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TC Minutes 08-23-2005MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL HELD AUGUST 23, 2005 A regular meeting of the Town of Avon, Colorado was held at 400 Benchmark Road, 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 Debbie Buckley, Kristi Ferraro, Mac McDevitt, Amy Phillips, Brian Sipes and Tamra Underwood. Also present were Town Manager Lary Brooks, Town Attorney John Dunn, Town Clerk Patty McKenny, Assistant Town Manager Jacquie Halburnt, Finance,Di rector Scott Wright, Police Chief Jeff Layman, Town Engineer Norm Wood, Public Works / Transit Director Bob Reed, and Community Development Director Tambi Katieb, as well as members of the press and public. Approval of Agenda Mayor Wolfe asked that the following items be added to Unfinished Business (from the work session agenda): ✓ Update on Vail Valley Chamber & Tourism Bureau (Councilor Phillips) ✓ "Public Utilities Commission ("PUC") Application to close West Beaver Creek Blvd. Railroad crossing ✓ Consideration of a budget amendment to address a professional services contract as recommended by Town Attorney Disclosure of Potential of Conflict of Interest Town Attorney John Dunn asked if any member had any conflict of interest or exparte conversation regarding the outdoor use of sound application submitted by Sommer Sports, Inc.; no comments were made in answer to that question and the meeting proceeded. Citizen and Community Input Police Chief Jeff Layman presented an introduction to the "Safe Youth Driving Initiative" and Jill Hunsaker, Eagle County Public Health manager, who explained the purpose of the initiative as educating the public regarding the problems associated with irresponsible and reckless teenage driving habits. She encouraged council members to participate in these meetings in hopes of coming up with solutions to reduce the frequency of accidents. The question was asked if Avon's Court were utilizing some of the programs available to traffic defendants; Chief Layman was not certain what programs the Judge utilized, but would determine what if any program are utilizied. Jamie Fitzpatrick, Corum Real Estate Group and Board member of Buffalo Ridge Affordable Housing Corporation ("BRAHC"), addressed Council regarding a development overview & financial update on the Buffalo Ridge Affordable Housing project. He noted that he was asked by the "BRAHC" Board to provide this update to Council in light of its current financial situation. He provided history on how Corum became involved in the project, the number of units in the project and a summary of the nonprofit status. This project evolved as a result of a requirement in the Annexation & Development Agreement that required the developer to provide for affordable housing units prior to the opening of the two big box stores. Fitzpatrick explained some of the factors leading up to the current financial status of the project as higher construction costs of the offsite improvements, occupancies that did not meet the projections, and the economy after September 11th. The memo from Mr. Fitzpatrick (and included in the Council packet) identifies the net reimbursement due to "BRAHC" is $697,916 and that this is a reimbursement obligation of Traer Creek Metro District ("TCMD") per the Facilities Acquisition Agreement. "BRAHC" has been notified by their lender, Red Mortgage Capital, that their loan is in default, and if the default is not cured within the next 60 to 90 days, it is likely that the property will go into foreclosure; and the property will no longer remain as an affordable housing for Avon. Fitzpatrick summarized this as a developed affordable housing project, which was burdened by high off-site improvements costs, typically paid for by the developer or metro district. Those costs have caused the project to require high occupancy rates in order to cash flow the project; the occupancy rates have not met the projections and the project is in default and runs the risk of foreclosure. Three possible scenarios for this project include the following: 1. If there is not an injection of some cash flow, the project goes into foreclosure and the affordable housing units will be lost 2. The sponsor of the entity, which is the Town of Avon, could subsidizes the shortfall and the project 3. An acceleration of the reimbursement obligation repayment of TCMD could be made Dan Leary, President of "TCMD", spoke to the Council about a letter dated August 22, 2005 from "TCMD" (distributed at the meeting); it addressed the Facilities Acquisition Agreement, and Leary specifically spoke about the section called the "priority of repayment", which states when the "TCMD" obligation to "BRAHC" would be paid. It is listed as #3 along with a number of other obligations identified in the letter. Leary noted that while "TCMD" acknowledges the debit, the District would not be making a payment to "BRAHC" in the near future. It was suggested that the information be reviewed for the next meeting, and staff return with some type of recommendation regarding Avon's position with regard to this situation.- Councilor Sipes expressed concern that the parties involved have decided to do nothing at this point, at the risk of losing the affordable housing element of this project. Magnus Lindholm, Traer Creek, LLC, addressed the Council regarding the topic noting that documentation has not yet been received from "BRAHC" that is required before approving the debt amount. Discussion ensued about the confusion that existed about whether or not "TCMD" had formally accepted the certified numbers; Mr. Lindholm reiterated that the final number owed to "BRAHC" has not yet been accepted by "TCMD". Further discussion ensued on the possible financing / loan scenarios that might exist. Michael Cacioppo made comments regarding the Buffalo Ridge topic noting that the developer is acting in good faith and that this problem is not an Avon problem. He also commented on the railroad crossing rights, and asked for some clarification on the matter. Peter Buckley made comments regarding the Buffalo Ridge topic; noting that the taxpayers should not bail this project out. Discussion ensued on the topic of the other Eagle County affordable housing projects, Lake Creek, and how that entity helped Buffalo Ridge. Fitzpatrick noted that the Buffalo Ridge project did not work when including the cost of the off-site improvements, at which time the developer agreed to the reimbursement agreement. The project would have required 99% occupancy in order to make it work. Leary also noted that "TCMD" did defer tap fees close to $700K for the project. Staff would provide a recommendation at the next regular meeting on September 13th. Tim Barton, legal representative for CSC Land, LLC, was present to talk about the Gates at Beaver Creek project. He noted that staff haf pulled the building permit, and he was looking for clarification from Council on the status of their project. He was told by the Town's Attorney that this group needed to address the Council with any information and requests. He provided a summary of what had taken place over the last few months. Mayor Wolfe noted that Council had been made aware of this situation and he has asked the Town Attorney to review the documentation for a discussion to be held at the next meeting on September 13th. Town Attorney John Dunn and attorney for CSC Land, LLC, Mr. Christopher Payne, agreed upon an acceptable communication structure for the next few weeks. Resident Peter Buckley asked about the railroad crossing information and actions related to the Town's condemnation proceedings. His specific question was related to why the condemnation Regular Council Meeting Page 2 of 5 August 23, 2005 occurred before securing the railroad crossings. Discussion also ensued about Main Street and the confluence site. STAFF UPDATES A resident of Lift View Condos was present to inquire about the proposed closing of the railroad crossing on West Beaver Creek Blvd. Mayor Wolfe then raised this topic, noting that an application was submitted to the Public Utilities Commission ("PUC") by the Union Pacific Railroad Company ("UPRC") to close the at-grade railroad crossing at W. Beaver Creek Blvd. He encouraged the general public to contact the "PUC" opposing this closing, as it would greatly impact access in the Town of Avon. He noted sample letters included in the Council packet that addresses this. application, one letter to the PUC from the Avon Town Council and one sample letter for the general public to use to forward to the "PUC". Town Attorney John Dunn noted that this application is heard by an administrative judge with the PUC and is a separate application from the next topic discussed. At this time, there was discussion on the Town's application filed with the Public Utility Commission on March 18, 2005 to establish two at-grade railroad crossings as public crossings across the right-of-way and tracks of the Union Pacific Railroad Company to provide north and south connectivity between the Town Center and a site that is under commercial development known as the "Confluence Site". Everyone was encouraged to submit letters in support of the two crossings; the Town is asking for support from various agencies in Eagle County. It was noted that Public hearings for this application are scheduled for September 27th & 28th in the Avon Council Chambers, 400 Benchmark Road. Some discussion ensued about the content of the letters. Council agreed that a letter be forwarded on behalf of the Town Council. Sample letters will be on the Vail Daily website & on the Town's website. Public Works Director Bob Reed presented a recommendation in answer to the request to create parking at the Beaver Creek Point location in Wildridge. He noted that after a site visit he would propose a temporary parking area where one could pull off the road to access 3-4 parking spaces. Both public works & police staff were asked to coordinate this project, creating the area and providing some signage and guidelines. Tambi Katieb, Community Development Director, presented an update on the progress of the development of West Avon trails. This project to develop sustainable trails north of Avon will be a result of several agencies partnering together, i.e. Holy Cross Ranger District, Town of Avon, Bent' Creek Metro District. He noted that an action plan has been outlined and he will be monitoring and participating when necessary on this project. Town Engineer Norm Wood presented an update on the Eagle River Enhancements Project, preliminary plans are prepared showing features for Bob the Bridge, hydraulic analysis is also completed, and water attorneys from area municipalities will be meeting with Glen Porzak on August 24th to discuss the topic of in-channel water diversions. Ordinances Scott Wright, Finance Director, presented Ordinance No. 05-10, First Reading, Series of 2005, Ordinance amending the Franchise granted to Cablevision VII, Inc. d/b/a Comcast of Colorado VII, LLC and approving an amendment to the Cable Franchise Agreement between the Town and Comcast. He summarized the amendment in that it would terminate the 1996 letter agreement that requires Comcast to pay an annual grant of $10K directly to Vail Valley Cable TV. In lieu of the grant, a $.65 PEG Fee would be collected and remitted to the Town of Avon on a quarterly basis beginning in 2006. Mayor Pro Tem Underwood indicated that the last council request was to obtain a detailed accounting of the transactions, and in turn try to Regular Council Meeting Page 3 of 5 August 23, 2005 understand what was done with any excess money as well as hopefully clarify why Comcast is charging.$.65 instead of $.50. A review was made of what transpired since the original passage of the, franchise agreement and what the obligations are included in the agreement. Comments were made about some of the following items: ✓ Should monies over $1 OK should be assessed and collected ✓ Why commercial accounts were allowed to be exempt from paying the fee ✓ What happens if external costs allowed by the Federal Code of Regulations are no longer fees required to be collected, the question was what happens to our agreement at that point? ✓ Be accountable to citizens and fix/control/cap the subscriber fee ✓ Ask that Channel 5 be accountable for its financial position and sound business plan as submitted to the Town After further discussion, a summary of the topic was noted by Mayor Wolfe as follows: ✓ Both residential & commercial should pay PEG ✓ Collect a minimum of $10K from Comcast to flow through the Town of Avon ✓ Excess monies of whatever the capped PEG generates should also come to the Town Council, any monies passed on to Channel 5 should be justified ✓ The Town would be allowed to reduce the PEG fee if necessary Town Attorney John Dunn noted that the letter agreement and the franchise agreement are inconsistent with each other and that this action would eliminate the inconsistency that occurs. Further conversations occurred about the bulk rate collections and how that impacts the collection of the $10K. Mayor Wolfe suggested tabling the Ordinance at this time. Mayor Pro Tern Underwood moved to table Ordinance No. 05-10, First Reading, Series of 2005, Ordinance amending the Franchise granted to Cablevision VII, Inc. d/b/a Comcast of Colorado VII, LLC and approving an amendment to the Cable Franchise Agreement between the Town and Comcast, with the following changes recommended: ✓ $.50 fee per residential subscriber ✓ Insure that bulk subscriber continues to pay the current $.25 ✓ That Comcast is obligated to $1 OK per year minimum, regardless of what they collect ✓ That all PEG Fees will be paid to the Town of Avon and will be disposed of as the Town Council deems appropriate to Channel 5 / or public access TV ✓ And if external costs somehow are extinguished for flow through in this way as dictated by the federal government or some other regulation, that Comcast will submit a check in the amount collected in the previous year and going forward with an increase that is calculated by CPI percentage. Councilor Ferraro seconded the motion and it passed unanimously with a roll call vote. New Business Patty McKenny, Town Clerk, presented the Permit Application for Outdoor Use of Sound Amplification System for Tri-America Triathlon on September 4, 2005 at Nottingham Lake Sommer Sports, Inc. requests the use of a loud speaker for the swimming portion of the event beginning early in the morning. A public hearing and council action is required on this type of request because of the early hours. Questions were raised regarding the number of speakers and how loud it would get, some did not want loud speakers to be used for music during the event. Mayor Wolfe opened the public hearing, no comments were made, and the hearing was closed. Councilor Buckley moved to approve the outdoor sound permit for Sommer Sports, Inc.; the motion was seconded by Mayor Wolfe and passed unanimously with a roll call vote. Regular Council Meeting Page 4 of 5 August 23, 2005 J Norm Wood presented the contract submitted by Oldcastle SW Group, Inc. d/b/a B&B Excavating for the Avon Transportation Center. He highlighted the bid amount and some details of the project. It was noted that only one bid was submitted. Some discussion ensued on the status of the federal funds and that grant monies could be use for the purchase of land. It was pointed out that this facility is the interim transit facility. Building this facility to look like the permanent building was discussed, so as to eliminate the construction of an interim facility. It was noted that taking this route to delay the construction of anything at this time would not impact the overall project. Councilor Phillips moved to reject awarding the contract for the Avon Transportation Center. Councilor McDevitt seconded and the motion passed unanimously with a voice vote. Unfinished Business Update on Vail Valley Chamber & Tourism Bureau was provided by Councilor Phillips, who noted that Frank Johnson, President, had resigned and efforts are underway to review the current structure and future operations of the organization. Mayor Wolfe moved that the Town Attorney be authorized to secure a written report from the attorney as discussed during the executive session and authorize staff to prepare a budget amendment and authorize immediate work and review to not exceed $11 K (approximately 40 hours of work, or until a better estimate could be made). Town Attorney request that amount be $13500, in order to have the attorney work on-site. Councilor Ferraro seconded the motion and it passed unanimously with a voice vote. Town Attorney Report Tv4n Attorney John Dunn noted that a letter has been to Wildridge owners utilizing their residences for short-term rentals informing them of the recent legislation, and to stop this type of action. Next step includes a review of whether or not this still occurs at those locations. Some discussion ensued about informing title companies and realtors of this legislation; Council asked that staff forward information to these groups that this type of use in not allowed in Wildridge. Mayor Report Mayor Wolfe presented an update on their recent attendance to the Colorado Association of Ski Towns meeting and the Home Rule Committee meetings and nominations for the November election. Consent Agenda Mayor Wolfe asked for a motion on the Consent Agenda below. Councilor Sipes moved to adopt the consent agenda; Councilor Phillips seconded the motion and it passed unanimously. a. Minutes from August 9, 2005 Regular Council Meeting There being no further business to come before the Council, the meeting adjourned at 8 PM. RES"CTFY SUBMITTED: u,ld. ~ ' 1: o erk APPROVED: Debbie Buckley Kristi Ferraro Mac McDevitt Amy Phillips Brian Sipes Tamra Underwooi Ron Wolfe Regular Council Meeting August 23, 2005 Page 5 of 5