TC Council Packet 01-12-2010TOWN OF AVON, COLORADO A7 ;
AVON REGULAR MEETING FOR TUESDAY, JANUARY 12, 2010 a
MEETING BEGINS AT 5:30 PM
AVON TOWN HALL, ONE LAKE STREET
PRESIDING OFFICIALS
MAYOR RON WOLFE
MAYOR PRO TEM BRIAN SIPES
COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO
AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR.
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY
ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING CITIZEN AND COMMUNITY INPUT AND PUBLIC HEARINGS
PLEASE VIEW AVON'S WEBSITE, HTTP: / /WWW."ON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH
1. CALL TO ORDER AND ROLL CALL
2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA
3. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST
4. COMMUNITY & CITIZEN INPUT
5. CONSENT AGENDA
a. Minutes from December 8, 2009
b. Resolution No. 10 -01, Series of 2010, Resolution approving the locations for posting the notices
of public meetings (Patty McKenny, Town Clerk)
c. Monroe & Newell Engineers, Inc. — Nottingham Lake Fishing Pier Design Proposal (Shane Pegram,
Engineer II) Approval of MNE's proposal to provide construction documents and construction observation for the
Nottingham Lake Fishing Pier
6. ORDINANCES
a. Public Hearing on Ordinance No. 09 -20, Series of 2009, Second Reading, Ordinance
Approving and Accepting Mountain Star Conservation Easement (Eric Heil, Town Attorney) Review
modifications of existing conservation easement so that easement is applied to open space areas but not
to Tract AA which was dedicated to the Town for municipal purposes
b. Ordinance No. 10 -01, Series of 2010, Ordinance Declaring a Moratorium on Medical Marijuana
Dispensaries for 180 days and Declaring an Emergency (Eric Heil, Town Attorney) Proposed
emergency moratorium ordinance on the issuance of business licenses for medical marijuana
dispensaries for 180 days in order to prepare regulations for such businesses
7. RESOLUTIONS
9. TOWN MANAGER REPORT
10. TOWN ATTORNEY REPORT
11. MAYOR REPORT
12. ADJOURNMENT
FUTURE AGENDA DATES & PROPOSED TOPICS:
1/26/10: Final Deed Restricted Document for Gandorf PUD, Connect Avon Now Update, Audit Engagement
Letter, Resolution Traer Creek Final Plat, Ordinance Addressing Residential Building Codes, Resolution
addressing Com Dev Fees, Land Use Code Update, Park Pavilion Update
Avon Council Meeting. 10.01.12.doc
Page 4 of 4
MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL
HELD DECEMBER 8, 2009
A regular meeting of the Town of Avon, Colorado was held at the Avon Municipal Building, One
Lake Street, Avon, Colorado in the Council Chambers.
Mayor Ron Wolfe called the meeting to order at 5:30 PM. A roll call was taken and Council
members present were Rich Carroll, Dave Dantas, Amy Phillips, Buz Reynolds and Brian Sipes.
Kristi Ferraro was absent. Also present were Town Attorney Eric Heil, Town Manager Larry
Brooks, Director Administrative Services Patty McKenny, Town Engineer Justin Hildreth,
Planning Manager Matt Gennett, Assistant Town Manager Finance Scott Wright, Police Chief
Brian Kozak, new Assistant Town Manager Community Development Sally Vecchio and Public
Works and Transportation Director Jenny Strehler as well as members of the public.
INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA
Mayor Wolfe noted that the housing down payment assistance topic was not discussed at the
executive session and council asked if the item should be placed on the consent agenda or if
further discussion was required on the topic. It was suggested and agreed that an Executive
Session would be held at the close of the regular meeting to discuss this topic.
DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST
Mayor Wolfe noted that Mayor Pro Tern Sipes would step down for the agenda item for Buck
Creek's Resolution for the Final Plat and he would step down for the Mountain Star
Conservation Easement.
COMMUNITY & CITIZEN INPUT
a. ESRI's Southwest Award for Best Map on Bear Sighting Map produced by GIS Analyst
Jenny Koenig, Community Development Department (Sally Vecchio, Assistant Town Manager
Community Development)
b. Special Event Update on "Icing on the Lake" (Danita Chirichillo, Special Events Supervisor)
CONSENT AGENDA
Mayor Wolfe asked for a motion on the consent agenda. Councilor Phillips moved to approve
the consent agenda; Councilor Dantas seconded the motion and it passed unanimously by
those present (Ferraro absent). .
a. Minutes from November 24, 2009
b. Change Order 001 Elam Construction (Shane Pegram, Engineer II) Change order to adjust
project quantities for the 2009 Street Improvement and Park Improvement projects to match
those actually installed and add additional items required to complete the projects
c. Change Order 1 - Benchmark Dam Service Spillway Improvements - Change Order with
Ewing Trucking and Construction (Jeff Schneider, Project Engineer) CO to adjust quantities for
construction of spillway improvements and project close -out
d. Change Order 1 - Nottingham Puder Ditch Improvements - Change Order with Ewing
Trucking and Construction (Jeff Schneider, Project Engineer) CO to adjust quantities for
irrigation ditch improvements and project close -out
e. Sale of Recreation Center's Spin Bicycles (Danita Chirichillo, Special Events Supervisor)
Request approval of selling spin bikes to Southpark Recreation Center
NEW BUSINESS
Brian Kozak, Police Chief, presented the Intergovernmental Agreement for Animal Control
Services which provided for continued animal control services from Eagle County. Councilor
Carroll moved to approve the IGA for animal control services with Eagle County; Councilor
Phillips seconded the motion and it passed unanimously by those present (Ferraro absent).
Matt Pielsticker, Planner II, presented the Nottingham Power Plant Contract with Colorado
Mountain College Contract for Restoration of Avon's Waterwheel, a Contract to complete work
on the stabilization of the power plant. Mayor Pro Tern Sipes moved to approve the Contract
with CMC for the restoration; Councilor Phillips seconded the motion and it passed unanimously
by those present (Ferraro absent).
Jenny Strehler, Director PW &T, presented the Intergovernmental Agreement between Board of
County Commissioners of Eagle County acting through the Eagle County Regional
Transportation Authority d /b /a ECO Transit and Town of Avon for Transit Parking Services IGA
for services from 1/1/2010 ending 12/31/2010. She noted that the rate remained the same.
Mayor Pro Tern Sipes moved to approve the Intergovernmental Agreement between Board of
County Commissioners of Eagle County acting through the Eagle County Regional
Transportation Authority d /b /a ECO Transit and Town of Avon for Transit Parking Services IGA
for services from 1/1/2010 ending 12/31/2010. Councilor Phillips seconded the motion and it
passed unanimously by those present (Ferraro absent).
Jenny Strehler, Director PW &T, presented the Fleet Maintenance Agreements, the Annual Fleet
Service Agreements with Governmental Agencies as follows: Eagle River Fire Protection
District, Beaver Creek Metro District Buses, Vail Resorts Dial -A -Ride, Eagle County Ambulance
District, Eagle River Water & Sanitation District, Beaver Creek Metro Public Works, ECO
Transit, Town of Minturn, Western Eagle County Ambulance District, Town of Redcliff, Vail
Valley Foundation, Greater Eagle Fire Protection District, ECO Hazmat Team, and the Gypsum
Fire District. She noted that the hourly rate has remained the same at $105 / hour. Councilor
Phillips moved to approve the Fleet Maintenance Agreements for the above referenced
agencies; Mayor Pro Tern Sipes seconded the motion and it passed unanimously by those
present (Ferraro absent).
RESOLUTIONS
Mayor Pro Tern Sipes stepped down due to a conflict of interest on this matter. Justin Hildreth,
Town Engineer, presented Resolution No. 09 -41, Series of 2009, Resolution Approving The
Final Plat And Subdivision Improvement Agreements For Buck Creek Pud, A Resubdivision Of
Lots 1, 2, 3 And 4, Wildwood Resort, A Resubdivision Of Lots 5, 52a, 52b, Block 1, Benchmark
At Beaver Creek, Located In Section 1, Township 5 South, Range 82 West Of The Sixth
Principal Meridian, Town Of Avon, Eagle County, Colorado. It was noted that this resolution
approves the Buck Creek PUD Final Plat and the related Phase I and II Subdivision
Improvement Agreements with a condition of inclusion of a trail easement on the plat. It was
noted there will be two phases. Jay Petersen, representing the applicant, thanked the Town of
Avon staff for their effort in reviewing this project. Councilor Carroll moved to approve
Resolution No. 09-41, Series of 2009, Resolution Approving The Final Plat And Subdivision
Improvement Agreements For Buck Creek Pud, A Resubdivision Of Lots 1, 2, 3 And 4,
Wildwood Resort, A Resubdivision Of Lots 5, 52a, 52b, Block 1, Benchmark At Beaver Creek,
Located In Section 1, Township 5 South, Range 82 West Of The Sixth Principal Meridian, Town
Of Avon, Eagle County, Colorado. Councilor Dantas seconded the motion and it passed
unanimously by those present (Ferraro absent).
Regular Council Meeting Page 2 of 4
09.12.08.doc
Jeff Schneider, Senior Project Engineer, presented Resolution No 09 -42, Series of 2009,
Resolution Approving a Pipeline Crossing Agreement with Union Pacific Railroad at Mile Post
308.51, Tennessee Pass Subdivision, for Construction of the Community Heat Recovery
Project. It was noted that there is a need to cross the railroad track in order to complete the
project. An expenditure of approximately $12K has been included in the budget for this project.
Councilor Dantas moved to approved Resolution No 09-42, Series of 2009, Resolution
Approving a Pipeline Crossing Agreement with Union Pacific Railroad at Mile Post 308.51,
Tennessee Pass Subdivision, for Construction of the Community Heat Recovery Project.
Councilor Reynolds seconded the motion and it passed unanimously by those present (Ferraro
absent).
Sally Vecchio, Assistant Town Manager Community Development, presented Resolution No.
09 -29, Series of 2009, Resolution Approving the Final Plat, Eagle River at Avon, A
Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South,
Range 82 West of the Sixth Principal Meridian, Town of Avon, Eagle County, Colorado /
Resolution tabled at November 10, 2009 Meeting. She spoke about the history on the review of
the final plat related to the use of Tract 1 for general recreation activities in the area. She noted
that staff proposed language and the applicant submitted a letter with its own proposed
language. Shane Pegram presented a review of the construction of the Whitewater Park and
the town's position to protect the uses for that park as identified in the Certificate of Dedication
and Ownership. Mayor Pro Tern Sipes reiterated the town's need to keep those uses. Rick
Pylman, representing Vail Resorts, Kim Martin, attorney, Rick Buchanon, Vail Resorts
Development Company, noted that they would like a mutual agreement. Town Attorney Eric Heil
noted that the project fails if the language cannot be agreed to in full. There was dialogue about
what use was not agreeable to the applicant and it was noted that mostly the recreational
activities along the shoreline. With no agreement made at this time, the topic was referred back
to the attorneys and the following action was taken:
Councilor Carroll moved to table Resolution No. 09 -29, Series of 2009, Resolution Approving
the Final Plat, Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red
House, Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Town of
Avon, Eagle County, Colorado. Councilor Phillips seconded the motion and it passed
unanimously by those present (Ferraro absent).
Councilor Carroll moved to table Resolution No. 09 -30, Series of 2009, Resolution Approving a
Second Supplemental Water Lease Agreement With The Upper Eagle River Water Authority.
Mayor Pro Tern Sipes seconded the motion and it passed unanimously by those present
(Ferraro absent).
ORDINANCES
Shane Pegram, Engineer II, presented Ordinance No. 09 -19, Series of 2009, Second Reading,
An Ordinance Approving a Landscape Construction and Maintenance Easement Agreement
between the Town and Vail Associates, Inc. Because the item was posted for a public hearing,
Mayor Wolfe opened the public hearing, no comments were made, the hearing was closed.
Councilor Carroll moved to table Ordinance No. 09 -19, Series of 2009, Second Reading, An
Ordinance Approving a Landscape Construction and Maintenance Easement Agreement
between the Town and Vail Associates, Inc. Councilor Reynolds seconded the motion and it
passed unanimously by those present (Ferraro absent).
Regular Council Meeting Page 3 of 4
09.12.08.doc
Mayor Wolfe stepped down at this time due to a conflict of interest on this matter. Mayor Pro
Tern Sipes presented Ordinance No. 09 -20, Series of 2009, First Reading, Ordinance Approving
and Accepting Mountain Star Conservation Easement. Town Attorney Eric Heil noted that the
only changes were made to the exhibits and to revise the future trails to only show the Buck
Creek Trail in relation to the new Buck Creek PUD. He noted the comments he heard were that
they were not interested in adding any other trails, which would have included the old road. The
revisions addressed the existing conservation easement so that the easement is applied to
open space areas but not to Tract AA which was dedicated to the Town for municipal purposes.
This ordinance repeals the previously adopted Ordinance No. 09 -11. Councilor Dantas moved
to approve Ordinance No. 09 -20, Series of 2009, First Reading, Ordinance Approving and
Accepting Mountain Star Conservation Easement. Councilor Phillips seconded the motion and
it passed unanimously by those present (Ferraro absent).
MAYOR REPORT
Mayor Wolfe noted that the multiparty land exchange is in the hands of the US Forest Service.
EXECUTIVE SESSION CONTINUED FROM WORK SESSION:
Councilor Reynolds exited the meeting at this time. Councilor Carroll moved to convene into
Executive Session at 7:10 PM to discuss the following item which was not discussed earlier in
the day:
a. Housing Down Payment Assistance Program: For the purpose of receiving legal advice on
specific legal questions pursuant to Colorado Revised Statute Section 24- 6- 402(4)(b) and for the
purpose of discussing personnel matters pursuant to Colorado Revised Statute section 24-6 -
402(4)(f) specifically concerning housing down payment assistance Policies.
Councilor Phillips seconded the motion and it passed by those present (Ferraro and Reynolds
absent).
There being no further business to come before the Council, the executive session and the
regular meeting adjourned at 7:30 PM.
RESPECTFULLY SUBMITTED:
Patty McKenny, Town Clerk
APPROVED:
Rich Carroll
Dave Dantas
Kristi Ferraro
Amy Phillips
Albert "Buz" Reynolds
Brian Sipes
Ron Wolfe
Regular Council Meeting Page 4 of 4
09.12.08.doc
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Patty McKenny, Director Administrative Services
Date: January 7, 2010
Re: Resolution No. 10-01, Series of 2010, Posting Locations
Summary: Resolution No. 10 -01, Series 2010 is presented to Council for their approval of the four
locations used for posting the notices of public meetings.
Previous Council Action: The Town Council adopts this type of resolution on an annual basis as
required by Colorado Revised Statutes.
Background: The four locations have been as follows:
✓ Avon Town Hall, One Lake Street, Bulletin Board
✓ Avon Recreation Center, 325 Benchmark Road, Bulletin Board
✓ Alpine Bank, 10 W. Beaver Creek Boulevard, Bulletin Board
✓ Avon Public Library, 200 Benchmark Road, Front Area Bulletin Board
Discussion: Colorado Revised Statutes, Subsection 24 -6-402 addresses the specific guidelines
involved with the open meetings law and posting notices. Notices must be posted at least 24 hours
prior to each meeting. Regular council meeting notices and planning & zoning meeting notices are
posted on the Friday before the meeting and emailed to Avon's distribution list of several hundred -
email addresses. In addition to the posting, the regular council meeting agendas are published in
the Vail Daily on the Monday before the Tuesday meeting. These posting locations are also used for
special meeting notices and public hearing notices for ordinances.
Town Manager Comments:
TOWN OF AVON, COLORADO
RESOLUTION NO. 10 -01
SERIES OF 2010
A RESOLUTION APPROVING THE LOCATIONS
FOR POSTING THE NOTICES OF PUBLIC MEETINGS
Whereas, Local Public Bodies, including the Avon Town Council, are required by Subsection
24 -6 -402 (2)(c) C.R.S., to designate annually at the Town Council's first regular meeting of each
calendar year, the place at which notice will be posted at least 24 hours prior to each meeting.
NOW, THEREFORE BE IT RESOLVED BY THE AVON TOWN COUNCIL AS FOLLOWS:
Notice of meetings of the Town Council required pursuant to Section 24 -6 -401, et seq., C.R.S.
shall be posted within the boundaries of the Town at least 24 hours prior to each meeting at the
following locations:
Avon Town Hall, One Lake Street, Bulletin Board
Avon Recreation Center, 90 Lake Street, Bulletin Board
Alpine Bank, 10 W. Beaver Creek Boulevard, Bulletin Board
Avon Public Library, 200 Benchmark Road, Front Area Bulletin Board
ADOPTED THIS 12TH DAY OF JANUARY 2010.
TOWN COUNCIL
TOWN OF AVON, COLORADO
Ronald C. Wolfe, Mayor
Attest:
Patty McKenny, Town Clerk
Memo
To: Honorable Mayor and Town Council Initials
Thru: Larry Brooks, Town Manager
Legal Review: Eric Heil, Town Attorney
Approved by: Sally Vecchio, Assistant Town Mgr /Director of Comm. Dev.
From: Justin Hildreth, P.E., Town Engineer �1�1
Shane Pegram, P.E., Engineer II
Date: January 6, 2010
Re: Monroe & Newell Engineers, Inc. — Nottingham Lake Fishing Pier Design
Proposal
Summary: Monroe & Newell Engineers, Inc. (MNE) has provided a proposal (Exhibit A) for design,
shop drawing review and construction observation for the Nottingham Lake Fishing Pier. MNE's
total base service fee is $9,875, and is not to be exceeded without prior written approval.
Discussion: In 2008 and 2009 the Colorado Division of Wildlife (DOW) approved the Town of
Avon's (TOA) application for grant funding through the DOW's "Fishing is Fun" program. The total
TOA project budget is $180,000. The DOW grant will reimburse the town up to $101,700, but
reimbursements will not exceed 64% of total project costs. The DOW has received approval from
the United States Fish and Wildlife Service and the Town will be required to enter into a contract with
the DOW for those funds.
The approved project includes construction of a 'T' shaped fishing pier on the north side of
Nottingham Lake that will extend 60' into the lake (Exhibit B). An asphalt access path will also be
constructed from the existing path located on the north side of Nottingham Park. The fishing pier
and access path will be American's with Disabilities Act (ADA) compliant.
Design services can be undertaken prior to execution of the DOW contract, but will not be
reimbursed until the contract has been executed. TOA's Engineering Department requested MNE to
provide a design proposal for structural design of the fishing pier along with architectural renderings
to support a Planning and Zoning Commission presentation.
Financial Implications:
MNE's total base service fee is $9,875, and is not to exceed this amount without prior written
approval. The Town of Avon 2010 Budget includes $180,000 for design and construction of the
Nottingham Lake Fishing Pier. The DOW grant will reimburse TOA a maximum of $101,700 or 64%
of total project costs. The proposed design service fees fit within the project budget. As part of the
contract approval the Town Manager will be authorized to sign amendments to the contract within
the approved $12,000 design budget (Table 1).
Table 1
Budget Item
Proposed Bud et
Pier Design
$ 12,000
Pier Construction
$150,000
Pier Access Trail
$ 15,000
Soil Investigation
$ 3,000
Total
$180,000
Monroe & Newell, Inc. — Nottingham Lake Fishing Pier Design ProposalPage
January 5, 2010
2of2
Recommendation: Approve the Monroe & Newell Engineering proposal for design, shop drawing
review, and site observation services for a fee not to exceed $9,875 without prior written approval.
Proposed Motion: I move to approve the Monroe & Newell Engineering proposal for design, shop
drawing review, and construction observation services for a fee not to exceed $9,875 without prior
written approval.
Town Manager Comments:
+ � i
\; ; i
Attachments:
Exhibit A — Monroe and Newell Engineers, Inc. proposal, dated January 6, 2010
Exhibit B — Nottingham Lake Site Plan
• Page 2
Monroe & Newell Engineers, Inc.
A Contract for the Provision of Structural Engineering Professional Services
Between Town of Avon
PO Box 975
Avon, CO 81620
Attn: Mr. Shane Pegram
and Monroe & Newell Engineers, Inc.
PO Box 1597
Avon, CO 81620
Dated January 6, 2010
For Nottingham Lake Fishing Pier
Location Avon, Colorado
Scope of Services:
We propose to do the engineering for the referenced project including design, shop
drawing review and site observations as described below:
A. Design - Included in our engineering services will be design calculations and
construction documents. In the preparation of design and construction documents,
we will work closely with your office for consultation and coordination of our
drawings with your requirements.
B. Shop Drawing Review - After the contract has been let and material orders have been
placed, we will review shop drawings which are forwarded to us.
C. Site Observations - During construction, we will provide consultation services for
questions, and we will make periodic observations to the site to observe the general
progress construction. Approximately, four (4) site observations are included in the
fee arrangement below. Such observations will not be either continuous or
exhaustive and we assume no responsibility for failure of the contractor to complete
the project in accordance with applicable plans and specifications and sound
workmanship. We must be notified when critical work has been completed and be
allowed sufficient time to observe uncovered work to make our observations.
2. Client Responsibilities:
We shall be supplied with the appropriate drawings including civil, site, and landscape in a
timely manner as required for us to complete each phase of our design and documents.
It is necessary that we be provided a current soils report and recommendations by a Registered
Professional Soils Engineer. We need to receive, for our files, certification from the soils
engineer that the foundation system, as constructed, bears on proper soil as defined in the soils
report. We shall be entitled to rely upon the accuracy and sufficiency of all soils reports,
recommendations, inspections, designs, certifications, test results, and the like provided by others
for the project and we assume no responsibility for the same.
3. Fee:
We will provide the aforementioned engineering services at our standard hourly rates and as
follows:
Principals $ 170.00 /hour Associate Principal $130.00/hour
Engineer $ 90.00 /hour Project Engineer $110.00 /hour
Technician $ 70.00 /hour Consulting Architect: $125.00/hour
Our total fee shall not exceed Nine Thousand Eight Hundred Seventy-five Dollars ($9,875.00)
without additional authorization.
4. Basis of Fee:
Our fee includes the architectural and structural design of a lake pier of approximately 60 feet long
with a 40 foot wide end, all of which is 8 feet wide. The pier will be of timber construction with
a wood railing style. Anchorage at shore will be a cast -in -place concrete abutment and the
foundation system in the lake may be concrete footings, concrete piers or helical steel piers.
Our fee includes an allowance of $1,500.00 for rendering services in support of a presentation
package. Our fee anticipates that all presentations to Town Planning Commission and/or Town
Council will be done by your office.
Reimbursable Expenses:
Actual out -of- pocket expenses incurred for reproductions, out of town travel expenses, long
distance toll charges and the like will be billed at our cost plus ten percent. Fees for additional
services beyond those mentioned above will be charged at our standard hourly rates.
If you are in agreement with the above, please return a copy signed by your authorized representative for
our files, and we will be available to proceed as required. The above will then govern our arrangements
unless otherwise modified in writing.
Submitted by,
MONROE & NEWELL ENGINEERS, INC.
ATM
Peter Monroe, P.E.
Principal
Accepted by:
Title:
Monroe & Newell Engineers Inc. 2 Proposal for Nottingham Lake Fishing Pier
January 6, 2010
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I-- M
NEIL LAW
& PLANNING, LLC
MEMORANDUM
TO: Honorable Mayor Wolfe and Town Council members
CC: Larry Brooks, Town Manager
FROM: Eric Heil, Town Attorney
THROUGH: Larry Brooks, Town Manager
DATE: January 7, 2010
SUBJECT: Revised Mountain Star Conservation Easement
Summary: Town Staff was asked to modify the existing conservation easement with Mountain
Star so that the conservation easement applied to open space areas but not to Tract AA which
was dedicated to the Town for municipal purposes. The Town Council approved Ordinance No.
09 -11 APPROVING AND ACCEPTING THE MOUNTAIN STAR CONSERVATION EASEMENT
last spring with the addition of future trails. The Mountain Star Owner's Association did not
support the addition of the future trails except to the extent reflected in the revised conservation
easement attached to this ordinance. The revised conservation easement is presented for your
approval. Town Council passed first reading of the ordinance at the December 8, 2009 regular
meeting. Ordinance No. 09 -20 is presented for second and final reading.
Background: Mountain Star, LLC granted a conservation easement ( "Original Conservation
Easement ") to the Town of Avon in 1994, then conveyed Tract AA to the Town in 1995 for
municipal purposes. The Original Conservation Easement erroneously included Tract AA. Due
to the restrictions on use of lands subject to the Original Conservation Easement, the Town
desires to amend the described easement area to exclude Tract AA. The method of
accomplishing this change is to terminate the Original Conservation Easement and execute a
new conservation easement with the correct easement area description.
Ordinance No. 09 -20 APPROVING AND ACCEPTING THE MOUNTAIN STAR
CONSERVATION EASEMENT is presented for Council consideration on second and final
reading. The amended conservation would exclude Tract AA and Tract Y (another parcel not
intended for inclusion in the original conservation easement area and currently owned by TCL
Avon, LLC). The new conservation easement reflects the changes in ownership that have
occurred since the execution of the Original Conservation Easement.
Included with this memorandum are the following:
• Ordinance No. 09 -20
• Exhibit A: Deed of Conservation Easement
Requested Action: Approval of Ordinance No. 09 -20.
Town Manager Comments:
Heil Law & Planning, «C Eric Heil, Esq.. A.I.C.P.
1499 Blake Street, Unit 1 -G Tel: 303.975.6120
Denver, CO 80202 eheil@avon.org
TOWN OF AVON
ORDINANCE NO. 09-20
SERIES OF 2009
AN ORDINANCE APPROVING AND ACCEPTING THE
MOUNTAIN STAR CONSERVATION EASEMENT
WHEREAS, the Town of Avon ( "Town ") previously accepted a conservation easement
( "Original Conservation Easement ") granted by Mountain Star Limited Liability Company, a
Wyoming limited liability company, dated April 1, 1995, recorded with the Eagle County Clerk
and Recorder at Book 636, Page 287, and re- recorded at Book 656, Page 841; and
WHEREAS, the Original Conservation Easement erroneously included Tract Y, Second
Amendment, Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and
Recorder, Colorado in Book 670, Page 990 ( "Tract Y "), and Tract AA, Second Amendment,
Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and Recorder,
Colorado in Book 670, Page 990 ( "Tract AA "); and
WHEREAS, the parties to the Original Conservation Easement desire to correct the
erroneous description of the easement area by vacating and terminating the Original
Conservation Easement and executing the conservation easement attached hereto as Exhibit A:
Deed of Conservation Easement ( "Easement "); and
WHEREAS, Section 18.4 of the Avon Home Rule Charter provides that the Town Council
may accept gifts and donations and Colorado Revised Statutes § 38- 30.5 -101, et. seq., provides
authority to accept conveyances of real property to establish conservation easements for the
protection of open land, environmental quality and life- sustaining ecological diversity; and
WHEREAS, a public hearing was conducted in accordance with Section 6.5(d) of the Avon
Home Rule Charter on January 12, 2010 and the Town Council considered all comments prior to
considering final adoption of this ordinance; and
WHEREAS, the Town Council previously approved Ordinance No. 09 -11 Approving and
Accepting the Mountain Star Conservation Easement; however, the form of the conservation
easement was revised and is now presented for approval in the form attached to this Ordinance;
and
WHEREAS, the Town Council finds that accepting the Easement will promote Goal H.1 of
the Town of Avon Comprehensive Plan and will thereby 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 the requirements of the Avon Home Rule Charter by setting a
public hearing in order to provide the public an opportunity to present testimony and evidence
regarding the application and that approval of this Ordinance on first reading does not constitute
a representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this ordinance;
Ord. No. 09 -20 Accepting and Approving Conservation Easement
December 12, 2009 ejh
Page 1 of 3
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF AVON HEREBY
ORDAINS:
SECTION 1. ORDINANCE No. 09-11 REPEALED. Ordinance No. 09 -11 is hereby repealed in its
entirety.
SECTION 2. CONSERVATION EASEMENT ACCEPTED. The Town Council hereby authorizes and
approves execution and acceptance of the Easement.
SECTION 3. MAYOR AND TOWN CLERK AUTHORIZATION. The Mayor and Town Clerk are
hereby authorized to execute and sign the conservation easement in the form attached hereto as
Exhibit A: Deed of Conservation Easement and take such other actions as may be necessary or
implied to implement the provisions of this Ordinance.
SECTION 4. 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 5. EFFECTIVE DATE. This Ordinance shall take effect seven days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
SECTION 6. 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 7. PUBLICATION BY POSTING. The Town Clerk is ordered to publish this Ordinance
by posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[remainder of page intentional left blank — signature page follows]
Ord. No. 09 -20 Accepting and Approving Conservation Easement
December 12, 2009 ejh
Page 2 of 3
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 p.m. on
January 12, 2010 at the Council Chambers of the Avon Municipal Building, located at One Lake
Street, Colorado, on December 8, 2009.
Ronald C. Wolfe, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST:
APPROVED AS TO FORM:
Patty McKenny, Town Clerk Eric Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on January 12, 2009.
Ronald C. Wolfe, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST:
Patty McKenny, Town Clerk
Ord. No. 09 -20 Accepting and Approving Conservation Easement
December 12, 2009 ejh
Page 3 of 3
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT (this "Easement ") is entered into by
and between Mountain Star Association, a Colorado non - profit corporation ( "Grantor "), and the
Town of Avon, a Colorado home rule municipality ( "Grantee ") this day of
, 2009, and amends and restates that certain Conservation Easement, dated
February 25, 1994, and recorded in the Office of the Eagle County Clerk and Recorder,
Colorado, at Reception Number 532340, Book 636, Page 287 (pages 1 through 7) (the "Original
Conservation Easement ").
WITNESSETH:
WHEREAS, Mountain Star Limited Liability Company, a Wyoming limited liability company
( "Original Grantor "), and Grantee previously entered into the original conservation easement
granting a conservation easement ( "Original Conservation Easement ") to Grantee. By
instrument dated April 1, 1995, Grantor accepted and assumed all rights and obligations of the
Original Grantor arising under the Original Conservation Easement;
WHEREAS, Exhibit B to the Original Conservation Easement was intended to specifically
describe and locate areas within the Property within which Harrington penstemon were known to
exist or where the plant could be expected to exist, it did so in inadequate general terms such that
the exhibit could not be used to actually bound an actual conservation area within the broad
region defined in Exhibit A as "The Property Subject to this Conservation Easement." Exhibit
A to the Original Conservation Easement can also be erroneously interpreted as being the
conservation area rather than a region within which the inadequately defined areas of Exhibit B
are contained. Consequently, two tracks of land were inadvertently subject to being interpreted
as being included in the definition of Easement Area, such tracks being (a) Tract Y, Second
Amendment, Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and
Recorder, Colorado in Book 670, Page 990 ( "Tract Y "), and (b) Tract AA, Second Amendment,
Mountain Star Filing No. 2, recorded in the Office of the Eagle County Clerk and Recorder,
Colorado in Book 670, Page 990 ( "Tract AA "). Grantor and Grantee desire to correct such
inadvertent inclusion and to exclude Tract Y and Tract AA from inclusion and coverage within
the terms of the Original Conservation Easement and to correct the inadequately defined habitat
by redefining the Conservation Easement area as being the entire redefined Property; and
WHEREAS, in addition to Grantor and Grantee, all current owners of the real property which is
subject the Original Conservation Easement (the "Owners ") are signatories to this Easement,
thereby consenting to and authorizing this Easement as amending and wholly restating the
Original Conservation Easement so as to exclude Tract Y and the Tract AA and to continue the
protections of populations of Harrington penstemon ( Penstemon harringtonii), which is not a
federally listed threatened or endangered species but which is listed as a U.S. Forest Service
Region 2 sensitive species, under certain revised terms and conditions as set forth in this
Easement; and
Page 1 of 15
Mountain Star Conservation Easement 10 -29 -09
WHEREAS, Grantor, Grantee and the undersigned Owners desire to vacate, terminate and
extinguish the Original Conservation Easement and to adopt this Deed of Conservation Easement
to fully replace the Original Conservation Easement.
NOW THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained here, pursuant to the laws of Colorado and in particular
Colorado Revised Statutes §38- 30.5 -101, et.seq., Grantor and the Owners hereby voluntarily
convey to Grantee a Conservation Easement in Gross ( "Easement ") consisting of rights
hereinafter enumerated, over and across that certain real property, situated in Eagle County
Colorado, more particularly described on Exhibit A: Easement Area ( "Easement Area"), and
grants title to the same, subject to the terms and conditions set forth herein.
1. Purpose. It is the purpose of this Easement to maintain, preserve, protect and enhance
the existing populations of Harrington penstemon in the Easement Area.
2. Vacation and Termination of Original Conservation Easement. Grantor and Grantee
hereby fully and absolutely vacate, terminate, extinguish, release and quit claim to each
other all rights and interest in the Original Conservation Easement such that the Original
Conservation Easement is hereby null and void and of no further force or effect.
3. Affirmative Rights Conveyed. The affirmative rights conveyed by this Easement to the
Grantee are the following:
(a) To preserve and protect the species the Harrington penstemon so long as the species
remains listed as a U.S. Forest Service Region 2 sensitive species, or a U.S. Fish and
Wildlife Service Category II plant, or is reclassified as a federally threatened or
endangered species under the provisions of the Endangered Species Act.
(b) To enter upon the property to inspect and to enforce the rights herein granted in a manner
that will not unreasonably interfere with the proper uses being made of the Property at the
time of such entry.
(c) Except as expressly provided in this Easement, Grantor retains exclusive access to and
use of the Property.
4. Permitted Uses and Practices. This Easement shall confine and restrict the future use
of the Easement Area to non - development uses such as open space, preservation of
wildlife habitat, hiking and other pedestrian, non - motorized recreational uses. The
following uses and practices permitted under this Easement are not precluded, prevented
or limited by this Easement:
(a) Maintenance and repair of existing fences, trails and other improvements. In the event of
destruction, deterioration or obsolescence of any said fences, trails or related
improvements, Grantor may replace the same with improvements of similar size,
function, capacity and location.
Page 2 of 15
Mountain Star Conservation Easement 10 -29 -09
(b) Operation of maintenance of Buck Creek Road.
(c) Utilize the Easement Area for hiking and other dispersed non - motorized recreational uses
by Grantor, its successors, invitees and assigns, provided such use is confined to
established, mapped and maintained trails as depicted in Exhibit B: Existing Conditions
or a potential future trail as indentified on the attached Exhibit C: Future Buck Creek
Trail, subject to the terms stated in Section 5.(c) below.
5. Prohibited Uses and Practices. The following uses and practices are inconsistent with
the purposes of this Easement and shall be prohibited upon or within the Easement Area:
(a) The change, disturbance, alteration, or impairment of Harrington penstemon within the
Easement Area without prescribed mitigation as described in Section 6 below.
(b) The construction of permanent structures other than the Buck Creek Road.
(c) The construction of new trails in addition to those depicted in Exhibit B: Existing
Conditions, except for the potential future trail identified on the attached Exhibit C:
Future Buck Creek Trail. The Future Buck Creek Trail may be proposed to the
Mountain Star Association in the future as a public amenity to better connect the Town to
the current Buck Creek trailhead, without having to use a vehicle, and with USFS land to
the north, along a more sustainable and scenic route. The Future Buck Creek Trail shall
be subject to a separate agreement between the Town and the Mountain Star Association
which shall address construction, maintenance, liability and restoration of any abandoned
portion of the existing Buck Creek Trail situated on property owned by the Mountain Star
Association, which agreement shall be subject to approval by the Mountain Star
Association in the sole discretion of the Mountain Star Association.
(d) The hardening of existing trails with impermeable and/or non - native natural materials.
(e) Hunting, cross country skiing, horseback riding, mountain biking, motor bikes, snow
mobiles and all other motorized uses.
6. Mitigation Practices. If any proposed activity within the Easement Area may change,
disturb, alter, impair or otherwise damage the Harrington penstemon, avoidance shall be
the preferred form of mitigation. Other mitigation may include collection seeds and
redistribution in appropriate habitat and/or relocating plants to appropriate habitat when
and if encountered across the entire newly defined Easement Area during any new or
changed permitted use. Other than activities expressly permitted per Section 4 above,
activities which may change, disturb, alter, impair otherwise damage the Harrington
penstemon shall not commence without prior written approval of the Grantee.
7. Enforcement Rights of Grantee and Restoration. The Grantee shall have the
following rights:
Page 3 of 15
Mountain Star Conservation Easement 10 -29 -09
(a) Upon the violation of any term, condition, covenant, or restriction contained in this
Easement, after notice of violation to the Grantor and providing a reasonable opportunity
to cure such violation (which in no case shall exceed a total of three hundred sixty five
(365) days), the Grantee may institute a suit to enjoin by temporary and /or permanent
injunction such violation, or may take such other lawful action, excluding claims for
damages as it deems necessary to ensure compliance with the terms, conditions,
covenants and purposes of this Easement; provided, however, that any failure to so act by
the Grantee shall not be deemed to be a waiver or a forfeiture of the right to enforce any
term, condition, covenant or purpose of this Easement in the future.
(b) Should a court of competent jurisdiction determine that any prohibited activity be
undertaken on the Property, the Grantee shall have the right to cause the restoration of the
Property affected by such activity to the condition that existed prior to the undertaking of
such prohibited activity. In such case, the cost of such restoration shall be borne by the
Grantor, its successors or assigns. Notwithstanding the foregoing, if the Grantee
discovers or objects to any action taken by the Grantor more than three years after such
prohibited activity takes place, the Grantor shall not be held financially responsible for
restoring the Property to its original condition.
(c) Nothing contained herein shall be construed to preclude the Grantor from exhausting its
legal remedies in determining whether that proposed activity to which the Grantee has
objected it consistent with this Easement.
8. Costs and Taxes. Grantor agrees to bear all costs of operation, upkeep and maintenance
of the Easement Area and Grantee shall have no obligation therefore. In addition,
Grantor agrees to pay any and all real property taxes and assessments levied by
competent authority on the Property or on this Easement.
9. Access. Nothing contained herein shall be construed as affording the general public
physical access to any portion of the Property subject to this Easement. Nothing in this
Easement shall be construed to preclude Grantor's right to grant access to third parties
across the property, provided that such access is allowed in a reasonable manner that is
consistent with the purposes of this Easement. Nothing contained herein shall be deemed
to be a gift or dedication of all or any portion of the Property to or for the general public,
or for any public use or purpose whatsoever; it being the express intention and
understanding of the Grantor and Grantee that this Agreement shall be strictly limited to
and for the purposes herein expressed, solely for the parties hereto, their successors and
assigns.
10. Assignment of Grantee's Interest. The parties covenant and agree that the Grantee may
transfer its interest in this easement only to a "qualified organization," within the
meaning of Section 170(h) of the Internal Revenue Code or any subsequent legislation;
provided, however, that the Grantee, as a condition of such transfer, shall expressly
Page 4 of 15
Mountain Star Conservation Easement 10 -29 -09
require that the transferee covenant to continue to carry out the conservation purposes
which this Easement was intended to advance.
11. Term of Easement Grant. The Easement herein granted shall be a burden upon and
shall run with the Property so long as Harrington penstemon is listed as a U.S. Forest
Service Region 2 sensitive species, or a U.S. Fish and Wildlife Service Category II plant,
or is reclassified as a federally threatened or endangered species under the provisions of
the Endangered Species Act. In the event the Harrington penstemon is removed from the
U.S. Forest Service Region 2 sensitive species list and the U.S. Fish and Wildlife Service
Category II list, and is not listed as a federally threatened or endangered species under the
provisions of the Endangered Species Act, then this Easement shall automatically
terminate and all rights, grants, obligations and conditions of this easement shall cease
and terminate, with or without notice from the Grantee, and the Grantor shall hold the
Property, as the same may then be, free from the rights granted herein.
12. Notices. Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: Mountain Star Association
c/o East West Resorts LLC
P.O. Box 5480
Avon, CO 81620
To Grantee: Town of Avon
P.O. Box 975
Avon, CO 81620
13. Recordation. Grantee shall record this instrument in a timely fashion in the official
records of Eagle County, Colorado, and may re- record it at any time as may be required
to preserve its rights in this Easement.
14. Miscellaneous.
(a) The terms "Grantor" and "Grantee," whenever used herein, and any pronouns used in
place thereof, shall mean and include the above named Grantor and its successors and
assigns and the above named Grantee and its successors and assigns.
(b) If any provisions of this Easement or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of this Deed of
Conservation Easement and the application of such provisions to persons of
circumstances other than those as to which it is found to be invalid, shall not be affected
thereby.
Page 5 of 15
Mountain Star Conservation Easement 10 -29 -09
(c) The Grantor and the Owners shall use reasonable effort to make reference to this
Easement and in any subsequent deed, or other legal instrument, by means of which it
conveys any interest in the real property subject to this Easement (including a leasehold
interest) and to attach a copy of this Deed of Conservation Easement thereto.
(d) This Easement may be executed in counterparts which, when taken together, shall
constitute a binding instrument subjecting the Easement Area to this Easement.
[signature pages follow]
Page 6 of 15
Mountain Star Conservation Easement 10 -29 -09
In WITNESS WHEREOF, the Grantor has executed this Deed of Conservation
Easement on the date and year first written above.
GRANTOR AND OWNER OF TRACTS BB, V, W, X AND Z:
Mountain Star Association, Colorado nonprofit corporation
By:_
Title:
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
The foregoing instrument was acknowledged before me this day of ,
200 by as of Mountain Star
Association, a Colorado nonprofit corporation.
My commission expires:
Page 7 of 15
Mountain Star Conservation Easement 10 -29 -09
Witness my hand and official seal.
Notary Public
GRANTEE AND OWNER OF TRACT AA:
Town of Avon, Colorado
Attest:
Ronald C. Wolfe, Mayor
Patty McKenny, Town Clerk
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
Approved
as to form:
Eric Heil, Town Attorney
The foregoing instrument was acknowledged before me this _ day of
, 200_ by Ron C. Wolfe as Mayor and Patty McKenny as Town Clerk
of the Town of Avon, Colorado.
My commission expires:
Page 8 of 15
Mountain Star Conservation Easement 10 -29 -09
Witness my hand and official seal.
Notary Public
OWNER OF TRACT Y:
TCL Avon LLC, Colorado limited liability company
By:_
Title:
STATE OF COLORADO }
} ss
COUNTY OF EAGLE }
Date
The foregoing instrument was acknowledged before me this _ day of ,
200_ by as of TCL Avon,
LLC, a Colorado limited liability company.
My commission expires:
Page 9 of 15
Mountain Star Conservation Easement 10 -29 -09
Witness my hand and official seal.
Notary Public
OWNER OF LOT 89:
Jane Huffeldt Date
Per Huffeldt Date
STATE OF }
} ss
COUNTY OF }
The foregoing instrument was acknowledged before me this _ day of
200_ by Jane Huffeldt and Per Huffeldt.
My commission expires: Witness my hand and official seal.
Notary Public
Page 10 of 15
Mountain Star Conservation Easement 10 -29 -09
OWNER OF LOT 90:
Stephen D. Johnson Date
STATE OF }
} ss
COUNTY OF }
The foregoing instrument was acknowledged before me this _ day of
200_ by Stephen D. Johnson.
My commission expires: Witness my hand and official seal.
Notary Public
Page 11 of 15
Mountain Star Conservation Easement 10 -29 -09
OWNER OF LOT 91:
Paul A. Becker Date
Jayne W. Becker Date
STATE OF }
} ss
COUNTY OF }
The foregoing instrument was acknowledged before me this _ day of ,
200_ by Paul A. Becker and Jayne W. Becker.
My commission expires: Witness my hand and official seal.
Notary
Page 12 of 15
Mountain Star Conservation Easement 10 -29 -09
Public
EXHIBIT A: Easement Area
Legal Description of Easement Area
Tract X, Tract W, Tract Z, Lot 89 & Lot 90, Mountain Star Filing No. 2, according to the
plat recorded on May 4, 1994, in Book 639 at Page 487, County of Eagle, State of
Colorado.
Lot 91, Mountain Star Filing No 2, First Amendment, according to the Plat recorded
February 22, 1995, in Book 661 at Page 913, County of Eagle, State of Colorado.
Tract V, Mountain Star Filing No 2, Second Amendment, according to the Plat recorded
July 7, 1995, in Book 670 at Page 989, County of Eagle, State of Colorado.
Tract BB, Mountain Star Filing No. 3, according to the plat recorded on January 23,
1997, in Book 717 at Page 2, County of Eagle, State of Colorado.
Graphic Illustration of Easement Area
Page 13 of 15
Mountain Star Conservation Easement 10 -29 -09
EXHIBIT B: EXISTING CONDITIONS
Page 14 of 15
Mountain Star Conservation Easement 10 -29 -09
EXHIBIT C: FUTURE BUCK CREEK TRAIL
Page 15 of 15
Mountain Star Conservation Easement 10 -29 -09
HEIL LAW
& PLANNING, LLC
MEMORANDUM
TO: Honorable Mayor Wolfe and Town Council members
CC: Larry Brooks, Town Manager
FROM: Eric Heil, Town Attorney
DATE: January 7, 2010
SUBJECT: Medical Marijuana Dispensaries
Summary: A recent Arapahoe County Court ruling held that a home rule municipality
could not prohibit medical marijuana dispensaries. The case involved the City of
Centennial and the ruling was issued on December 30, 2009. Other municipalities
which have denied business license applications for medical marijuana dispensaries are
proposing and adopting ordinances enacting moratoria on issuing business licenses for
medical marijuana dispensaries until appropriate regulations can be prepared and
adopted.
An emergency ordinance enacting a moratorium on the issuance of business licenses
for medical marijuana dispensaries is being prepared and will be provided to Town
Council and the general public no later than Monday morning.
Heil Law & Planning, LLC Eric Heil, Esq., A.I.C.P.
1499 Blake Street, Unit 1 -G Tel: 303.975.6120
Denver, CO 80202 eheil@avon.org
TOWN OF AVON, COLORADO r O l
AVON WORK SESSION MEETING FOR TUESDAY, JANUARY 12, 2010 e n i U
MEETING BEGINS AT 2:15 PM
AVON TOWN HALL, ONE LAKE STREET
PRESIDING OFFICIALS
MAYOR RON WOLFE
MAYOR PRO TEM BRIAN SIPES
COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO
AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR.
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY
ALL WORK SESSION MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME; PLEASE TELL THE MAYOR YOU WOULD LIKE TO SPEAK UNDER No. 2 BELOW
ESTIMATED TIMES ARE SHOWN FOR INFORMATIONAL PURPOSES ONLY, SUBJECT TO CHANGE WITHOUT NOTICE
PLEASE VIEW AVON'S WEBSITE, HTTP: / /WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH
2:15 PM — 3:45 PM 1. EXECUTIVE SESSION
a. Avon v. TCMD: For the purpose of receiving legal advice on specific legal
questions pursuant to Colorado Revised Statute section 24- 6- 402(4)(b)
concerning pending litigation between the Town of Avon and Traer Creek
Metropolitan District and status of service plan for the Traer Creek Metropolitan
District
b. Personnel Matters related to annual Town Attorney Review pursuant to Colorado
Revised Statute section 24- 6- 402(4)(f)
2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA
3:45 PM — 4:15 PM 3. COUNCIL COMMITTEE AND STAFF UPDATES
a. Eagle County Commissioners, Mayors and Managers Meeting Update
(Ron Wolfe, Mayor, Larry Brooks, Town Manager)
b. Town Manager's Work Program for 2010 (Larry Brooks, Town Manager)
Review 2010 work program as set forth by Avon Town Council
c. Financial Matters / Memo Only
4:15 PM — 5:00 PM 4. COMMUNITY DEVELOPMENT TOPIC UPDATES:
a. TEMPORARY FEE REDUCTION AND WAIVER PROGRAM FOR ZONING, DESIGN
REVIEW, AND BUILDING PERMIT APPLICATIONS (Sally Vecchio, Assistant Town
Manager Community Development) Review current reduced fee structure which
expires in February
b. ADOPTION OF THE 2009 INTERNATIONAL BUILDING CODES (William Gray, Chief
Building Official) Review proposal to adopt the 2009 International Building Codes
5:00 PM 5. ADJOURNMENT
Avon Council Meeting. 10.01.1 2.doc
Page 1 of 4
TomofAwn
P.O. Bcoc975
AVTO �K One Lale%ea
Awn, Cdaado MX
970-748x4005
C O L D R A D O
Office of the Town Manager
To: Honorable Mayor and Town Council
From: Larry Brooks, Town Mana
Date: January 6, 2010
Regarding: Manager's work program for 2010
As in past years, the Town Council has provided a list of expectations for me as
Manager. These expectations result in a work program for the calendar year which I
have historically reviewed with the council from time to time as a periodic check -in.
This year I felt it would be good to have an initial discussion on one of the specific
expectations in order to verify approaches and get us all focused on timetables for
accomplishment. The task for discussion is as follows:
"Complete the Connect Avon Now walkable community plan and development of
funding sources for buses, trails, paths, sidewalks and parking"
We have been at work on the potential Connect Avon Now campaign since the
middle of last year actually. This effort started with community survey information
and assorted master plans which the Town has adopted. It is apparent to me, through
the work done thus far, that there is the need to have substantial overlap with another
task. That task is to supply a visionary addendum to the Comprehensive
Transportation Plan.
You will recall that the council approved this document (sans visionary component)
in order to satisfy the technical requirements of grant applications and a number of
other reasons which were equally vital to the Town. While the Comprehensive
Transportation Plan has visionary components in it it was felt that supplemental
work was justified and would be productive at a number of levels for our community.
The purpose of the time with the council on the 12th will be to discuss the merits of
creating the addendum to the plan in parallel with the Connect Avon Now project. It is
our belief that there is tremendous overlap of the subject matter and venue. Both the
ballot question and the visionary addendum to the Comprehensive Transportation
Plan must live together, and it is good to have the community help us develop both.
FINANCIAL MATTERS
January 12, 2010
1. YTD Building Revenue Report Actual vs Budget - November, December
2. Detail - Real Estate Transfer Taxes - November, December
3. Accomodations Tax Worksheet Actual vs Budget - October, November
4. Sales Tax Worksheet Actual vs Budget - October, November
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Town of Avon
Real Estate Transfer Tax
Calendar Year 2009
Purchaser Name
Property
Amount Received
Riverfront PUD
October
$ 820,096.16
$ 473,508.17 $
Title Comp Rockies
Mtn. Vista 44 -09
948.65
Title Comp Rockies
Mtn. Vista 45 -09
1,038.00
Title Comp Rockies
Mtn. Vista 46 -09
2,110.70
Title Comp Rockies
Mtn. Vista 47 -09
1,077.90
Land Title Guarantee
Falcon Pointe 209 -26
30.00
Quality Timeshare
Lakeside Terrace
180.00
Rosen Karastoyanov & Stela Goranova
Sunridge B -307
1,760.00
Victor Diakov & Olga Sozinova
Sunridge D -211
4,650.00
Rugggs # 2, LLC
Lot 23 Bilk 1 BMBC
40,000.00
Amy & Jeremy Ross
Nightstar# F
12,350.00
Bernice Harrison Living Trust
Lot 44 Blk 1 WR
10,760.00
Kimberly Koch
Lot 78 -B Blk 4 WR
17,400.00
RVH
Riverfront # 218
19,230.42
Ticor Title Ins
Riverfront 44 -09
8,943.80
Ticor Title Ins
Riverfront 45 -09
7,569.90
Ticor Title Ins
Riverfront 46 -09
3,895.20
Ticor Title Ins
Ticor Title Ins
Total November Revenue 92,305.25 $39,639.32
Total YTD Revenue 912,401.41 513,147.49
Total 2009 Budget 825,000.00 650,000.00
Variance, Favorable (Unfavorable) $ 87,401.41 $ (136,852.51) $
The Gates at
Beaver Creek
Purchaser Name Property
Town of Avon
Real Estate Transfer Tax
Calendar Year 2009
The Gates at
Amount Received Riverfront PUD Beaver Creek
Nov -09 $ 912,401.41 $ 513,147.49 $
Land Title Guarantee
Falcon Pointe 308 -17
20.00
Title Comp Rockies
Mtn. Vista 48 -09
179.90
Title Comp Rockies
Mtn. Vista 49 -09
310.70
Title Comp Rockies
Mtn. Vista 50 -09
1,276.95
Title Comp Rockies
Mtn. Vista 51 -09
1,176.00
Title Comp Rockies
Mtn. Vista 52 -09
798.00
Title Comp Rockies
Mtn. Vista 1626 & 1628 -26
295.00
Title Comp Rockies
Lakeside Terrace 51 -09
144.95
Mark, Kathy & Joshua Rumble
Sunridge F -301
1,740.00
Penoxide LLC
Avon Lake Viallas W -2
7,000.00
Bradley & Madonna Binkowski
114 Blue Flax Lot 10 Mtn. Star
72,000.00
Work Family US Trust
5201 Longsun Lane Lot 1
24,500.00
Douglas & Lisa Currey
Lot 111 -E Blk 1 WR
24,000.00
David W. Larue
Lot 69 -A Bilk 4 WR
25,385.60
Ticor Title Ins
Riverfront 48 -09
4,886.60
Ticor Title Ins
Riverfront 49 -09
4,248.00
Ticor Title Ins
Riverfront 50 -09
6,510.30
Ticor Title Ins
Riverfront 51 -09
5,716.00
Total December Revenue
158,827.10
21,360.90
Total YTD Revenue
1,071,228.51
534,508.39
Total 2009 Budget
825,000.00
650,000.00
Variance, Favorable (Unfavorable) $
246,228.51 $
(115,491.61) $
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Memo
To: Honorable Mayor and Town Council Initials
Thru: Larry Brooks, Town Manager
Legal Review: Eric Heil, Town Attorney
Approved by: Sally Vecchio, Asst Town Manager /Comm. Dev.
From: Sally Vecchio, Ass't Town Manager /Comm. Dev.
Date: January 05, 2010
Re: Temporary Fee Reduction and Waiver Program for Zoning, Design
Review, and Building Permit Applications
Background
On July 2e, 2009 the Town Council approved Resolution No.09 -25, establishing a
temporary fee reduction and waiver program for the following zoning, design review, and
building permit applications:
1. 100% of all Zoning fees
2. 100% of all Design Review fees
3. 100% of all Building Permit fees for interior remodels, replacement of
exterior stucco and /or siding, and roof covering repair and replacement
4. 10% for all other Building Permit fees
The waiver program was intended to jump start a flagging local construction industry and
related businesses. The fee waiver program was initiated on August 1, 2009 and is set to
expire on February 12, 2010.
After reviewing the construction activity indicators for 2009 (Tables 1.1, 1.2 and 1.3), it is
apparent that the fee waiver program did not encourage new construction activity that would
have otherwise not occurred without the program. Overall revenues from permit fees fell
24% between 2008 and 2009; and building permits were down 58% during the same period.
Most of the building permits issued in 2009 were for building additions and remodels. Only
four permits were issued for new residential construction. There was no new commercial
construction in 2009.
Total revenues from building and development fees in 2009 (collected and waived), was
$113,077.95. The Town collected $78,464.91 and waived $34,613.04. We are expecting
construction activity to remain the same in 2010, with no new commercial construction
expected.
Staff Recommendation:
Staff recommends not re- enacting the temporary permit fee waiver program for 2010.
Permit Revenues
2006 —2009
Table 1.1
2009 Building Permit Revenue
By Type
Table 1.2
Building Addition/Remodel
$25,803
New Building
$14,418
Revenues Received
Waived Revenues
Percent Change
$600
2006
2007
2008
(68.4 %)
New Residential Permits Issued
15
4
(73.7 %)
Total Permits Issued
143
Jan -Au 2009
(Aug-Dec 2009
2008 -09
Contractor's
License
$17,605.00
$18,478.00
$15,109.00
$5,205.00
0
(65.5 %)
Fees
Building
Permit Fees
$587,775.61
$282,928.52
$181.467.35
$43,097.62
$25,849.37
(62 %)
Plan Check
$598,828.91
$231,438.38
$88,966.81
$12,609.79
0
(85 %)
Fees
Subdivision
Review Fees
$111,750.74
$48,347.51
$9,874.39
$4,627.50
$877.50
(44 %)
Design
Review Fees
$48,965.00
$40,400.65
$34,585.00
$12,925.00
$7,886.17
(39 %)
Totals 1
$1,366,931.26
$623,600.06
1 $150,725.017
$78,464.91
1 $34,613.04
24%
2009 Building Permit Revenue
By Type
Table 1.2
Building Addition/Remodel
$25,803
New Building
$14,418
Mechanical
$1,430
Plumbing
$600
Building Permits Processed
2008-2009
Table 1.3
• Page 2
2008
2009
Percent
Change
New Commercial Construction Valuation
$2,525,749
$0
(100 %)
New Residential Construction Valuation
$11,165,780
$3,521,000
(68.4 %)
New Residential Permits Issued
15
4
(73.7 %)
Total Permits Issued
143
60
(58 %)
• Page 2
Memo
To:
Thru:
Legal Review:
Approved by:
From:
Date:
Re:
Honorable Mayor and Town Council Initials
Larry Brooks, Town Manager
Eric Heil, Town Attorney tJ�PC
Sally Vecchio, Ass't Town Manager /Comm. Dev.
William Gray, Chief Building Official l(�
January 05, 2010
Adoption of the 2009 International Building Codes
The 2009 revisions to the International Building Codes have been
published and staff is recommending adoption of the regulations as written with
exception that in the 2009 residential code, the requirement to install automatic
sprinkler systems in single family and duplex homes be put off until January 1, 2012.
The next revisions to the Code will be published at this time, and we expect this
particular requirement to be modified or repealed. Below is a summary of the
significant revisions in the 2009 Code.
The 2009 International Building Code; covering all structures with the
exception of; the One -and Two - Family dwellings and townhouses not more
than three stories above grade and their accessory structures.
1. 410 total changes, 279 are house keeping and clarifications and
various structural changes. 131 new additions to the code,
2. Additions to high rise buildings for elevators ingress, egress, fire
proofing, fire ratings etc.
3. LiveAvork units, maximum of 3, 000 square feet. Non residential area is
permitted to be a maximum 50%of the area of each liveAvork unit. The
nonresidential area function shall be limited to the first or main floor
only of the liveAvork unit. A maximum of five nonresidential workers or
employees are allowed to occupy the nonresidential area at any one
time. May be built as an R3 occupancy.
The 2009 International Residential Code; covering One- and Two — Family
dwellings and townhouses not more than three stories above grade and their
accessory structures.
1. R302.3 Two - family dwellings ( duplex) reduction in the rating of the
"party wall from 1 hr to % hr when automatic sprinkler system is
installed.
2. R313 Automatic Fire Sprinkler Systems. 313.1 An automatic fire
sprinkler system shall be installed in Townhouses. Defined as : "A
single family dwelling unit constructed in a group of three or
more attached units in which each unit extends from foundation
to roof and with a yard or public way on at least two sides"
3. Exception to 313. 1, not required when additions or alterations are
made to existing townhouses that do not have a automatic residential
fire sprinkler system.
4. R313.2 One -and two family dwellings automatic fire system. Effective
January 1, 2011, an automatic residential fire sprinkler system shall be
installed in one -and tow family dwellings.. Note: Eagle County has
pushed the effective date off to January 1, 2012 because this is the
next code edition and a wait and see approach may show another
change to this requirement
5. Exception to 313.2 not required for additions or alterations to existing
buildings that are not already provided with an automatic residential
sprinkler system.
6. Systems shall be designed in accordance with new section in the
residential code, P2904 or NFPA (National Fire Protection
Association) 13 D.
7. Seismic design category is now 17 8 a change from category C. New
tables with in the code.
8. Annual mean temp is now 40 degrees F.
• The 2009 International Energy Conservation Code; emphasizing both
prescriptive and performance- related provisions for both commercial and
residential buildings.
1. Change in Climate Zone from 15 to 6 8 for Eagle County
2. New Table 402.1.1 Insulation and fenestration requirements by
components.
• The 2009 International Plumbing Code; covers the initial design of the
plumbing system, the installation and construction of plumbing systems and
the maintenance of operating systems.
1. Nothing major, house keeping and clarifications.
• The 2009 International Mechanical Code; covers the initial design of
mechanical systems through the installation and construction phases and into
the maintenance of operation systems.
1. Reduction to ventilation rates in enclosed parking garages.
2. Major change to 403.3 Table for ventilation rates. New default
occupant density per 1, 000 sq ft and new exhaust airflow rate now in
table. Ventilation rates haven revised and new variables for use in the
equations to determine the minimum outdoor air intake flow rate have
been added.
• Page 2
• The 2009 International Fuel Gas Code; contains all code coverage for fuel -
gas related installations coordinates with the full family of the International
Codes.
1. House keeping changes to definitions for Gas utilization Equipment
deleted.
2. Grounding requirements for CSST pipe. ( corrugated stainless steel
tubing)
3. Appliances in attics must provide access large enough to allow the
removal of the appliance as supposed to the largest appliance
component.
4. 411.1.3.1 allows for connector to pass through floors and walls but will
need a shut of upstream of the connector.
• The 2009 International Fire Code: addresses conditions hazardous to life
and property arising from fire, explosion, hazardous materials storage,
handling or use and the use and occupancy of buildings and premises. Both
improved prescriptive and performance -based code regulations for the
safeguard of public health and safety. Compatible with the family of the
International Codes.
1. 87 changes, 37 new additions to the code, 50 clarifications and house
keeping along with new definitions.
2. Section 102.5 clarifies issues between the IFC and the IRC.
3. Section 105.4.1 allows for phased approval and permits construction
to proceed while the design is still being done.
4. Section 307.4.3 allows for the use of `portable outdoor fireplaces
because of the wide spread availability.
5. Section 403.3 Crowd manager, create the need for crowd managers
when indoor or outdoor events with attendees greater than 1, 000.
Requires crowd managers to be trained employees with
responsibilities to control and direct the occupants in a safe manner
during emergencies.
6. Section 044 .3.3 --- .3.31 ---- .3.3.2 -- .3.3.3 and 406.3.3 Establish
requirements for the development and implementation of lockdown
plans. Controls and confirms that the level of life safety inside of the
building is not reduced or compromised and that the event is done in
accordance with an approved plan. Provides for how the incident will
be recalled so conditions can be retumed to normal activities. More....
7. Section 510 apx. J Emergency responder radio coverage. New
provisions that address requirements for in- building coverage of
emergency responder radios. Mostly for large area buildings and high
rise buildings.
8. Section 603.4.2 through 603.4.2.3 Portable gas fired outdoor heating
appliances, `patio heaters" stipulates permissible and prohibited
locations, listings and maintenance of these appliances.
• Page 3
9. Section 805.4 through 805.4.2.3 Group R2 college and university
dormitories. Regulates upholstered fumiture and mattresses in college
dorms.
10. Others.
• The 2009 International Existing Building Code; applies to repair, alteration
change of occupancy addition and relocation of existing buildings. The
necessity of upgrades and improvements is determined by the type and
extent of the work, not the expense.
1. Nothing major.
• 2009 International Property Maintenance Code; Key components of this
code provides a safe means of egress, prevents hazardous structural
conditions and reduces health hazards by providing a clean and sanitary
environment. Works with others in the family of International Codes
particularly the 2009 International Fire Code.
1. Section 108.1.5 Dangerous structure or premises. New section
providing a list of conditions that establish an important baseline to
utilize when evaluating a structure. This will help the jurisdiction more
clearly define a dangerous structure or building but is in no way the
only way to determine such issues.
2. Section 108.2.1 Authority to disconnect services utilities. Used as a
means to regulate unsafe structures. Was always in the Building code
but is now part of this code.
3. Section 108.6 Abatement methods. Makes it clear that the owner,
operator or occupant is the party responsible to take action to abate
hazardous systems or conditions. Now includes the operator and
occupant as responsible.
4. Section 108.7 Record. Requires a report to be filed on each
investigation of unsafe conditions, stating the occupancy and the
nature of the unsafe condition. This report provides a basis for the
written notice of violation. We have always done this.
5. Other sections that are new cover public toilets, grease interceptors
and the continued maintenance. How to board up a structure, etc...
• 2008 National Electrical Code.
This code changes on a different time line from the International codes and the
new edition will need to be adopted when it comes out usually adopted by the
State on July 1. then we follow asap.
• Page 4