedes any and all prior written or oral agreements, negotiations, correspondence, understandings and communications with respect to this franchise. $14.7 Headinns for Reference Only. The headings in this franchise are for reference only and convey no substantive rights or impose no substantive obligations on the Parties. Ordinance No. 04-06 Page 11 of 13 514.8 Responsibilitv for Lanmage. The Town and the Company hereby acknowledge that each bears co-extensive and identical responsibility for the language in this franchise. In case of ambiguity, there shall be no presumptions based upon responsibility for drafting this franchise. $14.9 No Waiver of Rights. Neither the Town nor the Company waives any rights under the statutes and constitution of the State of Colorado or of the United States except as otherwise specifically set forth herein. 514.10 Prevailing Party. In any judicial or administrative action to enforce any of the terms or conditions of this franchise, the prevailing party shall be entitled to recover its costs and expenses incurred in such action, including reasonable attorney fees. 5 14.1 1 Approval of Franchise. The Company shall promptly file, in writing, its acceptance of this franchise and of any amendment of this franchise following the Town's final approval of the same. The failure to file such an acceptance within 45 days of said final adoption shall be deemed an acceptance of such franchise or amendment thereof. INTRODUCED, READ, PASSED ON FIRST READING AND ORDERED POSTED THIS aP DAY OF ~PGL , 2009. A PUBLIC HEARING ON THIS ORDINANCE SHALL BE HELD AT THE REGULAR MEETING OF THE TOWN COUNCIL ON THE I\* DAY OF , ~~Y.AT 5:30 PM IN THE COUNCIL CHAMBERS, AVON 400 BENCHMARK ROAD, AVON, COLORADO Albert D. Reynolds, ~a~br I Patty flc~bnn~, ~owl(0erk Ordinance No. 04-06 Page 12 of 13 INTRODUCED, PASSED, ADOPTED AND APPROVED ON SECOND READING AND ORDERED POSTED THIS 1 I& DAY OF mx ,2003 Albert D. Reynolds, ~a~oi APPROVED AS TO FORM: Publication Dates: ACCEPTED: PUBLIC SERVICE COMPANY OF Ordinance No. 04-06 Page 13 of 13 EXHIBIT 3 See Map 9 I EXHIBIT 4 AFFILIATES OF PUBLIC SERVICE COMPANY OF COLORADO As of August 21,2000 Name of Company - - 1 Xcel Energy Inc. ("~cel Energy") 1 1480 Welton, Inc. BCH Energy, Ltd. Partnership Bear Energy Corp. Black Mountain Gas Company Borger Energy Associates, L. P. Borger Funding Corporation Cadence Network, Inc. Cambodia Power Company cGiiini&gy, ~td.artnershi~ Cheyenne Light, Fuel and Power Chippewa and Flambeau Improvement Company Clearwater Investments, Inc. Cogeneration Capital Associates, Inc. CPC Ltd. Partnership Denver City Energy Associates LP Ditch and Water Companies Dragon Energy Corp. E Prime (Belize) Ltd. E Prime Florida Inc. E Prime Georgia, Inc. 1 Organization State of Organization Minnesota Colorado ' Corporation I British Virgin Islands Ltd. ~artnershi~ [ Delaware Corporation I Wyoming Corporation I Corporation Wisconsin Ltd. Partnership Ltd. Partnership I Caymen Islands Delaware Corporation I Corporation I Georgia California Ownership Publicly Held 100% PSCo 42.2% Quixx 50% Dragon Energy 100% Xcel Energy .45% Quixx Borger 44.55% Quixx Resources 100% Borger Energy New Century - Cadence 22.22% 50% CPC 1% Quixx ~aroliG 100% Xcel Energy 76% NSP-W 24% various 100% NSP-W 100% Planergy Services 1 % Bear Energy 0.5% Quixx Mustang 49.5 % Quixx Resources 100% Quixx Corp 100% E Prime 100% E Prime 100% E Prime 1 Type of Business --- - 1 Holding Company 1 Holds PSC Real Estate Inactive Holds 1 % GP in CPC Ltd. partnership which holds 50% in Cambodia Power, which is developing 60MW naphtha fired power plant in Cambodia Distributes natural gas Owns Blackhawk Station Co-issuer wIBorger Energy of bonds for construction of Blackhawk Station Energy Efficiency Practices Developing 60 MW naphtha fired power plant in Cambodia Inactive Purchase, transmission, distribution and sale of electricity and natural gas. Operates hydro reservoirs Owns interests in affordable housing projects Limit liabilities associated with borrowing agreements Holds 50% interest in Cambodia Power Co which is developing 60 MW naphtha fired power plant in ~ambodia ' Owns 50% interest in Mustang Station, electric generating facility PSC holds a greater than 50% interest in several relatively small ditch and water companies for purpose of cooling water for generation facilities Holds 50% interest in Bear Energy Corp and 49.5 % Ltd. Partnership interest in CPC Ltd. Partnership Inactive Holds contracts in Florida which were not sold in Texas Ohio Gas Co. Sale Holds connacts in Georgia - which were not sold in Texas I Name of Company 1 Organization I State of I Ownership I Type of Business I E Prime, Inc E Prime Energy Marketing, Inc. Eloigne Company ("Eloigne") Energy Masters International, Inc. Corporation Corporation Corporation EP3, LP First Midwest Auto Park, Inc. I I facility in CO Fuel Resources Development Co I Corporation I Colorado 1 100% PSCo I Inactive (under in dissolution Corporation Front Range Energy Associates, LLC I Green and Clear Lakes Company I Corporation I New York 1 100% PSCo I Stores water for use at Cabin Organization Colorado Colorado Minnesota Ltd. Partnership Corporation Minnesota Ltd. Liability Company 100% Xcel Energy Market 100% E Prime 100% Xcel Delaware Minnesota I Ohio Gas Co. sale Unregulated commodity marketing affiliate Buy and sell gas Owns interests in affordable Ventures 100% Xcel Retail Delaware I 1 Creek I Company housing projects Provides energy marketing and performance contracting 50% E Prime 100% NSP Guardian Pipeline, L.L.C. I Ltd Liability I Delaware 1 33.33% Viking I Will operate interstate gas 1 transmission pipeline I services Inactive Owns and operates parking 50% Quixx Mountain Holdings Independent Power Americas Inc 1 Corporation I New York I lOO%PC ( Exempt wholesale generator I (EWG) (PC) Independent Power International Ltd. Johnstown Cogeneration, LLC ramp Developing 164 MW gas- fired electric generating Independent Power Corp PLC. I Public Ltd. I U. K. 1 49.9% Xcel I Expected foreign utility Kes Jamaica, LP Kes Montego, Inc. Natrogas, Incorporated company Corporation Ltd. Liability ("Natrogas") Natural Station Equipment, LLC I network provider New Century-Cadence, Inc. I Corporation I Colorado 1 100% Xcel Retail I Holds 22.22% in Cadence Ltd. Partnership Corporation Corporation NCE Communications, Inc. British Virgin Islands Colorado Ltd. Liability Company Northern States Power Company I Corporation Delaware Delaware Minnesota Corporation North America Energy, Inc. Northern Power Wisconsin Corp. ('WSP") I Northers States Power Company I Corporation International 49.9% Xcel International 50% E Prime Delaware Corporation Corporation "NSP-W' company (FUCO) - EWG Operates 3 MW natural gas 99% Quixx Jamaica 1 % Kes Montego 100% Quixx 100% Xcel Retail Delaware NSP Energy Marketing, Inc. I Corpration fired turbine generator Inactive Inactive Retail propane supplier 83.63% PSCo . . Formerly sold and seniced equipment for the natural gas 100% Xcel Communications Nuclear") industry Metro area broadband senices and fiber o~tic NSP Financing 1 NSP Lands, Inc. NSP Nuclear Cornoration CWSP Nuclear Management Company, Ltd. Liability LK I company Statutory Trust Corporation Cornoration Minnesota Wisconsin Minnesota Wisconsin Delaware Minnesota Delaware Wisconsin Minnesota Wisconsin network Wholesale products and services - develops, owns and operates power generation facilities in the US., Australia, Europe I 1 and Latin America 1 100% Xcel Energy Nuclear Management and operators of nuclear Elechic and gas utility I I I generating plants Name of Company I Organization I State of I Ownership I Type of Business P.S.R. Investments, Inc. Planergy (Delaware), Inc. I I I Group I Planergy Power 11, Inc. 1 Corporation ( Delaware 1 1 00% planergy I Inactive Planergy Energy Services Corp. PGE# 1 Planergy Ltd. Planergy New York, Inc. I I 1 Group I Planergy Services of California, ( Corporation I California 1 100% Planergy I Limit liabilities associated Corporation Corporation Corporation Corporation Corporation Organization Colorado Delaware Inc. PGE#2 Planergy Services of Houston, Inc. Planergy Services of Texas, Inc. Planergy Services USA, Inc. Planergy Services, Inc. Planergy, Inc. Delaware Canada New York Plover Limited Liability Co. Precision Resource Company Private Fuel Storage L.L.C. (F'SCCC) I I I ( inventories and customer 100% PSCo 100% Planergy Corporation Corporation Corporation Corporation Corporation Proto-Power Corp. PS Colorado Credit Corporation I I I ( accts receivable Quixx Borger Cogen, Inc. I Corporation I Delaware 1 100% Quixx Corp I Owns .45% general Holds life insurance policies - Industrial energy audits Group 100% Planergy Services 100% Planergy, Inc. 100% Planergy Ltd. Liability Company Corporation Ltd. Liability Company I I I ( partnership interest in Borger I Limit liabilities associated with borrowing agreements Energy service company Inactive Delaware Delaware Delaware Delaware Texas Corporation Corporation Wisconsin Texas Delaware Services 100 Planergy Services 100% Planergy Services 100 Planergy Services 100% Planergy Delaware 100% Planergy Delaware Colorado Quixx Jamaica, Inc. Quixx Linden, L.P. Texas Texas with borrowing agreements. Limit liabilities associated with borrowing agreements. Limit liabilities associated with borrowing agreements Limit liabilities associated with borrowing agreements Industrial energy audits Energy service company Group Clearwater Investments Inc. 100% UEC 12.5% Xcel Energy Corporation Ltd. Partnership Quixx Louisville, LLC Delaware Delaware Affordable housing Contract professional and technical resources Will develop private temporary spent nuclear fuel 100% UEC 100% PSCo Ltd. Liability Company Delaware storage facility Nuclear engineering services Financinglfactoring fuel 100% Quixx Corp ( Inactive 100% UEC I Investing in and developing 100% Quixx Corp. 0.5% Quixxlin 49.5% Quixx 100% Quixx cogeneration and energy related projects Inactive Own 23 MW natural gas-fired cogeneration facility for General Motors Corporation Owns facility consisting of two gas-fired boilers providing steam to Dupont in Quixx Mountain Holdings, LLC Quixx Mustang Station, Inc. Quixx Power Services, Inc. Ltd. Liability Company Quixx Resources, Inc. Corporation Corporation Quixx WPP94, Inc. Delaware Corporation Delaware Texas Corporation 100% Quixx Corp Nevada Kentuck; Holds 50% ownership in Front Range Energy 100% Quixx Cop 100% Quixx Corp Texas Associates LLC Owns .5% general partnership interest in Denver City Energy Assoc. Operates and manages 100% Quixx Corp generating facilitiei Holds 44.55% Itd. Partnership interest in Borger Energy 100% Quixx -. Associates, Lf Through which Quixx holds .33% in windpower partners, which owns wind power generating plant Name of Company I Organization I State of I Ownership I Type of Business Quixx WRR, LP Quixxlin Corporation Ltd. Partnership Corporation I natural resource efficient products and services for I Organization Texas Delaware I interest in Quixx Linden, LP ~ Reddy Kilowatt Corporation I Corporation I Montana 1 100% Xcel Retail I Will provide energy and I Shoe Factory Holdings LLC southwestern Public Service 1 % Quixx 99% Quixx Resources 100% Quixx Corp I utility customers Seren Innovations, Inc. Owns water rights in Texas Owns .5% general partnership Safe Haven Homes, LLC I Ltd. Liability I Delaware 1 100% Eloigne I Owns interests in affordable Company Corporation Ltd. Liability Company Corporation I Company I Company Texas-Ohio Pipeline, Inc. Touch America Colorado LLC I Communications, services 50% Touch I Minnesota Wisconsin New Mexico Corporation Ltd. Liability I I I and industrial customers Ultra Power Technologies, Inc. I Corporation I Minnesota 1 100% Xcel I Inactive 100% Xcel Communications Clearwater Investments Inc. 100% Xcel Energy 1 I I I ventures I United Power and Land Co. I Corporation I Minnesota I 100% NSP I Holds non-utility real estate housing projects Telecommunications provides cable, telephone and high speed internet access system Affordable housing Electric utility Texas Colorado I America I The Planergy Group, Inc. 1 Corporation I Texas 1 100% Xcel Retail I Energy senice to commercial I Company I I Engineering I substation maintenance USA-Planergy LLC ( Ltd. Liability I Texas 1 49% Planergy, Inc. ( Inactive - ~ 100% E Prime 50% NCE (UP&L) I Utility Engineering Corporation Owns 900 foot pipeline Metro area broadband I I ('VEC") Viking Gas Transmission Universal Utility Services, LLC I Ltd. Liability I Texas I 100% utility 1 Cooling tower and electric Company ("Viking") Westgas Interstate, Inc. Windpower Partners 1994, LP Woodsedge Eau Claire LP Wyco Development LLC Xcel Energy Communications Group Inc. ("Xcel Communications") Xcel Energy International Inc. Xcel Energy Markets Group Inc. ("Xcel ~n&y Markets") Xcel Energy Retail Service Group Inc. ("Xcel Retail") Xcel Energy Services Inc. Xcel Energy Ventures Inc. ("Xcel Ventures") I I I Corporation ( Colorado I 100% Xcel Energy I Natural gas transmission Corporation Corporation Ltd. Partnership Texas I 1 Ltd. Partnership Wisconsin Texas Delaware Corporation I Delaware Corporation ( Minnesota 100% Xcel Wholesale 100% Xcel Energy I - - Engineering, construction management, etc., to utilities Natural gas transmission Ltd. Liability Company 0.33% Quixx generating plant Clearwater Affordable Housing Colorado Corporation Investments Inc. I 50% Xcel Energy I Develop and own natural gas Minnesota -- WYCO I transpo*tion ad storage - facilities subsidiaries providing broadband telecommunication I subsidi&es energy 100% Xcel Energy 100% Xcel Energy I marketing services 100% Xcel Energy I Holding Company for and related services Owns 50% Yorkshire Holding Company for I I I 1 ventures, including Eloigne -- 100% Xcel Energy 100% Xcel Energy - -- subsidiaries providing services to retail customers, including energy efficiency Service company Holding company for subsidiaries to develop and manage new business I Name of Company / Organization I State of I Ownership Type of Business 1 Organization I I Xcel Energy Wholesale Group I Corporation I Minnesota ( 100% Xcel Energy 1 Holding company for I Inc. ("Xcel Wholesale") I I I I subsidiaries providing wholesale energy, principally Xcel Energy O&M Services Inc. Yorkshire Electricity Group PLC Xcel Energy Wyco Inc. Xcel Energy-Centrus Inc. Yorkshire Holdings PLC Yorkshire Power Finance 2 Ltd. Corporation Corporation Yorkshire Power Finance Ltd. Yorkshire Power Group Ltd. + Colorado Colorado Private Limited Company 100% Xcel Energy Yorkshire Holdinas 100% Xcel Energy 100% Xcel Retail - PLC Yorkshire Power Group Ltd. 90% Yorkshire Power Group Ltd. 10% Yorkshire NRG Financehold 50% Wyco Dev. Holds assets os SPS at this Holdings PLC 99%Yorkshire Power Group Ltd. 1% Yorkshire time Non-utility business Section 3 (b) sub - expected FUCO FUCO holding company Expected FUCO Expected FUCO I I Resources, Inc. I Young Gas Storage Company I Corporation I Delaware 1 100% E Prime I Operates underground gas Private Limited Company I I I I I storage thru Young Gas Young Gas Storage Company, I Ltd. U.K. Holdings PLC Xcel Energy 1nt;l Inc., AEP Corporation FUCO Holding Company Colorado 47.5% Young Gas Storage company, Ltd Operates underground gas storage facility in Northeastern Colorado EXHIBIT 5 PUBLIC SERVICE COMPANY OF COLORADO BALANCE SHEET JUNE 30,2004 ASSETS Properly, plant and equipment, at cost: Electric Gas Steam and other Common to all departments Nonregulated properly Construction in progress Less: accumulated depreciation Total property, plant and equipment Investments, at cost: Investments in subsidiary companies Other Total investments Current assets: Cash and temporary cash investments Notes receivable Accrued unbilled revenues Accounts receivable, less reserve for uncollectible accounts ($13,292,478) Fuel inventory, at average cost Gas in underground storage, at average cost Materials and supplies, at average cost Deferred energy costs Derivative instrument valuation-at market Current accumulated deferred income tax Prepaid expenses and other Total current assets Deferred charges: Unamortized debt expense Accumulated deferred income taxes Unamortized debt reacquisition costs Regulatory assets: Recoverable nuclear decommissioning costs Income taxes Employees' postretirement benefits other than pensions Other regulatory assets Unrecovered purchased gas cost Prepaid pension costs Other Total deferred charges PUBLIC SERVICE COMPANY OF COLORADO BALANCE SHEET JUNE 30,2004 CAPITAL AND LIABILITIES Common stock Retained earnings Accumulated comprehensive income Total common equity Long-term debt Noncurrent liabilities: Obligations under capital leases Pension and deferred compensation liabilities Employees' postretirement benefits other than pensions Employees' postemployment benefits Total noncurrent liabilities Current liabilities: Notes payable and commercial paper Notes payable to affiliate companies Accounts payable Accounts payable to affiliates Customers' deposits Accrued taxes Accrued interest Dividends payable Obligations under capital leases - current Derivative instrument valuation-at market Other current liabilities Total current liabilities Deferred credits: Customers' advances for construction Unamortized investment tax credits Accumulated deferred income taxes Other regulatory liabilities Other deferred credits Total deferred credits EXHIBIT 6 PUBLIC SERVICE COMPANY OF COLORADO STATEMENT OF LNCOME FOR THE TWELVE MONTHS ENDED JUNE 30,2004 Operating revenues: Electric Gas Other Operating expenses: Fuel used in generation Purchased power Gas purchased for resale Cost of sales-steam and other Other operating and maintenance expenses Depreciation and amortization Taxes (other than income taxes) Gains and losses on sale of plant and disposition of allowances Provision for income taxes: Federal - current State - current Deferred Investment tax credits, net Total utility operating expenses Net utility operating income Other income and deductions: Equity in earnings of subsidiary companies Allowance for equity funds used during construction Miscellaneous income and deductions - net Total other income and deductions Interest charges: Interest on long-term debt Other interest Amortization of debt discount and expense less premium Allowance for borrowed funds used during construction Total interest charges Net income PUBLIC SERVICE COMPANY OF COLORADO STATEMENT OF RETAINED EARNINGS FOR THE TWELVE MONTHS ENDED JUNE 30,2004 Retained earnings at beginning of period Net income Dividends: On common stock Retained earnings at end of period EXHIBIT 7 STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON 1 NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO ADOPTED ON THE 1 ~TH DAY OF MAY 2004 THE FOLLOWING ORDINANCE: Ordinance No. 04-06, Series of 2004, An Ordinance of the Town of Avon, Eagle County, Colorado, Granting by Franchise to Public Service Company of Colorado, its affiliates, successors and assigns, the right to use the Streets within the Town to furnish, sell, transport and distribute gas to the Town and to all Residents of the town, granting the right to acquire, construct, install, located, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to furnish, sell, transport, and distribute gas within and through the Town; and fixing the Terms and conditions thereof. A copy of said Ordinance is attached hereto, and is also on file at the ofice of the Town Clerk, and may be inspected during regular business hours, Monday through Friday, 8 AM - 5 PM. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: Patty McKenny Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON MAY 14.2004 J AVON MUNICIPAL BUILDING, MAlN LOBBY J ALPINE BANK, MAlN LOBBY J AVON RECREATION CENTER, MAlN LOBBY J CITY MARKET, MAlN LOBBY EXHIBIT 8 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO IN THE MATTER OF THE APPLICATION OF PUBLIC SERVICE COMPANY OF COLORADO FOR AN ORDER GRANTING TO IT A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO EXERCISE FRANCHISE RIGHTS IN THE TOWN OF AVON, COLORADO ) STATE OF COLORADO CITY AND COUNTY DENVER I, PAT VIA/CE~~(/~ , being duly sworn, do hereby depose and state that I am an officer of Public Service Company of Colorado and that I have read the Application and the supporting Exhibits. Under the penalties of perjury, I declare that all statements made in the Application and the supporting exhibits are true, accurate, correct and complete to the best of my knowledge. I understand that any statement made in violation of this oath shall constitute grounds for dismissal of this Application or revocation of any authority granted. I Vice President Subscribed and sworn to before me this 11 fh day of flewk\&& , 2004. MY commission expires: \~-\8,@7 EXHIBIT 9 January 6,2005 NOTICE OF APPLICATION TO EXERCISE FRANCHISE RIGHTS OF PUBLIC SERVICE COMPANY OF COLORADO, 1225 SEVENTEENTH STREET, DENVER, COLORADO 80202 You are hereby notified that Public Service Company of Colorado has filed with the Colorado Public Utilities Commission an Application for the purpose of obtaining a Certificate of Public Convenience and Necessity to exercise franchise rights granted to it by the Town Of Avon, Colorado, on May 1 1,2004. The franchise is for a term of twenty years and provides for a franchise fee to the Town of Avon in the amount of three percent (3 %) of all revenues received from the sale and transportation of gas within the Town, excluding revenues received from the sale of gas to the Town of Avon. Copies of the application and the franchise are available for examination and explanation at Public Service Company's Franchise Coordination Office at 1225 Seventeenth Street, Suite 1000, and at the office of the Public Utilities Commission in Denver, Colorado. Anyone who desires either may file written objection or may seek to intervene as a party to this filing. If you only wish to object to the proposed action, you may file a written objection with the Commission. The filing of a written objection by itself will not allow you to participate as a party in any proceeding on the proposed action. If you wish to participate as a party in this matter, you must file written intervention documents by following Rules 20,21, and 22 of the Commission's Rules of Practice and Procedure. Anyone who desires to file written objection or written intervention documents shall file them with the Colorado Public Utilities Commission, 1580 Logan Street (OL2), Denver, Colorado, 80203, within ten days after the date of this notice. A hearing may be held on this Application. Anyone who desires to receive notice of any hearing, must file a written request for notice with the Public Utilities Commission at the above address, at least ten days after the date of this notice or by January 17,2004. Members of the public may attend any hearing and may make a statement under oath about the Application, whether or not an objection or intervention has been filed. BY Wade Haerle, Community Service Manager 970.748.4004 eric@avon.org TO: Honorable Mayor Amy Phillips and Council members FROM: Eric Heil, Town Manager RE: Cost Share Agreement for P1 Trail Segment Village (at Avon) DATE: 8/23/24 SUMMARY: This report presents a draft Cost Share Agreement with the developers of Traer Apartments to complete a segment of the planned recreation trail between Piedmont Apartments and Traer Apartments. The recreation trail construction would include retaining walls, grading, installation of a soft path and installation of electrical conduit, irrigation and landscaping. This recreation trail segment would only be roughed-in at this time, then at a later date when the trail connects to a location to the west, the Town would pave the recreation trail VILLAGE (AT AVON) DEVELOMPENT AGREEMENT: The Consolidated, Amended and Restated Annexation and Development Agreement (“CARADA”) for the Village (at Avon) and the Village (at Avon) Planned Unit Development Guide set forth the roles, responsibilities and obligations of the Town of Avon and Traer Creek LLC. The Town’s tax credit obligations support the construction of public infrastructure such as streets, drainage and extension of water and sewer lines. It is the Town’s obligation to fund development of all park properties, including P-1. P-1 (Park 1) is a 4 acre park which is depicted as a linear recreation trail. This recreation trail will provide an important trail access between Post Boulevard and the Planning Area B park and core of the Planning Area A. Staff reviewed the proposed development of Traer Apartments and believes it is cost effective to create the recreation trail pathway at this time due the slopes between Traer Apartments and Piedmont Apartments. Several retaining walls must be constructed in order to create the flat bench for a recreation trail. The most Page 2 of 2 efficient timing and method of construction is to simply have the contractors for Traer Apartments conduct the grading, construct the retaining walls and install other improvements while they are mobilized and on- site. COST SHARE AGREEMENT: There is not clear guidance in the CARADA on allocation of costs between Town and the developer of Traer Apartments in this situation. Staff negotiated splitting the cost 50%-50%, up to a maximum of $250,000, Traer Apartments will be permanently responsible for maintenance of the retaining walls, and Town of Avon would accept the recreation trail improvements without a warranty period. If the Town does not proceed with the Cost Share Agreement, then the Town would be 100% responsible for all costs to construct the recreation trail at a later date, including construction of retaining walls, and would not realize the efficiency of using a contractor who is already mobilized on site. FINANCIAL IMPACTS: The financial impact of this Cost Share Agreement is a maximum of $250,000. Very little maintenance is expected for this recreation path in the near term. The plan would be to pave this recreation path and install light bollards in the future when the path connects to the Planning Area B park. RECOMMENDATION: I recommend approving the Cost Share Agreement to complete the grading and installation of a soft path at this time because it will be much more costly after the construction of Traer Apartments to construct the retaining walls and recreation path and the Town would have to pay for 100% of the costs in the future. PROPOSED MOTION: “I move to approve the Cost Share Agreement for construction of recreation path with the developers of Traer Apartments and authorize the Mayor, Mayor Pro Tem, Town Attorney and Town Manager to review and approve any last revisions to the Cost Share Agreement.” Thank you, Eric ATTACHMENT A: Cost Share Agreement Cost Share Agreement: Traer Creek Apartments August 16, 2024 DRAFT Page 1 of 7 COST SHARING AGREEMENT (Traer Apartments Recreation Trail) THIS COST SHARING AGREEMENT (“Agreement”) is made effective on , 2024 by and between the Town of Avon, Colorado, a Colorado home rule municipality (“Town”), and TPC Avon MF Property Owner LLC, a [XXXX] limited liability company (“TPC”), each a “Party” and collectively the “Parties.” WHEREAS, TPC owns property within the Town that it is currently in the process of developing (the “Traer Apartments Development”); WHEREAS, the Town has a 25 foot wide interest in the property located adjacent to the Traer Apartments Development (the “Town Property”); WHEREAS, in connection with the Traer Apartments Development, TPC and the Town desire to complete the grading for a recreation trail and complete related improvements constructed within and along the Town Property and Traer Apartments Development, respectively, which will serve to enhance the Traer Apartments Development and the Town’s community (the “Project”); WHEREAS, the estimated cost of the Project is Five Hundred Thousand Dollars ($500,000) and the Parties have agreed to share such cost subject to the terms and conditions set forth in this Agreement; and WHEREAS, the Parties desire by virtue of this Agreement to identify the scope of the Project, the responsibities for the design and construction of the Project, the cost sharing associated with the Project, and the ongoing responsibilities for the maintenance of the Project. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Parties agree as follows: 1.Incorporation of Recitals. The Parties confirm and incorporate the foregoing recitals into this Agreement. 2.Scope of the Trail Project. The Project shall be constructed and located as described in Exhibit A: PROJECT DESCRIPTION. 3.Responsibilities of TPC. TPC will be responsible for the design, construction and completion of the Project to the Town’s satisfaction. TPC’s responsibilities, include, without limitation, contracting and supervision of the Project, subject, however, to the Town’s review, comment and written approval with respect to the design plans, materials to be used, and the contractors to be selected. TPC will advise the Town of the timeline for the Project, will provide the Town copies of TPC’s agreements with the contractors engaged to complete the Project, and will provide updates on the progress of the Project upon the Town’s request. In addition, and upon completion of the Project, TPC shall provide the Town with an as-built survey of the Project. ATTACHMENT A: Cost Sharing Agreement Cost Share Agreement: Traer Creek Apartments August 16, 2024 DRAFT Page 2 of 7 4. Project Costs. It is estimated that to complete the Project it will cost Five Hundred Thousand Dollars ($500,000). The Parties acknowledge and agree the actual Project costs may be higher or lower than those estimated. The third party Project costs will be split equally between the Parties; provided, however, in no event will the Town’s responsibility for costs under this Agreement exceed Two Hundred Fifty Thousand Dollars ($250,000). 5. Reimbursement of Third Party Project Costs. When the Project has been completed to the Town’s satisfaction, TPC shall calculate and send the Town an itemized invoice for its share of the third party Project costs (not to exceed Two Hundred Fifty Thousand Dollars ($250,000)) along with all supporting documentation associated with such calculation and itemized invoice. The Town agrees to pay all undisputed amounts under such such invoice within 30 days of receipt. 6. Records and Audits. TPC shall at all times maintain a system of accounting in accordance with generally accepted accounting procedures, together with supporting documentation for all work, purchases, and costs under this Agreement. TPC shall retain all such accounting records and documentation for at least two (2) years after the completion of the Project. The Town has the right to audit the accounting records and documentation of TPC related to the Project at any time during the period of this Agreement and for two (2) years after the completion of the Project. TPC shall refund to the Town any charges determined by the Town’s audit to be inconsistent with this Agreement. 7. License Granted to TPC. The Town grants TPC and its contractors the personal privilege and permission to enter upon its property within the Project area to complete the Project. 8. Acceptance by Town. Upon competion of the Project, Town shall have thirty (30) days after receiving notice of competition to inspect and verify the completion of the Project. Town shall either accept the completion of the improvements in writing or shall indicate in writing those items which are not constructed according to the specifications of the Project and request those items are corrected. There shall be no warranty period upon final acceptance by Town for those items in the Project for which the Town agrees to maintain as described in Paragraph 10. below. 9. Maintenance by TPC. After completion of the Project, TPC and its successors and permitted assigns agree, at their sole cost and expense, to maintain, repair and/or replace any retaining walls or anything on the retaining walls that are constructed or installed as a part of the Project. 10. Maintenance by Town. After completion of the Project, Town and its successors and permitted assigns agree, at their sole cost and expense, to maintain, repair and/or replace any the landscaping, pathway, electrical installations, irrigation and any other improvements related to the recreation trail within the Town’s recreation trail easement area, which are constructed as part of this Project or later installed by the Town of Avon. Notwithstanding the forgoing, the Town shall not be responsible and shall not have any obligation to maintain the retaining walls walls which are constructed by this Project. 11. Insurance. TPC shall require its contractor(s) performing work funded by, or in furtherance of, this Agreement to obtain and maintain, at their own cost and expense, at all times during the term of this Agreement: (a) Commercial General Liability Insurance with a limit of liability of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general aggregate, and ATTACHMENT A: Cost Sharing Agreement Cost Share Agreement: Traer Creek Apartments August 16, 2024 DRAFT Page 3 of 7 which provides coverage for bodily injury, death, damage to or destruction of property of others, including loss of use thereof, and including products and completed operations and (b) Workers’ Compensation Insurance as required by law. Such Commercial General Liability Insurance policies shall include the Town as an additional insured. Each of such insurance policies shall contain a waiver of subrogation for the Town’s benefit. Further, the insurance coverages identified in this Section 9 will be primary and noncontributory with respect to any insurance maintained by the Town. Upon the Town’s request, TPC shall provide the Town with Certificates of Insurance and additional insured endorsements evidencing the coverages required by this Section 9. The Certificates of Insurance shall provide that such insurance will not be altered or canceled by the issuing company without a minimum of 30 days (10 days for non-payment of premium) prior written notice to the Town. 12. Cooperation. The Parties agree to cooperate with one another in accomplishing the terms, conditions, and provisions of this Agreement, and will execute such additional documents as may be reasonably necessary to effectuate the same. 13. Default and Right to Cure. In the event that any Party shall be in default of this Agreement, the non-defaulting Party shall provide written notice to the defaulting Party specifically describing the default. The Party allegedly in default shall have 30 days from the date of such notice to cure the default. If such default is not so cured then, at the election of the non-defaulting Party, the non- defaulting Party may pursue an action for specific performance, damages, or both. 14. No Third Party Rights. There are no third party beneficiaries of this Agreement and nothing in this Agreement, express or implied, is intended to confer on any person other than the Parties hereto (and their respective successors and permitted assigns), any rights, remedies, obligations or liabilities. 15. Compliance with Laws. In connection with its obligations under this Agreement, TPC must comply with all Town codes, requirements, standards and specifications, as well as all other applicable law. 16. Notices. Any notice, request, or demand required or permitted to be given by either Party to the other under this Agreement, shall be in writing and signed by or on behalf of the Party giving the notice and addressed to the other Party at the address set forth below: If to the Town: Town of Avon Attn: Town Manager P.O. Box 975 Avon, Colorado 81620 townmanger@avon.org Attn: Town Attorney ATTACHMENT A: Cost Sharing Agreement Cost Share Agreement: Traer Creek Apartments August 16, 2024 DRAFT Page 4 of 7 If to TPC: TPC Avon MF Property Owner LLC Attn: [INSERT INFORMATION] [INSERT ADDRESS] [INSERT ADDRESS] A Party may change its address for notices by providing notice of the change of address in writing. Each notice, request, or demand shall be deemed sufficiently given, served, or sent for all purposes hereunder (i) three (3) days after it is mailed by United States certified mail, return receipt requested, with postage prepaid, (ii) upon personal delivery, (iii) one (1) business day after deposit with any recognized commercial air courier or express service, or (iv) upon acknowledgement of receipt of communication by email. 17. Assignment. TPC may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the Town. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns. 18. Recordation. This Agreement shall be recorded with the Eagle County Clerk and Recorder and shall run with the land. 19. Complete Agreement; Modifications. This Agreement, together with its Exhibit, contains the entire understanding of the Parties and supersedes all verbal or prior written agreements, arrangements, and understandings of the Parties relating to the subject matter stated herein. The Parties further intend that this Agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence may be introduced to reform this Agreement in any judicial proceeding involving this Agreement. There shall be no modifications of this Agreement except in writing, executed with the same formalities as this instrument. 20. Severability. If any provision of this Agreement is held invalid or unenforceable by a court with competent jurisdiction, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 21. No Waiver. The failure of either Party to enforce a breach of any provision or term of this Agreement shall not be deemed to constitute a waiver of any such failure or breach, and shall not affect or limit the right of either Party to thereafter enforce such term or provision. 22. Governmental Immunity Act. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions of the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101, et seq. 23. Appropriations. The Parties understand and acknowledge that the Town is subject to Article X, §20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continued availability of ATTACHMENT A: Cost Sharing Agreement Cost Share Agreement: Traer Creek Apartments August 16, 2024 DRAFT Page 5 of 7 funds beyond the term of the City’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations and resolutions of the Town, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 24. No Joint Venture or Partnership. Nothing contained in this Agreement is intended to create a partnership or joint venture between the Parties with respect to the Project and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not provide for the joint exercise by the Parties of any activity, function or service, nor does it create a joint enterprise, nor does it authorize either Party to act as the agent for the other Party hereto for any purpose whatsoever. 25. Liability. TPC shall, and shall cause all contractor(s) performing work funded by, or in furtherance of, this Agreement to, indemnify, hold harmless, and defend the Town against any liability, damages, costs, expenses, claims, injuries and losses of whatever nature arising in any way out of this Agreement. 26. Governing Law; Exclusive Jurisdiction. The terms of this Agreement shall be governed by the laws of the State of Colorado. All actions and proceedings arising from or related to this Agreement will be litigated in courts having situs within Eagle County, Colorado. The Parties hereto consent and submit to the jurisdiction and venue of any such local or state court. 27. Attorneys’ Fees. In any action between the Parties to enforce any term of this Agreement, the prevailing Party shall be entitled to recover its expenses, including its reasonable attorneys’ fees, from the non-prevailing Party. 28. Warranty of Authority. Each individual executing this Agreement on behalf of the Town and TPC represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of the Town or TPC, respectively, and that this Agreement is binding upon the Town and TPC. 29. Headings. The headings in this Agreement are for convenience of reference only, and shall not be considered a part hereof or be given any effect in the construction or interpretation of this Agreement. 30. Construction. Each Party has participated in the drafting of this Agreement, which each Party acknowledges is the result of extensive negotiations between the Parties. Accordingly, the Parties agree that in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement. 31. Counterparts and Electronic Signatures and Electronic Records. This Agreement may be executed in two (2) counterparts, each of which shall be an original but which shall together constitute one and the same instrument. In addition, the Parties consent to the use of electronic signatures. The Agreement may be signed electronically by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic ATTACHMENT A: Cost Sharing Agreement Cost Share Agreement: Traer Creek Apartments August 16, 2024 DRAFT Page 6 of 7 document, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. IN WITNESS WHEREOF, the Town and TPC have hereunto executed this Agreement effective as of the date first set forth above. THE TOWN: TOWN OF AVON BY:_________________________________ ATTEST:__________________________________ Amy Phillips, Mayor Miguel Jauregui Casanueva, Town Clerk TPC: TPC AVON MF PROPERTY OWNER LLC By: Print Name: Title: ATTACHMENT A: Cost Sharing Agreement Cost Share Agreement: Traer Creek Apartments August 16, 2024 DRAFT Page 7 of 7 EXHIBIT A: PROJECT DESCRIPTION Description. The Project improvements will include the following: Construction and specifications as set forth the design plans from OZ Architecture dated [July 8, 2024], including: 1. Appropriate grading 2. Construction of “Redi-Rock” or similar retaining walls 3. Installation a crushed gravel path along the length of the recreation trail 4. Topsoil with native grass and wildflower seed mix and tree planting 5. Installation of irrigation systems, and 6. Installation of electrical conduit for future bollard lighting [INCLUDE DESIGN PLANS IF POSSIBLE HERE] ATTACHMENT A: Cost Sharing Agreement 970-471-5370 shymes@avon.org TO: Honorable Mayor Phillips and Council members FROM: Sarah Smith Hymes, Sustainability Coordinator RE: Contribution to MT2030 Foundation Community Campaign DATE: August 19, 2024 SUMMARY: This work session is to consider a contribution of $5,000 to join the inaugural Mountain Town 2030 Foundation Community Campaign. This is the first request for funding from MT2030, although the Town contributed $25,000 to support the MT2030 2023 Summit in Vail. MT2030 was launched in 2019 in Park City, Utah to inspire and guide other mountain, resort, and rural communities to achieve net zero carbon emissions by 2030. The goal is to accelerate meaningful levels of emission reductions through networks that share real world expertise, tools, resources, and climate solutions that can be replicated in every community. Collaboration and knowledge sharing is available through the MT2030 Climate Solutions Summits, cohort- based “solution projects”, local accelerator workshops, leadership summits, and the MT2030 Climate Action Network which is a social network where there are “spaces” dedicated to specific climate solutions. Avon’s Sustainability staff regularly participates in the summits, seminars and climate network and consider the MT2030 community to be an extremely valuable resource for their work. Avon has adopted the Climate Action Plan for the Eagle County Community which calls for greenhouse gas emission reduction targets of 50% by 2030 and a minimum of 80% by 2050. Avon has signed the MT 2030 Net Zero Pledge. BACKGROUND: This is the request from MT2030: MT2030 was founded on the principle that mountain communities can be powerful drivers of real climate action. The combination of our deep commitment to protecting the places we love, the economic necessity to safeguard our local economies, the ability to act urgently, and the opportunity to influence millions of visitors, gives us a unique lever to enact the change we need now. To harness this potential, we must collaborate around this shared threat - enhancing our capacity to tackle climate solutions at scale, so every mountain community can demonstrate how climate action is done to the world. With your support, Mountain Towns 2030 is leading this movement. We’re empowering every mountain community to be part of something larger, to elevate our collective climate action. In just the last three years, our annual Climate Solutions Summit has grown from 200 attendees to over 550, and from 16 communities to over 125, with programming focused on achievable solutions to drive systemic emissions reductions. What started in Park City a few years ago is now a nationwide movement of mountain communities taking action. Throughout the year, we’re providing valuable opportunities for community and resort leaders to collaborate, understand effective technologies and solutions, and explore various funding mechanisms available to everyone. But there is so much more work to be done. We have only scratched the surface of MT2030’s potential to drive this movement forward. This year, we’re developing tools to leverage the existing work in communities, allowing others to access the data and details they need more quickly. We plan to convene communities more often, both online and offline, and deliver the tools, resources, and guidance you need to accelerate your climate efforts. Addressing the impacts of climate change is entirely within our reach, but we, like many of you, need to build the capacity to do it. Therefore, I am asking your community to consider contributing to MT2030 this year. Please become part of the inaugural MT2030 Foundation Community Campaign. 970-471-5370 shymes@avon.org We are inviting select communities to become part of our inaugural MT2030 Foundation Communities campaign - communities who are committed to taking action on climate and have set an example through the work they have done. We want you to take a prominent role in building our movement with us. Will your community join this group of leaders? This is the first time we’re asking communities to show their support and invest in our work, which will directly impact and accelerate your climate planning. ANALYSIS: Why YES to contribution: In addition to supporting the overall mission of MT2030 which provides Avon and peer communities access to valuable expertise and advice particularly through the Summits and the Climate Action Network, the explicit benefits of inaugural campaign support include: • 4 registrations to the 2024 Climate Summit (value $1,600) • Position on the MT2030 Advisory Committee • Recognition at the 2024 MT2030 Climate Summit during the general session • Recognition on MT2030 homepage for the year • Advance access to MT2030 matrix data to accelerate work on climate Why NO to contribution: • MT2030 did not provide detail on how funds will be used, where current funding comes from, and why this campaign is necessary • Avon will continue to have access to MT2030 programs without contribution • Participation on another committee may not be the best use of staff/council time; no detail is provided on the roles and responsibilities of the Advisory Committee • Cost of staff/council participation in 2024 Summit is already a considerable investment in MT2030 FINANCIAL CONSIDERATIONS: Avon will save $1,600 on the four registrations for the October 2024 MT2030 Climate Summit registrations already committed to, which reduces the investment in 2024 to $3,400. Adding funding of $5000 to the proposed 2025 budget anticipates staff’s continued reliance on MT2030 resources. RECOMMENDATION: I recommend support for the inaugural MT2030 Foundation Community Campaign with funds coming from the sustainability budget, which is projected to have savings in 2024. Immediate access to the work product, expertise, and counsel of peer communities tackling similar goals and challenges saves staff time and other Town resources. TOWN MANAGER RECOMMENDATION OR COMMENTS: OPTIONS: 1. No action is a vote not to support the inaugural MT2030 Foundation Community Campaign. 2. Move to approve support of the inaugural MT2030 Foundation Community Campaign PROPOSED MOTION: “I move to approve contribution of $5,000 to the MT2030 Foundation Community Campaign out of the 2024 sustainability budget savings and adding a $5,000 contribution to the proposed 2025 budget.” Thank you, Sarah 970.748.4004 eric@avon.org TO: Honorable Mayor Amy Phillips and Council members FROM: Charlotte Lin, Sustainability Manager Eric Heil, Town Manager RE: Approval of All-Electric Public Works Garage and update on Photovoltaics and Battery Storage for Swift Gulch DATE: August 19, 2024 SUMMARY: This report provides a recommendation to approve an all-electric public works garage based on new information received from the Town of Vail and provides an update on our efforts to research photovoltaic and battery storage for the Swift Gulch Campus. BACKGROUND: In May 2024, Staff presented options for the new Public Works Garage between a high- efficiency natural gas boiler or an electric boiler for the new public works garage (Attachment A). Initial review favored a high-efficiency natural gas boiler due to the estimated five times higher operating cost of an electric boiler. Council requested more research into the potential for an all-electric system to support our climate action goals, to lead on all electric buildings as public agency, and to set a precedent for new construction. RESEARCH ON ALL-ELECTRIC PUBLIC WORKS GARAGE: The May 28 report estimated that electricity could cost five times more than gas. This estimate was based on advice from our architects on the project. We have not been able to identify an all-electric snowplow garage, so there is no data we can find on electric bills for an all-electric garage. However, since the May 28 Council meeting, we have gathered information from Town of Vail’s outdoor snowmelt system which was recently converted to an all-electric system. Vail’s data shows that the cost of electricity has been 3.34 times higher than with gas. We believe an outdoor snowmelt system is the most inefficient method of heating and that heating of a garage structure, even with doors opening and closing regularly, will be more efficient than an outdoor snow melt system. Based on our research, we estimate that the comparative electric cost will be closer to 2.5 times that of natural gas. The Public Works Garage is designed to use an in-floor heating system which does not lose heat as rapidly when garage doors are open and therefore should be more efficient to heat than the Avon Regional Transit Facility. Our revised estimate of an all-electric garage is $22,500 per year more than natural gas, which is down from our previous estimate of $60,000 additional cost per year. The revised five year cost estimate is $112,500 more cost for all-electric compared to gas boiler, which is down from our previous five year estimate of $300,000. The updated project costs are as follows: Option 1: Gas Boiler Option 2: All-Electric Base Construction Cost $3,964,038 $3,964,038 Contingency (5%) $200,000 $200,000 All-Electric Cost $89,000 New Electric Transformer $35,000 Total Project Cost: $4,164,038 $4,288,038 Estimated Gas/Electric Utility Costs $15,000/yr $37,500/yr Page 2 of 2 SWIFT GULCH CAMPUS: We are continuing to research a larger scale installation of photovoltaics combined with batter storage to maximize the use of on-site renewable energy generation. This will include a comprehensive evaluation of the entire Swift Gulch campus (including the Avon Regional Transit Facility, Fleet building, and new Public Works Garage). The goal is to maximize the use of PV solar and battery storage across this campus to achieve the following outcomes: (1) Minimize or eliminate electric bills for all three buildings; (2) Install a flexible system where electric can be provided where and when needed (e.g. ARTF will have increased overnight electric demands as electric bus fleet grows); (3) Establish an energy independent public building campus that can function in the event of catastrophic emergency and disruption of Holy Cross Energy grid (e.g. wildfire event); (4) Secure net metering and battery lease agreements with Holy Cross Energy that reduce electric bills and/or generate revenues; (5) Maximize any federal rebates (currently at 40% of cost of equipment) and pursue all relevant grant funding (there is significant federal money available under the Infrastructure Act); and (6) Achieve a reasonable rate of return and time frame for the investment (i.e. 7-12 years) We are currently working with Active Energies, Holy Cross Energy, and consulting with energy engineers and experts from CORE and REG Engineering. We also hope to involve the National Energy Research Labs (Tamra was able to provide introductions to this resource). There are many interrelated complexities in evaluating a large-scale renewable energy system. Holy Cross Electric limits the amount of solar generated electricity that can be sold back to Holy Cross Energy. Holy Cross Energy also increases prices for electricity usage during the peak time of 4pm to 9pm, when photovoltaic electricity is not being generated. A campus wide solution that maximizes photovoltaics and pairs with appropriately sized battery storage could amount to a $2 million project. Federal rebates, grants and partnership agreements with Holy Cross Energy could reduce this cost by 50% to 75%. There is A LOT more research to do, but we think we are pointing the right direction. We think it is appropriate to defer the installation of any photovoltaics or batter storage on the Public Works Garage until we have an evaluation and comprehensive plan for the entire Swift Gulch Campus. The Public Works Garage will be constructed “electric ready” per our building code, so installation of photovoltaics at a later date will not be more difficult than installing as part of the current project. RECOMMENDATION: We recommend the Council approve the Public Works Garage as an all-electric facility. MOTION: “I move to approve switching the construction of the Public Works Garage to an all-electric heating system.” Thank you, Charlotte and Eric 970-748-4413 matt@avon.org TO: FROM: RE: DATE: Honorable Mayor Amy Phillips and Council members Matt Pielsticker, Community Development Director Avondale Apartments – Preliminary Design August 23, 2024 SUMMARY: This report is provided to update Council on the design of the Avondale Apartment project located at 375 Yoder Avenue. Authorization to proceed with additional design services is being requested at this time. Additional services to reach the next step in the design review process is sought now, so that when the corresponding PUD Amendment is processed, the Town will be better positioned and ready for the Final Design process. If Council does not authorize additional design services at this time, Staff will return to Council after the PUD amendment is processed. In order to prepare required documentation for the next step of design review, sub-consultants must be re-engaged including engineers, architects, and landscape designers. RECENT TIMELINE: Recent actions related to design of the project: Council authorized $15,000 for design services for Site Architects to continue through the “Pre-Design” phase of review with the Village (at Avon) Design Review Board. Subsequently, two meetings took place: July 11, 2024 – Village DRB first review of project (“ATT A – Pre-Design Plans”). Additional view studies of the building massing were requested by the Village DRB to better understand visual impacts of the development. Zoning of the parcel was discussed, as well as suitability for housing purposes. August 8, 2024 – Follow-up review (“ATT B – Visual Impact Study”) with Village DRB. Authorization to proceed was received “at risk” due to outstanding PUD Amendment application for use and building height variations. BACKGROUND: The Avondale Apartment project evolved out of the original location at Swift Gulch. Once the Public Facility site located at 375 Yoder Avenue (aka “Lot 5”) was selected by Council as the preferred housing location, a revised contract was executed with Site Architects. Design progressed continued in 2023, until the review of a full design and construction services contract was not approved in November 2023. The decision not to continue design work was based upon the lack of zoning approval, which requires an amendment to the Village (at Avon) PUD. DESIGN REVIEW PROCESS: The Village (at Avon) design review process includes five (5) defined steps: 1)Pre-Design Conference- [COMPLETE] Discuss Design Guidelines and process of review. Schematic design drawings are reviewed, and any variations to Design Guidelines are highlighted. 2)Preliminary Design Review- First of two building design review stages to review schematic level drawings. Additional detail on site design, architectural elevations, floorplans, roof plans, and landscaping review. 3)Final Design Review- Second design review stage confirming compliance with Design Guidelines and conformity with Preliminary Design stage comments and direction. Approval of Final Design permits the submittal of final construction drawings. Res 24-10 Adoption Town of Avon Employee Housing Plan Page 2 of 2 4) Technical Review- Final step in review process. Acceptance of final construction documents is required prior to processing building permits for construction. BUDGET: The Community Housing Fund budget currently includes $1,000,000 for the Avondale project. The project was previously planned and designed for Swift Gulch. Design and owner representative service expenditures for the previous plan at Swift Gulch total $359,982.19. Design services for the Avondale project at Lot 5 total $201,695 to date. OPTIONS: Council has the following options: • No action on design services. Continue PUD Amendment process and defer design work until such time zoning is approved; or • Approve the amendment (“ATT C – PSA Amendment No. 5”) to contract design services and proceed to Preliminary Design phase of DRB review; or • Continue discussions for future meeting. RECOMMENDATION: Staff recommends Council approve the Preliminary Design expenditures with Site Architects. TOWN MANAGER RECOMMENDATION: I recommend proceeding with the Preliminary Design. Although the situation is not ideal with the pending Village (at Avon) PUD Amendment, I believe the cost for next step of Preliminary Design is modest compared to the overall project cost and I have optimism that we will work through a Village PUD Amendment sooner or later based on the current relationship that Town of Avon and Traer Creek LLC have no choice but to continue working together and collaborating as we have been on a variety of public improvement and private development projects. PROPOSED MOTION: “I move to approve Amendment No. 5 with Site Architects to proceed to Preliminary Design in amount not to exceed $41,000.” Thank you, Matt Attachment A: Avondale Pre-Design Review Plans – dated June 12, 2024 Attachment B: Avondale Visual Impact Study – dated July 22, 2024 Attachment C: Amendment No. 5 to PSA with Site Architects – dated August 15, 2024 $ $YRQGDOH$SDUWPHQWV3UH'HVLJQ AVONDALE APARTMENTS PRE-DESIGN REVIEW Sheet Index A-0.0 A-1.0 SITE PLAN A-1.1 ROOF PLAN A-1.2 BUILDING AREA PLAN A-3.0 BUILDING ELEVATIONS A-8.0 MATERIAL/IMAGE BOARD A-8.1 CHARACTER RENDERING A-8.2 CHARACTER RENDERING A-8.3 CHARACTER RENDERING ee ATT A - PRE-DESIGN PLANS H[LVWLQJVLGHZDON DFFHVVGULYH R X W V L G H W X U Q D U R X Q G U FRYHUHGHQWU\ HOHY HQ WU\ HOHY VWDLUH[LW HQWU\HOHY WKURX JKDF FHV V WKURXJKDFFHVV FDQRS\RYHU SDYLOLRQ HOHY JDUEDJH UHVLGHQWLDOEOGJEOGJW\SHDHOHY UHVLGHQWLDOEOGJ EOGJW\SHEHOHY UHVLGHQWLDOEOGJEOGJW\SHDHOHY VLWHDUHDOHJHQG EOGJD EOGJE FRUULGRU HJUHVV PHFK SDYLOLRQ JDUEDJH VWDLU VLWHVWRUDJH FRYHUHGSDUNLQJ SURMHFWDUHDVXPPDU\ EXLOGLQJVIDOOOHYHOV SDYLOLRQVIWRWDOOHYHO VLWHVWRUDJHVIWRWDOOHYHO FRYHUHGSDUNLQJVIWRWDOVSDFHV JDUEDJHVIOHYHO SURMHFWWRWDOVI VIPHDVXUHGDVHQWLUHIRRWSULQWIURPH[WHULRUVWUXFWXUH VLW H VW R U D J H [\DUGVODQW GXPSVWHUVRQ UROOHUV VQRZ VWRUD JH V Q R Z VWR UD J H VQRZVWRUDJH VQRZVWRUDJH VQRZVWRUDJH EXLOGLQJDUHDVXPPDU\ EXLOGLQJFRPSRQHQWV EXLOGLQJW\SHD VWRUDJHOHYHO VI [EHGURRPVISHUXQLW [EHGURRPVISHUXQLW WRWDOXQLWV VI EXLOGLQJW\SHE [EHGURRPVISHUXQLW WRWDOXQLWV VI EXLOGLQJW\SHD [EHGURRPVISHUXQLW [EHGURRPVISHUXQLW WRWDOXQLWV VI XQLWDUHDWRWDO VI J XH VWS D U NLQ J R S WLR Q VTIW WUDQVSRUWDWLRQVWRUDJH \DUGWRUHPDLQ UH F \ FOLQ J D F F H V V VTIW H[LVWLQJUHF\FOLQJ FHQWHUWRUHPDLQ VLWHEXLOWFRPSRQHQWV EDOFRQ\W\SHDDQGW\SHE [RQXQLWEDOFRQLHVVI WRWDOEDOFRQLHV VIWRWDO FRUULGRU VISHUOHYHO [OHYHOV VIWRWDO HJUHVV[VWDLUV [HOHYDWRUV VISHUOHYHO [OHYHOV VIWRWDO PHFKVISHUOHYHO [OHYHOV VIWRWDO VLWHEXLOWFRPSRQHQWVWRWDO VI RYHUDOOEXLOGLQJWRWDO VIEXLOGLQJWRWDO VTIW DYRQGDOH DSDUWPHQWV SURMHFWVLWHDUHD LUULJDWLRQHDVHPHQW ILUHWUXFNWXUQDURXQG KDP PHUKHDG DOWHUQDWH 5 ILUHK\GUDQW ILUHK\GUDQW H[LVWLQJVLWHZDOODQGJXDUGUDLO W\ S SDUNLQJVXPPDU\ EHGURRP[SHUXQLWVSDFHV EHGURRP[SHUXQLWVSDFHV DFFHVVLEOH[PLQYDQVSDFHV JXHVWSDUNLQJUHYLHZRSWLRQVVSDFHVWEGUHT WRWDOSDUNLQJLQSODQVSDFHV SDUNLQJFRQIRUPVWRFKDSWHUWRZQRI$YRQ GHYHORSPHQWVWDQGDUGV HYVHLQVWDOOHGVSDFHVHYVHUHDG\VSDFHV I H Q FH IH Q F H JDWH J DWH J DWH VLWHGUDLQDJHDUHDWREHPRGLILHG VLWH G U DLQ D J H D U H D FRPPXQLW\ JDWKHULQJDUHD FDQRS\RYHU SDUNLQJ F D QR S \R Y H US D U NLQ J FDQRS\RYHUSDUNLQJ FDQRS\RYHUSDUNLQJ HYVWDWLRQ[ DGD DGDYDQ HYVWDWLRQ[ H YVW DWLR Q[ H Y U H D G \ [ H Y U H D G \ [ HYUHDG\[ HYUHDG\[ HYUHDG\[ H YU H D G \ [ UHWDLQLQJZDOO H [LVWLQ J IH Q F H UHWDLQLQJZDOO PRQXPHQWVLJQ JXHVW GURSRIISLFNXS ZDLWLQJDUHD ORWDFFHVV SURSHUW\OLQH SURSHUW\OLQH DGD DGD ORWDUHDVXPPDU\ DYRQGDOHDSDUWPHQWV WUDQVSRUWDWLRQVWRUDJH\DUG UHF\FOLQJFHQWHU WRWDOORWDUHD DFUHV DYRQDGOHDSDUWPHQWVORWDUHDEUHDNGRZQ EXLOGLQJ DPHQLW\ FLFXODWLRQ SHGHVWULDQ FLFXODWLRQ GULYH SDUNLQJVSDFHV SHUPLDEOHJUHHQVSDFH WRWDODYRQGDOHORWDUHD $ $YRQGDOH$SDUWPHQWV3UH'HVLJQ VLWHSODQ 1 ATT A - PRE-DESIGN PLANS (0 $&5(6 $&&(66 87,/,7< ($6(0(17 6/23(0$,17(1$1&( ($6(0(17 ,55,*$7,21 ($6(0(17 $&5(6 6/23(0$,17(1$1&( ($6(0(17 $&5(6 & & & 2$' /27 7 5 $ & 7 * /27 /27 /27 *$6 6 67 H[LVWLQJVLGHZDON DFFHVVGULYH JUHHQURRIRUWUHOOLV RYHUSDYLOLRQ UHVLGHQWLDOEOGJEOGJW\SHDIIH UHVLGHQWLDOEOGJ EOGJW\SHEIIH UHVLGHQWLDOEOGJEOGJW\SHDIIH JUHHQURRIRYHUSDUNLQJ JU H H QU RRIR Y H US D UNLQ J JUHHQURRIRYHUSDUNLQJ JUHHQURRIRYHUSDUNLQJ $ $YRQGDOH$SDUWPHQWV3UH'HVLJQ RYHUDOOURRISODQ 1 flat roof with sloping parapet flat roof with sloping para p e t flat ro o f w i t h slopin g p a r a p e t ATT A - PRE-DESIGN PLANS DUHDOHJHQG EGUP EGUPPLUURUHG EGUP EGUPPLUURUHG EDOFRQ\ E D F G G F E D D E F G $ $YRQGDOH$SDUWPHQWV3UH'HVLJQ EOGJDUHDSODQ EOGJDUHDSODQ EOGJDUHDSODQ EOGJW\SHDXQLWDUHDVXPPDU\ EGUPVISHUXQLW [XQLWVSHUIORRU VISHUIORRU [IORRUVSHUEOGJ VISHUEOGJ EGUPVISHUXQLW [XQLWSHUIORRU VISHUIORRU [IORRUVSHUEOGJ VISHUEOGJ XQLWDUHDWRWDO VISHUEOGJW\SHD DUHDPHDVXUHGIURPH[WHULRURIVWUXFWXUHVWXGRIHDFKXQLW DUHDGRHVQRWLQFOXGHVLWHEXLOWEDOFRQ\VISHUXQLW EOGJW\SHDXQLWDUHDVXPPDU\ EGUPVISHUXQLW [XQLWVSHUIORRU VISHUIORRU [IORRUVSHUEOGJ VISHUEOGJ EGUPVISHUXQLW [XQLWSHUIORRU VISHUIORRU [IORRUVSHUEOGJ VISHUEOGJ XQLWDUHDWRWDO VISHUEOGJW\SHD DUHDPHDVXUHGIURPH[WHULRURIVWUXFWXUHVWXGRIHDFKXQLW DUHDGRHVQRWLQFOXGHVLWHEXLOWEDOFRQ\VISHUXQLW EOGJW\SHEXQLWDUHDVXPPDU\ EGUPVISHUXQLW [XQLWVSHUIORRU VISHUIORRU [IORRUVSHUEOGJ VISHUEOGJ XQLWDUHDWRWDO VISHUEOGJW\SHD DUHDPHDVXUHGIURPH[WHULRURIVWUXFWXUHVWXGRIHDFKXQLW DUHDGRHVQRWLQFOXGHVLWHEXLOWEDOFRQ\VISHUXQLW 1 1 1 ATT A - PRE-DESIGN PLANS PDLQOHYHOWRSO\ RYHUDOOURRISODQ VHFRQGOHYHOWRSO\ WKLUGOHYHOWRSO\ IRXUWKOHYHOWRSO\ FUDZOVSDFH VWRUDJHXWLOLW\ VGVGVG ZG VG VG PDLQOHYHOWRSO\ RYHUDOOURRISODQ VHFRQGOHYHOWRSO\ WKLUGOHYHOWRSO\ IRXUWKOHYHOWRSO\ FUDZOVSDFH VGVG PWO VGVGVGVG VWRUDJHXWLOLW\ PDLQOHYHOWRSO\ RYHUDOOURRISODQ VHFRQGOHYHOWRSO\ WKLUGOHYHOWRSO\ IRXUWKOHYHOWRSO\ FUDZOVSDFH VWRUDJHXWLOLW\ PDLQOHYHOWRSO\ RYHUDOOURRISODQ VHFRQGOHYHOWRSO\ WKLUGOHYHOWRSO\ IRXUWKOHYHOWRSO\ FUDZOVSDFH VWRUDJHXWLOLW\ $ $YRQGDOH$SDUWPHQWV3UH'HVLJQ PDWHULDOVVFKHGXOH PDUN GHVFULSWLRQ PDQXIDFWXUHU QRWHV FF FRQFUHWH PWO FRUUXJDWHGPHWDO VG VLGLQJZRRGWRQH VG VWXFFRJUH\ VG VWXFFRJUH\ VG VWXFFRJUH\ ZG VWDLQHGZRRG RYHUDOOHOHYDWLRQ1 RYHUDOOHOHYDWLRQ6 RYHUDOOHOHYDWLRQ: RYHUDOOHOHYDWLRQ( VGVGVGZGPWOVGVGVG ATT A - PRE-DESIGN PLANS $ $YRQGDOH$SDUWPHQWV3UH'HVLJQbuilding material reference - Wo o d s l a t s a n d s i d i n g Da r k g r a y s t u c c o p a n e l s Gr a y a n d w o o d t o n e t o w r a p l a r g e r m a s s i n g e l e m e n t s Ad d i t i v e c i r c u l a t i o n a n d p a t i o s p a c e s Exterior stair and ciculation utilizing slat screen walls CM U e l e v a t o r ExteExteExteExteExteExteExtExteExteExteExteeeeeexteeeeExteeeririrrriioioooooorororrrrriorrrrririioiriiioioorrriririorrioiioirrriioiiirrrirrirrr sstaststastastastaststatastatastaastastatatatatastasstaastaasaasasastasssaassassaassstaassaaassiiiriiririrrrar ar ar aaar aaiiiraraaraairraaaiirr raaaaairrrraaairrrriirrrrairraairrraaiaarraiirrirriiirarirrandnndndndndndndndndndndnddnddnddndddnndddnnddnddndddndndddddnddndndnd cicucicucicucicucicucicucicucicucicucicucicucicucicucicucicuuuuuuuuuuuuuuuuulatilatilatlatilatttttitillallalatittlatlatiaattttttiilalatlatiatiatatttillatillatialllaatttlatlattttiilattilllaillallatiaaattioooononon uonon uon uonooooonon oooononoooonnoon uoonon uonoonon uon uonn uonooonnnttttiliililillittttttiiiiliilittilitilitilitiililittilitiiillitilitttiliilitttiliiiilillliiiiilititilittiiiitiiilltiiilliiiilizingzingzingingzizingzinzingzininzingzinngzingingzingzingzizinginzinzingzingzingngngiingizingzinzzingziniinngzzininiinggzzzzinzizzzinziinziiinnggziiizinzingggzinnnggnnnnnnzzzzziinnnnnnnggngggzzzininnzingzingnzingingzziinnzinzinzizingzingingzininiininngnggng slatslatslatataaslatatatatatatslatatslattaattatatslatttalaatslaslaaattattatattttttsstttatatttaattattttttttttt scscscrscrscrscrssscrscrssscrscrscsssscrscsscssssssssssssssssseeneeneneneeneeneeneeneeenn wallwallwallllllwallwallwallwallwalwallllwallwawalwallllllllllllllllssssssssssssssssssssssssssssssssssssss Ad d i t i v e c i r c u l a t i o n a n d p a t i o s p a c e s utili z i n g d a r k e r ton e s t o c o n t r a s t woo d s i d i n g Wo o d s l a t s ATT A - PRE-DESIGN PLANS $ $YRQGDOH$SDUWPHQWV3UH'HVLJQcharacter renderings - South Elevation ATT A - PRE-DESIGN PLANS $ $YRQGDOH$SDUWPHQWV3UH'HVLJQcharacter renderings - 8.2 Entry drive approach Building 1 EntryBuilding 1 entry from parking lot ATT A - PRE-DESIGN PLANS $ $YRQGDOH$SDUWPHQWV3UH'HVLJQcharacter renderings - 8.3 South side of Avondale Apartments, looking north from through access path Approaching site looking west ATT A - PRE-DESIGN PLANS $ $YRQGDOH$SDUWPHQWV3UH'HVLJQcharacter renderings - 8.4 North side of entry between Building 2 and Building 3, viewed from parking North side of entry at Building 2, viewed from parking ATT A - PRE-DESIGN PLANS Avondale lot 5 07.22.24 1 1 2 3 4 LOCATION OF ALL VIEWS INCLUDED IN VISUAL IMPACT STUDY AVONDALE APARTMENTS DRB PRE-DESIGN CONFERENCE VISUAL IMPACT STUDY N ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 2 VIEW FROM I-70 ON RAMP1 1 N ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 3 EXISTING SITE FRO M LO CATIO N 1 SITE WITH PROPOSED BUILDING 1 1 ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 4 VIEW FROM POST BLVD2 2 N ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 5 EXISTING SITE FRO M LO CATIO N 2 SITE WITH PROPOSED BUILDING 2 2 ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 6 VIEW FROM YODER AVE ADJACENT TO HOME DEPOT 3 3 NN ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 7 EXISTING SITE FRO M LO CATIO N 3 SITE WITH PROPOSED BUILDING 3 3 ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 8 VIEW OVER EAGLE VAIL GOLF CLUB FROM US-64 4 N ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 9 EXISTING SITE FRO M LO CATIO N 4 SITE WITH PROPOSED BUILDING 4 4 ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 12 PROPOSED BUILDING SIZE RELATIVE TO TRAER CREEK LOT F N 884884884884884'-8'-8'-8'-88""""" 4088080888'-1'-1'-1-1'-1-1-1-1-11"1"1"1"11"1"1"1"1 5 4 7 5 4 7 5 7 5 4 7 5 '- 1 '- 1 - 1 - 1 1 / 2 / 2 " /// ATT B - VISUAL IMPACT STUDY Avondale lot 5 07.22.24 13 BUILDING PROPOSAL FOR LOT 5TRAER CREEK LOT F RELATIVE BUILDING MASS SCALE : N N 163'-0 " 29 1 ' - 4 3 / 4 " 184'-1 1 1 / 2 " 28 4 ' - 9 3 / 4 " 24 3 ' - 5 1 / 4 " 198'-8 1/4" 881'-8" 408'-11" 139'-11 3/4" 138'-6 1/2" ATT B - VISUAL IMPACT STUDY SITE ARCHITECTS INC. 1 | 2 po box 943 carbondale, co 81623 Avondale Employee Housing | PSA Amendment 05 | 08.15.2024 Team: Town of Avon; Eric Heil, Matt Pielsticker Architect (Contractor per PSA Agreement); Site Architects; Erica Stahl Golden, Oscar Carlson Landscape Architect; Rawley Design Planning – Patrick Rawley Civil Engineer; JVA – JR Spung Mechanical Engineer: Bighorn – Mark Harrington Scope of Work: Submit Avondale Employee Housing for DRB Preliminary Design Review with The Village (at Avon) Trear Creek. Submittal to meet all guidelines and include consultant information as outlined in the Design Review Guidelines, dated October 5, 2021 (See attached PDF dated 06.13.2024 for extracted Preliminary Design Review requirements with responsibilities). Submittal will progress and refine project documentation from the Pre-Design conference and include coordination with noted consultants. Since this scope of work is being requested prior to the project being contracted through construction, the fee being presented will reduce the previously estimated SD phase total. A significant portion of information being requested by the DRB for Preliminary Design review is work the project team would be completing under the SD phase. Savings cannot be determined until the project contract has been updated but the noted phase totals from the basis of design fee sheet will be reduced pending completion of Amendment 05. Amendment 05 Schedule: Submit for DRB Preliminary Conference: October (post DRB Pre-Design Conf.) for November 2024 review Landscape / Civil / Mechanical coordination: September-October 1st draft package for Town Staff for review 9.13 Final Preliminary Design review Package due to DRB 10.24 (3 weeks prior to meeting) DRB Preliminary Design review 11.14.2024 *If project updates are requested during the Pre-Design Conference from the DRB or town staff, Site Architects will review/address project updates with schedule and coordinate updates to amendment 05 with town staff and all consultants. ATT C - PSA AMENDMENT NO. 5 proposal SITE ARCHITECTS INC. 2 | 2 po box 943 carbondale, co 81623 Amendment 05 Fee Proposal: The proposed, not to exceed NTE hourly agreement for this scope of work based on the attached will not exceed $41,000.00 Architecture – Site Plan, Building Plans, Roof Plan, Exterior Elevations, Site and Building sections, Building height calculations, renderings ($16,736) Civil – Preliminary site plan and a drainage report showing concept/routing/detention locations ($12,000) Landscape – Preliminary landscape Plan ($10,764) Mechanical – Utility / Meter coordination and location ($1,500) *Fees are based on attached Preliminary Design Review requirements dated 6.13.2024 **Fees are also based on the plans being approved by DRB as presented during the pending Pre-Design conference (7.11.2024). Submittal matches previously issued SD background to consultants from 11.08.2023. Amendment 05 Acceptance Signatures: Town of Avon, Colorado By:______________________________________ Eric Heil, Town Manager Contractor By:______________________________________ Erica Stahl Golden, AIA Position: principal / owner Site Architects Inc. ATT C - PSA AMENDMENT NO. 5 TO: Honorable Mayor Phillips and Council members FROM: Town Attorney’s Office – Erica Romberg and Nina Williams RE: Homelessness and Urban Camping Bans DATE: August 21, 2024 SUMMARY: This report relates to the August 27, 2024 Work Session conducted by the Town Attorney regarding the Town’s current camping regulations and potential options for the Town moving forward. At the conclusion of the Work Session, the Town Attorney will be asking for direction from Council as to potential action to amend or repeal the Town’s camping laws. BACKGROUND: The Town currently regulates camping under sections 9.20.060 and 9.20.070 of the Avon Town Code. These regulations have remained in the Code unchanged since 1979. The topic of urban camping has been a hot button topic for quite some time, but has most recently been noteworthy because of the Supreme Court’s decision in Grants Pass earlier this year. Prior to Grants Pass, courts around the country were finding that camping bans were legal only so long as there were housing alternatives that an individual was choosing not to take advantgage of. The majority decision in Grants Pass was split into two main sections, the issue of whether camping bans violated the Eighth Amendment and how to deal with the question of what is means to be “involuntarily homeless” and if there has to be available bed space that a person chooses not to use in order to enforce camping bans. The Court decided that camping bans were not a violation of the Eighth Amendment for a couple reasons. The first rationale dealt with clarifying a precedent that found it was a violation of the Eighth Amendment to criminalize someone based on their status. The Court found that while camping bans do impact homeless people, the laws themselves do not specifically target the homeless and noted that people who are not homeless could be charged under these laws in the same way those who are homeless could be. Therefore, camping bans do not violate the Eighth Amendment as they don’t criminalize someone based on their status. They went on to find that in their prior Eighth Amendment decisions, the question of whether or not there was a violation of the Eighth Amendment came down to the punishment for the crime and not the criminal activity itself. The majority found that it is their job to determine if the punishment is cruel and unusual, and not to determine what can or should be a crime. The Court then went on to address the question of what it means to be “involuntarily homeless.” Unlike the Ninth Circuit, the Supreme Court found it was outside their purview to determine what it means for a person to have meaningful access to shelter. They went on to say that when the Ninth Circuit made that distinction, they made it “all but impossible” to enforce the laws because of the confusion it caused as to what qualified as available shelter under the law. This is in large part because the courts are so removed from the realities of what each community faces to know what it means for there to be available space. In summary, the takeaway from the Supreme Court’s decision is that towns and cities may impose camping bans and there do not have to be limitation on enforcement on those bans based on shelter availability. DISCUSSION: As mentioned above, Avon’s current camping regulations are governed by sections 9.20.060 and 9.20.070 of the Avon Town Code. Those sections read as follows: “Section 9.20.060 – Camping in Public Ways. It is unlawful for any person to sleep, spend the night, cook or establish a place of abode in any vehicle, trailer or camper on any public street, way, sidewalk or place within the Town.” Page 2 of 2 “Section 9.20.070 – Camping restricted. It is unlawful for any person to reside temporarily on any parcel in the Town not specifically designated therefor, for a period longer than two (2) nights in any tent, shelter, mobile home, recreational vehicle, trailer or any other temporary or movable shelter that has not been permanently attached to the land and/or received appropriate approvals from the Town.” As they are currently written, these ordinances create confusion and face enforcement issues. There is significant overlap between the two ordinances which creates some confusion as to when which ordinance should be utilized and the time frame in Section 9.20.070 makes it all but impossible to move unwanted campers. A person can be asked to move, move a short distance, and the timeline starts anew. Many communities have addressed camping, and we have attached them to this report. Given that the Grants Pass opinion was released in June, we are unaware of any communities who have amended their ordinances since its release which is why many still contain language about enforcement alternatives. While the Supreme Court determined that alternatives to camping are not required, this Council may choose to create that option. It should be oted, however, that should Council decide to go that way, there may be added cost to the Town if shelters do not currently exist in the community. OPTIONS: At this time, we are seeking guidance from Council on what should be done with the current camping ordiances. We see a number of options for Council. Option 1 would be to do nothing and leave these two ordinances on the books as they have existed since 1979. Option 2 would be to repeal these ordinances in their entirety and not replace them. Lastly, Option 3 would be to amend the ordinances to enforce an ordinance that would address current concerns with camping in Town. Thank you for your time and attention prior to the work session, Erica Romberg ATTACHMENT A: City of Aurora Camping Ban ATTACHMENT B: City of Boulder Camping Ban ATTACHMENT C: City of Colorado Springs Camping Ban ATTACHMENT D1: Town of Crested Butte Camping Ban ATTACHMENT D2: Town of Crested Butte Unlawful Act on Public Property ATTACHMENT E: City of Fort Collins Camping Ban ATTACHMENT F: City of Lafayette Camping Ban ATTACHMENT G: City of Longmont Camping Ban ATTACHMENT H: City of Pueblo Camping Ban section 94-122 of the Aurora City Code, Unauthorized camping on public property prohibited Page 1 of 2 The Aurora City Code is current through Ordinance 2024-19, passed May 6, 2024. Sec. 94-122. Unauthorized camping on public property prohibited. (a)It shall be unlawful for any person to camp on private property without the express written consent of the property owner or the owner's agent, except in any location where camping has been expressly authorized by the city. (b)It shall be unlawful for any person to camp on any public property, except in any location where camping has been expressly authorized by the city. (c)No city employee authorized to issue a citation shall issue a citation, make an arrest, or otherwise enforce this section against a person camping on public property unless: (1)A city employee or a law enforcement official has issued the person in a camp a verbal or written order to move from the camp and take their property with them; and (2)The city has a shelter option available for the person ordered to move from the camp and the person has been offered placement in the shelter option; and (3) Exception to this section. If a person is offered a shelter option and refuses to go to the shelter option and the person refuses or fails to move from the camp location when ordered this person may be issued a citation and is subject to arrest. (d)Any person convicted of violating this section shall not be subject to the general penalty provisions as provided in section 1-13. (e)For purposes of this section: (1) Camp or camping means the use of property for the purpose of unauthorized overnight occupancy, or to reside or dwell on public property with shelter overnight, or the use of public property for the purpose of overnight occupancy or longer occupancy. The term "shelter" as used in this definition includes, without limitation, any tent, tarpaulin, lean-to, sleeping bag, bedroll, blankets, or any form of cover or protection from the elements other than clothing. The term "reside or dwell" includes, without limitation, conducting such activities as eating, sleeping, or the storage of personal possessions. Evidence of unauthorized camps includes, but is not limited to, sleeping, or making preparations to sleep by laying out personal belongings, bedding, bedroll(s), blanket(s), ATTACHMENT A: City of Aurora section 94-122 of the Aurora City Code, Unauthorized camping on public property prohibited Page 2 of 2 The Aurora City Code is current through Ordinance 2024-19, passed May 6, 2024. sleeping pad(s), sleeping bag(s), erecting or occupying a tent, makeshift shelter, lean-to, tarpaulin, enclosure, or other structure used for overnight living purposes, or any form of cover or protection from the elements other than clothing, or making preparations for a fire or making a fire (except for fires at sites specifically designated or authorized for a fire by the parks, recreation and open space (PROS) department), setting up or using a camp stove, cooking device, or other type of heating source (except for grills and personal grills permitted in designated areas by PROS). Camp or camping can include using a vehicle for overnight occupancy where overnight occupancy or overnight camping violates City Code or a city rule or regulation or is not otherwise authorized by the city. Camping does not include napping during the day or picnicking. (2) Public property means, by way of illustration, but not limited to, a highway, highway median, any street, street median, road, road median, alley, sidewalk, strips of land between streets and sidewalks, lanes, catch basins, pedestrian or transit mall, bike path, greenway, public parking lot, or any other structure or area encompassed within the public right-of-way; any park, parkway, mountain park, open space, natural area, trail, beach, playground, or other publicly owned recreation facility; a municipal watercourse, bodies of water, watercourses, stormwater infrastructure such as, but not limited to, bridges, pipes, inlets and culverts; or any other grounds, buildings, or other facilities owned or leased by the city or by any other public entity, regardless of whether such public property is vacant or occupied and actively used for any public purpose. (Ord. No. 2022-12, § 1, 3-28-2022) The Aurora City Code is current through Ordinance 2024-19, passed May 6, 2024. Disclaimer: The city clerk’s office has the official version of the Aurora City Code. Users should contact the city clerk’s office for ordinances passed subsequent to the ordinance cited above. City Website: www.auroragov.org Hosted by General Code. Created: 2024-08-05 15:18:16 [EST] (Supp. No. 160, Update 1) Page 1 of 1 5-6-10. Camping or Lodging on Property Without Consent. (a)No person shall camp within any park, parkway, recreation area, open space, or other city property. (b)No person shall camp within any public property other than city property or any private property without first having obtained: (1)Permission of the authorized officer of such public property; or (2)Permission of the owner of private property. (c)This section does not apply to any dwelling in the city, as defined by Section 5-1-1, "Definitions," B.R.C. 1981. (d)For purposes of this section, camp means to reside or dwell temporarily in a place, with shelter, and conduct activities of daily living, such as eating or sleeping, in such place. But the term does not include napping during the day or picnicking. The term shelter includes, without limitation, any cover or protection from the elements other than clothing. The phraseduring the day means from one hour after sunrise until sunset, as those terms are defined in Chapter 7-1, "Definitions," B.R.C. 1981. Camp does not include temporary residence associated with the performance of a governmental service by emergency responders or relief workers during a Disaster Emergency as defined in Section 2-2.5-2, "Definitions," B.R.C. 1981. (e)Testimony by an agent of the persons specified in Subsection (b) of this section that such agent is the person who grants permission to camp or lodge upon such property, or that in the course of such agent's duties such agent would be aware of permission and that no such permission was given, is prima facie evidence of that fact. Ordinance Nos. 7129 (2001); 7719 (2010); 7831 (2012); 7946 (2013); 7965 (2014) ATTACHMENT B: City of Boulder 9.6.110: CAMPING ON PUBLIC PROPERTY PROHIBITED: A.It is unlawful for any person to camp on any public property, except as may bespecifically authorized by the appropriate governmental authority. B.For purposes of this section "camp" or "camping" means to use the public area forliving accommodation including, but not limited to, the activities and circumstances listed below. These activities and circumstances may be considered in determining whether reasonable grounds for belief have arisen that a person has "camped" or is "camping" in violation of this section. 1.Sleeping or making preparations to sleep, including the lying down of bedding forthe purpose of sleeping. 2.Occupying a shelter out of doors. "Shelter" shall mean any cover or protection fromthe elements other than clothing, such as a tent, shack, sleeping bag, or other structure or material. 3.The presence or use of a campfire, camp stove or other heating source or cookingdevice. 4.Keeping or storing personal property. (Ord. 10-10) ATTACHMENT C: City of Colorado Springs Sec. 10-3-90. - Camping. All forms of overnight camping are prohibited on Town owned property. No person shall set up tents, shacks or any other temporary shelter for the purpose of overnight camping, nor shall any person leave in a park after closing hours any movable structure or special vehicle to be used or that could be used for such purpose, such as a house trailer, camp trailer, campervan, recreational vehicle, or the like. Camping in certain town parks may be permitted in conjunction with an approved special event permit. 8/6/24, 3:26 PM CHAPTER 10 - General Offenses | Municipal Code | Crested Butte, CO | Municode Library https://library.municode.com/co/crested_butte/codes/municipal_code?nodeId=CH10GEOF_ART3STPUPL_S10-3-90CA 1/1 ATTACHMENT D1: Town of Crested Butte (a) (1) (2) (3) (4) (5) (6) (b) (c) Sec. 10-3-10. - Unlawful conduct on public property. It is unlawful for any person to enter or remain in any public building or on any public property or to conduct themselves in violation of any order, rule or regulation concerning any matter prescribed in this Section, limiting or prohibiting the use, activities or conduct in such public building or on such public property, issued by any officer or agency having the power of control, management or supervision of the building or property. In addition to any authority granted by any other law, each such officer or agency may adopt such orders, rules or regulations as are reasonably necessary for the administration, protection and maintenance of such public buildings and property, specifically, orders, rules and regulations upon the following matters: Preservation of property, vegetation, wildlife, signs, markers, statues, buildings, grounds and other structures, and any object of scientific, historical or scenic interest; Restriction or limitation of the use of such public buildings or property as to time, manner or permitted activities; Prohibition of activities or conduct within public buildings or on public property which may be reasonably expected to substantially interfere with the use and enjoyment of such places by others or which may constitute a general nuisance; Camping and picnicking, public meetings and assemblages and other individual or group usages, including the place, time and manner in which such activities may be permitted; Use of all vehicles as to place, time, and manner of use; and Control and limitation of fires and designation of places where fires are permitted. No conviction may be obtained under this Section unless notice of such limitation or prohibition is prominently posted at all public entrances to such building or property or unless such notice is actually first given the person by the office or agency, including any agent thereof or by any law enforcement officer having jurisdiction or authority to enforce this Section. Any person who violates this Section is guilty of unlawful conduct on public property. 8/6/24, 3:25 PM CHAPTER 10 - General Offenses | Municipal Code | Crested Butte, CO | Municode Library https://library.municode.com/co/crested_butte/codes/municipal_code?nodeId=CH10GEOF_ART3STPUPL_S10-3-10UNCOPUPR 1/1 ATTACHMENT D2: Town of Crested Butte CHAPTER 17 - MISCELLANEOUS OFFENSES ARTICLE X. OFFENSES INVOLVING CAMPING Fort Collins, Colorado, Municipal Code Created: 2024-07-10 16:16:57 [EST] (Supp. No. 148) Page 1 of 1 ARTICLE X. OFFENSES INVOLVING CAMPING Sec. 17-181. Camping on public property restricted. It shall be unlawful for any person to camp or pitch a tent, or knowingly permit any person to camp or pitch a tent, on public property within the City. Camping, for the purposes of this Section, shall mean to sleep, spend the night, reside or dwell temporarily with or without bedding or other camping gear and with or without shelter, or to conduct activities of daily living such as eating or sleeping, in such place unless such person is camping in compliance with Chapter 23 in a natural or recreation area. Camping shall not include incidental napping or picnicking. (Code 1972, § 60-22; Ord. No. 28, 1999, § 2, 3-2-99; Ord. No. 199, 2006 § 1, 1-16-07) Cross reference(s)—Police Services, § 2-504 et seq. Sec. 17-182. Camping on private property restricted; exceptions. (a)It is unlawful for any person to camp or to knowingly permit any person to camp, as defined in § 17-181, on private property within the City, except on the premises of a residential dwelling with the permission of the property owner. Any such camping must be temporary in nature and must not exceed a period of seven (7) consecutive days or a total of fourteen (14) days in a calendar year; provided, however, that an extension of these time limits may be granted by the Director of Community Development and Neighborhood Services or his or her designee upon written application of a person claiming extraordinary circumstances or undue hardship. The Director's decision whether to grant an extension shall be based upon all attendant circumstances, including, without limitation, any objections posed by occupants of premises located on the same block face of the applicant. In no event shall an extension exceed seven (7) additional consecutive days or fourteen (14) additional days in a calendar year. (b)It is unlawful for any person to occupy any motor vehicle, recreational vehicle or trailer or knowingly permit any person to occupy any motor vehicle or recreational vehicle or trailer, as defined in § 20-104 of the Code, on private property for living or sleeping purposes unless: (1)such vehicle or trailer is located in a manufactured home park or RV park or campground where vehicle spaces are provided and where such occupancy does not violate any other City, state or federal regulation; or (2)such vehicle or trailer is located on the premises of a residential dwelling in compliance with § 20-105 and the occupancy thereof is with the permission of the property owner and does not exceed seven (7) consecutive days or a total of fourteen (14) days in a calendar year. (Code 1972, § 60-23; Ord. No. 28, 1999, § 4, 3-2-99; Ord. No. 199, 2006 § 1, 1-16-07; Ord. No. 030, 2012, § 46, 4- 17-12) ATTACHMENT E: City of Fort Collins Sec. 75-182. - Camping prohibited. ) It shall be unlawful and constitute a nuisance for any person to camp upon public property without the express written consent of an authorized official of the entity having ownership, management, or control of such property. (b) It shall be unlawful and constitute a nuisance for any person to camp upon private property without the consent of the property owner or authorized agent. (c) For the purposes of this section "camp" means to reside or dwell temporarily with shelter. The term shelter includes, but is not limited to, a tent, tarpaulin, lean-to, sleeping bag, bedroll, blankets or any other form of protection from the elements other than clothing. The term "reside or dwell" includes, but is not limited to, activities such as eating, sleeping or the storage of personal property. (Ord. No. 2014-13, § 1(75-121), 5-6-14 ATTACHMENT F City of Lafayette Created: 2024-07-16 07:37:41 [EST] (Supp. No. 5) Page 1 of 1 Sec. 10.24.120. Camping or lodging on property without consent—Designated. (a)It is unlawful for any person to camp within any park, parkway, recreation area, open space, or other city property without a permit. (b)It is unlawful for any person to camp within any private property, without first having obtained: (1)Permission of the owner or person responsible for the care of the property. (c)This section does not apply to any dwelling in the city. (d)For purposes of this section, camp means to reside or dwell temporarily in a place by using or erecting a shelter (other than park provided shelters), temporary or otherwise, including a tent or any type of cover or protection from the elements besides the clothing a person is wearing or a blanket, and conduct daily living activities, including, but not limited to, eating or sleeping in such place. The term does not include napping or picnicking for a period not to exceed two hours per calendar day during the times the public lands are available and open for use by the public, except that a park provided shelter may be used in accordance with LMC 13.20.70. The use of sun shelters during park hours is allowed in parks where posted. (e)Testimony by an agent of the persons specified in subsections (a) and (b) of this section that such agent is the person who grants permission to camp or lodge upon such property, or that in the course of such agent's duties such agent would be aware of permission and that no such permission was given, is prima facie evidence of that fact. (f)Rules and regulations. The director of parks and natural resources may propose such reasonable rules and regulations as may be necessary for the purpose of administering, interpreting, or enforcing the provisions of this section. The rules and regulations shall be reviewed by the city attorney's office and then adopted by the city manager. Notice of proposed rules shall be published in a newspaper of general circulation in the city, and the public invited to submit comments on the proposed rules. Notice of adopted rules shall be published in a newspaper of general circulation in the city. (Ord. No. Ord. No. O-2023-20, § 2, 5-25-2023) ATTACHMENT G: City of Longmont Created: 2024-08-01 13:36:59 [EST] (Supp. No. 103) Page 1 of 1 Sec. 11-1-211. Prohibited use of public property. (a)No person shall camp on City property without first having obtained the written permission of the authorized officer of such public property. (1)A person cannot violate this section where there is no access to other shelter available. Refusal to accept or move to other available shelter, where other shelter is accessible is a per se violation of this Section. (2)For purposes of Section, "City property" means all land, including, any park, parkway, recreation area, roadway, open space, or any other public property owned by the City of Pueblo. (3)For purposes of Section, "camp" means to reside or dwell temporarily in a place, with shelter, and conduct activities of daily living, such as eating or sleeping, in such place. Camp does not include temporary residence associated with the performance of governmental services. (4)For purposes of Section, "shelter" includes, without limitation, any cover or protection from the elements other than clothing. (5)For purposes of Section, "written permission" includes a documented reservation, permit, park pass, or contract. (6)Failure to provide written permission upon request by an authorized party, including all law enforcement personnel shall be treated as an admission appropriate permission was not obtained. (b)No person shall erect or use any tent, net, or other temporary structure for the purpose of shelter or storage of property on City property without first having obtained the Written Permission of the authorized officer of such public property. (1)For purposes of this Section, "temporary structure" includes any structure used to shelter a person or property after sundown and all enclosed structures. For purposes of this section, temporary structure does not apply to non-enclosed portable structures designed to provide overhead covering, including umbrellas and awnings. (2)Failure to provide written permission upon request by an authorized party, including all law enforcement is an admission appropriate permission was not obtained. (Ord. No. 10645, § 1, 2-16-2024) Sec. 11-1-212. Violation and enforcement. (a)The Pueblo Police Department shall be responsible for enforcement of Section 11-1-211. (b)Any person who violates Section 11-1-211 shall be subject to the penalties outlined in Section 11-1-103 of this Title. (Ord. No. 10645, § 1, 2-16-2024) ATTACHMENT H: City of Pueblo 970-748-4010 awade@avon.org TO: Honorable Mayor Phillips and Council members FROM: Arnell Wade, General Government Fellow RE: Ord 24-13 Amending AMC Sec 9.40.050)(7) Dogs on Town Properties DATE: 8-13-2024 SUMMARY: This report presents for Council consideration Ordinance 24-13 which would revise the current prohibition of dogs at special events and authorize the Town Manager to determine appropriate rules for allowing or permitting dogs on Town property, including special events. Ordinance 24-13 is presented for first reading. BACKGROUND: Avon’s special events programming has expanded dramatically since the construction of the Avon Pavilion. Dogs have been allowed at AvonLIVE!, SunsetLIVE! (in the grass area), movies in the park, art fairs and other non-ticketed special events. The current language in the Avon Municipal Code does not allow dogs into special events. Proposed Code changes would allow flexibility to determine administratively appropriate rules, regulations, prohibitions and designations. PROPOSED CODE AMENDMENT: Avon Municipal Code Sec 9.40.050(7) currently states, “Dogs. Dog owners shall comply with all animal control ordinances listed in Chapter 6.04 of this Code and shall pick up their dogs' excrement or waste. Dog owners shall not allow dogs into those areas posted as prohibited areas for dogs or into special events. Prohibited areas may be designated by the Town” The proposed code changes would authorize the Town Manager to determine appropriate rules and regulations for dogs on Town Property and dogs at special events, which revisions are set forth below. 9.40.050(7) Dogs. Dog owners shall comply with all animal control ordinances listed in Chapter 6.04 of this Code and shall pick up their dogs' excrement or waste. Dog owners shall not allow dogs into those areas posted as prohibited areas for dogs or into special events. Prohibited areas may be designated by the Town. The Town Manager is authorized to adopt rules, regulations, prohibitions and designation of appropriate times and locations for dogs on Town properties and dogs at special events. Non-compliance with any posted rule, regulation, or prohibition shall be a violation of this Chapter 9.40. FINANCIAL CONSIDERATIONS: There are no financial or monetary implications associated with this proposed amendment to our Avon Municipal Code TOWN MANAGER RECOMMENDATION: I recommend that Council approve Ordinance 24-13 in order to allow flexibility in the adoption of rules and regulations as well as ability to quickly change rules and regulations depending upon the type of special event and needs of the community. PROPOSED MOTION: “I move to approve Ordinance 24-13 Amending Avon Municipal Code Section 9.40.050(7) Regarding Dogs on Town Property.” Thank you, Arnell ATTACHMENT A: Ordinance 24-13 Amending AMC Sec. 9.04.050(7) Ord 24-13 Amending AMC 9.04.050(7) Aug. 27, 2024 – First Reading Page 1 of 3 ORDINANCE NO. 24-13 AMENDING AVON MUNICIPAL CODE SECTION 9.40.050(7) REGARDING DOGS ON TOWN PROPERTY WHEREAS, the Town of Avon has enjoyed significant growth in special events in the Town of Avon; WHEREAS, many dog owners desires to bring their dogs to special events; WHEREAS, Avon Municipal Code Section 9.40.050(7) states in part that, “Dog owners shall not allow dogs . . . into special events.” WHEREAS, the Town Council finds that adopting flexible language that authorizes the Town Manager to determine the appropriateness of allowing dogs at special events on a case by case basis will promote the health, safety and general welfare of the Avon community; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with 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. Section 9.40.050(7) is amended to read as follows, with strike-out indicating words to be deleted and bold, underline indicating words to be added: 9.40.050(7) Dogs. Dog owners shall comply with all animal control ordinances listed in Chapter 6.04 of this Code and shall pick up their dogs' excrement or waste. Dog owners shall not allow dogs into those areas posted as prohibited areas for dogs or into special events. Prohibited areas may be designated by the Town. The Town Manager is authorized to adopt rules, regulations, prohibitions and designation of appropriate times and locations for dogs on Town properties and dogs at special events. Non-compliance with any posted rule, regulation, or prohibition shall be a violation of this Chapter 9.40. ATTACHMENT A: Ord 24-13 Ord 24-13 Amending AMC 9.04.050(7) Aug. 27, 2024 – First Reading Page 2 of 3 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. 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 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 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] ATTACHMENT A: Ord 24-13 Ord 24-13 Amending AMC 9.04.050(7) Aug. 27, 2024 – First Reading Page 3 of 3 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING by the Avon Town Council on August 27, 2024 and setting such public hearing for September 10, 2024 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ___________________________________ Amy Phillips, Mayor Miguel Jauregui Casanueva, Town Clerk ADOPTED ON SECOND AND FINAL READING by the Avon Town Council on September 10, 2024. BY: ATTEST: ____________________________ ___________________________________ Amy Phillips, Mayor Miguel Jauregui Casanueva, Town Clerk APPROVED AS TO FORM: ____________________________ Nina Williams, Town Attorney ATTACHMENT A: Ord 24-13 970-748-4446 mlabagh@avon.org Page 1 of 1 TO: Honorable Mayor Phillips and Council members FROM: Michael Labagh, Recreation Director RE: Fitness Court Update DATE: August 21, 2024 SUMMARY: This report provides a general update and next steps in the Fitness Court removal process. After extensive outreach and working directly with the National Fitness Campaign on this effort, the Fitness Court in Harry A. Nottingham Park is unable to be donated to another entity. BACKGROUND: The Fitness Court was installed in Harry A. Nottingham Park in 2019 after the Town was awarded a grant from the Colorado Health Foundation in 2018. The amenity was installed at the previous location of the park’s playground and less than 50 yards from the new playground. Soon after installation, the Town began to realize that the Fitness Court was not placed in an ideal location to ensure proper use by patrons 14 years of age and older. Since the Fitness Court is located adjacent to a playground, Staff consistently see improper and unsafe use by children. Staff evaluated several other sites to relocate the Fitness Court within Town but efforts were unsuccessful due to various limitations. Staff conducted outreach to several organizations entertaining all options with those who showed interest. After confirming interest with an entity, Staff setup a meeting to discuss deinstallation logistics with the National Fitness Campaign. After final administrative and legal review by their senior management team, the National Fitness Campaign determined that deinstalling the equipment from Avon and reinstalling the Fitness Court at another location was not a feasible option. Per the National Fitness Campaign staff, “the Fitness Court was not designed to be disassembled and re- assembled. It is engineered as a permanent installation. Disassembling it and attempting to re-assemble it in another municipality would void engineering, insurance, and safety standards. It would produce unknown conditions for safety and usability, opening up the participating local agencies to significant risk and liability issues.” Their staff also “analyzed what it would require to complete this effort and even if the local agencies were interested in completing required indemnification and legal acceptance of full risk and liability, the costs alone associated with attempting this effort across mobilization, re-conditioning, engineering, installation and testing would significantly exceed those required to fund and build a new Fitness Court.” NEXT STEPS: Unless otherwise directed, Town Staff will confirm a plan to uninstall the Fitness Court and recycle and/or donate all its parts in the upcoming months. Staff will prioritize the design of a larger picnic shelter to be placed in the Fitness Court’s current location in 2025. Thank you, Michael 970-748-4044 dstockdale@avon.org TO: Honorable Mayor Amy Philips and Council Members FROM: Dean Stockdale, Senior Accountant RE: Financial Report – July & June 2024 data DATE: August 15th, 2024 SUMMARY: This report presents the revenues for sales, accommodations, tobacco and cigarette, and short-term rental tax for June 2024 and the recreation fees and real estate transfer tax revenues for July 2024. BACKGROUND: The percentage variance, or comparative change is reflected in the analysis portion of this report in respect to each individual section for June revenues in 2024 and July 2024. Tax revenues are not budgeted on a monthly basis; however, for purposes of analysis, monthly budget variances are based on a 3-year average of actual revenues. REVENUE ANALYSIS: Sales Tax: Revenues – June 2024: June sales tax revenues totaled $1,169,041. This is a decrease of $167,691 or 12.54% compared to June 2023 sales tax revenue of $1,336,733. Decrease to Manufacturing and Construction sales tax is primarily due to sales tax from the Frontgate project in prior year. JUNE 2023 v JUNE 2024 SALES TAX COMPARISON BY INDUSTRY June 2023 June 2024 Increase/Decrease Home/Garden $156,867.11 $152,752.72 ($4,114.39) Grocery/Specialty/Health $182,542.05 $178,551.53 ($3,990.52) Sporting Goods Retail/Rental $45,712.28 $49,397.26 $3,684.98 Miscellaneous Retail $70,414.41 $59,232.67 ($11,181.74) Accommodations $119,618.16 $105,316.45 ($14,301.71) Restaurants/Bars $165,196.70 $166,812.23 $1,615.53 Other $38,069.05 $23,177.30 ($14,891.75) Service Related $128,046.99 $110,677.48 ($17,369.51) Liquor Stores $21,078.56 $19,935.41 ($1,143.15) E-Commerce Retail $64,313.63 $89,128.55 $24,814.92 Manufacturing/Wholesale $113,489.83 $66,985.20 ($46,504.63) Construction Related Services $184,120.81 $95,191.21 ($88,929.60) Digital Media Suppliers/Sellers $19,615.66 $27,534.13 $7,918.47 Commercial/Industrial Equipment $26,228.64 $22,242.38 ($3,986.26) Special Events $1,419.74 $2,107.11 $687.37 TOTAL $1,336,733.62 $1,169,041.63 ($167,691.99) Page 2 of 11 Sales Tax: June 2024 Budget v Actual Collections: June 2024 sales tax revenues totaled $1,169,041. This is a decrease of $126,063 over the June 2024 estimates of $1,295,105. This is 9.73% below the adopted 2024 budget (based on a 3-year average). JUNE 2024 BUDGET v ACTUAL COLLECTIONS - SALES TAX 2024 Budget 2024 Actual Dollar Variance Percentage Variance June $1,295,105.17 $1,169,041.63 ($126,063.54) (9.73%) 801,965.52 1,012,305.14 1,116,755.98 1,336,733.62 $1,169,041.63 26.23% 10.32% 19.70% -12.54% $300,000 $500,000 $700,000 $900,000 $1,100,000 $1,300,000 2020 2021 2022 2023 2024 2020-2024 June Sales Tax Revenue Trend Page 3 of 11 Accommodation Tax: Revenues – June 2024: Accommodation tax revenues totaled $113,439 for the month of June. This is a decrease of $14,900 or 11.61% compared to June 2023 accommodation tax revenues, which totaled $128,340. Accommodation tax collections by industry type for June 2024 compared to June 2023 reported a decrease for Hotels, Timeshares, and Vacation Rentals. JUNE 2023 v JUNE 2024 ACCOMMODATION TAX COMPARISON BY INDUSTRY June 2023 June 2024 Increase/(Decrease) Timeshares $23,630.23 $21,228.03 ($2,402.20) Hotels $55,839.83 $46,624.04 ($9,215.79) Vacation Rentals $48,869.94 $45,587.90 ($3,282.04) TOTAL $128,340.00 $113,439.97 ($14,900.03) June 2024 Budget v Actual Collections: June 2024 accommodation tax revenues totaled $113,439. This is a decrease of $43,012 over the June 2024 estimates of $156,452. This is 27.49% below the adopted 2024 budget (based on a 3-year average). JUNE 2024 BUDGET v ACTUAL COLLECTIONS - ACCOMMODATIONS TAX 2024 Budget 2024 Actual Dollar Variance Percentage Variance June $156,452.86 $113,439.97 ($43,012.89) (27.49%) 51,187 158,588 142,677 128,340 113,440 209.82% -10.03% -10.05% -11.61% $0 $25,000 $50,000 $75,000 $100,000 $125,000 $150,000 2020 2021 2022 2023 2024 2020-2024 June Accommodation Tax Revenue Trend Page 4 of 11 Short Term Rental Tax for CH: Revenues – June 2024: STR Tax for Community Housing totaled $47,691 for the month of June. This is a decrease of $7,594 or 13.70% compared to June 2023. The Westin Hotel is classified as a hotel in our MuniRevs system, although they are zoned as residential. JUNE 2023 v JUNE 2024 STR TAX FOR CH COMPARISON BY INDUSTRY June 2023 June 2024 Increase/(Decrease) Timeshares $11,815.10 $10,614.02 ($1,201.08) Hotels $20,374.80 $15,986.55 ($4,388.25) Vacation Rentals $23,095.88 $21,090.49 ($2,005.39) TOTAL $55,285.78 $47,691.06 ($7,594.72) Tobacco & Cigarette Tax: Revenues – June 2024: Tobacco tax revenues totaled $24,579 and cigarette tax revenues totaled $20,193 for June 2024. Compared to June 2023 revenues, this is a decrease of $7,296 for tobacco tax revenues, which totaled $31,876 and a decrease of $411 for cigarette tax revenues, which totaled $20,604. 15,707 22,965 27,785 31,877 24,580 46.21% 20.99% 14.73% -22.89% - 5,000 10,000 15,000 20,000 25,000 30,000 35,000 2020 2021 2022 2023 2024 2020-2024 June Tobacco Tax Revenue Trend Page 5 of 11 June 2024 Adopted Budget v Actual Collections: June 2024 tobacco and cigarette tax revenues totaled $24,579 and $20,193, respectively. This is a decrease of $4,449, over the June 2024 budget for tobacco tax, which is $29,029 and a decrease of $529 over the June 2024 budget for cigarette tax estimates, which is $20,722 which is based on a 3-year average. JUNE 2024 BUDGET v ACTUAL COLLECTIONS - TOBACCO AND CIGARETTE TAX REVENUES 2024 Budget 2024 Actual Dollar Variance Percentage Variance Tobacco $29,029.08 $24,579.89 ($4,449.19) (15.33%) Cigarettes $20,722.64 $20,193.00 ($529.64) (2.56%) Total ($4,978.83) 24,732 22,932 20,889 20,604 20,193 -7.28% -8.91%-1.36%-1.99% - 5,000 10,000 15,000 20,000 25,000 30,000 2020 2021 2022 2023 2024 2020-2024 June Cigarette Excise Tax Revenue Trend Page 6 of 11 Real Estate Transfer Tax: Revenues – July 2024: July 2024 real estate transfer tax totaled $282,466. Compared to July 2023, which totaled $268,804, this is an increase of $13,662. This is a decrease of $255,008 over the July 2024 budget which was based on a 3-year average. JULY 2024 BUDGET v ACTUAL COLLECTIONS – REAL ESTATE TRANSFER TAX REVENUES 2024 Budget 2024 Actual Dollar Variance Percentage Variance Real Estate Transfer Tax $537,475.19 $282,466.58 ($255,008.61) (47.45%) $234,702 $463,720 $453,491 $268,804 $282,467 97.58% -2.21% -40.73% 5.08% $0 $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 $450,000 $500,000 2020 2021 2022 2023 2024 Real Estate Transfer Tax July Revenue Trends Page 7 of 11 Recreation Center Fees: Revenues – July 2024 Admissions & Program Fees: Recreation admission revenues for July 2024 totaled $113,109 is a decrease of $1,856 compared to July 2023 which totaled $114,965. This is $11,955 above the adopted 2024 budget estimates of $101,154. Recreation program fee revenues for July 2024 totaled $36,990. This is a decrease of $8,933 compared to 2023, which totaled $45,924 This is $3,531 below the adopted 2024 budget estimates, which is $40,522 which is calculated based on a 3-year average. 22,390 92,029 79,235 114,966 113,109 311.03% -13.90% 45.09% -1.61% - 20,000 40,000 60,000 80,000 100,000 120,000 140,000 2020 2021 2022 2023 2024 Recreation Admissions July Revenue Trends $42,861 $44,413 $26,704 $45,925 $36,991 3.62% -39.87% 71.98% -19.45% $0 $5,000 $10,000 $15,000 $20,000 $25,000 $30,000 $35,000 $40,000 $45,000 $50,000 2020 2021 2022 2023 2024 Recreation Program Fees July Revenue Trends Page 8 of 11 Tax Revenue Comparison – 2023 v 2024: All taxes and Rec Admissions are down for 2024 compared to 2023. Below is a table which reflects the dollar change and percentage variance. Adopted Budget 2023 v Actual 2024: Sales Tax, Accommodations Tax, STR for CH, and Tobacco Tax reflect an unfavorable variance over the 2024 budget. Total revenue for the YTD is reflecting an unfavorable variance to the 2024 budget. Below is a table which reflects the dollar change and percentage variance. 2023 v 2024 YTD Revenue Comparison 2023 2024 Dollar Variance Percentage Variance Sales Tax $6,824,829.06 $6,697,823.80 ($127,005.26) (1.86%) Acc. Tax $1,374,907.32 $1,216,137.65 ($158,769.67) (11.55%) STR Tax for CH $620,319.85 $553,891.91 ($66,427.94) (10.71%) Tobacco Tax $180,304.46 $161,885.07 ($18,419.39) (10.22%) Cigarette Tax $117,211.50 $116,175.00 ($1,036.50) (0.88%) Rec Admissions $703,389.81 $700,312.78 ($3,077.03) (0.44%) Rec Program Fees $256,377.11 $259,485.55 $3,108.44 1.21% TOTAL $10,077,339.11 $9,705,711.76 ($371,627.35) (3.69%) 2024 Revenue Comparison – Budget v Actual Budget Actual Dollar Variance Percentage Variance Sales Tax $6,891,957.94 $6,697,823.80 ($194,134.14) (2.82%) Acc. Tax $1,342,930.81 $1,216,137.65 ($126,793.16) (9.44%) STR Tax for CH $613,693.35 $553,891.91 ($59,801.44) (9.74%) Tobacco Tax $172,855.86 $161,885.07 ($10,970.79) (6.35%) Cigarette Tax $115,010.10 $116,175.00 $1,164.90 1.01% Rec Admissions $569,020.03 $700,312.78 $131,292.75 23.07% Rec Program Fees $207,436.77 $259,485.55 $52,048.78 25.09% TOTAL $9,912,904.86 $9,705,711.76 ($207,193.10) (2.09%) Page 9 of 11 Real Estate Transfer Tax: Revenues YTD 2024 BUDGET/PRIOR YEAR v ACTUAL COLLECTIONS – REAL ESTATE TRANSFER TAX REVENUES 2024 Budget 2024 Actual Dollar Variance Percentage Variance Real Estate Transfer Tax $4,182,990.71 $4,086,111.97 ($96,878.74) (2.32%) 2023 Actual 2024 Actual Dollar Variance Percentage Variance Real Estate Transfer Tax $2,508,084.28 $4,086,111.97 $1,578,027.69 62.92% New and Renewed Business and STR Licenses – 2023 v 2024: The total number of 2024 business licenses issued through July was 640. This was down 40 licenses or 5.9% for the year to date. The total number of STR licenses issued through July was 108. Compared to July 2023 the STR licenses were down 17 licenses or 13.6%. 2024 v 2023 – Business and STR Licenses Period 1/1 – 7/31 2024 2023 License Variance Percentage Variance Business License - Vendor 456 491 (35) (7.1%) Business License – Fixed Location 116 119 (3) (2.5%) Business License – Home Occupation 41 40 1 2.5% Business License – Special Event 27 30 (3) (10.0%) TOTAL BUSINESS LICENSES 640 680 (40) (5.9%) STR License 108 125 (17) (13.6%) Page 10 of 11 - 100.00 200.00 300.00 400.00 500.00 600.00 Business License - Vendor Business License - Fixed Location Business License - Home Occupation Business License - Special Event Business Licenses Issued 1/1 -7/31 2022 2023 2024 0 20 40 60 80 100 120 140 160 STR License STR Licenses Issued 1/1 -7/31 2022 2023 2024 Page 11 of 11 EXPENDITURES: JUNE 2024 General Fund YTD Actuals v 2024 Budget: General Fund expenditures through July 2024 total $12,675,739 which is 48.17% of the total adopted budget. These expenditures include all wages, health benefits, events, computer services, operating cost, legal services, and utilities. Mobility Fund YTD Actuals v 2024 Budget: Mobility Fund expenditures through July 2024 total $1,405,990 which is 39.07% of the total adopted budget. These expenditures include the cost for wages, health benefits, consulting services, utilities, and bike share program. Fleet Maintenance YTD Actuals v 2024 Budget: Fleet Maintenance expenditures through July 2024 total $1,242,929 which is 57.0% of the total adopted budget. These expenditures include wages, health benefit, fuel, vehicle maintenance, utilities, equipment, and operating supplies. Capital Projects Fund YTD Actuals v 2024 Budget: The Capital Improvement expenditures through July 2024 total $2,674,046 which is 27.35% of the total adopted budget. These expenditures were made up of primarily West BC Blvd. street improvements project. Thank you, Dean 970-748-4118 gpadilla@avon.org TO: Honorable Mayor Amy Phillips and Council members FROM: Gary Padilla, Operations Manager RE: Monthly update for May-July 2025 DATE: August 12, 2024 SUMMARY: This report updates Council on Operations monthly updates from May to July. The overview includes overall tasks completed. Avon Operations operated on a daily basis with 4 to 5 vacancies in the department most of the summer. Staff have been working super hard to make the Town look good, to ensure that Special Events went off with a hitch and to make sure that our Park looked immaculate for our resident and guests. This report is informational; no Council action is required. Thank you, Gary ATTACHMENT A – Public Operations Monthly Report Page 2 of 5 Public Operations Monthly Report: May - July 2024 General Maintenance • Maintained three parks: picked up debris, blew common areas, kept trees/overgrowth trimmed, • Flower beds maintained by Whitaker Landscape in the following areas: o Avon Road, West and East Beaver Creek Blvd, Lake Street, Avon Station, and Post Blvd. Parks • Picked up trash and doggie stations daily at the following locations: o Harry A. Nottingham Park o Pocket Parks – Wildridge and Eaglebend o Mall o Eagle Valley Trail o Bus stops o Wildridge o Wildwood o West Avon Preserve parking areas. • Planted grass seed by slit seeding, both lower and upper fields, top dressed both fields with topsoil, leveled and sprayed Compost Tea (fertilizer, is a live culture used to feed the soil). • Mowed all turf areas, kept parks, public areas, and fields maintained. • Removed dead spruce tree, north side of the park, 3 spruce trees on the Eagle Valley Trail (river path), Recreation Center parking lot, etc. • Turned on the irrigation system at Harry A. Nottingham Park o Repaired 8 main line breaks, repaired several laterals and sprinkler heads - on-going. • Turned on the irrigation system at Village at Avon, Post Blvd Page 3 of 5 o Repaired main line breaks, valve boxes, sprinklers heads, and shut off valves – on-going. • Cleaned out pump station and man hole that operate the Village at Avon irrigation system • Sprayed weeds on turf areas • Repaired fence post at the Pickleball courts from a motor vehicle accident. • Installation of an aerator for Nottingham Lake o Leveled aerator box and covered air hoses. o The aerator will operate daily, and zones on the south side of the lake will be turned off in the wintertime, for ice skating maintenance. • Repaired fence railings along the Eagle Valley Trail (river path), Swift Gulch Road etc. Installed 220 tons of sand at the beach. Roads and Bridges • Inspected and cleaned storm sewer inlets, culverts with the Vactor truck, in the following areas: o Avon Road o Chapel Alley/Chapel Place • Catch basin o Post Boulevard next to the river. • Cleaned culverts and ditches in Wildridge o Old Trail Road Page 4 of 5 Vactor truck • Sign maintenance, street sweeping, cinder cleanup, removal of holiday lights and decorations. • Striped the Avon Recreation Center parking lot, Town Hall and other various areas • Repaired brick pavers that were a trip hazard at Avon Station – on-going • The Operations team attended the Town of Avon, Wildfire Evacuation Exercise Projects • Removed concrete slab from 288 West Beaver Creek Boulevard due to the 2021 mud slides. • Thermoplastic installation, (crosswalks were inlaid and should last 5-7 years), and street striping done by Stripe A Lot (contractor). • Installed thermoplastic (road markings) throughout Town • Crosswalk brick pavers repaired by contractor (Jimenez Masonry) • Village at Avon railing repair has been completed. (Thompson Welding and painting of railing (Eventual Choice Painting) at the following locations: o Post Blvd o Yoder Avenue • Manhole on Riverfront Lane was repaired. • Town of Avon cleanup week o Picked up 270 yards of unwanted items. o Ninety yards of branches and landscape were hauled to the landfill for mulch and composting. • Repaired nine stone columns on all sidewalk light poles. • Retaining wall on bike path at Nottingham Road was repaired • Irrigation at Post Blvd. o Irrigation has been turned on and currently repairing all breaks Page 5 of 5 o Water at the following locations:  Post Blvd – all areas between roadway and sidewalk, medians, in the islands at the center of the roundabouts • Special Events o Set up/strike all events this summer  Barricade, port-a-lets, tents, road closures and banners o Salute to USA  A successful, outstanding event! Post Boulevard/Highway 6 CDOT Project • Weekly report given by CDOT Avon Road, Roundabout # 1 • The Operations team is getting a cost to repair bricks on the North side of the Roundabout. o work will consist of adding a concrete base, resetting the brick pavers on sand, adding new curb and gutter. • Will be removing dead spruce tree, and replanting 2 spruce trees • Public Works will be getting a Request for Proposal (RFP) to redesign the roundabout. • Proposed ideas are as follows (see below): o Large holiday decorations. o Bronze Statue o Avon Sign The Public Operations team is looking forward to any ideas or input the council may have on the redesign at roundabout #1 970-748-4083 clin@avon.org TO: Honorable Mayor Phillips and Council members FROM: Charlotte Lin, Sustainability Coordinator RE: Bi-monthly Sustainability Updates DATE: August 18, 2024 SUMMARY: This report provides an update for all Sustainability and Climate Action initiatives in the Town of Avon within the timeframe of July to August 2024. No action is required by Council. BACKGROUND: Following the highly productive implementation of Town of Avon’s Climate Action & Sustainability programs in 2023, the Town continues into 2024 with 6 Sustainability Goals, 15 Sustainability Projects and 10 ongoing Sustainability Duties. The progress of these programs is reported in the table below as appropriate in the July to August 2024 timeframe. It is important to acknowledge that the progress we have made is the result of the collaborative efforts of many TOA staff. SUSTAINABILITY UPDATES: Official Sustainability Department Goals 2024 Official Goals What this goal accomplishes Progress March to April 2024 1. Avon Residential Composting Research Develop options with identified costs for a community wide composting program, or initial pilot project, to be implemented in 2024. • The community survey that included the curbside composting questions is expected to end in the third week of August and we should receive the results soon. • Staff revisited the USDA Composting and Food Reduction grant program for a potential re-application this year. This entails revisiting past research about establishing an independent composting facility in Avon using technology such as in-vessel composting. However, during a grant meeting with Sustainable Strategies on August 7, it was determined that we do not have capacity to pursue this right now. However, staff will continue research on potential methods and programs to enhance composting in Avon. 2. GHG Inventory Add-on: Avon Net Zero Forecasting Utilize the 2019 and 2022 GHG inventory data to create a comprehensive net- zero forecast. • The county-wide net zero modeling work with Lotus is on-going. The Business-as-Usual forecasting is complete and the group including Vail, Avon, Eagle County and the CAC had collectively determined 3 high-impact strategies to focus on: transportation electrification, income-qualified household weatherization, regional energy code roadmap that includes commercial electrification. • Avon’s own Wedge Analysis is near completion, with the most recent revision that separated composting as a separate strategy within the waste category. Staff is waiting for more progress from the County modeling to align both. 3. Climate Action Investment Matrix Assist with understanding return on investment and identify priority areas • No additional progress in July and August as the analysis is expected to start after the net zero modeling work is completed. Page 2 of 5 for Climate Action programs. 4. Promote Weatherization and Electrification Program for the Aspens Leverage and promote Eagle County and NWCCOG’s existing weatherization and electrification program to the Aspen community. • An August report from Walking Mountains and the Energy Smart Colorado program shows: ▫ 3 homes in Avon have been enrolled and are receiving assistance through the ReEnergize program. ▫ 7 homes in Avon have applied for either the CARE or WAP programs, with specific updates on their application statuses. ▫ Eagle County's funding for base rebates through the Energy Smart Colorado program has been fully utilized for the year. Additional funding has been requested, and while awaiting confirmation, applications are still being accepted, with rebates to be distributed based on the order received. ▫ Posters promoting energy incentives have been displayed at 7 locations in Avon, including the Avon Rec Center, Avon Library, and several local businesses. ▫ Walking Mountains has actively participated in local events to promote these programs and plans to continue targeted social media outreach throughout the year. ▫ The Q2 invoice reflects 7 home energy assessments completed, with 2 of these assessments occurring in Q3 but billed in Q2 to manage cash flow. ▫ A shared spreadsheet has been created to track program participation in The Aspens mobile home park, with plans to expand this tracking to other areas like Sun Ridge. ▫ The $2,000 marketing budget has been utilized for digital advertising and social media promotions, including work with the Vail Daily. 5. Recycling Center Upgrade Collaborate with Avon Public Works Department and Eagle County to elevate the Avon Recycling Center, enhancing safety and user experience. • A CIP report on July 23 provided updates that the recycling center upgrade project is estimated to cost an overall $430,000. The Town will split this cost 50/50 with the County. • Final design review is near completion and construction is expected to start in September. • An IGA regarding recycling center responsibilities between the Town and the County is under review. 6. Research New Energy Rebates: EVs, EVSE and Battery Storage Research and prepare for the additions new energy rebates to incentivize clean transportation and resilient energy storage solutions. • Staff will draft a proposal for adding new rebates in 2025 and bring it to Council in the fall for discussion. Page 3 of 5 Other Sustainability Projects & Ongoing Duties Sustainability Projects & Ongoing Duties What this program accomplishes Progress January – February 2024 Waste Reduction Monitoring Restaurant Polystyrene Ban Assist restaurants to transition out of polystyrene food containers per the requirement of Ordinance 21-05. • Staff is conducting in-person visits to restaurants to offer further support for the Styrofoam ban. Most establishments are in compliance, and we are actively working with those that still need to phase out the use of Styrofoam. Recycling Ordinance: Ongoing Support Continue supporting the Avon community to implement Ordinance 22-13 since it went into effect in November 2023. • A new training on August 19 offers Sunridge residents recycling education, free recycling bins and other sustainability and community resources (The event poster is shown in Attachment A). Recycling Ordinance: Waste Diversion Data Collection Collect waste diversion data from all of our haulers per the requirement of Ordinance 22-13. • 2 out of 3 trash haulers have submitted their Q2 data. Staff is still working with the compost hauler to collect data. • Waste Management has sold their operation in Eagle County to Apex Waste Solutions. Staff has communicated about our ordinance and waste data collection to them. Waste Management did submit their data for Q2, which covers the last day of their operation in Eagle County. Zero Waste at all Town Events Implement the high standards of waste management at all Town events across departments. • Staff is updating the Town’s external zero-waste vendor policy for internal application to ensure that all events, including both public and internal events such as staff parties, are consistent with our zero-waste guidelines. The final version of the internal policy is expected to be ready in September. Energy Efficiency & Electrification Building Net Zero Action Plan Cohort 2024 Achieve the Climate Action Plan priority action “adopting net zero or all-electric construction code for new buildings” through a regional collaboration. • The Town of Avon will participate in the BNZAP cohort along with these neighboring communities: Eagle County, Town of Basalt, Town of Eagle, Town of Gypsum, Town of Minturn, Town of Red Cliff, Town of Vail, Pitkin County, City of Aspen, Town of Snowmass Village, Town of Carbondale, City of Glenwood Springs, and Town of New Castle. • The cohort has finished the planned 5 meetings so far and the final draft of the roadmap is in final review. The next phase of the cohort will involve workforce lunch-and-learn's to see how to Page 4 of 5 develop workforce that will facilitate net zero construction projects. Energy Benchmarking of Municipal Buildings (Note: this is an official Public Works Goal with Sustainability as support) Understand Building Benchmarking programs & establish Town of Avon’s own program. • Following the June 22 demo by THG Energy Solutions to Public Works, THG is working on responding to the request of being able to track our energy use in a tiered approach. More updates will be provided as they become available. Net Zero Building Expo (Note: this is an official Community Development Goal with Sustainability as support) Share expertise on Net Zero development with the Eagle County community. • The next Net Zero Building Expo is scheduled for April 18, 2025. Transportation Regional Car Share Program Establish a regional carshare program to reduce vehicle GHG emissions and parking spaces. • At our most recent grant review on August 7, it was determined that we would not move forward with applying for the CAMP grant to support a potential car share program between Avon and Vail. Vail needs more time to plan for the feasibility study with Colorado CarShare. Avon will continue working with them. • Meanwhile, staff will explore other funding options to acquire the two EV’s needed to establish a pilot car share program in Avon. Vehicle Idling Prevention Education Promote awareness and support to minimize vehicle idling • No actions were taken in July and August. Employee Carpool Program Incentivize and encourage sustainable transportation options for Town employees • The reimbursement rate was increased to $0.67/mile effective February 2024. • Sustainability continues to track and approve reimbursements for participating employees. • Six carpooling teams have applied for reimbursements between January to July in 2024, for a total of $5,635.94. Water Conservation Monitoring Water Projects in other Departments and Region Stay informed about water projects and where Sustainability can assist • The Water and the Natural Climate Solutions working groups at the Climate Action Collaborative (CAC) will merge starting Q4 to leverage the overlap between the two groups and increase efficiency of all nature-related climate projects. Page 5 of 5 Climate Action Planning County-wide Net Zero Modeling & Climate Action Plan Update Update the Eagle County Climate Action Plan’s strategies to reflect the goal of net zero by 2050. • Same updates as in Goal 2. GHG Inventory Add-on: Avon Net Zero Forecasting above. Education & Communication Sustainability Education & Marketing Increase awareness, support and implementation of Sustainability programs and policies • A visitor-focused sustainability campaign has been planned for 2025 official goals, aiming to promote all of our sustainability and climate efforts to Avon visitors. Sustainability Grants Continue Managing a Grants Program for Sustainability and Climate Programs Establish a consistent and comprehensive grants program to advance climate action across departments. • The RREO (Recycling Resources Economic Opportunity) Program for a Styrofoam densifier unit officially kicked off in July. Funds are now available for use. • Avon is awarded 40-hour consulting by NREL through the Department of Energy Waste-to-Energy Technical Assistance program. The consulting is to help Avon design a biochar pilot program. This work has been assigned as an official Sustainability goal for 2025. Thank you, Charlotte Attachment A: August 19 Sunridge Sustainability Event Poster COME ONE,COME ALL! Get free recycling bucket! TIME: 6-8:00 PM MONDAY, AUG 19TH PLACE: SUNRIDGE PARKING LOT (WEST) Eat pizza and dessert Learn how to recycle right - it’s the law in Avon Save $$$ on utility bills Sunridge Residents: Join your neighbors on Monday, August 19th! Event Details: English & Spanish spoken! Register for free community support at the MIRA bus ATTACHMENT A MEMORANDUM TO: Board of Directors FROM: Brian Thompson, Government Affairs Supervisor DATE: August 15, 2024 RE: Summary of Authority’s July 25, 2024, Board Meeting The following is a summary of items discussed at the Authority’s July 25, 2024, board meeting. Directors present and acting were Chair George Gregory, Secretary Kim Bell Williams, Treasurer Geoff Dreyer, Kevin Hillgren, Joanna Kerwin, and Tamra Underwood. Board Member Compliance Training The board will participate in compliance trainings aligned with recommendations by the Special District Association and other industry standards. Tom Borawski presented the first training on preventing and addressing harassment. Eagle Valley Wildland Hugh Fairfield-Smith, Fire Management Officer for Eagle Valley Wildland (EVW), provided an overview of the EVW program, an intergovernmental partnership dedicated to wildfire response, planning, mitigation, and community education. The District became a partner in March 2024 and contributed $10K to 2024 operations, of which, 30% was allocated to the Authority per the standard O&M split. The EVW partnership will be reconsidered annually. Supporting Eagle River Community Water Plan The Authority & District boards adopted a joint resolution expressing support for the Eagle River Community Water Plan, which was shared with the boards at the Jul. 17 joint board work session. Opting Out of PFAS Class Settlements The Authority & District boards opted out of future PFAS class action settlements that are similar to the 3M and DuPont settlements, which the boards opted out of in November 2023, as these settlements provide overly broad immunity for future PFAS contamination and public water systems receive compensation far below potential treatment costs. Settlements that are materially different than 3M/Dupont will be considered individually by the boards. Avon Wastewater Treatment Facility Several directors attended the Jul. 24 public tours of the Avon Wastewater Treatment Facility to mark the completion of the $57M nutrient upgrades project. Quarterly Financials Jim Cannava reported that operating revenues are slightly under budget due to decreased billed consumption, and operating expenses are slightly over budget due primarily to emergency distribution system repairs. Backflow Testing Shane Swartwout reported that a recent amendment to the State Plumbing Code that would require anyone working on a backflow assembly to be a licensed plumber will not be enforced until April 2025, and a permanent solution is expected to be adopted during the next legislative session. Staff are advising District backflow testers to continue testing and reporting as normal. Special District Grant Accessibility Act Brian Thompson reported on S.4673, a bill that would create the first-ever federal definition of “special district” and require that special districts be considered as eligible local governments for federal funding programs. 970-748-4034 rmckenner@avon.org TO: Honorable Mayor Phillips and Council members FROM: Robert McKenner, Chief Information Officer RE: Update Council Chambers Audio Visual Upgrade Project DATE: August 21, 2024 Overview: In response to the aging and increasingly problematic AV system in the Council Chamber, Eric requested in January that the IT department initiate a project to replace the current system. The IT team promptly formed a group of key staff stakeholders, including JK from High Five Media, to conduct a thorough needs analysis. Needs Analysis and Vision Development: The stakeholder team, led by IT, held several meetings to identify issues with the existing system and to define the needs and wants for the replacement. The outcome of these discussions was the development of a vision for a new AV system that emphasizes flexibility, usability, and integration. The key objectives for the new AV system are: Flexibility: The system should be versatile enough to accommodate not only Council meetings but also a wide range of other meetings, including Teams conference calls that any employee can schedule. Ease of Use: The system should allow committees to utilize the room for hybrid meetings independently, without requiring the involvement of High Five Media. Integration: The new system must be fully compatible with High Five Media’s technology. User-Friendly: The system should be simple enough for any employee to operate without IT support. RFP Process: Based on the developed vision, IT drafted an RFP that requested a complete replacement of both hardware and software, with an additional requirement for a maintenance plan. The RFP also included the installation of two additional TVs—one at the back of the chamber and one in the kitchen. The RFP was posted on Bidnetdirect.com on May 30th, with an original closing date of July 5th. Due to multiple requests, the closing date was extended to July 20th. Nine vendors submitted bids, and IT conducted onsite visits with six of them prior to the submission of their final bids. Vendor Selection: The IT Department, in collaboration with JK, narrowed down the list of prospective vendors from nine to two. These two vendors were invited to present their solutions to the stakeholder team. The first of these presentations has already taken place, and the second is scheduled for August 26th. Next Steps: We plan to finalize the vendor selection during the week of August 26th, with the goal of securing a contract as soon as possible to allow the vendor to order the necessary equipment. This timeline also provides the Town sufficient time to address any power requirements for the new system. Page 2 of 2 Both selected vendors have committed to completing the installation within a two-week timeframe. Given the current utilization of the Council Chambers, we plan to schedule the installation during the second half of December. Specific dates will be confirmed shortly. Conclusion: The project is progressing as planned, with key milestones being met. We are confident that the selected vendor will provide a solution that meets the Town’s needs and enhances the functionality of the Council Chamber for a wide range of uses. Thank you, Robert