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TC Council Packet 02-26-2013TOWN OF AVON, COLORADO AVON REGULAR MEETING FOR TUESDAY, FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICIALS MAYOR RICH CARROLL MAYOR PRO TEM TODD GOULDING COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT SECTION; COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER 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) APPROVAL OF AGENDA 3) WORK SESSION a) MEET WITH PLANNING AND ZONING COMMISSION 4) TOWN RECEPTION FOR OFFICER SANTIAGO (JIM) PEREZ IN RECOGNITION OF HIS YEARS OF SERVICE WITH THE AVON POLICE DEPARTMENT AND RETIREMENT 5) PUBLIC COMMENT 6) ACTION ITEMS a) RESOLUTIONS i) Resolution No. 13-05, Series of 2013, Resolution in Appreciation of Police Officer Santiago Perez’s Years of Service ii) Resolution No. 13-06, Series of 2013, Resolution In Appreciation of Recreation Director Meryl Jacobs’ Years of Service b) CONSENT AGENDA i) Minutes from February 12, 2013 c) LOT 61 WYNDHAM VACATION CLUB DEVELOPMENT i) Public Hearing on Second Reading on Ordinance No. 13-02, Series of 2013, Ordinance Approving amendments to the Avon Development Code to amend definitions, permitted uses in the Town Center Zone District, and amendments to regulations concerning time shares and fractional ownership (Jared Barnes, Planner I) ii) Public Hearing on Second Reading on Ordinance No. 13-03, Series of 2013, Ordinance Approving a Rezoning Application, Major Design and Development Plan Application, Alternative Equivalent Compliance Application, and Development Agreement for “Wyndham- Lot 61”, located on Lot 61, Block 2, Benchmark at Beaver Creek (Matt Pielsticker, Planner II) d) VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION i) Public Hearing on Resolution No. 13-02, Series of 2013, Approving Amendments to Traer Creek Metropolitan District Service Plan – Action to continue to the regular Council Meeting of March 12, 2013 ii) Public Hearing on Resolution No. 13-03, Series of 2013, Approving Amendments to The Village Metropolitan District Service - Action to continue to the regular Council Meeting of March 12, 2013 TOWN OF AVON, COLORADO AVON REGULAR MEETING FOR TUESDAY, FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET ACTION ITEMS - CONTINUED e) Public Hearing on Second Reading of Ordinance 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments (Virginia Egger, Town Manager) f) Action on Resolution No. 13-07, Series of 2013, Resolution Adopting the Town of Avon Strategic Statement and 2013 Strategy developed at the January 14th Council Retreat (Rich Carroll, Mayor) g) Action on Amendment to Town Manager Employment Agreement (Virginia Egger, Town Manager) h) Action on Performance Evaluation Process and Criteria for Town Manager (Rich Carroll, Mayor) 7) WORK SESSION a) Committee and Board Meeting Updates i) Meeting with Chris Romer, Vail Valley Partnership (Councilor Fancher) ii) Meeting with Ceil Folz, Vail Valley Foundation (Councilor Fancher & Councilor Reynolds) b) Financial Matters (Kelly Huitt, Budget Analyst) Memo Only 8) MAYOR REPORT a) Future Agenda Items 9) EXECUTIVE SESSION a) Discussion to determine positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators, under C.R.S. §24-6-402(2)(e) related to economic development 10) ADJOURNMENT FUTURE COUNCIL AGENDA DATES & PROPOSED TOPICS: March 12th: Water Authority Rate Increase, Traer Creek Service Plans, CIP Fund Update, I-70 RTOF Update and use of project’s Contingency Fund March 26th: Worksession: Joint meeting with County Commissioners, Special Events Planning, Traer Creek Service Plans, Avon Police Department Employee and Volunteer of the Year February 26, 2013 PZC/TC Joint Meeting Page 1 of 3 Meeting Agenda Avon Town Council / Avon Planning and Zoning Commission Joint Session Tuesday, February 26, 2013 4:00pm – 5:30pm I. Call to Order – 4:00pm II. Additions & Amendments to Agenda III. PZC Roles & Responsibilities. A. Review the purpose of the Planning and Zoning Commission (AMC §7.12.040) and Town Council (Town Charter). This discussion will include roles, responsibilities and duties for application review and necessary to facilitate special projects identified in the Town Council 2013/14 Strategic Plan and Work Plan. B. Evaluate the need for a Town Council/PZC Community Development Sub-Committee C. In light of new development and re-development potential, the expectation is for a welcoming, considerate, and solution-oriented process where incentives are evaluated and minimum development requirements are clearly defined. IV. TOA 2013/2014 Strategic Plan and Work Plan. A. Review and comment on the draft document formulated by Town Council at their January Retreat. B. Evaluate Work Plan elements – timing and priority: 1. 1st Quarter 2013 Work Plan a) As requested, understand the Council’s land development “tool box” which identifies appropriate incentives for developers and the building community. b) Evaluate and recommend to Council changes to the land use code and a regulatory framework to ensure proper timeframes for project review and other needed land use code updates to support the Comprehensive Plan and ensure an efficient and informative review process. For example, consider the following items for land use code evaluation and potential amendments: i. Review of landscape materials requirement, i.e., numerical requirements and implications; ii. Primary / Secondary allowance on Duplex zoned properties iii. Major Development Plan vs. Sketch/Final review procedures – are the new procedures working as well as envisioned? iv. PUD application review time frames – is 35 days for a large project adequate time for a complete review, including public input? February 26, 2013 PZC/TC Joint Meeting Page 2 of 3 v. Review of larger (non-PUD) project submittals, including Alternative Equivalent Compliance: how is this working, and are there any potential issues that need to be evaluated? vi. Special Use Review procedures: how are these working and is there any improvement needed? c) Discuss the call up procedures for development approvals, including the Village at Avon b) Recommend PZC Rules of Procedure to Council for adoption. (§7.12.040(l)) 2. 2nd Quarter 2013 Work Plan a) Identify elements of the Comprehensive Plan, and as appropriate area specific and service plans, such as the District Plans and Transportation Plan, which should be amended to meet the current vision of the Town. b) Develop the scope, public process and schedule for commencement and completion of the Comprehensive Plan Update. c) Assist, as appropriate, in the expansion of the Urban Renewal Authority (URA), should Council determine expansion of the URA is in the best interest of the Town. d) May 1st term expirations: Chris Green, Paul Anderson, and Jim Clancy e) Reappoint Village at Avon Design Review Board Representative f) DOLA/CIRSA Commissioner Training 3. 3rd Quarter & 4th Quarter 2013 Work Plan a) Review and forward Municipal Code Updates to Council, including but not limited to the following sections and processes: §7.16.020(g) – PUD Amendment/Minor Amendment Process & Criteria; §7.28.100 – Natural Resource Protection Applicability; §7.28.100 – Update Floodplain Regulations to comply with regulatory changes in the National Flood Insurance Program (NFIP). Identify areas of annual “code clean-up” in the amendments, including thirty-five (35) day PUD review requirement. b) Complete Comprehensive Plan Update process, including Council review and action. c) Commence work on other specific plans as prioritized in the 2nd Quarter. 4. 2014 Work Plan a) General Municipal Code Amendments, and annual code clean-up, including but not limited to: §7.06.020(d)(2) – Mailed Notice; §15.28 - Sign Code; §15.24 - Solid-Fuel Burning / Fireplace Regulations; §7.20 – Zone Districts, Neighborhood Commercial (NC) Density Allocation; §7.24.040 - Table of Allowed Uses; §7.28.050(f)(1) – Parking Lot Perimeter Landscaping b) Finalize Historic and/or Cultural Landmark Ordinance; appoint a Historic Preservation Committee, and adopt Rules and Procedures c) Review Comprehensive Plan sub-area plans for updates, including: February 26, 2013 PZC/TC Joint Meeting Page 3 of 3 i. Review Transportation Plan updates concerning regional collaboration and results of AGS system study ii. Review West Town Center District Investment Plan (August 2007) and recommend updates to Council. V. Schedule Next Joint Meeting Tuesday, August 27, 2013 VI. Adjourn – 5:30pm TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Patty McKenny, Assistant Town Manager Date: February 21, 2013 Agenda Topic: Resolutions for Officer Perez and Meryl Jacobs Please find attached two resolutions that recognize Town of Avon Employees Officer Santiago (Jim) Perez for his 33 years of service and Meryl Jacbos, Recreation Director, for her 28 years of service with the Town. We request that the Mayor read these resolutions at the meeting next week. Town of Avon Employees have been invited to the meeting to show their appreciation as well. Officer Perez will be recognized by his department as well with a special function, and Meryl Jacobs will be recognized at a reception held at the Recreation Center on February 28th at 2 pm (the public is invited to attend). The Town has been very fortunate to have such committed and wonderful employees as Officer Perez and Meryl Jacobs as they have both contributed greatly to Avons’ community! Attachments:  Resolutions No. 13-05 and 13-06 TOWN OF AVON, COLORADO RESOLUTION NO. 13-05, SERIES OF 2013 A RESOLUTION IN APPRECIATION OF MASTER POLICE OFFICER SANTIAGO PEREZ’S YEARS OF SERVICE WHEREAS, Master Police Officer Santiago Perez, a former U.S. Marine and Vietnam Veteran, honorably served the citizens of Avon from 1980 to 2013 as a Police Officer, Sergeant, and Master Police Officer; and WHEREAS, Santiago Perez has consistently gone above and beyond the call of duty to serve the citizens of Avon, through countless hours promoting the town, patrolling our neighborhoods, working special events, mentoring others, and making every effort to promote the vibrancy and prosperity of the community over a period of thirty-three (33) years; and WHEREAS, Santiago’s service has been exemplary in his unwavering commitment to public service, his thoughtfulness to serve our country and community, and positive energy he gave to his profession, and WHEREAS, Santiago has assumed leadership responsibility by supervising, training, and mentoring new police officers over the years; and WHEREAS, Santiago served as the Police Department’s Firearms Instructor and Defensive Tactics Instructor, ensuring that Avon’s Finest were highly trained and always prepared for duty; and WHEREAS, Santiago exemplified Community Policing and lived the Department’s Mission Statement “Make a Difference” while ensuring community education, crime reduction/deterrence, and traffic safety; and WHEREAS, Santiago lived the values of the Avon Police Department-Courage, Outstanding Leadership, Unsurpassed Integrity, Respect, Teamwork, Empathy, Openness, Uncompromising Honor, and Sacrifice and contributed positively to the Avon Police Department Team, and as he retires, he leaves the Town of Avon during a time of record lows in crime and traffic crashes; and NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, AS FOLLOWS: The sincere thanks of the Town Council, the residents and the Staff of the Town of Avon are extended to Master Police Officer Santiago Perez for his significant role in helping Avon achieve its full potential as a community where a diversity of people live, work and play and for keeping the community safe! THIS RESOLUTION IS ADOPTED THIS 26TH DAY OF FEBRUARY 2013. TOWN COUNCIL, AVON, COLORADO ATTEST: ______________________________ ________________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk TOWN OF AVON, COLORADO Resolution No. 13-06, Series of 2013 A RESOLUTION IN APPRECIATION OF MERYL JACOBS’ YEARS OF SERVICE WHEREAS, Meryl Jacobs served the citizens of Avon from 1985 to 2013 in several roles during her tenure, beginning as Recreation Coordinator and finally as Recreation Director; and WHEREAS, Meryl Jacobs has consistently gone above and beyond the call of duty to serve the citizens of Avon, by promoting community spirit through her leadership in building comprehensive recreation programs and services, and making every effort to promote the vibrancy and prosperity of the community over a period of twenty-eight (28) years; and WHEREAS, Meryl’s service has been exemplary in her unwavering commitment to the community, her thoughtfulness on creating an excellent recreation environment for families, her thoroughness on programming, her vision on establishing high synergy special events, and her positive leadership energy that she shares with her staff on a daily basis over the years , and WHEREAS, Meryl’s is to be commended and congratulated on her unique ability to succeed in the production of many family-friendly events that served the recreational, entertainment and cultural needs of residents and guests. She’s been at the forefront and involved in the planning of such events as Avon’s famous Independence Day fireworks display and Salute to the USA celebration, Summer Solstice Celebration, Vintage Grand Prix and classic car shows, Balloons, Bluegrass and Barbecue, the Easter Egg Hunt, Teen Night and Lakeside Cinema, and hosting the Mountain Man Winter Triathlon, the IronKids Triathlon, the Xterra Triathlon, the Bec-Tri and Dunk-N- Dash, hosting bike races such as the USA Pro Cycling Challenge, The Courage Classic and the Triple Bypass, as well as providing Avon as the hosting location for many soccer and lacrosse tournaments; and WHEREAS, Meryl has expanded the health and fitness programming for the community to include aerobics, yoga, tai chi, ultimate Frisbee, tennis, spin, basketball, volleyball, broomball, art workshops, heart health and CPR classes and programming to Nottingham Lake such as sailboarding, paddle boarding, paddle-boating, fishing, learning to skate, ice-fishing, and ice hockey. She has come a very long way from leading an aerobics class at town hall in the council room; WHEREAS, Meryl provided outstanding leadership, and through her mentorship and guidance, she and her staff provide excellent recreational services for the Avon community; and NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, AS FOLLOWS: The sincere thanks of the Town Council, the residents and the Staff of the Town of Avon are extended to Meryl Jacobs for her significant role in helping Avon achieve its full potential as a community where a diversity of people live, work and play. THIS RESOLUTION IS ADOPTED THIS 26TH DAY OF FEBRUARY 2013. TOWN COUNCIL, AVON, COLORADO ATTEST: ______________________________ ________________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 1 of 10 CALL TO ORDER AND ROLL CALL Mayor Rich Carroll called the meeting to order at 3:45 PM. A roll call was taken and Council members present were Dave Dantas, Chris Evans, Jennie Fancher, Todd Goulding, Buz Reynolds and Jake Wolf. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager/Town Clerk Patty McKenny, Finance Director Scott Wright, Town Engineer Justin Hildreth, Recreation Director Meryl Jacobs, Community Relations Officer Jaime Walker, as well as other staff members and the public. APPROVAL OF AGENDA Several revisions were made to the agenda. It was noted that an update would be provided about the recent emergency preparedness meeting hosted by Senator Udall. Councilor Dantas noted that Councilor Wolf was nominated for a Grammy award this year for his efforts with music education; everyone was encouraged to visit the Grammy’s website for more information about this award and his nomination. WORK SESSION a) Committee and Board Meeting Updates i) Mayor’s and Manager’s Meeting Mayor Carroll presented several highlights of the Mayor/Manager’s meeting; he noted the next meeting to be held in May and noted that there would be further discussion about regional collaboration and cross over with the M/M meetings. ii) UERWA Update Mayor Pro Tem Goulding presented several highlights from meetings held in January (proposed rate increase to cover debt service, CIP updates, topics identified through the water summit meeting). He noted that this water summit information would be reviewed by the council in the near future. iii) Eagle Air Alliance Mayor Carroll presented updates from the EGE Air Alliance meeting with their great priority being the need for additional funding for the flights into Eagle Airport. Questions were raised about the airline’s service levels related to cancellations and the lack of customer service provided in this regard. iv) Meeting with Senator Udall regarding Wildfire Preparedness Update Mayor Carroll presented an update on the meeting noting that it was held in meet with the agencies responding to this emergency ahead of time in order to ensure all groups are working together and communicating collaboratively about what services the community could expect during the fire season ahead; there would be further updates about communication between governmental agencies. b) Discussion on Understandings of Council and Staff Roles and Responsibilities when Representing the Town on Committees, Boards and Commissions Mayor Carroll presented this topic for discussion along with a revised committee update worksheet that described member representation according to in-house town committees/subcommittees, Intergovernmental Committee and Authorities, and Liaisons. PUBLIC COMMENT There were no public comments. TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 2 of 10 ACTION ITEMS a) Benchmark Lake at H.A. Nottingham Park Update on the Lake Liner Schedule and Budget – Action to delay improvement until after XTERRA (Justin Hildreth, Town Engineer and John Curutchet, Interim Recreation Director) Justin Hildreth, Town Engineer, presented this topic for Council’s consideration noting that there were three proposals outlined in the packet memo that described advantages and disadvantages to each one. He noted that estimated costs were provided for each scenario: Option 1: Construct the liner in the spring and early summer; Cost $1,783,000 Option 2: Fill the lake for the XTERRA, and construct in late summer to fall; Cost $1,616,000; estimates for repairs are $10K; Option 3: Do not fill the lake and construct in the late summer to fall; Cost $1,482,000 Some discussion ensued about the cost differences. John Curutchet, Interim Recreation Director, addressed the Town Council regarding recreation programming and the ability to host and produce the summer events, both Salute and XTERRA. He noted the value of the lake as a town amenity and asset for summertime events, and noted that the Recreation Department supported Option 3 in order to be able to hold the events. Tim Baker, Executive Director BCRC, noted that he was pleased to talk about this topic together and that the lake was a great amenity for the community. He also spoke about working with Avon to create a spectacular 4th of July week full of events with both parties working together. He noted his concern about the possibility of not having access to the lake for the XTERRA event, but understood that it would be an Avon Town Council decision about the lake liner project. There were discussions about each option. Mayor Pro Tem Goulding requested that more financial impacts should be identified if events are lost as that might impact his final decision as he consider either Option 2 or Option 3. Councilor Evans moved to approve Option 2 to address the CIP project to repair the Benchmark Lake Liner (as presented in the Town Council memo Option 2: Fill the lake for the XTERRA, and construct in late summer to fall; Cost $1,616,000; estimates for repairs are $10K). Councilor Reynolds seconded the motion and it passed with a six to one vote (Councilor Goulding – nay). Mayor Carroll accepted public input as follows:  Kathy Ryan, resident of Avon along the lake, was present to express her opinion about how great the lake is as a community amenity and wants to ensure that the lake gets filled as quickly as possible. She noted her disappointment that this would have to be done during the summer and noted her concern about the residents having to be impacted by the construction and potential odors that would be remitted from the site for a period of summer months  Fara Denhart, BecTri Event Race Director, also spoke about the need for their event to use the lake on August 3rd. It was noted that town staff would work with them to assist in helping to come up with alternatives for their event WORK SESSION c) Advanced Guideway Systems Presentation regarding Land Use and Identifying Alternative Station Connections in Eagle County (Beth Vogelsang, OV Consulting) Several representatives were present as follows, Beth Vogelsang, OV Consluting, David Krutsinger, CDOT, Transit & Rail Manager, Mike Riggs, AZTEC/TYPSA Consulting. The following list highlights some of the topics presented to the Town Council and public, AGS History, Feasibility Study, Project Overview, Locations, Project Goal, Project Process, Stations in the region identified as Vail & Eagle County Regional Airport. It was noted that station locations were determined based on 1) role of station in the system, 2) ridership demand, 3) alignment options and technology. After some discussion there was unanimous support by the Town Council for a station to be located in Avon. It was noted that the town’s new I-70 Regional Operational Facility would serve as a great amenity to having an Avon Station as it would support the mass transit being TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 3 of 10 discussed. In summary, there was Council direction that staff continues their involvement with the AGS process and actively express that Avon be considered as a location for a station. ACTION ITEMS b) CONSENT AGENDA i) Minutes from January 22, 2012 Councilor Evans moved to approve the minutes; Councilor Reynolds seconded the motion and it passed unanimously by those members voting (Councilor Goulding abstained due to his absence at that meeting). c) Proclamation for One Book One Valley (Lori Barnes, Vail Librarian) Lori Barnes, Vail Librarian, presented the Proclamation that announced the title of the book that will be highlighted for the 2013 community reading project, One Book One Valley Program as the novel “Into the Beautiful North” by Luis Alberto Urrea. Mayor Carroll read the proclamation and a roll call vote showed unanimous support of the proclamation. d) PEG Fee Grant Request from Public Access TV5 (JK Perry, Executive Director, Public Access TV 5) Review request to use monies to purchase capital equipment Scott Wright, Finance Director, presented the PEG Fee Grant request on behalf of Public Access TV5, noting that US cable companies are required to fund local organizations in order to provide training and access to media technology and cable distribution to local cable systems. He noted that te Town’s franchise agreement with Comcast is a 50 cent charge to be utilized solely for PEG access equipment and facilities; the fee is collected and remitted to the town quarterly. In recent years the amount collected has been approximately $10K, and in 2012, the town approved a grant of $20K to public access 5 for the 2011 and 2012 PEG fees received. JK Perry, Executive Director, also made the request of the Town Council and presented highlights about Channel 5, its history and future direction as follows:  New location with more space to create a more functional studio  Greater efforts to find revenue stream  Hiring of a 30 hour/week employee  Updating and improving equipment  Board to update their long range capital plans Mayor Carroll moved to approve the PEG Fee Grant request made by Public Access TV 5 to use for the purchase of capital equipment; Councilor Wolf seconded the motion and it passed unanimously. Mayor Carroll presented the Lot 61 Wyndham Vacation Club Development Application noting the following two items to be considered by the Town Council at this time. e) LOT 61 WYNDHAM VACATION CLUB DEVELOPMENT i) Public Hearing on First Reading on Ordinance No. 13-02, Series of 2013, Ordinance Approving amendments to the Avon Development Code to amend definitions, permitted uses in the Town Center Zone District, and amendments to regulations concerning time shares and fractional ownership (Jared Barnes, Planner I) ii) Public Hearing on First Reading on Ordinance No. 13-03, Series of 2013, Ordinance Approving a Rezoning Application, Major Design and Development Plan Application, Alternative Equivalent Compliance Application, and Development Agreement for “Wyndham- Lot 61”, located on Lot 61, Block 2, Benchmark at Beaver Creek (Matt Pielsticker, Planner II) TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 4 of 10 Jared Barnes, Planner I, noted that Dominic Mauriello, Mauriello Planning Group, representing the owner of Lot 61, Wyndham Vacation Resorts, applied for a code text amendment in response to issues brought forth at the December 18th, 2012 Planning and Zoning Commission meeting with regard to the legality of timeshare uses within the Town Center zone district. It was noted that Ordinance 13-02 proposed Code Text Amendments that would amend the following portions of Title 7, Development Code: Chapter 7.08, Definitions; Section 7.24.040, Table of allowed uses; Table 7.24-1, Table of allowed uses; Section 7.24.050, Use- specific regulations; and, Section 7.24.060, Special review uses. He noted the proposed legislation addressed the following items:  an amendment to AMC Chapter 7.08, Definitions, is to establish definitions for “Hotel, Motel, and Lodge” and “Vacation Club”.  an amendment to AMC Section 7.24.040, Table of allowed uses, and Table 7.24-1, Table of allowed uses, is to establish a use type of “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership/Vacation Club Ownership” and its allowance within each zone district.  an amendment to AMC Section 7.24.050, Use-specific regulations, is to establish specific limitation and conditions for “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership (“timeshare”)”.  an amendment to AMC Section 7.24.060, Special review uses, is to establish a special review use process for any conversion of an existing dwelling to a “timeshare” use. Further review of each item was made and addressed in the staff report included in the packet. It was noted that the PZC reviewed the proposed amendments at their January 15, 2013 meeting and after holding a public hearing, they recommended approval of the proposed amendments as exhibited in PZC Resolution 13- 01. Dominic Mauriello, Mauriello and Associates, had no further comments on this matter. Mayor Pro Tem Goulding moved to approve Ordinance No. 13-02, Series of 2013, Ordinance Approving amendments to the Avon Development Code to amend definitions, permitted uses in the Town Center Zone District, and amendments to regulations concerning time shares and fractional ownership with the following two staff recommendations: 1. Staff recommends the Town Council approve the first reading of Ordinance 13-02 and schedule a public hearing and second reading of the ordinance for February 26, 2013. 2. Staff recommends the Town Council waive the application fee for the Code Text Amendment application, since the Applicant proposed the proposed Code Amendments to ensure they coincided with the review of the Lot 61 Rezoning, Major Development Plan, and Alternative Equivalent Compliance applications. Councilor Evans seconded the motion and it passed unanimously. Mayor Carroll presented the next agenda item, Ordinance No. 13-03, and noted that the staff report summarized the development application components related to “Wyndham - Lot 61”. He explained that the owner of the lot, Wyndham Vacation Resorts, Inc. (“Owner”) was seeking approval of a fifty-eight (58) unit timeshare project, with supporting retail space. In addition, he noted that the Ordinance was drafted to include all items relevant to the project such as the Rezoning, the Major Development Plan, the Alternative Equivalent Compliance (“AEC”) application (collectively the “Application”), and related Development Agreement for Lot 61. Reference was made to the staff report that addressed the process, the Planning and Zoning Commission’s (“PZC”) recommendation, and Staff analysis of the applicable design and development standards, a summary of the relationship to the Town’s long range planning documents, the Application materials which included a narrative with supporting documents, as well as the full Development Plan and narrative including analysis of the proposal, responses to the mandatory review criteria, and graphic TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 5 of 10 representations. In order to process the review of this development the following concurrent reviews were made on the application identified below:  Rezoning: the existing zoning designation for the property is planned unit development and the application would rezone the property to the Town Center Zone District.  Major Development Plan: this application would approve the physical and architectural design elements of the project.  Alternative Equivalent Compliance “AEC”: the application is reviewed concurrently with the Major Development Plan, and allows variations to certain design standards. The application proposes variations to the following standards:  20% maximum irrigated area for landscaping  Requirement for commercial on all sides of the building  Building walls over forty-five feet shall step back  Requirement for storefront windows and entrances on all sides of the building In addition, a review in conjunction with the Rezoning and Major Development Plan, the applicant and staff have been cooperatively preparing a development agreement which implements elements of the proposed public private partnership. Key aspects of the Development Agreement include:  Amenities Fees will be remitted to town based on a dollar amount/per point total of interest  Public improvements and/or reimbursement obligations on town right of way  Agreement to relocate western property line with a future subdivision  Ongoing maintenance obligations  Snowmelt fee agreement to utilize town’s heat recovery system Dominic Mauriello, Mauriello Planning Group, introduced the project team. Ted Hunter, Senior VP with Wyndham Vacation Resorts, Development Planning and Construction, addressed the town council with some general comments about the company & the project. Others present as part of the project group included Amanda Hanks, Wyndham Vacation Resorts, Becky Stone, Oz Architecture, Greg Perkins serving as legal counsel. The following points were highlighted in the presentation:  Description of Company was made: Wyndham Vacation Resorts: world’s largest development and marketer of flexible points-based vacation ownership products  Project Goals: identified several points of importance to the project  Reviews by Planning & Zoning Commission were listed by dates  Background history of the property in relation to its zoning and Judgment on the 2004 application  Description of the Original Lot 61 and what was given to the town as an exaction  Diagram of the premises  Meetings and letter from Avon Center Representatives  Photos of adjacent properties showing relationships of height and stories of buildings  Project proposal details and diagrams of the premises by level 1, 2, and roof plan  Circulation diagram  Site Plan  Elevations of the project from all sides and entry gable were shown  Transit area diagrams reflecting landscaping in the are  Materials were shown  Drive by recording was shown as well as mock up flyby of the with the project and photos from multiple locations  Parking Operations and Management  Parking and Valet Plan diagram TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 6 of 10  Scheduling of Trash Removal  Garage air venting  Proposed Zoning: Town Center in order to zone the property correctly  Zoning Analysis table  Reference to the 1) Avon West Town Center Plan, 2) District-Wide Guidelines, and 3) Investment Plan  Compliance with both the criteria of the rezoning and the major development plan  Compliance with the Alternative Equivalence Compliance criteria  General Public Benefits Criteria: transit center easement , pedestrian access, increase revenue to town Scott Wright, Finance Director, addressed the financial analysis of the project with a review of Exhibit 1, Wyndham’s revenue projections. He noted that the exercise was a revenue analysis not a municipal cost analysis to the town. Four revenues were reviewed, property taxes, timeshare amenities fee, real estate transfer tax, and accommodation / sales tax on room rentals only. There was some discussion about the real estate transfer tax projections; there was consensus to better understand how those projections were made. There was mention of some municipal cost of services impacts related to recreation, transportation, public works, parks and police. Mauriello finished with some final slides addressing the following:  Revenue projections in graph formats and final highlights of the financial impacts to the town of over $6M to the town and its authorities over the next nine years.  Planning and Zoning Commission Conditions were highlighted  Landscaping Areas reflecting “who” maintains where  Development Agreement Exhibits that show Areas A, B, C  Diagram that shows snow melt areas and “who” maintains where There were some discussions regarding the following aspects of the project:  Too little retail space for the project  Trash Removal Proposal  Construction and Maintenance of Path along Lettuce Shed Lane  Request for a final mockup of the materials to be used on the project  Operations of the generator  Question about bench locations  Financial assumptions for the real estate transfer tax Mayor Carroll opened the public hearing. He noted that there were letters included in the materials from 1) Ticino owner Charles Frey, and 2) Johnson & Repucci LLP from Eben Clark dated 12/13/12 representing Avon Center at Beaver Creek. No other comments were heard that evening and the hearing was closed. Town Council comments, questions and discussion were heard at this time and some of the items addressed included the following:  Preference for more retail to be offered with the project  Concerned about the pedestrian experience for Main Street and in this area of the project  Preferred to see a more detailed mockup of the materials  Concerned about providing something more for the guests, more retail  Is there the ability to allow for farmers market and/or vendors  How does the generator operate and allow for venting  The trash removal process coming out onto lettuce shed lane was of great concern  Great review by staff, the process has been exceptional between the town staff and the applicant TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 7 of 10  Landscaping and hardscape items are not about the cost of either construction or maintenance, but rather about creating the consistency of the look of the area around the project The applicant, Ted Hunter, stated for the record that the project would not go forward with any requirement to include more food or retail in the space, they would not be able to convert units to anything and stay financially on target with the project, the fitness center would be a must, and the trash room could not be converted to another use as it has other functional items in the room. The applicant agreed to further review the trash removal aspect of the plan. A review was made of the conditions from the PZC and the staff comments as follows: 1) Landscaping to the west of lettuce shed lane path: there would be further refinement of this as defined in the motion 2) Landscaping to north of the building: there would be further refinement of this as defined in the motion 3) Building height must be confirmed at foundation: this was stricken since this is a code requirement 4) All potential exterior signage must be approved by the PZC: this was stricken since this is a code requirement 5) Prior to issuance of any permits related to the construction 6) Pursuant to 7.28.090: this was stricken since it is a Code requirement for common spaces 7) Final approval of the building materials: this item was delegated to PZC 8) The applicant will provide a drawing of the proposed mockup for review & approval by the PZC prior to the construction: this was agreed upon by the applicant; review was delegated to PZC 9) The air intake louvers adjacent to the bus stop be relocated: this was determined as no longer an issue A short break was taken to allow the town attorney to draft a motion that would summarize the discussion into recommended conditions; the meeting reconvened at 9 PM and a vote was taken. Mayor Pro Tem Goulding moved to approve Ordinance No. 13-03, Ordinance Approving a Rezoning Application, Major Design and Development Plan Application, Alternative Equivalent Compliance Application, and Development Agreement for “Wyndham- Lot 61”, located on Lot 61, Block 2, Benchmark at Beaver Creek with direction to town staff and the applicant to address the following matters for second reading: 1. Development Agreement and Development Plan shall be amended to not permit trash removal on Lettuce Shed Lane. 2. Development Agreement shall provide that on the west side of the building, Town shall fund, construct and maintain the Lettuce Shed Lane pedestrian path and landscaping to the west side of path. Town and Applicant shall coordinate landscaping on Lettuce Shed Lane to insure consistency in planting. 3. Applicant shall agree to provide a mock-up of exterior materials which shall be reviewed by Avon Planning and Zoning Commission with the right to appeal to the Town Council in accordance with the Avon Development Code procedures. 4. The Development Agreement shall be amended to provide that testing of the generator shall occur no more frequently than once a month and shall define hours of testing. 5. The Development Plan shall be amended to define location and type of bench. 6. Town Staff shall verify financial assumptions with Applicant for real estate transfer tax. Councilor Evans seconded the motion and it passed unanimously. Mayor Carroll noted that second reading and the public hearing on Ordinance No. 13-03 would occur on February 26, 2013. TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 8 of 10 f) VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION i) Update on Settlement Implementation (Eric Heil, Town Attorney) Eric Heil, Town Attorney, presented an update regarding the many settlement documents pending final review and execution. He noted that they continue to review all details of the documents. He noted that March 12th would be a comprehensive review of the Village documents as follows:  Amendments to the mixed use and commercial declarations  Add on retail sales fee collection services agreement  Asphalt overlay agreement  Various Conveyance documents (4 or 5) He noted a proposed final deadline for executing water documents as May. It was noted that all escrow documents would need to be finalized prior to any bond reissuance by the Water Authority. g) First Reading of Ordinance 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments (Virginia Egger, Town Manager) h) Resolution 13-04, Series of 2013, Resolution Transferring Funds Totaling $30,100.00 from the General Fund Community Development Department to the General Fund Administrative Services Department for the Hiring of a Part-time Administrative Receptionist (Virginia Egger, Town Manager) Virginia Egger, Town Manager, presented both Ordinance No. 13-04 and Resolution No. 13-04. She noted that the analysis for these topics was outlined in the Council memo packets. She noted that staff had made a full and critical review of both the Recreation and Public Works Departments in light of recent vacancies at the director levels. Their analysis resulted in a recommendation to reorganize responsibilities under a department called Parks and Recreation Department with three division, Parks & Grounds Division, Recreation Division, and Buildings Division. It was noted that the division remaining in Public Works would include Fleet, Transportation and Roads & Bridges. She noted numerous benefits to the plan as follows:  Reduces management overlap, oversight, negotiation  Employee efficiencies in communication  Special Events will receive enhanced and unified support  Improves and standardizes procurement practices  Ends fragmented maintenance of facilities across departments In light of these changes, she noted that the Town’s Charter required Council’s approval establish the administrative departments. She noted that there was some cleanup language suggested in order to remove Human Resources and Transportation as departments since in reality they are divisions under a department umbrella. Mayor Pro Tem Goulding moved to approve Ordinance 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments. Councilor Reynolds seconded the motion and it passed with a six to one vote (Wolf – nay). There was also a review of Resolution No. 13-04 that proposed transferring funds between departments. She noted that the administration department was understaffed and there was not a need for filling the Community Development Director position at this time in light of the levels of activity in the department. She indicated that both planners would manage the development applications with her oversight as well the group would focus on economic development along with the finance staff. She requested that a new part- TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 9 of 10 time receptionist position would assist with implementing Laserfiche, assist with cashiering, and provide a central location for the public to conduct business. She would continue to evaluate job descriptions for the Community Development staff, including the planners and the GIS analyst position. She noted that both the GIS and court clerk positions would assist with some planning tech duties. It was noted that the resolution if approved would allow a budget transfer from Community Development to Administration to allow for these proposed staffing recommendations. Mayor Pro Tem Goulding moved to approve Resolution 13-04, Series of 2013, Resolution Transferring Funds Totaling $30,100.00 from the General Fund Community Development Department to the General Fund Administrative Services Department for the Hiring of a Part-time Administrative Receptionist. Councilor Wolf seconded the motion and it passed unanimously. WORK SESSION - CONTINUED 1) Review of Town of Avon Vision Statement, 20132014 Strategy Plan and 2013 Work Plan, developed at the January 14th Council Retreat Mayor Carroll presented the topic for Council input and discussion. Town Manager Virginia Egger noted that a dynamic review of the document would be done on a quarterly or semiannual basis so as to keep track of progress. Mayor Carroll requested consideration of the following ideas:  Would the name be better stated as the town’s “strategic Plan for 2013” rather than vision  Include in the 3rd paragraph something about how to develop the town’s community spirit  Include a reference to “green initiatives” or reference to some type of stewardship in decision making with our natural resources  Updating the private public partnership document; the investment policy  Is the work plan too aggressive  Would council consider another retreat in 2013 It was noted that revisions would be made and the Council would consider a resolution adopting the plan at the next meeting. 2) Councilor Evans Letter Regarding Residency, Report only MAYOR REPORT 1) Future Agenda Items Mayor Carroll asked that council members forward any agenda suggestions to him. It was noted that the Council would meet with the PZC members at the 2/26/13 council meeting; an agenda for that joint meeting would be drafted. EXECUTIVE SESSION At 9:45 pm, Mayor Pro Tem Goulding moved to convene to an Executive Session to discuss the following: 1) Discussion to determine positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators, under C.R.S. §24-6-402(2)(e) related to economic development 2) Discussion of a personnel matter under C.R.S. §24-6-402(2)(f) The motion was seconded by Councilor Reynolds and the members met in Executive Session. Mayor Carroll noted that the executive session adjourned at 11:30 PM and they were now reconvened in regular session. He asked if any Town Council member believed that any discussion in executive session was inappropriate and not related to the topic and purpose of the executive session to please state the objections at this time; there were no objections. TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 12, 2013 MEETING BEGINS AT 3:45 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 12, 2013 Page 10 of 10 There being no further business to come before the Council, the regular meeting adjourned at 11:30 PM. RESPECTFULLY SUBMITTED: _________________________________ Patty McKenny, Town Clerk APPROVED: Rich Carroll ________________________________ Dave Dantas ________________________________ Chris Evans ________________________________ Jennie Fancher ________________________________ Todd Goulding ________________________________ Albert “Buz” Reynolds ________________________________ Jake Wolf ________________________________ TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Jared Barnes, Planner I Date: Friday, February 20, 2013 Agenda topic: Code Text Amendment for Timeshare, Interval Ownership, Fractional Fee Ownership and Vacation Clubs Update At their February 12, 2013 meeting, the Town Council approved the first reading of Ordinance 13-02. They also recommended that the application fee be waived since the applicant applied for this code text amendment so that it would track concurrently with the Lot 61 applications. Staff recommends that the Town Council approve the second reading of Ordinance 13-02, as recommended in this report. Summary of Requests Dominic Mauriello, Mauriello Planning Group, representing the owner of Lot 61, Wyndham Vacation Resorts, has applied for a code text amendment. The code text amendment is in response to issues brought forth at the December 18th, 2012 Planning and Zoning Commission meeting with regard to the legality of timeshare uses within the Town Center zone district. Please find Draft Ordinance 13-02 (Attachment A) attached to this report for your review and consideration. The proposed Code Text Amendments would amend the following portions of Title 7, Development Code: Chapter 7.08, Definitions; Section 7.24.040, Table of allowed uses; Table 7.24-1, Table of allowed uses; Section 7.24.050, Use-specific regulations; and, Section 7.24.060, Special review uses. An amendment to AMC Chapter 7.08, Definitions, is to establish definitions for “Hotel, Motel, and Lodge” and “Vacation Club”. An amendment to AMC Section 7.24.040, Table of allowed uses, and Table 7.24-1, Table of allowed uses, is to establish a use type of “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership/Vacation Club Ownership” and its allowance within each zone district. An amendment to AMC Section 7.24.050, Use-specific regulations, is to establish specific limitation and conditions for “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership (“timeshare”)”. An amendment to AMC Section 7.24.060, Special review uses, is to establish a special review use process for any conversion of an existing dwelling to a “timeshare” use. Each of these proposed changes will be discussed further throughout this Staff Report. The PZC reviewed these proposed amendment at their January 15, 2013 meeting. After holding a public hearing, they recommended approval of the proposed amendments as exhibited in PZC Resolution 13-01 (Attachment B). Zoning Code Background Prior to 2010, the Town’s zoning code was governed by Title 17, Zoning, which listed out each zone district separately and included dimensional standards as well as a list of permitted and special review uses for each district. Below, as an example, are the standards for the Town Center zone district: Zoning Text Amendment for “Timeshares” Page 2 17.20.020 Town Center – TC. (a) Intention. The Town Center District is intended to provide sites for a variety of uses such as lodges, commercial establishments and offices in a predominantly pedestrian environment. In accordance with the Comprehensive Master Plan, these regulations are intended to provide development which distinguishes the Town Center from other areas within the Town. (b) Allowed uses. The following uses shall be permitted in the TC District: (1) Retail stores; (2) Specialty shops; (3) Restaurants, excluding drive-through windows; (4) Cocktail lounges; (5) Personal service shops; (6) Professional offices; (7) Hotels; (8) Lodges; (9) Apartments; (10) Condominiums; (11) Indoor recreation and/or entertainment facilities; (12) Theaters; (13) Financial institutions; (14) Bed and breakfast lodge; (15) Church; (16) Additional uses determined to be similar to allowed uses in accordance with the intent of this zone district. (c) Special review uses. (1) Public transportation facilities; (2) Public parking facilities; (3) Timeshare, interval ownership and fractional fee ownership projects; (4) Aboveground public utility installations; (5) Drive-through windows; (6) Medical center/hospital. (d) Development standards. (1) Minimum lot size: thirty thousand (30,000) square feet; (2) Maximum building height: eighty (80) feet; (3) Minimum building setbacks: Front: twenty-five (25) feet; Side: seven and one-half (7.5) feet; Rear: ten (10) feet; (4) Maximum site coverage: fifty percent (50%); (5) Minimum landscaped area: twenty percent (20%); (6) Maximum density: thirty (30) dwelling units per acre of buildable area or ninety (90) accommodation units per acre of buildable area. (Ord. 97-14; Ord. 91-10 §1(part)) During 2010, the Town embarked on the adoption of Title 7, Development Code. This new title repealed Titles 16, Subdivision, and 17, Zoning, and adopted a new unified development code. One of the larger changes to the zoning aspect was the adoption of a table that would govern permitted and special review uses throughout each zone district, Section 7.24.040, Table of allowed uses, and Table 7.24-1, Table of allowed uses. This table was first proposed by the Town’s consultant, Clarion Associates, and was later modified by the Zoning Advisory Committee and Town Staff prior to the public review process. Through these modifications the use categories “Household Living”, “Group Living”, and “Accommodation” were modified. During one draft, Town Staff determined that zoning should not be administered based on type of ownership, but rather on the style of unit configuration. The Town Staff modified the above-mentioned use categories as seen below: Zoning Text Amendment for “Timeshares” Page 3 Table 1 As exhibited above, through this process the use type “Dwelling, Timeshare, Interval Ownership, or Fractional Fee Ownership” was completely removed. The intent at the time was that “Dwelling, Multi- family” or “Lodging” would suffice for “Timeshare” uses as the building would house multiple families or be of a lodging nature. Ultimately the following use types were adopted by the Town Council for residential uses: Table 2 Planning Analysis The proposed modifications outlined in Draft Ordinance 13-02, will not only provide clarity on Timeshare uses being allowed within various zone districts, but will also cleanup specific regulations related to Timeshare uses that require special review. First, Section 2 of Ordinance 13-02 proposes to amend Section 7.08, General Definitions, to include definitions for “Hotel, Motel and Lodge” as well as “Vacation Club”. The definition of “Hotel, Motel and Lodge” is different from the previous definitions within Title 17, Zoning, but does convey the same intent of Zoning Text Amendment for “Timeshares” Page 4 the previously adopted definitions for “Lodge” and “Hotel”. The definition of “Vacation Club” is a new definition for the Town’s zoning code. This definition directly links the term “Vacation Club” to “Dwelling, fractional fee ownership” which is the same definition as “Dwelling, timeshare”. By linking these definitions the Town is stating that all forms of fractional fee ownership or “Timeshares” shall be permitted by zoning in the same manner, weather it is a Vacation Club or a Timeshare property. Second, Section 3 of Ordinance 13-02 proposes to amend both Section 7.24.040, Table of allowed uses, and Table 7.24-1,Table of allowed uses. Upon further review of the definition for “Dwelling, multi-family” it was clear that it was not intended to include “Timeshare” uses. The proposed modifications will provide for use allowances within various zone districts for “Vacation Club”, “Dwelling, timeshare”, “Dwelling, fractional fees”, and other similar uses. Furthermore, the proposed changes will rename the “Lodging” use type to “Hotel, Motel, and Lodge” which will coincide with the new definition. These proposed changes will modify the use table as follows: Table 3 Sections 4 and 5 of Ordinance 13-02 propose to amend the existing §7.24.050, Use-specific regulations, as well as §7.24.060, Special Review Uses, to provide more clarity over which regulations are use-specific and which should be reviewed through the special review use process. In Table 2, above, the stricken row for “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership” referred to use-specific regulations as outlined in §16.04.050(a). This reference, although stricken from the Use Table, remained in the code and due to renumbering prior to adoption became §7.24.060(a). When reviewing this section a portion of the language relates to conversion of existing dwelling units to timeshare uses, while other portions pertain to specific regulations regarding Timeshare uses. Staff is of the opinion that not all of these subsections should trigger the need for a Special Review Use process, but should be included during the regular review of a new Timeshare project, or use-specific regualtions. Section 4 of Ordinance 13-02 proposes to enact a new subsection (d) within §7.24.050, Use-specific regulations. The new subsection is identical to the existing language of §7.24.060(a)(1)(iii-v), with the exception that proposed subsection (d)(i) includes a provision that allows the Town to permit marketing and sales on public property or facilities. Zoning Text Amendment for “Timeshares” Page 5 Section 5 of Ordinance 13-02 proposes to repeal the existing §7.24.060(a) and re-enact a rewritten section. Although the language of the proposed section is different the content and intent remains the same as the currently adopted language. The current language discusses the special review criteria required for a conversion from an existing dwelling unit to a Timeshare unit. The proposed language has the same purpose, but provides additional clarity with respect to the process and the compliance with applicable codes. The proposed language clearly states that a conversion will trigger a Special Review Use process, but only if the use is permitted in the underlying zone district. The proposed language retains the criteria of the current language by requiring compliance with: fire, health and building codes; requirements of the zone district the proposal is in; and, applicable standards of the development code. The proposed language does expand the requirements to include compliance with the proposed Use-Specific regulations (§7.24.050(d)) and better defines how a conversion is classified. Staff is of the opinion that the proposed code text amendment, as outlined above and included in Ordinance 13-02, promotes and enacts the intent of the Development Code while it was being drafted, and clarifies how the Town permits and administers zoning related to Timeshares, Interval Ownerships, Fractional Fee Ownerships, and Vacation Clubs. The proposed code text amendment also modifies and clarifies existing language so that pertinent sections either apply to all “Timeshare” projects or triggers a Special Review Use process. The proposed Code Text Amendments comply with the review criteria listed below. They have no impact on the health, safety, and general welfare of the community and implement the goals and policies of the Avon Comprehensive Plan. Specifically, a principal Land Use Goal (Goal C.1) desires to “provide a balance of land uses that offers a range of housing options, diverse commercial and employment opportunities, inviting guest accommodations, and high quality civic and recreational facilities, working in concert to strengthen Avon’s identity as both a year-round residential community and as a commercial, tourism and economic center.” By allowing “Timeshare” uses within the Town Center and Mixed Use Commercial zone districts the Town is increasing the types of housing options to include Condominiums, Hotels, Lodges, and “Timeshares”. By permitting “Timeshares” within the Town Center zone district, one of the Planning Principals of both the West and East Town Center Districts, to develop residential and lodging uses, can be realized. The proposed Code Text Amendments also promote the purposes of the Development Code by allowing for efficient uses of land and providing zone districts that reduce the demand on public services. By placing lodging and “Timeshare” uses in the urban core, guests and residents are encouraged to walk or use mass transit instead of driving. In addition, the proposed code text amendments are desirable for clarity of the Development Code and respond to a pending development application. Review Criteria §7.16.040(c), Code Text Amendment Review Criteria. The PZC and Town Council shall use the following review criteria as the basis for recommendations and decisions on applications to amend the text of the Development Code: (1) The text amendment promotes the health, safety, and general welfare of the Avon Community; (2) The text amendment promotes or implements the goals and policies of the Avon Comprehensive Plan; (3) The text amendment promotes or implements the purposes stated in this Development Code; or Zoning Text Amendment for “Timeshares” Page 6 (4) The text amendment is necessary or desirable to respond to changed conditions, new planning concepts, or other social or economic conditions. Staff Recommendation(s): Staff has two recommendations for the Town Council: 1. Staff recommends the Town Council approve the second reading of Ordinance 13-02; and, 2. Staff recommends the Town Council move to waive the application fee for the Code Text Amendment application, since the Applicant proposed the proposed Code Amendments to ensure they coincided with the review of the Lot 61 Rezoning, Major Development Plan, and Alternative Equivalent Compliance applications. Attachments: A: Draft Ordinance 13-02 B: PZC Resolution 13-01 Page 1 of 6 Ord No. 13-02 Amending Avon Development Code TOWN OF AVON, COLORADO ORDINANCE 13-02 SERIES of 2013 AN ORDINANCE AMENDING THE AVON DEVELOPMENT CODE TO AMEND DEFINITIONS, AMEND PERMITTED USES IN THE TOWN CENTER ZONE DISTRICT AND TO AMEND REGULATIONS CONCERNING TIME SHARES AND FRACTIONAL OWNERSHIP. RECITALS WHEREAS, the Town of Avon (“Town”) adopted Ordinance No. 10-14 adopting the Avon Development Code (“ADC”); WHEREAS, OZ Architecture and Mauriello Planning Group LLC (“Applicant”) submitted a Code Text Amendment application to the Town as the authorized representative for Wyndam Vacation Resorts, Inc., the owner of property in the Town described as 75 Benchmark Road, Avon, CO 81620; WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on January 15, 2013, after publishing and posting notice as required by law, considered all comments, testimony, evidence and staff reports provided by the Town staff, considered such information prior to formulating a recommendation, then took action to adopt findings of fact and make a recommendation of approval to the Town Council; WHEREAS, after conducting these noticed Public Hearings, PZC made the required findings to approve the application and adopted PZC Resolution 13-01, recommending approval to the Town Council; WHEREAS, the Town Council of the Town of Avon held public hearings on February 12, 2013 and February 26, 2013 after posting notice as required by law, considered all comments, testimony, evidence and staff reports provided by the Town staff prior to taking any action on the Application; WHEREAS, pursuant to AMC §7.16.040(c), Review Criteria, the Town Council has considered the applicable review criteria for a Code Text Amendment; WHEREAS, the Town Council finds approval of the Application is in compliance with the mandatory review criteria; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with state law, the Avon home rule charter and the Avon Development Code 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 Attachment A Page 2 of 6 Ord No. 13-02 Amending Avon Development Code first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies the proposed zoning or other matters in this Ordinances. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendment to Section 7.08.010, General Definitions. Section 7.08.010, General Definitions, of the ADC is hereby amended to add the following definitions: “Hotel, Motel and Lodge means a building, excluding Bed and Breakfast, containing any room or group of rooms used primarily for short term transient lodging for a total continuous duration of less than thirty (30) days and which may include accessory uses such as offices, laundry facilities, recreational facilities, lobbies, lounges, kitchen and dining facilities, meeting rooms, retail and other similar accessory uses commonly associated with hotels, motels and lodges. Vacation Club means a partnership, corporation, limited liability company or other legal entity that is the record owner, as reflected in the records of the Eagle County Tax Assessor, of a building containing one or more units which meet the definition of Dwelling, timeshare, interval ownership or fractional fee ownership and it permits possession of such dwelling(s) by its members and/or guests of its members on a periodic basis in consideration of such member’s fractional ownership interest in the building or property or membership in the entity.” Section 3. Amendment to Section 7.24.040, Table of allowed uses and Table 7.24-1, Table of allowed uses. Section 7.24.040, Table of allowed uses, and Table 7.24-1, Table of allowed uses, of the ADC is amended as follows: The column for the Town Center (TC) zone district shall be amended in the Use Category “Household Living” to add the designation “P” for Permitted Use in the following Use Types: Dwelling, Townhouse; Dwelling, Multi-Family; and, Dwelling, live/work. The Use Category “Household Living” shall be further amended to add a new row, entitled, “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership/Vacation Club” and shall designate “S” for Special Review Use in the Neighborhood Commercial (NC) zone district, “P” for Permitted Use in the Mixed-Use Commercial (MC) zone district and “P” for Permitted Use in the Town Center (TC) zone district. In the Use Category “Accommodation”, the reference in the second row to “Lodging” shall be changed to “Hotel, Motel and Lodge”. Attachment A Page 3 of 6 Ord No. 13-02 Amending Avon Development Code The above mentioned modifications are exhibited in the table below: Section 4. Amendment to Section 7.24.050, Use-specific regulations. Section 7.24.050, Use-specific regulations, of the ADC shall be amended to enact a new subsection (d) to read as follows: “(d) Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership (“timeshare”) must comply with the following limitations and conditions: (i) The marketing and sales practices for a timeshare development shall not include solicitation of prospective purchasers of timeshare units on any street, walking mall, courtyard or other public property or facility unless otherwise permitted by the Town. (ii) The parking requirement for a timeshare development shall be calculated by applying the parking standard for the underlying zone district for lodge uses. The parking requirement shall be calculated based on the maximum number of proposed lock-off units in the development, unless an appropriate level of guest transportation services, such as vans, car-share or shuttle vehicles, are offered as an alternative to having owners and guests using their own vehicles in Avon. (iii) The owner of a timeshare shall be prohibited from storing a vehicle in a parking space on-site when the owner is not using the estate.” Section 5. Amendment to Section 7.24.060, Special review uses. Section 7.24.060(a)(1) of the ADC shall be repealed and re-enacted in its entirety to read as follows: “7.24.060 Special review uses. (a) Residential Uses – Household Living. (1) Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership: Attachment A Page 4 of 6 Ord No. 13-02 Amending Avon Development Code (i) The conversion of an existing building, structure or property to a Dwelling, timeshare, interval ownership or fractional fee ownership (“timeshare”) shall be subject to the Special Review Use process if such use is Permitted in the underlying zone district. In addition to the Special Review Use procedures and criteria for review, all conversions to timeshare ownership shall comply with the Town’s adopted fire, health and building codes; shall comply with the requirements of the zone district in which they are located; shall comply with all other applicable standards of this Code; and shall comply with the Use-specific regulations for Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership. For the purposes of this sub-section 7.24.060(a)(1) “conversion” shall mean the change of ownership from a non-timeshare ownership to a timeshare ownership as defined by Dwelling, timeshare, interval ownership or fractional fee ownership.” Section 6. Correction of Errors. Town Staff is authorized to insert proper dates, references to recording information and make similar changes, and to correct any typographical, grammatical, cross-reference, or other errors which may be discovered in any documents associated with this Ordinance and documents approved by this Ordinance provided that such corrections do not change the substantive terms and provisions of such documents. Section 7. 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 8. Effective Date. This Ordinance shall take effect thirty days after final adoption in accordance with Section 6.4 of the Avon Home Rule Charter. Section 9. 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 10. 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 at the Avon Town Hall, Avon Recreation Center and Avon Public Library, 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 Attachment A Page 5 of 6 Ord No. 13-02 Amending Avon Development Code during normal business hours. The Town Clerk is further ordered to publish a notice stating a vested property right has been created in accordance with Section. 7.16.140(d)(2) of the Avon Municipal Code. Section 11. Final Action. Approval and final adoption of this Ordinance on second reading constitutes the Town’s final action for the purposes of any appeal, legal challenge or referendum seeking reconsideration of the decision of the Town Council with respect to this Ordinance and matters approved hereby in accordance with Section 7.16.020(f)(5) of the Avon Municipal Code and in accordance with Chapters VI and VII of the Avon Home Rule Charter. [EXECUTION PAGE FOLLOWS] Attachment A Page 6 of 6 Ord No. 13-02 Amending Avon Development Code INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED on February 1, 2013 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on February 12, 2013, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado. ____________________________ Rich Carroll, 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 the 26th day of February, 2013. ____________________________ Rich Carroll, 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 Attachment A TOWN OF AVON, COLORADO PLANNING COMMISSION RESOLUTION 13-01 SERIES OF 2013 A RESOLUTION RECOMMENDING APPROVAL OF AMENDMENTS TO TITLE 7 OF THE AVON DEVELOPMENT CODE TOI AMEND DEFINITIONS< AMEND PERMITTED USES IN THE TOWN CENTER ZONE DISTRCIT AND TO AMEND REGULATIONS CONCERNING TIMESHARES AND FRANCTIONAL OWNERSHIP WHEREAS, the Town of Avon (“Town”) adopted Ordinance No. 10-14 adopting the Avon Development Code (“ADC”); WHEREAS, OZ Architecture and Mauriello Planning Group LLC (“Applicant”) submitted a Code Text Amendment application to the Town as the authorized representative for Wyndam Vacation Resorts, Inc., the owner of property in the Town described as 75 Benchmark Road, Avon, CO 81620; WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on January 15, 2013, after publishing and posting notice as required by law, considered all comments, testimony, evidence and staff reports provided by the Town staff, considered such information prior to formulating a recommendation, then took action to adopt findings of fact and make a recommendation of approval to the Town Council; WHEREAS, the Planning & Zoning Commission finds the Application complies with the review criteria set forth in Sections 7.16.040(c) as described below; and, WHEREAS, it is the Planning and Zoning Commission’s opinion that the health, safety and welfare of the citizens of the Town of Avon would be enhanced and promoted by the adoption of the amendments to Section 7.08.010, General Definitions, Section 7.24.040, Table of allowed uses, Table 7.24-1, Table of allowed uses, Section 7.24.050, Use-specific regulations, and Section 7.24.060, Special review uses, of the Avon Development Code. NOW THEREFORE, BE IT RESOLVED, that the Planning and Zoning Commission hereby recommends that the Town Council of the Town of Avon approve the attached amendments (“Exhibit A to Resolution 12-04”) with the following findings: (1) The changes to Section 7.08.010, General Definitions, Section 7.24.040, Table of allowed uses, Table 7.24-1, Table of allowed uses, Section 7.24.050, Use-specific regulations, and Section 7.24.060, Special review uses, of the Avon Development Code comply with the criteria set forth in Section 7.16.040(c) of the Avon Municipal Code. Attachment B At t a c h m e n t B Resolution 13-01, Code Text Amendment for Vacation Clubs and Timeshares 3 “Exhibit A to PZC Resolution 13-01” Section 1. Amendment to Section 7.08.010, General Definitions. Section 7.08.010, General Definitions, of the ADC is hereby amended to add the following definitions: “Hotel, Motel and Lodge means a building, excluding Bed and Breakfast, containing any room or group of rooms used primarily for short term transient lodging for a total continuous duration of less than thirty (30) days and which may include accessory uses such as offices, laundry facilities, recreational facilities, lobbies, lounges, kitchen and dining facilities, meeting rooms, retail and other similar accessory uses commonly associated with hotels, motels and lodges. Vacation Club means a partnership, corporation, limited liability company or other legal entity that is the record owner, as reflected in the records of the Eagle County Tax Assessor, of a building containing one or more units which meet the definition of Dwelling, timeshare, interval ownership or fractional fee ownership and it permits possession of such dwelling(s) by its members and/or guests of its members on a periodic basis in consideration of such member’s fractional ownership interest in the building or property or membership in the entity.” Section 2. Amendment to Section 7.24.040, Table of allowed uses and Table 7.24-1, Table of allowed uses. Section 7.24.040, Table of allowed uses, and Table 7.24-1, Table of allowed uses, of the ADC is amended as follows: The column for the Town Center (TC) zone district shall be amended in the Use Category “Household Living” to add the designation “P” for Permitted Use in the following Use Types: Dwelling, Townhouse; Dwelling, Multi-Family; and, Dwelling, live/work. The Use Category “Household Living” shall be further amended to add a new row, entitled, “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership/Vacation Club” and shall designate “S” for Special Review Use in the Neighborhood Commercial (NC) zone district, “P” for Permitted Use in the Mixed-Use Commercial (MC) zone district and “P” for Permitted Use in the Town Center (TC) zone district. In the Use Category “Accommodation”, the reference in the second row to “Lodging” shall be changed to “Hotel, Motel and Lodge”. The above mentioned modifications are exhibited in the table below: Attachment B Resolution 13-01, Code Text Amendment for Vacation Clubs and Timeshares 4 Section 3. Amendment to Section 7.24.050, Use-specific regulations. Section 7.24.050, Use-specific regulations, of the ADC shall be amended to enact a new subsection (d) to read as follows: “(d) Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership (“timeshare”) must comply with the following limitations and conditions: (i) The marketing and sales practices for a timeshare development shall not include solicitation of prospective purchasers of timeshare units on any street, walking mall, courtyard or other public property or facility unless otherwise permitted by the Town. (ii) The parking requirement for a timeshare development shall be calculated by applying the parking standard for the underlying zone district for lodge uses. The parking requirement shall be calculated based on the maximum number of proposed lock-off units in the development, unless an appropriate level of guest transportation services, such as vans, car-share or shuttle vehicles, are offered as an alternative to having owners and guests using their own vehicles in Avon. (iii) The owner of a timeshare shall be prohibited from storing a vehicle in a parking space on-site when the owner is not using the estate.” Section 4. Amendment to Section 7.24.060, Special review uses. Section 7.24.060(a)(1) of the ADC shall be repealed and re-enacted in its entirety to read as follows: “7.24.060 Special review uses. (a) Residential Uses – Household Living. (1) Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership: (i) The conversion of an existing building, structure or property to a Dwelling, timeshare, interval ownership or fractional fee ownership (“timeshare”) shall be subject to the Special Review Use process if such use is Permitted in the Attachment B Resolution 13-01, Code Text Amendment for Vacation Clubs and Timeshares 5 underlying zone district. In addition to the Special Review Use procedures and criteria for review, all conversions to timeshare ownership shall comply with the Town’s adopted fire, health and building codes; shall comply with the requirements of the zone district in which they are located; shall comply with all other applicable standards of this Code; and shall comply with the Use-specific regulations for Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership. For the purposes of this sub-section 7.24.060(a)(1) “conversion” shall mean the change of ownership from a non-timeshare ownership to a timeshare ownership as defined by Dwelling, timeshare, interval ownership or fractional fee ownership.”.” Attachment B Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 1 of 19       TOWN COUNCIL REPORT      To:  Honorable Mayor Rich Carroll and Avon Town Council  From:   Matt Pielsticker, Planner II        Date:   February 21, 2013  Agenda topic:  Public Hearing on Second and Final Reading of Ordinance 13‐03      Wyndham – Lot 61          Introduction:  This Report summarizes the development applications related to “Wyndham ‐ Lot 61”, which will be  reviewed at the February 26, 2013 Town Council meeting.  The owner of the lot, Wyndham Vacation  Resorts, Inc. (“Owner”) is seeking approval of a fifty‐eight (58) unit timeshare project, with supporting  retail space.   As drafted, Ordinance 13‐03 would approve a Rezoning, Major Development Plan, Alternative  Equivalent Compliance (“AEC”) application (collectively the “Application”), and related Development  Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision (“Property”).  This report outlines  the action taken on first reading of Ordinance, process, PZC action, and the applicable review criteria for  the Application.   1st Reading of Ordinance 13‐03:  The first reading of Ordinance 13‐03 was approved by Council on February 12, 2013, with a number of items  for Staff and the Owner to address at second reading.  The following matters were included in the motion  to approve first reading, each with a response from Staff.  (1) Development Agreement and Development Plan shall be amended to not permit trash removal  on Lettuce Shed Lane.    Staff Response:  This condition has been verified in both the Development Agreement and  the Development Plan.  The widened path and trash truck exhibit have been removed from  the Development Plan drawings (Attachment A).  This condition is also made abundantly  clear in Section 6.1(b) of the Development Agreement.    (2) Development Agreement shall provide that on the west side of the building, Town shall fund,  construct and maintain the Lettuce Shed Lane pedestrian path and landscaping to the west side  of path.  Town and Applicant shall coordinate landscaping on Lettuce Shed Lane to insure  consistency in planting.     Staff Response:  This has been demonstrated in both documents.  Staff will continue to  coordinate the construction in this area prior to a certificate of occupancy for the project.        (3) Applicant shall agree to provide a mock‐up of exterior materials, which shall be reviewed by  Avon Planning and Zoning Commission with the right to appeal to the Town Council in  accordance with the Avon Development Code procedures.    Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 2 of 19   Staff Response:  This condition has been added to Ordinance 13‐03.  Staff is comfortable  facilitating the successful implementation of this condition with PZC if the project moves  forward.    (4) The Development Agreement shall be amended to provide that testing of the generator shall  occur no more frequently than once a month and shall define hours of testing.    Staff Response:  After learning more about the timing and frequency that the generator(s)  behind the louvers would be utilized, the Council was comfortable with the location of the  louvers (near the transit stop underneath the sales center) as long as it was called out in the  approval.  The Development Agreement now includes language verifying that the generator  will be tested no more than once per month.    (5) The Development Plan shall be amended to define location and type of bench.    Staff Response:  The location of the “Landscape Forms, Chase Park Bench in Olive Powder  Coat finish” is now indicated on the attached (revised) Landscape Plan.  See Page 70 of the  attached (revised) Landscape Plan in Attachment A.    (6) Town Staff shall verify financial assumptions with Applicant for real estate transfer tax.    Staff Response:  The Town Council requested clarification on the predicted collections for  real estate transfer tax, based on the model that was presented jointly by the Applicant and  Scott Wright, Finance Director, at the last hearing.  This issue is that the percent of interests  sold in the timeshare project total more than 100%.  For example, in year 3 it is anticipated  that 70% of the interest (points) would be sold and then in year 4 there is another 50% being  sold, for a total of 120%.  As the Applicant indicated at the meeting and now verified by  Wyndham, this is due to the anticipation of points that are returned to Wyndham due to  foreclosures and similar returns (i.e. voluntary returns).  Those interests are then resold by  Wyndham and thus, in some cases, trigger another taxable event.     Staff is comfortable with the model as presented and feels that it reasonably predicts this  particular revenue stream, based on Wyndham’s professional experience with this product  type.        Application Process:  The Avon Municipal Code (“AMC”) includes different processes for each aspect of the Application with  regard Public Hearing requirements.  The review process for the Rezoning application includes a noticed  Public Hearing with PZC and recommendation to Town Council.  Another Public Hearing is required with  the Council before approval or denial.  Since the Property is located in the “Town Core,” final review for  the Major Development Plan and AEC applications is required by Town Council following a  recommendation by PZC.  Approval of the Development Agreement is tied together with the approving  Ordinance, as it also requires a Public Hearing.       Pursuant to AMC §7.16.020(b)(4), Concurrent Review Permitted, when multiple development applications  cover the same property, the Director may permit concurrent review of the development applications for  efficiency and practicality.  The Director determined that concurrent review of the Rezoning, Major  Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 3 of 19   Development Plan, and AEC applications is practical in this instance; therefore, these applications are   presented to Council concurrently.        As evidenced below by AMC Table 7.16‐1: Development Review Procedures and Review Authority, all final  decisions for the Application will be made by Council:        PZC Recommendation:  The Town’s PZC held three (3) separate public hearings to review the Application on December 4, 2012,  December 18, 2012, and January 15, 2013.  At the December 4, 2012 meeting, the applicant gave an  introductory presentation to PZC; the public hearing was opened and closed without any public input.   Since the applicant was in the process of responding to Staff comments and revising the application, PZC  continued the public hearing until their next meeting.    On December 18, 2012, another presentation was made by the applicant, and a public hearing was  conducted.  There were written comments presented from Ticino’s Restaurant and Eben Clark,  representing the Avon Center Homeowner’s Association (Attachment B)      The PZC was generally supportive of the Application and requested further information on: peak parking  demand management, clarification on the zoning use determination, and architectural details including  the Northwest building elevation, perspectives traveling from Avon Road heading West on Benchmark  Road, retaining walls along Benchmark Road, and the entrance port‐cochere.  The PZC ultimately tabled  the application in order for the applicant to address the questions and concerns raised.     Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 4 of 19   In the interim period between Public Hearings, Staff determined that a Code Text Amendment would be  required to rectify the interval timeshare ownership use in the Town Center Zone District.  Additionally, the  Applicant sought more time to address the concerns raised with parking and other design details of the  project.  The holiday time period allowed Staff to assist with the Code Text Amendment, and for the  Applicant to make further revisions to the submittal.      After conducting a third and final public hearing on January 15, 2013, the PZC approved Findings of Fact and  a recommendation for approval of the Application.  As can be seen in the attached (Attachment C)  Recommendation, the PZC added technical conditions as well as interrelated design conditions.  Following  is the list of conditions PZC recommended, with staff comments:      (1) Landscaping to the West of Lettuce Shed Lane (“LSL”) Path will be installed pursuant to the  approved 2012 Mall Improvement Plan by Wyndham and maintained by Wyndham.  Staff Comments: This condition is addressed in the revised Development Agreement, as  discussed during first reading.  The Town would be ultimately responsible for all landscaping  and upkeep in this part of Benchmark Court – defined as “Area C”.     (2) Landscaping to the north of the building on Main Street will be installed by Wyndham and  maintained by the Town.  Staff Comments: Similar to the above condition, this deals with a small landscaped area now  being referenced as “Area D,” that is located immediately North of the Property on the  Pedestrian Mall.   As agreed at the first public hearing with Council, when considering the size  and shape of this area it was mutually decided that it would be infeasible for the Town to  take over maintenance responsibilities since this area is contiguous with the landscape plan  for the project and its associated irrigation system.  This detail is also included in the draft  Development Agreement.    (3) Building Height must be confirmed at foundation and framing inspections to ensure  compliance with the 80’ maximum height requirement for the Town Center (TC) zone district;  Staff Comments:  This is a code requirement since the proposed design is within eighteen  inches (18”) of the maximum allowable height requirement, and was removed since it is  redundant with a code requirement that will be enforced by Town Staff.    (4) All potential exterior signage must be approved by the PZC with a Master Sign Program  application submitted by the property owner;   Staff Comments: The Applicant has indicated that they will proceed with a Master Sign  Program if the Development Plan is approved, and have a chance to further evaluate the  requirements of Wyndham.  This condition was also removed from the Ordinance at the  request of Council at first reading, since Staff is charged with enforcing this requirement.    (5) Prior to the issuance of any permits related to the construction of the project, the Town and  Property owner will execute a Development Agreement incorporating elements including, but  not limited to those cited in Matt Pielsticker’s December 14, 2012 Staff Report;   Staff Comments:  This condition is being implemented with the revised Development  Agreement.  Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 5 of 19     (6) Pursuant to AMC§7.28.090(j)(3)(iv)(A), the Property owner will provide park benches (to the  specifications of the Main Street Plan), or other acceptable street furniture in the common space  near the northwest corner of the building where the decorative patio is indicated;  Staff Comments:  This condition is addressed with the revised Landscape Plan.  See sheet 70  of the attached (Attachment A) revised plan.     (7) Final approval of the building materials and colors will be by PZC after reviewing an on‐site  mockup;  Staff Comments: PZC reviewed a material and color board at their Public Hearings.  While the  materials and colors were supported; the scale of the project warranted an on‐site review to  finalize the approval.  This condition is carried forward in the revised Ordinance 13‐03; the  ultimate appeal authority is with the Town Council in accordance with Municipal Code  procedures.     (8) The applicant will provide a drawing of the proposed mock‐up for review and approval by the  Planning and Zoning Commission prior to the construction of the mock‐up;  Staff Comments:  This condition was removed by Council at first reading of Ordinance 13‐03  and is at the discretion of the Applicant.    (9) The air intake louvers adjacent to the bus stop are to be relocated;  Staff Comments:  In the course of review, the design and location of the mechanical system  louvers adjacent to the Transportation Center were analyzed.    After further examination by  the Applicant, it was verified that the mechanical system utilizing these louvers is only tested  monthly.  Council appeared to be comfortable leaving the louvers in place if the  Development Agreement specified that they would only be used during power outages and  testing phases infrequently.  This is carried forward in section 6.3 of the Development  Agreement.     Rezoning:   The Application includes a Rezoning request to rezone the Property from the Planned Unit  Development (PUD) zone district to the Town Center (TC) Zone District.  The review process and  review criteria for zoning amendments are governed by AMC §7.16.050, Zoning Amendments.      Council shall use the criteria below as the basis for a final decision on the Application.  Each criterion  for review, including Planning Staff’s responses to each review follows:  (1) Evidence of substantial compliance with the purpose of the Development Code;  Staff Response:  The Application is substantially compliant with the purpose statements in the  Development Code.  The Rezoning will provide for the orderly use of the Property, while at the  same time conserving the value of the investments of other owners of property in Town.  Any  anticipated impacts to public services and facilities would be properly mitigated by measures  contained in the Development Agreement.      (2) Consistency with the Avon Comprehensive Plan;  Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 6 of 19   Staff Response: Staff finds the Rezoning Application to be consistent with the Avon  Comprehensive Plan; by definition, this includes other master plans such as the West Town  Center District Investment Plan (“Main Street Plan”), and the Avon Comprehensive  Transportation Plan.  The Application conforms with the principal Land Use Goal (Goal C.1), to  “provide a balance of land uses that offers a range of housing options, diverse commercial and  employment opportunities, inviting guest accommodations, and high quality civic and recreational  facilities, working in concert to strengthen Avon’s identity as both a year‐round residential  community and as a commercial, tourism and economic center.”    The Avon Comprehensive Plan envisions mixed‐use development with convenient circulation  through the Town Center towards the Gondola. There is a mix of uses proposed with this  Application, and the pedestrian corridor is improved on the west side of the Property within  Lettuce Shed Lane.  In areas where strict compliance with “mandatory” requirements of the Main Street Plan are not  achieved, AMC §7.04.090, Relationship to Comprehensive Plan, provides the clear ability for Town  Council to not require strict compliance if things such as market conditions justify a new  design/use approach to development.  (3) Physical suitability of the land for the proposed development or  subdivision;  Staff Response: The Property is suitable for development proposed in the Development Plan  application.  In terms of infill projects, there is very little work to prepare for construction since  there has never been any building on the site.        (4) Compatibility with surrounding land uses;  Staff Response:  The immediate surrounding area is generally mixed‐use with an emphasis on  wholly‐owned residential units, office, and retail.  The transit center borders the entire southern  property line and is a regional hub of activity.  Additionally, all of the Town’s guest  accommodations are within a five (5) minute walk from the Property.  The proposed land uses  are compatible with the surrounding land uses.     (5) Whether the proposed rezoning is justified by changed or changing conditions in the character  of the area proposed to be rezoned  Staff Response:  The proposed rezoning is consistent with neighboring TC zoned properties.  The  immediate area has been improved with streetscape improvements compliant with the Main  Street Plan, and in concert with this Application the Town will extend those improvements with a  path connection on Lettuce Shed Lane.  (6) Whether there are adequate facilities available to serve development for the type and scope  suggested by the proposed zone compared to the existing zoning, while maintaining adequate  levels of service to existing development;  Staff Response: Adequate facilities are available to serve the development.  Staff has continued  to work with the Town’s and Owner’s design consultants to better understand the scope of the  heat recovery system expansion analysis and determine whether or not it is feasible to connect  the Town’s system to this property’s snowmelt system.  The Development Agreement is drafted  such that this system is available, but not a required connection for the Owner.    Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 7 of 19   (7) Whether the rezoning is consistent with the stated purpose of the proposed zoning district;  Staff Response: AMC §7.20.080(c), Town Center, states that the TC district is intended to provide  sites for a variety of uses such as hotels, commercial establishments, offices and residential uses.   AMC §7.24.040, Table of Allowed Uses, includes lodging and retail as permitted uses.  The  Application proposes timeshare use consistent with the separate code text amendment  application; therefore, the proposed Rezoning is consistent with the stated purpose of the TC  zone district.  (8) That, compared to the existing zoning the rezoning is not likely to result in adverse impacts  upon the natural environment, including air, water, noise, storm water management, wildlife, and  vegetation, or such impacts will be substantially mitigated;  Staff Response:  The existing zoning is a defunct PUD, and there should not be any significant  adverse environmental or other impacts resulting from Rezoning to the TC Zone District.   Furthermore, prior to approval of PUD zoning in 1999, the Property was originally included in the  TC zone district.  Impacts such as those with the stormwater system are addressed in the  drainage report with a stormcepter system.     (9) That, compared to the existing zoning, the rezoning is not likely to result in significant adverse  impacts upon other property in the vicinity of the subject tract;  Staff Response:  There are no significant adverse impacts anticipated to surrounding properties.   In certain respects, the Rezoning would result in a project with lesser impacts upon other  properties in the vicinity.  For example, this Application proposes a lower building height than  surrounding buildings and PUD approvals.  There is a larger setback from the property to the  West when compared to previous designs. The increased setback responds to Comprehensive  Plan Goals and Policies which envision an improved pedestrian experience that maintains  adequate solar exposure in public areas surrounding the Property throughout the year.      (10) For rezoning within an existing PUD, consistency with the relevant PUD Master Plan as  reflected in the approval of the applicable PUD; and,  Staff Response:  This criterion is not applicable because the Applicant is seeking to Rezone the  Property to the TC zone district.  (11) Adequate mitigation is required for zoning amendment applications which result in  greater intensity of land use or increased demands on public facilities and infrastructure.  Staff Response:  The Property was zoned TC previous to the PUD approvals in 1999 and 2004.  As  mentioned, any increased demand on the heat recovery system would be handled through the  Development Agreement if the Owner sees benefits with connecting.  The project would be a  Timeshare development and the associated Code Text Amendment application further clarifies  the allowable uses in the TC Zone District.  When reviewing the merits of the Application, the  Town Council must also be aware of AMC §7.16.050(d), Zoning Amendment Mitigation. This code  section speaks directly to requiring mitigation when increased demands on public services or  infrastructure (i.e. recreation center, transportation system) could be experienced with a  Rezoning request.    On similarly situated time‐share projects, such as the Sheraton or Christie Lodge, the Town has  successfully addressed these incremental impacts with a Timeshare Amenities fee, which is  Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 8 of 19   assessed on each ownership interest and collected semi‐annually by the Town.  This language is  included in the Development Agreement and has been adjusted accordingly based on the point  system that Wyndham utilizes with their unique product.         Major Development Plan  All new development in Town is subject to the standards and requirements outlined in AMC §7.28,  Development Standards.  The purpose of these standards is to establish the minimum requirements for the  physical layout and design of all development including: access, parking, landscaping, screening,  architectural, and other design standards.  These provisions address the physical relationship between  development and adjacent properties and public streets in order to implement the Comprehensive Plan’s  vision for a more attractive, efficient, and livable community.  The Application was evaluated by PZC and Staff against the General Development Standards in AMC §7.28,  Development Standards; the Project was found to be either in compliance with the standards or requiring  an AEC application in one instance.  Table 1 below demonstrates general conformance with the General  Development Standards, with an AEC request from landscaping irrigation requirements:  Table 1:  General Development Standard Compliance  Development Standards AMC  Section Compliant N/A AEC  Parking & Loading §7.28.020 X    Access Drive §7.28.030 X    Mobility & Connectivity §7.28.040 X    Landscaping §7.28.050   X  Screening §7.28.060 X    Retaining Walls §7.28.070 X    Fences §7.28.080 X      Parking and Loading    The Application is in conformance with the Parking and Loading provisions of the AMC, and all  parking spaces required to serve the buildings are located on the Property.  Per AMC Table 7.28‐2:  Off‐Street Parking, the Application provides one (1) space per unit, and four (4) spaces per 1,000  square feet of retail.  The AMC allows Staff to apply a Mixed‐Use reduction of fifteen percent (15%) to  the total parking calculation.  In this case the project is required a total of fifty‐three (53) spaces, and  a total of sixty (60) are provided and therefore is in compliance with parking regulations.  During PZC  review they requested further information on how the peak demand periods would be handled.   Specifically, PZC wanted to understand how employees would be accommodated on‐site in the  event more than one (1) vehicle is required per unit (i.e. the three (3) bedroom units).      Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 9 of 19   In response to a request from PZC for more information, the Application materials were amended to  demonstrate the ability to add more parking in the structure if/when valet service is utilized during  peak demand times of the year.       Access Drive  The access drive is on the East side of the Property, as originally planned during the design of the  Transportation Center and Main Street Plan.  The Applicant has submitted a traffic impact study and  demonstrates that the access design and location can comfortably handle the traffic volume  generated by this development.    Access for emergency and service vehicles is would be in the motor court area, and fire department  staging will be from Benchmark Road in the transit area.  No access by fire trucks is necessary on  Lettuce Shed Lane and Main Street pedestrian areas.  The Application is in compliance with all other  access requirements, including but not limited to: minimum width (24’), maximum grade (4%), and  sight distance triangle requirements.    Snow Storage and Drainage     Pre‐development hydrology patterns are to be maintained in accordance with AMC §7.32.050,  Stormwater Drainage.  Additionally, the AMC requires that snow storage be handled on‐site unless  waived by the Town Engineer.   The Application proposes to snowmelt all parking and loading areas,  and therefore the Town Engineer has granted a waiver to the on‐site snow storage requirements.      A preliminary drainage report was provided to Staff with the original submittal of the Application in  order to evaluate the pre‐developed and post‐developed discharge rates for 25‐year and 100‐year  storms.  After responding to initial comments from the Town Engineer, a Final Drainage Report was  submitted.  The Final Drainage Report finds that the site will not require detention, and a  stormceptor water quality control chamber will be provided to handle water quality.  All storm water  will pass through the site as indicated on the plans and the existing storm sewer infrastructure in  Benchmark Road can accommodate the storm runoff generated by this development.   Bicycle Facilities   Bicycle parking facilities will be provided, as required by AMC §7.28.020(j), Bicycle Facilities.   Developments that contain twenty‐five (25) or more parking spaces must provide bicycle parking  facilities, with at least one (1) space for every ten (10) vehicle parking spaces.  The Application  proposes two (2) bike rack locations – one (1) in the parking garage intended for on‐site employees  and guests, and another located near the pedestrian mall on the northwest corner of the building.    Mobility and Connectivity  Bicycle and pedestrian path connectivity is included in the site design with a multi‐use path on  Lettuce Shed Lane, and stairway connections on the west and south sides of the building.  Extensive  sidewalk improvements surround the property and the future Pedestrian Mall and park  improvements on the North side of the Property in Tract G will be constructed by the Town in  concert with this development.      Landscaping  The stated purpose of the landscaping standards is to ensure that the Landscape Plan:    (1) Integrates building sites with natural topography and existing vegetation,   Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 10 of 19   (2) Minimizes disturbed areas,  (3) Respects the limitations and best uses of water resources,   (4) Reduces the amount of reflected glare and heat absorbed in and around developments,   (5) Breaks up large expanses of parking lots, and  (6) Preserves residential neighborhoods by lessening the impacts of potentially incompatible  uses.    The minimum landscaped area required for the TC zone district is twenty percent (20%) of the total  lot area, and according to the landscaping standards the maximum irrigated area is twenty percent  (20%) of the landscape area.  In order to comply with the twenty percent (20%) minimum  requirement, the area west of the Lettuce Shed Lane path and immediately North of the building  must be included in the area requirements.  The Applicant is seeking relief from the twenty percent  (20%) maximum irrigated area requirement as part of the AEC application, which is discussed in more  detail below.          The Property is exempt from the parking lot perimeter landscaping requirements since it is located in  the TC zone district.  The Landscape Plan was modified pursuant to Staff’s initial comments, and  includes landscaping both on the Property and in some cases in the Town’s right‐of‐way.  As noted,  landscaping and on‐going maintenance is addressed in the Development Agreement.  Screening  Conformance with the screening standards is demonstrated in the Application, including screening  of the roof mounted mechanical equipment with “architectural features.”  The trash service is being  internalized and therefore this section no longer applies.  Retaining Walls  Retaining walls are limited to areas supporting the motor court area.  The walls are generally  between three feet (3’) and five feet (5’) tall, and would be faced with stone to match the style used  elsewhere on the building.  If this design is approved the walls over four feet (4’) in height would  need to be structurally designed and certified by a Colorado licensed professional engineer.     Fences  The fences and railings at the ground level along Main Street and Lettuce Shed Lane will be  architecturally compatible with the style, materials, and colors of the balconies above.      General Design Standards  The design standards contained in AMC §7.28.090, Design Standards, are the cornerstone of the  Development Code.  This Chapter deals with all architectural standards to determine compatibility  with the Town’s overall appearance and surrounding development.   While the immediate area of the  Property is dominated by stucco construction, a shifting theme is emerging with this Application and  others in the area.  More stone is being introduced to the base of buildings, and additional materials  such as hardi‐board siding are more commonly found on newer construction.     The Application was evaluated by Staff and PZC against AMC §7.28.090(c) Generally Applicable Design  Standards; the Project was found to be in compliance with all of the standards, as demonstrated in  Table 2 below:    Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 11 of 19                Table 2:  Design Standard Compliance  General Design  Standards AMC Section  Compliant N/A AEC  Site Disturbance  Envelope §7.28.090(c)(1)  X     Site Design §7.28.090(c)(2) X    Building  Materials/Colors §7.28.090(c)(3) X    Roofs (general) §7.28.090(c)(4) X    Weather  Protection §7.28.090(c)(5) X      Site Design  The site design is centered on the auto‐courtyard in the center of the Property, and the building  borders all property lines as required by the AMC and envisioned in the Avon Comprehensive Plan.   The building is oriented to optimize solar access and views, in conformance with AMC requirements.   All new development is required to define a “site disturbance envelope” on the site plan.  The  disturbance envelope respects the southern property line bordering the transportation center, and  extends into the Town right‐of‐way on all other sides of the property.  In light of the work outside  the boundaries of the property, including but not limited to landscaping improvements, the  Development Agreement appropriately addresses construction and post‐construction  responsibilities of both parties.           Building Materials and Colors  The use of high quality, durable building materials is required.  Additionally, “Indigenous natural or  earth tones, such as brown, tan, grey, green, blue or red, in muted flat colors with a Light Reflective  Value (LRV) of sixty (60) or less are required.”    The material and color palette are in compliance with  these design standards.  It should be noted that the LRV of the stucco equals sixty (60) and is the  lightest, or most reflective color approvable by code.     Roofs  The Design Standards require roofline modulation and varied roof forms for all buildings in Town.   Additionally, for buildings exceeding four (4) stories, the minimum overhang length shall be thirty six  (36) inches for primary roof forms.  Primary roof forms shall have a pitch of not less than four‐to‐ twelve (4:12).  The roof design is in compliance, proposing mostly five and one‐half‐to‐twelve (5.5:12)  roof pitches, and at least thirty six inches (36) inch overhangs for the majority of the primary roof  forms, and even larger overhang where balconies are located.  It must be noted that the main roof  material proposed is asphalt siding, which is “discouraged” by the standards.  The Town Council  must decide if asphalt roof shingles for this Property are acceptable, given the discouragement of  the design standards and the fact that most properties in the vicinity either use metal roofing or  recycled rubber tiles (i.e. Riverfront).  The secondary roof areas are proposed with metal roofing  utilizing a Dark Bronze color.          Weather Protection  Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 12 of 19   Building entrances are protected, as are balconies and pedestrian walkways and sidewalks.  A snow  control plan is included in the submittal to address rooflines that slope towards pedestrian areas.       Mixed‐Use and Nonresidential Design Standards  In addition to the Generally Applicable Standards, this Application is subject to AMC §7.28.090(j),  Mixed‐Use and Nonresidential Design Standards.   These standards include an extra layer of review,  including some standards specific to TC Zoned properties in the Town Core.   Table 3 indicates that  some of the standards were found to be either not applicable or requiring AEC approval.            Table 3:  Mixed‐use and Non Residential Design Standard Compliance                                                                   Building Orientation  The building design reinforces the street edge, maximizes solar orientation, and is in compliance with  this subsection.    Outparcels  Not applicable.      Parking   Standard AMC Section Compliant N/A AEC  Building  Orientation §7.28.090(j)(3)(i)  X    Outparcels §7.28.090(j)(3)(ii)   X   Parking §7.28.090(j)(3)(iii)  X    Common  Spaces §7.28.090(j)(3)(iv)  X    Building Layout  & Design §7.28.090(j)(4)(i)  X    Four‐sided  Design §7.28.090(j)(4)(ii) X    Compatible  Design §7.28.090(j)(4)(iii)  X    Mixed‐Use §7.28.090(j)(4)(iv)   X  Scale and  Massing §7.28.090(j)(4)(v)    X  Development  Transitions §7.28.090(j)(4)(vi)  X    Storefronts &  Pedestrian  Entrances §7.28.090(j)(4)(vii)      X  Materials §7.28.090(j)(4)(viii)  X    Roofs §7.28.090(j)(4)(ix) X    Windows §7.28.090(j)(4)(x)    X  Parking  Structures §7.28.090(j)(5)   X   Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 13 of 19   The majority of the parking is located underground, and is in compliance with this subsection.    Common Spaces  This Application provides both indoor and outdoor common areas.  While the owner’s lounge patio  on Lettuce Shed Lane is not open to the public, the area at the northwest corner of the building is  situated well for public amenities such as park benches.  PZC recommended that the Applicant  provide park benches (or other acceptable street furniture) in the common space to the Northwest  corner of the building near where the three‐sided directional sign is indicated on the plans.  This  recommendation is carried forward, and has been addressed by the Applicant with the revised  Landscape Plan (Attachment A).  The revised Development Plan shows a bench at the northwest  corner where the Lettuce Shed Path meets the Mall path.    Building Design  The building design is appropriate for the site it is situated on.  As drafted in the approval Ordinance,  the final approval of the colors and materials will be performed by PZC after reviewing an on‐site  mockup.  This approval is subject to appeal procedures with Council.      Four‐sided Design  This property effectively has four “fronts”, and each building elevation is designed with equal care  and quality as the principle side facing Benchmark Road.         Compatible Design  A clearly defined and appropriate architectural theme has been established.  In compliance with the  design standards, a number of architectural features have been utilized to create compatible design,  including but not limited to the following: overhangs, peaked roof forms, outdoor patios, vertical  elements, and horizontal banding.     Mixed‐Use Buildings in Town Core  This subsection requires retail, personal service, or restaurant uses for portions of the building  fronting Lettuce Shed Lane, Benchmark Road, and Main Street.  An accompanying AEC application  was submitted in order to seek relief.    Scale and Massing  These standards seek to break up building mass to ensure a pedestrian‐friendly scale at the ground  level of new buildings.   In all instances, buildings taller than two (2) stories or thirty feet (30’) “shall  be designed to reduce apparent mass and visually anchor the building to the site by including a clearly  identifiable base, body and top, with horizontal elements separating these components.”  This section  requires a step back between twelve feet (12’) and forty‐five feet (45’); the Application includes an  AEC request from this standard.  The PZC concluded that the alternative design, without stepping,  was better given the amount of vertical articulation and materials, color, overhangs, and varied roof  treatments.    Development Transitions  The project successfully fits into the context of the area, and appears to frame the adjacent Rights‐ of‐Way in a positive manner.       Storefronts & Pedestrian Entrances  Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 14 of 19   The Applicant is seeking AEC approval due to variations from this subsection.  See below.      Materials  Multiple high quality materials are proposed on each building elevation.  There is a weighted  hierarchy, with heavy materials at the base of the building and “lighter” materials (i.e. stucco siding)  above.        Roofs  The roof design is proportional, varied with dormers, and generally in compliance with the standards.   The design standards discourage asphalt roofing, and also state that any metal roofing should be  muted.  The design includes asphalt roofing for the majority of the roof, with areas of dark metal  roofing.  Again, this proposed materials should be reviewed carefully.        Windows  All buildings on Main Street, Lettuce Shed Lane, and Benchmark Road are required to use large  display type windows to activate the street experience.  This design standard is not met with the  Application, and the Applicant has provided rationale in the Application.        Parking Structures  This section is not applicable as the great majority of the parking structure is sub‐grade.  The limited  areas that are above‐grade on the West and South building elevations use compatible building  materials with the rest of the building.      Major Development Plan Review Criteria  Pursuant to AMC §7.16.080(f), Review Criteria, Council is charged with reviewing this Design and  Development application against the following Development Plan and Design Review Criteria:  (1) Evidence of substantial compliance with the purpose of the Development Code as specified  in §7.04.030, Purposes;  Staff Response:  As documented in this report and in the Applicant’s submittal, this  Application is found to be in compliance with the purpose statements from the  Development Code.  The purpose statement directly germane to this Application is  §7.04.030(l), which reads “Promote architectural design which is compatible, functional,  practical and complimentary to Avon’s sub‐alpine environment.”                  (2) Evidence of substantial compliance with the §7.16.090, Design Review.  Staff Response:  The Major Development Plan provides substantial compliance with the  design review chapter.  The proposed materials and colors are visually harmonious with  the Town’s overall appearance, and that of the buildings in the immediate vicinity.     (3) Consistency with the Avon Comprehensive Plan;  Staff Response:  The Avon Comprehensive Plan goals and policies related to the built  environment and land use are very much in tune with the purpose statements in Title 7 of  the Development Code.  The Planning Staff supports the Applicant’s detailed responses  and analysis of the Main Street Plan goals, policies, and design guidelines.        Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 15 of 19   (4) Consistency with any previously approved and not revoked subdivision plat, planned  development, or any other precedent plan or land use approval for the property as  applicable;  Staff Response:  The site design is generally in conformance with the governing  subdivision plat: A RESUBDIVISION OF A REPLAT OF LOT 61, BLOCK 2, BENCHMARK AT  BEAVER CREEK (Reception #868662).  It was determined that a Minor Subdivision is  required to implement the proposed design with at‐grade and aerial encroachments into  Lettuce Shed Lane.  At the same time, the request to eliminate the utility easement  bordering Lettuce Shed Lane could be included with the same minor subdivision  application.  This particular approval is included in the Development Agreement, Section  5.3, for Council’s consideration.     (5) Compliance with all applicable development and design standards set forth in this Code,  including but not limited to the provisions in Chapter 7.20, Zone Districts and Official  Zoning Map, Chapter 7.24, Use Regulations, and Chapter 7.28, Development Standards;  and  Staff Response:  Compliance with the applicable development standards has been  documented in the report, or otherwise addressed through the AEC application.    (6) That the development can be adequately served by city services including but not limited  to roads, water, wastewater, fire protection, and emergency medical services.  Staff Response:  The development can be adequately served by city services.  The  Applicant has worked with the fire district to facilitate a successful fire protection plan,  including a control panel at the Southwest corner of the building.  Pursuant to comments  provided by the fire district, one (1) additional hydrant may be required, if found  necessary by a Fire Protection Engineer.    Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 16 of 19   Any additional impact on city services (i.e. Recreation Center) shall be adequately  mitigated by the Times‐share amenities fee proposed with the Development Agreement.       According to AMC §7.16.090(f), Design Review, the following criteria must also be reviewed by the  Town Council before taking action.  (1) The design relates the development to the character of the surrounding community; or,  where redevelopment is anticipated, relates the development to the character of Avon as  a whole;  Staff Response:  The Design of the building compliments neighboring development and  should be compatible with any surrounding redevelopment that could occur in the  future.  Design queues are taken from other recent construction, including that on the  Riverfront Subdivision, and more recently, updates to the Seasons building immediately  to the West.     (2) The design meets the development and design standards established in this Development  Code; and  Staff Response:  The design is in general conformance with the development and design  standards established in the AMC; where literal conformance is not met, the Applicant  has proposed an alternative design via the AEC process.  (3) The design reflects the long‐range goals and design criteria from the Avon Comprehensive  Plan and other applicable, adopted plan documents.  Staff Response: Avon’s long range planning documents speak heavily to requiring mixed‐ use development in the Town Center.  The Application is in conformance with a number  of the overarching Goals and Policies from the Comprehensive Plan, including Built Form  and Land Use recommendations (i.e. Policy B.1.5 – Require that development within the  Town Center is readily accessible to and integrated with existing retail areas and transit  service routes for both pedestrians and vehicles).      While the Application is not in strict conformance with some of the design criteria found  in the Main Street Plan, Staff finds that the Application’s design and programming are  justifiable based on AMC §7.40.090(b), Relationship to Comprehensive Plan; this section  states that conformance with certain “mandatory” requirements of the Main Street Plan  is not required since strict compliance is not practical given market conditions and the  current needs of the community.       Alternative Equivalent Compliance  Part of the Application is an AEC request from specific design standards.  This procedure allows  development to meet the intent of the design‐related provisions of the Development Code through  an alternative design.  It is not a general waiver or weakening of regulations; rather, this application  procedure permits a site‐specific plan that is equal to or better than the strict application of a design  standard specified in this Development Code.  AEC approvals are site specific and do not establish a  precedent for approval of other requests.    The Application request AEC approval from the following standards:    Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 17 of 19    Maximum Irrigated Area – AMC Table 7.28‐6, Minimum  Landscaped Area and Maximum Irrigated Area by Zone District        Ground Floor Commercial ‐ §7.28.090(j)(4)(iv)  (iv) Mixed‐Use Buildings in Town Core.   To encourage appropriate commercial and mixed‐use development  in Town Core any portion of a new mixed‐use building with street  frontage floor area located on E. Beaver Creek Boulevard, Lettuce  Shed Lane, Benchmark Road, or Main Street must be occupied by  retail, personal service and restaurant uses, as listed in Table 7.24‐1.  All ground floor commercial space must be at least twelve (12) feet in  height as measured from finished floor elevation to finished ceiling.     Building Stepping ‐ §7.28.090(j)(4)(v)(D)  (D) Where primary building walls exceed three (3) stories or forty‐ five (45) feet in height, as measured from finished grade to the  underside of the eaves, building form shall step back at least eight  (8) feet in depth and shall generally occur between twelve (12) feet  and forty‐five (45) feet above the finished grade, depending on the  height of the structure and the surrounding development context.     Ground Floor Glazing and Entrances ‐ §7.28.090(j)(4)(vii)  (vii)  Storefronts and Pedestrian Entrances.  (A)   The first floor of all new buildings shall provide: a pedestrian  friendly environment,   with   human‐scale   and   natural   building    materials;   extensive storefront windows for display and views  into the business; and access directly from adjacent sidewalks.    (B)   When transparency is in conflict with internal functions of the  building, other means shall be used to activate the street facing  facades such as public art, architectural ornamentation or details, or  color patterns.    (C)   To encourage activity along the building frontage, entrances  shall be located at intervals of a maximum of thirty‐two (32) feet.    (D)  The primary access to retail spaces on Benchmark Road, Main  Street, and W. Beaver Creek Boulevard, shall be from the sidewalk.    Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 18 of 19   According to AMC 7.16.120(d), Review Criteria, Council shall use the following review criteria as the  basis for a decision on an application for AEC:  (1) The proposed alternative achieves the intent of the subject design or development  standard to the same or better degree than the subject standard;  (2) The proposed alternative achieves the goals and policies of the Avon Comprehensive Plan  to the same or better degree than the subject standard;  (3) The proposed alternative results in benefits to the community that are equivalent to or  better than compliance with the subject standard; and  (4) The proposed alternative imposes no greater impacts on adjacent properties than would  occur through compliance with the specific requirements of this ordinance.  Staff Response:  The requirement to provide and design buildings with pedestrian level  retail/commercial development is rooted in the Main Street Plan.  The Main Street Plan  was an elaboration of previous Town Center District Plans, and was developed to build  predictability and direction into the design review process, while outlining reasonable  expectations for growth.  As the Applicant points out, the Main Street Plan was designed  around “Main Street”; tax‐increment financing was modeled around the development,  and funding that was necessary to fuel the extensive Main Street public improvements  planned for the District.  Goals for the Main Street Plan include:  • Intensely developed District in Town  • Diverse retail, lodging, and housing mix  • Pedestrian‐oriented focus on Design  • Gathering place for visitors and residents  Some of the design and programming concepts that formed the basis for the Main Street  Plan ended up directly informing the Avon Municipal Code updates that were approved in  2010.  For example, requiring extensive window glazing and programming space for retail  uses adjacent to public rights‐of‐way (current or planned), was a result of the Main Street  Plan goals.  The Applicant argues that this area of Town is saturated with retail and  restaurant space; adding additional space in this economic climate is not justifiable.    The Landscape Plan exceeds the maximum permitted irrigated area requirement.  These  requirements were codified in 2010 with the AMC updates, and are a carryover from the  2001 Design guidelines.  These requirements are intended to reduce water consumption.   Staff finds benefits with the proposed irrigated landscaping that outweigh strict and  literal compliance.  It must be noted that the Landscape Plan is consistent with the Mall  Improvement Plan approved last year, utilizes several drought tolerant plant species, and  will include a rain sensor.  The proposal is to utilize only drip irrigation.  By nature of the  conserving qualities of drip versus spray irrigation, the proposed landscape plan appears  to meet the intent of this regulation.  This is an example of how strict adherence to Design  Requirements may not be in the best interest of the Town when evaluating Town Core  development.  The Application appears to achieve the overarching goals of the Comprehensive Plan,  which as mentioned, speak to creating vibrant pedestrian friendly developments with  Public Hearing on Second Reading of Ordinance 13‐03    Lot 61 – Wyndham Rezoning, Major Development Plan, AEC, Development Agreement Page 19 of 19   attention to human scale.  The proposed architectural detailing and high quality materials  and design elements and the ground level help to anchor the building and provide inviting  spaces.    Available Actions:  1) Approve Second Reading of Ordinance 13‐03 (Attachment D) as drafted.  2) Approve Second Reading of Ordinance 13‐03 (Attachment D), with modifications, and/or additional  conditions.  3) Continue Ordinance 13‐03 to the March 12, 2013 meeting.    4) Deny Ordinance 13‐03.      Staff Recommendation:  Conduct a Public Hearing, and Approve Second and Final Reading of Ordinance 13‐03 (Attachment D) as  drafted.    Attachments:   A – Revised Development Plan pages  B – Written Public Comments & Staff Response thereto    C – PZC Findings of Fact and Recommendation, dated January 15, 2013  D ‐ Draft Ordinance 13‐03      AR C H I T E C T U R E UR B A N D E S I G N IN T E R I O R D E S I G N PA G E 7 0 | SI T E P L A N JB JB US B a Wh i t e R i v e r C e n t e r Av o n C e n t e r B u i l d i n g Th e S e a s o n s Tr a n s i t C e n t e r US B a n k P a r k i n g W E S T B E N C H M A R K R O A D ( 5 0 ' R . O . W . ) Lo t 6 1 I-B GR A P H I C S C A L E (I N F E E T ) 1 i n c h = f t . 20 RA M P Attachment A to 2/21/13 Staff Report AR C H I T E C T U R E UR B A N D E S I G N IN T E R I O R D E S I G N PA G E 7 1 | LA N D S C A P E P L A N Ad d e d b e n c h i n No r t h W e s t c o r n e r Attachment A to 2/21/13 Staff Report AR C H I T E C T U R E UR B A N D E S I G N IN T E R I O R D E S I G N PA G E 7 2 | RE V I S E D L E V E L 1 P L A N DN DN FD FD Attachment A to 2/21/13 Staff Report AR C H I T E C T U R E UR B A N D E S I G N IN T E R I O R D E S I G N PA G E 7 3 | RE V I S E D P A R K I N G L E V E L P L A N FD FD FD Tr a s h C o n t a i n e r s Attachment A to 2/21/13 Staff Report AR C H I T E C T U R E UR B A N D E S I G N IN T E R I O R D E S I G N PA G E 7 4 | WE S T E L E V A T I O N LE V E L 1 10 0 ' - 0 " LE V E L 2 11 4 ' - 0 " LE V E L 3 12 5 ' - 0 1 / 4 " LE V E L 4 13 6 ' - 0 1 / 2 " LE V E L 5 14 7 ' - 0 3 / 4 " AT T I C 15 8 ' - 0 " PA R K I N G L E V E L 85 ' - 0 " 14' - 4"10' - 11 1/4"11' - 0 1/4"11' - 0 1/4"11' - 0 1/4"14' - 0"15' - 0" PR I M A R Y R I D G E L I N E 17 2 ' - 4 " US G S = 7 4 5 5 ' - 0 " MA X B U I L D I N G H E I G H T = 8 0 ' - 0 " EX I S T I N G G R A D E PR O P O S E D G R A D E Attachment A to 2/21/13 Staff Report At t a c h m e n t B to 2/ 2 1 / 1 3 St a f f Re p o r t JOHNSON & REPUCCI LLP ATTORNEYS AND COUNSELORS AT LAW 2521 BROADWAY, SUITE A BOULDER, COLORADO 80304 TELEPHONE 303-442-1900 Eben P. Clark TELEFAX 303-442-0191 BOULDER epclark@j-rlaw.com www.j-rlaw.com WINTER PARK December 13, 2012 {00222544 / 3 } VIA E-MAIL AND FIRST CLASS MAIL Planning and Zoning Commission, Town of Avon c/o Matt Pielsticker, Planner II P.O. Box 975 Avon, CO 81620 [mpielsticker@avon.org] Re: Lot 61 Rezoning / Major Project Plan Application Project Number: REZ12001 / MJR12006 To the Town of Avon Planning and Zoning Commission: This firm represents the Avon Center at Beaver Creek - I Homeowners Association, Inc. (“Avon Center”) with regard to the above referenced Application submitted by OZ Architecture on behalf of Wyndham Vacation Resorts, Inc. (“Applicant”). Avon Center lies directly to the north of Applicant’s proposed timeshare lodge project (“Project”) located on Lot 61, Block 2, Benchmark at Beaver Creek Subdivision (“Lot 61” or the “Property”). I. Introduction Avon Center sees numerous problems with the Application and Project as presently proposed. These issues include the Applicant’s clear intent to avoid providing community benefits otherwise required by the Town of Avon Land Use Code (“Code”), failure to follow the required governmental and legal processes for Town approval, and the failure of the Applicant to meet the basic requirements for the approvals sought. The present process seeks to circumvent the Planned Unit Project (“PUD”) process under which the past applications for the Property have been reviewed. The PUD process is the land use process that most clearly fits this Project based on its mixed-use nature and the numerous deviations from the Code required to permit construction of the Project as proposed. II. Lack of Legally Adequate Notice and Opportunity to Be Heard. As a preliminary matter, Avon Center must object to the Town’s failure to adequately notice the present hearing, and all previous hearings on this Application. The owners, occupants and registered agent of Avon Center have not received legally adequate notice of any of the proceedings affecting Lot 61, and have not been allowed an adequate opportunity to be heard on the matter. In addition, despite a direct, written request from this office that all public notices be Attachment B to 2/21/13 Staff Report Planning and Zoning Commission, Town of Avon December 13, 2012 Page 2 {00222544 / 3 } provided to us on behalf of Avon Center, we have received only last minute, informal notice of these proceedings and the changes to the Application that have occurred throughout this process. III. Improper Use of Land Use Regulations to Avoid PUD Regulations and All Application Requirements Necessary to Support a Complete Application Proposed projects on Lot 61 have been dealt with in the PUD process several times in the past, and the site is far better suited for the PUD process. At present, Applicant is clearly trying to avoid the PUD process, and the Commission and the Town should ask why. As with previous applications for the Property, the Project is truly a mixed-use project. The Project includes commercial uses such as retail, a lounge that is open to the public and the transit center that is located on the south side of the Property. Applicant argues that these uses are Accessory Uses that are subordinate to the primary use of Timeshare Lodge. However, Accessory Uses are those that naturally arise from the primary use, and are not separate, stand alone uses generally available to the public. Furthermore, under the Code an Accessory Use cannot be established before the primary use. Instead, it can only be established under and remain a part of the primary use. Here, the transportation use has been established and operating for several years. Furthermore, the lounge and retail uses are clearly targeted at the public. Therefore, none of these uses arises only from the primary, timeshare use, and all of the uses are intended for use by the general public, not only the timeshare residents. Therefore, the present Application is truly for a mixed-use Project that is best dealt with under the PUD process. The answer to why Applicant is seeking to avoid the PUD process should be apparent. By avoiding this process, Applicant avoids the various requirements of the PUD process. These requirements include providing the general public with various studies, reports and information about the Project and the burdens and benefits connected with it. A PUD applicant must also show that the proposed Project is beneficial for the community and meets a community need. Finally, and perhaps most telling, the PUD process would require Applicant to provide on-site employee housing of up to ten percent (10%) of the Project’s floor area. These requirements are not attractive to an applicant, but they are in place in the Code for the benefit of the Avon community. The Town should not, and cannot, arbitrarily waive these requirements and allow Applicant to avoid them based on a desire to approve any specific project or for the benefit of any specific Applicant. IV. Improper Use of Land Use Regulations to Incorporate Public Property and Easement Areas for Private Benefit and to Avoid Public Input and the Variance Process Applicant originally sought two variances that were necessary based on the useable area of Lot 61. Applicant initially sought a variance of the applicable lot coverage ratio and a variance for reduction of the requisite landscape area. In its initial application, Applicant itself Attachment B to 2/21/13 Staff Report Planning and Zoning Commission, Town of Avon December 13, 2012 Page 3 {00222544 / 3 } stated that one reason for seeking the variance from lot coverage was a desire to avoid the requirement for on-site employee housing at the Project. Since the date of the initial application, Staff and Town Council have decided that Lettuce Shed Lane and the Bus Stop Easement Area located on the Property ought to be incorporated into the Property for the purposes of the lot coverage and landscaping calculations, thus removing any requirement for a variance or the possibility of an employee housing requirement. In essence, the Town is “lending” its property to Applicant to ease the approval of the Application. It does not appear there was ever any properly noticed public hearing to discuss this concept. In any event, there is simply no process or provision under the Code that allows this, and Staff, Town Council and the Town Attorney have made no attempt to explain the basis for this action. In fact, the definitions set forth in the Code specifically contradict this action. Under the Code, the definition of “Lot”, “Lot Coverage” and “Landscape Area” make it clear that only areas owned by the applicant are included in a Lot, only areas that are developable are considered in Lot Coverage calculation, and a Landscape Area calculation cannot include paved walkways and parking areas. Therefore, not only is this incorporation of public areas for the benefit of a private Project not supported by the Code, this action is specifically contrary to Code provisions and is in violation of the controlling Colorado law. As the Colorado Court of Appeals stated in Sherman v. City of Colorado Springs Planning Commission, 680 P.2d 1302, 1304 (Colo. App. 1983), an administrative body is not allowed to exercise discretion that is not built into its zoning ordinance. Here, no Town body can grant an Applicant rights not provided for in the Code. The benefits of this sleight of hand to Applicant are obvious. First, Applicant avoids the necessity of obtaining two variances in the present process, and therefore limits public input on the Project. Applicant also avoids the requirement to include employee housing in the Project and accept the corollary loss of floor area. This requirement would arise from a lot coverage ratio over fifty percent (50%). Under the Code, the Lot coverage standard of fifty percent (50%) can be increased to eighty percent (80%), if the Applicant were to provide employee housing in accordance with the Town's own formulas. Applicant stated this fact in its initial Application. These actions raise greater questions for the Town and the Applicant. How can the Town reconcile taking an action that lacks any support whatsoever in the Code or Colorado law, and specifically, how can the Town do so for the purpose of providing public property for a private benefit in the land use application process? V. Lack of Adequate Mitigation of Parking, Loading and Snow Storage Impacts and Improper Use of Regulations to Claim Shared Parking Credits Applicant is also trying to avoid meeting the reasonable parking, loading and snow storage requirements. Attachment B to 2/21/13 Staff Report Planning and Zoning Commission, Town of Avon December 13, 2012 Page 4 {00222544 / 3 } With regard to parking, Applicant is trying to take advantage of a provision in the Code that allows for a fifteen percent (15%) reduction in the parking requirements based on the mix of uses in the Project. The present Application does include food service, timeshare, retail, and transportation. However, these are not a combination of uses as required under the Code in order to qualify for the parking reduction. Each is a separate use. At the same time, Applicant is arguing that it is not a mixed-use project. Furthermore, a number of the spaces included in the calculation are of questionable viability and would require long term parking in areas that are clearly intended for circulation. In fact, two of these spaces are located directly in front of the primary entryway to the Project and do not appear to be usable as a practical matter. Applicant has also made no attempt to address the standard required loading areas. Pursuant to the Code, these loading areas are required to be enclosed within the structure itself. In the Project as proposed, the Code would require two large, enclosed loading berths. Instead, Applicant proposes that loading and trash removal for the Project be permitted on and through Lettuce Shed Lane, an area that is supposedly dedicated to pedestrian use. The Project would have no loading bays within the premises, as is typically required. This is one of many basic, straightforward Code requirements that are simply not met by the Application. Similarly, there appears to be no provision for snow storage on the Property. This situation has obvious drawbacks in the alpine environment. In fact, with the high lot coverage ratio proposed here, the Applicant will inevitably store snow from its site on the neighboring properties and the adjacent public property. Parking, loading and snow storage are extremely important issues in the mountain communities and represent some of the primary ways in which new development impacts the existing neighbors. As is the case with each of these issues, new development like the Project imposes its impacts off-site and on its neighbors. For example, in the present case, if there is not sufficient on-site parking, those arriving at the Project will inevitably hunt for parking and use the spaces reserved for neighboring properties or those dedicated to the neighboring retail uses. Avon Center already experiences numerous problems with unauthorized “poaching” of parking spaces within the surface lot and interior garage area dedicated exclusively for the use of the owners, guests and invitees of Avon Center. The Applicant’s plan to underpark the Project will only further exacerbate the Avon’s Center’s ongoing parking issues. Likewise, Applicant’s desire to conserve enclosed space by loading on Lettuce Shed Lane will have noise and visual impacts, and will result in litter in the public areas. Finally, as all mountain communities know, the snow will need to be stored somewhere. When snow is piled on lot lines or sheds off roofs, it inevitably lands on the neighboring properties or impedes use of public areas. This is not an issue of convenience – it is an issue of fundamental fairness to the Project’s neighbors. Attachment B to 2/21/13 Staff Report Planning and Zoning Commission, Town of Avon December 13, 2012 Page 5 {00222544 / 3 } VI. Applicant’s Failure to Meet the Specific Elements Necessary for Rezoning, and Relief from the Comprehensive Plans. There are a wide variety of technical requirements under the Code which the proposed Project does not meet. These range from the fact that the Project will not be LEED certified, to the basic facilities questions mentioned above. A summary of several of Applicant’s specific requests is provided here. However, this list is not exhaustive and Avon Center reserves any and all rights it has to object to the Project throughout the ongoing review process. a. Zoning Map Amendment One of the principal requests in the Application is for a Zoning Amendment that would rezone the Property to “Town Center” zoning. Again, the Property has, in the past, been treated as a PUD. Therefore, among the questions before the Commission is the basic inquiry whether the proposed rezoning is justified by changed or changing conditions in the character of the area proposed to be rezoned. The Property has been subject to several PUD regimes. There was a PUD approved in 1999 that appears to have lapsed, but has not been formally invalidated. There was the 2004 PUD which was invalidated by Court Order in 2006 based on a finding that Town Council had acted arbitrarily, capriciously and contrary to the provisions of its own land use code in approving that PUD plan. Applicant’s present desire to avoid the PUD process may have its roots in this process. Again, avoiding the PUD process allows Applicant to avoid various general public benefits required in the Code. However, there is a specific requirement that appears again in this context. As mentioned above and in Applicant’s initial application, Applicant would prefer to avoid the requirement to provide employee housing. According to the earlier PUD approvals, Applicant would be required to construct employee housing units equal to ten percent (10%) of the dwelling units on site. Therefore, there appears to be an ongoing theme of Applicant attempting to avoid processes mandated by the Code which would result in the imposition of an employee housing requirement. Therefore, the question above becomes: “Has the character of the surrounding area changed at all, and if so are those changes sufficient to merit allowing Applicant to avoid its obligation to provide employee housing under the Code?” Lot 61 is critical to downtown Avon and is a challenged site. This site and the proposed Project are especially well suited for treatment as a PUD in order to allow the flexibility of uses and guidelines requested by the Applicant, and in order to provide the variety of community benefits a project such as this can bring to the area. Attachment B to 2/21/13 Staff Report Planning and Zoning Commission, Town of Avon December 13, 2012 Page 6 {00222544 / 3 } b. Comprehensive Plans Lot 61 is the subject to both the Avon Comprehensive Plan ("Comp Plan") and the Avon West Town Center District Investment Plan. In addition, Lot 61 is the subject of the specific recommendations within the Avon West Town Center District Investment Plan. In the Application, Applicant argues that all comprehensive plan provisions are discretionary based on recent revisions to the Code. Applicant, however, has disregarded the Code’s three-part test for relief from the application of the comprehensive plans. The Project is not in compliance with a number of the Comp Plan requirements. For example, the Project does not comply with the requirements for retail use on the ground floor, LEED certification and general energy conservation. The Project also does not meet the design requirements specific to Lot 61, such as the incorporation of the transit facility into the enclosed space in the building and the design requirements for retail arcade. One of the criteria for relief from these requirements under the "advisory" language offered by Applicant is that strict compliance with multiple provisions of the Comp Plan is not practical. However, in the Application, Applicant does not provide any evidence to support its assertion that compliance with any of these requirements is not practical. Instead, Applicant simply seeks to avoid the additional requirements imposed by the Comprehensive Plan in order to avoid the burdens of associated with them. VII. Conclusion Based on the foregoing, the Application appears to be an attempt to dodge certain Code provisions while taking advantage of others with the goal of avoiding the requirements that provide important community benefits typically required of such projects. Applicant is inviting the Town down a similar path to that which was pursued with the 2004 PUD. That path resulted in the Town taking actions that were not supported by the Code. Those actions were ultimately found to be arbitrary, capricious and in excess of the authority afforded the Town under Colorado law. Hence, the prior application process was found to be unlawful, and the resulting approvals were invalidated by District Judge Moorhead. See Order Declaring Ordinance No. 04- 01 Invalid dated April 27, 2006, District Court, Eagle County, Colorado, Case Number: 04CV151. The foregoing is not an exhaustive list, and Avon Center reserves any and all rights it has to object to the Project throughout the review process. Based on these issues and others in the Application, the Planning and Zoning Commission (“Commission”) must ask itself whether it can recommend approval of an application, such as the present Application, with basic questions as to its legality and clear gaps in its compliance with the Avon Town Code. Avon Center objects to the Project and asks that the Commission consider the irregularities and deficiencies summarized above and refuse to recommend approval of the Attachment B to 2/21/13 Staff Report Planning and Zoning Commission, Town of Avon December 13, 2012 Page 7 {00222544 / 3 } Application to Town Council. In the alternative, the Commission can table this matter to allow time for the issues outlined in this letter to be addressed. Avon Center and its neighbors remain open to communication from Applicant on how to address the present shortcomings of the Application. Thank you for considering these comments. Cordially, JOHNSON & REPUCCI, LLP _____________________________ Eben P. Clark, Of Counsel :epc cc: Avon Center at Beaver Creek - I Homeowners Association, Inc. Attachment B to 2/21/13 Staff Report Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com HEIL LAW TO: Honorable Chairperson Green and Avon Planning and Zoning Commission FROM: Eric Heil, Town Attorney RE: Lot 61/Wyndam Application: Dec. 13, 2012 Comment Letter from Eben Clark representing Avon Center DATE: December 14, 2012 Summary: This memorandum provides my initial response to the Planning and Zoning Commission (“PZC”) with regard to legal issues raised in a letter received by the Avon Town Staff, dated December 13, 2012 from Mr. Eben Clark representing the Avon Center, which letter provided comments on the Lot 61/Wyndam Application (“Application”). This memorandum only provides an initial response because the letter from Mr. Clark was received by my office yesterday afternoon. Public Hearing Notice: Mr. Clark complains that there has been a failure to adequately notice the present hearing; however, Town Planner Jared Barnes sent an e-mail message and the application documents to Mr. Clark on December 3, 2012, and notified Mr. Clark that the PZC public hearing was continued to December 18, 2012. No previous public hearings have occurred on the Application. Adequate notice of the December 4, 2012 public hearing was provided in accordance with the Avon Municipal Code and Mr. Barnes’ e-mail of December 3, 2012 provided adequate notice to Mr. Clark of the continued public hearing to be held on December 18, 2012. Rezoning: The Applicant is entitled to submit an application for rezoning in accordance with the Avon Development Code (Title 7 of the Avon Municipal Code). The PZC is required to consider the Application and consider all information, reports and public comments received during the public hearing process, then to render a decision based upon the applicable review criteria set forth in the Avon Development Code. Use of Town of Avon Property and Right-of-Way: The Town may consent to allow an applicant to incorporate portions of Town owned property and right-of-ways into applications. The Avon Town Council provided such consent with a clear statement that such consent did not constitute approval of the application to be submitted and that such application would be subject to review through the required public process. Mr. Clark’s letter states, “In essence, the Town is “lending” its property to Applicant to ease the approval of the Application. It does not appear there was ever any properly noticed public hearing to discuss this concept.” As stated above, the Town’s Council only decision was to consent to allow the Applicant to submit an application which proposed utilizing Town property and right-of-way. The Town Council has not considered the merits of the Application nor has the Town Council had the opportunity to do so because the Town Council has not yet received the complete Application for review and consideration. The public hearing to consider the actual merits of the Application is scheduled by the PZC on December 18, 2012. The Avon Town Council must conduct its own public hearing before any final decision is made regarding the Application and any proposed use of Town owned property or right-of-ways. Parking, Loading and Snow Storage: These matters are addressed in the Town Staff’s report and are the proper issues to be considered by the PZC at the public hearing. MEMORANDUM & PLANNING LLC Attachment B to 2/21/13 Staff Report Avon Planning and Zoning Commission Lot 61/Wyndam Project: Clark Letter December 14, 2012 Page 2 of 2   Compliance with Review Criteria for Rezoning and Compliance with Comprehensive Plan: These matters are addressed in the Town Staff’s report and are proper issues to be considered by the PZC at the public hearing. Conclusion: It is my opinion that there is neither a legal procedural defect in the noticing process nor a legal substantive defect in the nature of the Application which proposes to utilize portions of Town property and right-of-way which would somehow preclude the PZC from legally conducting the public hearing scheduled for December 18, 2012 or somehow preclude the PZC from legally taking action to make a recommendation to the Avon Town Council on the Application. Thank you, Eric Attachment B to 2/21/13 Staff Report At t a c h m e n t C to 2/ 2 1 / 1 3 St a f f Re p o r t At t a c h m e n t C to 2/ 2 1 / 1 3 St a f f Re p o r t At t a c h m e n t C to 2/ 2 1 / 1 3 St a f f Re p o r t At t a c h m e n t C to 2/ 2 1 / 1 3 St a f f Re p o r t At t a c h m e n t C to 2/ 2 1 / 1 3 St a f f Re p o r t       Ord 13-03 Lot 61 Rezoning, MDP, AEC, Development Agreement February 26, 2013 Second Reading Page 1 of 5    TOWN OF AVON, COLORADO ORDINANCE 13-03 SERIES OF 2013 AN ORDINANCE APPROVING A REZONING APPLICATION FROM THE PLANNED UNIT DEVELOPMENT (PUD) ZONE DISTRICT TO THE TOWN CENTER (TC) ZONE DISTRICT, FOR LOT 1, A RESUBDIVISION OF LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK, TOWN OF AVON, EAGLE COUNTY; APPROVING A MAJOR DEVELOPMENT PLAN APPLICATION; APPROVING AN ALTERNATIVE EQUIVALENT COMPLIANCE APPLICATION; AND APPROVING A DEVELOPMENT AGREEMENT FOR “WYNDHAM – LOT 61”, LOCATED ON LOT 1, A RESUBDIVISION OF 61, BLOCK 2, BENCHMARK AT BEAVER CREEK WHEREAS, the Town of Avon (“Town”) is a home rule municipal corporation and body politic organized under the laws of the State of Colorado and possessing the maximum powers, authority and privileges to which it is entitled under Colorado law; WHEREAS, Wyndham Worldwide Vacation Ownership (“Applicant”) owns real property in the Town, described as follows: “Lot 1, A Resubdivision of Lot 61, an Amendment to Lot 61, Block 2, Benchmark at Beaver Creek Subdivision (“Property”)”; WHEREAS, the Applicant submitted a Rezoning Application to rezone the Property from the currently zoned Planned Unit Development (PUD) Zone District, to the Town Center (TC) Zone District, a Variance Application, a Major Development Plan Application, and an Alternative Equivalent Compliance Application (collectively the “Application”) to the Town’s Community Development Department on September 24, 2012; WHEREAS, Avon Municipal Code (“AMC”) §7.16.020(b)(4), Concurrent Review, allows concurrent review of multiple development applications, which concern the same property, and the Town’s Community Development Director has consented to concurrent review; WHEREAS, the Town’s Planning & Zoning Commission (“PZC”), after publishing and posting notice as required by law, held public hearings on December 4, 2012, December 18, 2012, and January 15, 2013; and prior to formulating a recommendation to the Town Council considered all comments, testimony, evidence and Town Staff reports; and then took action to adopt Findings of Fact, to make a recommendation to the Town Council; WHEREAS, after conducting these noticed Public Hearings, PZC made the required findings to approve the application; WHEREAS, the Town Council held Public Hearings on February 12, 2013 and February 26, 2013 after posting notice of such hearing in accordance with the requirements of AMC §7.16.020(d), Step 4: Notice, and considered all comments provided before taking action; Attachment D to 2/21/13 Staff Report       Ord 13-03 Lot 61 Rezoning, MDP, AEC, Development Agreement February 26, 2013 Second Reading Page 2 of 5    WHEREAS, pursuant to AMC §7.16.050(c), Review Criteria, the Town Council has considered the applicable review criteria for a Zoning Amendment; WHEREAS, the Applicant and Town Staff have jointly prepared a Development Agreement (“Agreement”) for Town Council consideration that will equitably and reasonably address various rights and obligations related to ongoing maintenance, revenues and liabilities to promote the successful development and operation of the project on the Property; WHEREAS, in accordance with AMC §7.12.030 (c), Town Council and AMC §7.12.050(c) and (d) and in addition to other applicable regulations in the Avon Municipal Code, authority granted by the Town Charter, or State of Colorado, the Town Council has application review and decision-making authority to approve, approve with conditions or deny the Application, and has the authority to negotiate and approve the Development Agreement; WHEREAS, pursuant to AMC §7.16.080(f), Review Criteria, and AMC §7.16.090(f), Review Criteria, and AMC §7.16.120(d), Review Criteria, the Town Council has considered the applicable review criteria for a Major Development Plan, Design Plan, and Alternative Equivalent Compliance application respectively; WHEREAS, the Town Council finds that the approval of the Application is in compliance with the mandatory review criteria as described in the Findings of Fact and Record of Decision, and will provide for orderly growth in accordance with the policy and goals set forth in the Town of Avon Comprehensive Plan, dated February 2006, and the Avon West Town Center District Investment Plan, dated August 2007, and will advance the general welfare of the Town; and WHEREAS, approval of this Ordinance on First Reading is intended only to confirm that the Town Council desires to comply with 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. 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 Zoning Map Amendment Approved. The Application to rezone the Property from the Planned Unit Development (PUD) Zone District to the Town Center (TC) Zone District is hereby approved. The Official Zoning Map of the Town of Avon shall be amended to change the zoning classification of the Property to Town Center (TC). Section 3 Major Development Plan. The Major Development Plan and Alternative Equivalent Compliance Applications are hereby approved, attached hereto as Exhibit A: Lot 61 Attachment D to 2/21/13 Staff Report       Ord 13-03 Lot 61 Rezoning, MDP, AEC, Development Agreement February 26, 2013 Second Reading Page 3 of 5    Major Development Plan. The approval of the Major Development Plan and Alternative Equivalent Compliance Applications are subject to the following conditions: 1. The Owner will provide the Community Development Department with a full revised Development Plan, which incorporates the changes depicted in the drawings attached (Attachment A) to Matt Pielsticker’s February 21, 2013 Staff Report. 2. The applicant will provide a mock-up of exterior materials which shall be reviewed by Avon PZC with the right to appeal to the Town Council in accordance with eth Avon Municipal Code Procedures. Section 4 Approval of Development Agreement. The Development Agreement is hereby approved. The Mayor is authorized to execute the Development Agreement, attached hereto as Exhibit B: Lot 61 Development Agreement. Section 5 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 6 Effective Date. This Ordinance shall take effect thirty (30) days after final adoption in accordance with Section 6.4 of the Avon Home Rule Charter. Section 7 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 8 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, Attachment D to 2/21/13 Staff Report       Ord 13-03 Lot 61 Rezoning, MDP, AEC, Development Agreement February 26, 2013 Second Reading Page 4 of 5    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 9 Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on Second Reading by title in at least three (3) 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. Section 10 Correction of Errors. Town Staff is authorized to insert proper dates, references to recording information and make similar changes, and to correct any typographical, grammatical, cross-reference, or other errors which may be discovered in any documents associated with this Ordinance and documents approved by this Ordinance provided that such corrections do not change the substantive terms and provisions of such documents. [EXECUTION PAGE FOLLOWS] Attachment D to 2/21/13 Staff Report       Ord 13-03 Lot 61 Rezoning, MDP, AEC, Development Agreement February 26, 2013 Second Reading Page 5 of 5    INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 on February 26, 2013 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. ____________________________ Rich Carroll, Mayor Published by posting at the Avon Town Hall, Avon Recreation Center and the Avon Public Library, 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 February 26, 2013. ____________________________ Rich Carroll, Mayor Published by posting by title at the Avon Town Hall, Avon Recreation Center and the Avon Public Library. ATTEST: __________________________ Patty McKenny, Town Clerk Attachment D to 2/21/13 Staff Report   Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: Lot 61 – Wyndham Project DATE: February 21, 2013 Summary: This memorandum provides an overview of revisions to the Development Agreement for the Wyndham Project on Lot 61. Attached is a redline version of the Development Agreement which depicts changes from the Development Agreement presented to Council on February 12, 2013. Council approved first reading of Ordinance No. 13-03 (which approves) the Development Application and Development Agreement and scheduled a public hearing for February 26, 2013. Council Direction: Council’s approval of Ordinance No. 13-03 on First Reading included the following direction to Town Staff and the Applicant [follow-up comments are in brackets]: 1. Development Agreement and Development Plan shall be amended to not permit trash removal on Lettuce Shed Lane. [Applicant added language in Section 6.1(b) which is acceptable]. 2. Development Agreement shall provide that on the west side of the building, Town shall fund, construct and maintain the Lettuce Shed Lane pedestrian path and landscaping to the west side of path. Town and Applicant shall coordinate landscaping on Lettuce Shed Lane to insure consistency in planting. [Language has been revised in Sections 5.2(b) and (c) and Sections 6.1(b) and (c) to incorporate this direction.] 3. Applicant shall agree to provide a mock-up of exterior materials which shall be reviewed by Avon Planning and Zoning Commission with the right to appeal to the Town Council in accordance with the Avon Development Code procedures. [This provision is addressed in the Ordinance as a condition]. 4. The Development Agreement shall be amended to provide that testing of the generator shall occur no more frequently than once a month and shall define hours of testing. [Applicant added language in Section 6.3. The proposed language provides flexibility to test generator outside of established timeframes when Owner for emergencies, equipment failure and other events determined by Owner. The language is acceptable to me because I believe such a provision practically only establishes a guideline, some flexibility must be allowed for emergencies and unforeseen circumstances and strict enforcement would be difficult.] 5. The Development Plan shall be amended to define location and type of bench. [This provision is addressed in the Development Plan]. 6. Town Staff shall verify financial assumptions with Applicant for real estate transfer tax. [This provision is addressed in Town Staff memorandum]. M EMORANDUM & PLANNING, LLC Avon Town Council Lot 61 – Wyndham Project Development Agreement February 21, 2013 Page 2 of 2   Additional Revisions: Other revisions have been incorporated to correct formatting, definitions, references and typos as well as to better define certain terms of the Development Agreement. These additional revisions are discussed as follows: Section 4.1(a) – reference typo in second line is corrected. Section 5.2(d) – the language was revised for grammatical clarity. Section 5.6 – language was revised to refer to "Public Improvements constructed and installed by Owner" to be clear that the warranty period does not apply to Public Improvements constructed by Town. Same change to Sections 5.7 and 5.8(b). Section 5.8 – reference to Xcel Energy and CenturyLink was corrected. Section 5.8(a) – reference typo in third line was corrected. Section 5.9(a) – language was revised to clarify scope of indemnification. NOTE: This indemnification includes on-going maintenance, which is clarified in Section 8.2 below. Section 5.9(b) – a reciprocal indemnification clause is added for Town installed Public Improvements whereby Town agrees to indemnify Owner for any claims related to Town’s installation of Public Improvements on Town lands and right-of-ways. Section 6.5 – language was revised to use the term "Owner Maintained Public Improvement" because Art. V refers to all improvements to be constructed by either Owner or Town as "Public Improvements." A sentence was added to define a ninety (90) minimum timeframe for written notice of Town’s election to revoke and terminate the Revocable License. Section 6.5(b) – Language was revised to better reflect the intent of Development Agreement rather than use standard language from the Town’s form license agreement. It does not make sense that Town would require Owner to construct certain Public Improvements, accept them, then potentially require removal at Owner's cost if the Revocable License were revoked. Therefore, revised language refers to Public Improvements as constructed by Owner under the Agreement and accepted by Town. Section 6.5(e) – language was added to incorporate standard provision from the Town’s form license agreement which states that Licensee (Owner) shall not sue Town for any claim arising from license granted by Town to Owner. Section 8.2 – language was revised to clarify that indemnification language in Section 5.9(a) for maintenance of Public Improvements installed by Owner is an on-going Association obligation and to clarify that Town’s status as a third party beneficiary is limited only to the purpose of enforcing the Amenity Fee and Owner’s maintenance obligations. Section 9.11 – language was revised to clarify that Town is committed to appropriate funds for construction of Public Improvements by Town, but maintenance of Public Improvements by Town is subject to annual appropriation and not a default of the Agreement. Thank you, Eric Page 1 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (“Agreement”) is made and entered into as of _________________, 2013, by and between WYNDHAM VACATION RESORTS, INC., a Delaware corporation (“Owner”), and the Town of Avon, a municipal corporation of the State of Colorado (“Town”) (individually referred to as “Party” and collectively as “Parties”). RECITALS A. Owner is a corporation duly organized and in good standing under the laws of the State of Delaware and authorized to do business in the State of Colorado. Owner is the owner of approximately 0.845 acres within the Town that is legally described as: Lot 1, a Resubdivision of a Replat of Lot 61, Block 2, Benchmark at Beaver Creek, according to the Plat thereof filed February 23, 2004 at Reception no. 868662, County of Eagle, State of Colorado (“Property”). B. The Town has authority to zone, rezone and regulate development of the Property in accordance with this Agreement, the Comprehensive Plan, the Municipal Code, and other applicable Town ordinances and policies. The Town’s authority to enter into this Agreement is derived from its home rule charter, state statutes, and the power generally held by Colorado home rule municipalities to address matters of local concern by contract or ordinance. C. The Owner has submitted an application to the Town for approval of a Code Text Amendment through Ordinance No. 13-02; a Rezoning, Development Agreement, Major Design and Development application and Alternative Equivalent Compliance application through Ordinance No. 13-03 (“Applications”). The Town’s approval of the Applications is conditioned upon the execution of this Agreement. D. The Owner intends to create a plan to create and sell a points-based Time-share Plan for the sale of Time-share Interests (as defined below) on the Property (“Wyndham Time-share Plan”), which shall be used by Time-share Occupants; E. A Time-share Owner in the Wyndham Time-share Plan shall purchase a Time-share Interest that includes a specific number of points (“Time-share Points”), whereby a Time-share Owner of the Wyndham Time-share Plan shall use the Time-share Points to reserve that Time- share Owner’s Time-share Period (as defined below); F. Development of the Property in accordance with this Agreement will provide for orderly growth in accordance with the policy and goals set forth in the Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment-backed expectations of the Owner, foster cooperation between the public and private sectors in the area of land use planning, and otherwise achieve the goals and purposes of the Town. Page 2 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 G. The Owner proposes a public-private partnership through which the Owner will utilize portions of Town land and right-of-way (“ROW”), including Lettuce Shed Lane, Tract G, Benchmark Road, and the Transportation Center, for the purpose of calculating site coverage and minimum landscaped area, will construct certain private and public improvements on Town land and ROW as described in this Agreement, and will pay certain taxes and fees as described in this Agreement. The Town and Owner find that the size and configuration of the Property presents unique challenges and opportunities and that terms of this Agreement present creative solutions through which the Owner may enjoy a viable development and the Town may realize certain goals and policies of the Avon Comprehensive Plan and through which the Owner may contribute taxes and fees to the Town on an equitable basis with other similar Time-share developments in the Town. AGREEMENT NOW, THEREFORE, in consideration of the recitals set forth above, the terms, conditions, covenants and mutual promises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner and the Town agree as follows with respect to the development of the Property: ARTICLE I DEFINITIONS Definitions. The following terms shall have the meanings set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Amenities Fee. A consensual fee intended to mitigate the impact of a Time-share Interest, including the cost of transportation and recreational facilities. 1.2 Association. The common interest community association and/or other entity formed or to be formed for purposes of governing the rights, obligations and interests of owners of Time-Share Interests and other interests in the Development upon completion of construction thereof. Certain provisions relating to the rights and obligations of the Association are provided in Article VIII of this Agreement. 1.3 Association Governing Documents. The declaration of covenants, articles of incorporation, bylaws, rules and regulations, and any other documents creating or governing the Association and its members, as in existence from time to time. 1.4 Benchmark Road. The Town right-of-way known as Benchmark Road, located in part to the south and east of the Property. 1.5 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Planning and Zoning Commission of the Town in February, 2006, and any amendments thereto, and including the Avon West Town Center District Investment Plan dated August 2007. Page 3 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 1.6 Development. The project to be constructed on the Property as described in the Development Plan. 1.7 Development Plan. The approved Major Design and Development Plan, as well as the Alternative Equivalent Compliance, that define the Development, attached hereto as Exhibit A. 1.8 Effective Date. The date the Town Council Ordinance No. 13-03 approving this Agreement becomes effective. 1.9 Exchanger. A Time-share Owner in a Time-share Plan who is a member of an Exchange Program. 1.10 Exchange Program. Any method, arrangement, or procedure for the voluntary exchange of the right to use and occupy accommodations and facilities among Time-share Owners of one or more Time-share Plans. 1.11 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Major Design and Development Plan for the Property. Exhibit B Public Property Improvement Map Exhibit C Trash Removal Operations Map 1.12 Fire District Impact Fee. The impact fee levied and collected by the Town pursuant to Chapter 3.40, Impact Fee, of the Municipal Code. 1.13 Heat Recovery. The system utilized by the Town that utilizes effluent heat from the Avon Wastewater Treatment Plant for snow melt and other heating purposes. 1.14 Lettuce Shed Lane. The Town right-of-way located immediately to the northwest of the Property and identified as “Benchmark Court” on the Plat. 1.15 LSL Path. The paved driveway and pedestrian path to be installed in Lettuce Shed Lane. 1.16 Municipal Code. The Avon Municipal Code, as may be amended from time to time. 1.17 Plat. The Plat of Resubdivision of a Replat of Lot 61, Block 2, Benchmark at Beaver Creek, filed February 23, 2004 at Reception No. 868662, County of Eagle, State of Colorado 1.18 Public Accommodations Tax. The tax levied and collected by the Town pursuant to Chapter 3.28 of the Municipal Code, or any subsequent tax levied upon the lease or rental of hotel rooms, condominiums or other accommodations. 1.19 Public Improvements. Those improvements to be acquired, constructed or installed for the benefit of the public, including, but not limited to, the Public Improvements described in Article IV. Page 4 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 1.20 Real Property Transfer Tax. For purposes of this Agreement, Real Estate Transfer Tax shall mean any municipal real estate transfer. The tax imposed, levied and collected by the Town pursuant to Chapter 3.12, Real Property Transfer Tax, of the Municipal Code, as may be amended, or any similar code provision enacted during the Term of this Agreement. 1.21 Sales Tax. The tax levied and collected by the Town pursuant to Chapter 3.08, Sales Tax, of the Municipal Code, as may be amended, or any similar code provision enacted during the Term of this Agreement. 1.22 Term. The term of this Agreement as provided in Article III hereof. 1.23 Time-share. Time-share means a time share estate, as defined in Section 38-33-110(5), Colorado Revised Statutes, or a time share use, as defined in Section 12-61-401(4), Colorado Revised Statutes. 1.24 Time-share Interest. The Time-share ownership interest of a Time-share Owner. 1.25 Time-share Occupants. Any person occupying or permitted to occupy a Time-share Unit, including but not limited to a Time-share Owner, members of the Time-share Owner’s family, the Time-share Owner’s guests, invitees, and any Exchangers and their respective family members, guests and invitees. 1.26 Time-share Owner. A person with legal ownership of a Time-share Interest. 1.27 Time-share Period. A Time-share Owner’s period of occupancy in a unit submitted to the Time-share Plan, which is reserved in accordance with the reservation system established to govern the operation of the Time-share Plan. 1.28 Time-share Plan. Any arrangement, plan, or similar device, other than an Exchange Program, whereby a person acquires a Time-share Interest. Notwithstanding any reference to the name “Vacation Ownership Plan” or the use of the term “Club”, the Wyndham Time-share Plan is considered to be Time-share as defined in this Agreement and Section 12-61-401(4), Colorado Revised Statutes. 1.29 Time-share Points. This term shall have the meaning given it in Recital E to this Agreement, above. 1.30 Time-share Unit. A unit at the Property which has been submitted to the Time-share Plan, which is designated for the use and occupancy of Time-share Occupants. 1.31 Town. The Town of Avon, a home rule municipal corporation of the State of Colorado. 1.32 Town Council. The Town Council of the Town. 1.33 Tract G. Portions of Tract G, Block 2, Benchmark at Beaver Creek subdivision that is located immediately to the north of the Property. Page 5 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 1.34 Transportation Easement. The easement for transportation facility purposes granted to the Town by the Owner in that certain Deed of Easement recorded in the real property records of Eagle County, Colorado, on April 13, 2007 as Reception NNo. 200709655. 1.35 Transportation Center. Area generally to the south of the Property that includes, but is not limited to, the Transportation Easement, bus shelter and area used for pedestrians and bus movement. ARTICLE II ZONING AND DEVELOPMENT PLAN 2.1 Zoning. Concurrently with the approval of this Agreement, the Property is being rezoned as Town Center through Ordinance No. 13-03. 2.2 Development Plan. The Development Plan sets forth the approved scope of development of the Property and has been approved by the Town through Ordinance No. 13-03. 2.3 Compliance with General Regulations. The approval of the Development Plan and this Agreement shall not preclude the application of Town ordinances and regulations, or state or federal laws and regulations, which are general in nature and are applicable to all property subject to land use regulation by the Town, including, but not limited to, building, fire, plumbing, electrical and mechanical codes, as all such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement. ARTICLE III TERM 3.1 Term. The term of this Agreement shall be perpetual and shall terminate only five (5) years after such time as the primary building that comprises the Development is no longer in existence on the Property and the Property is not used for Time-share use. In the event the primary building which comprises the Development is destroyed by fire or other calamity and then reconstructed within five (5) years, this Agreement shall continue in full force and effect. The Parties may terminate this Agreement earlier by mutual agreement. ARTICLE IV TOWN AMENITIES FEES AND TAXES 4.1 Amenities Fee. (a) Commencing as of the effective date of this Agreement and continuing in perpetuity with respect to each Time-share Interest except as provided in Section 4.21(c) below, the Association shall collect from each Time-share Owner other than the Owner and remit to the Town on a semi-annual basis an Amenities Fee in the amount of $0.000082 per Page 6 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 year per Time-share Point owned by such Time-share Owner based on the current 2012 fee, which is hereby agreed by the Town and Owner to be the equivalent of $33.06 per year per approximate weekly interest in the Development. The obligation for each Time-share Owner to pay the Amenities Fee shall be a covenant running with the land and shall be described in all Association covenants. The amount of the semi-annual Amenities Fee payments will be calculated according to the following formula: Number of total points owned by Time-share Owners per semiannual period (January-June, calculated as of June 1, and July-December calculated as of December 1), multiplied by an amount equivalent to $0.000082 per Time-share Point as defined above (or as adjusted by CPI- U, as defined below and rounded to the nearest one-millionth decimal place), divided by 2. The $0.000082 per Time-share Point is based on total available Time-share Points of 1,186,000,000. Should the total number of available Time-share Points change the Amenities Fee shall be recalculated based on the total number of points so that the fee per Time- share Point is the equivalent of $33.06 per year per weekly interest. The due dates for the semiannual payments are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2013 and on the first day of each year thereafter, the amount of the Amenities Fee shall be increased or decreased by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the “CPI-U”). It shall be the duty of the Association to assure that such records as are necessary to determine the amount of Amenities Fees due hereunder are maintained by the Association. Such records shall be preserved for a period of three years and shall be open for inspection by representatives of the Town during regular business hours. If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the Town shall make a written demand of the amount due and deliver or mail the same to the office of the delinquent Association... The amount properly determined to be owing shall bear interest from the due date at the Town’s rate imposed by Chapter 3.32 of the Municipal Code on past due accounts. The current rate as of the date of this Agreement established by Chapter 3.32 of the Municipal Code is eighteen percent (18%) per annum until paid. (b) The Association, upon formation, shall be deemed to hereby assign and grant a continuing security interest in the Association’s right to future income, including the right to receive common expense assessments of any kind levied pursuant to its condominium declaration, and its lien therefor, to secure payment of the Amenities Fee. Upon default of Page 7 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 the Association in collection and/or remittance of the Amenities Fee and notice thereof to the Time-share Owners, the Town shall have the right to directly receive common expense assessments and exercise any rights of the Association against non-paying Time-share Owners in order to collect same. The creation of the security interest and other rights contained in this Section 4.1(b) shall be included in the Association Governing Documents. (c) The intent of the Amenities Fee is to assist the Town in providing certain services that are of benefit to the Development, such as bus service and recreational amenities. The nature of the Development as a Time-share project may cause additional demand for Town services above what might typically be expected for residential properties located within the Town. Notwithstanding this, the Town and Owner expect that the Time- share Interests will be classified by the Eagle County Assessor as residential property for purposes of real estate tax assessment, and therefore pay proportionally less real property taxes than a comparable commercial property. For this reason, the Amenities Fee shall only be in force and effect during such times as the Time-Shareshare Interests are classified by the Eagle County Assessor as residential property for purposes of real estate tax assessment, and if the Time-Shareshare Interests are classified as commercial the Amenities Fee shall thereafter not be due or payable under this Agreement and this Section 4.21 shall be of no force or effect. 4.2 Public Accommodations Tax. Usage of the Development by Time-Shareshare Occupants, and for sales and marketing purposes by the Owner or the Association, shall not be considered a lease or rental of an accommodation unit subject to the Public Accommodations Tax. The Public Accommodations Tax shall be levied and collected upon the rental of all or any portion of a Time-share Period on a short-term (less than 30 days) basis to any party not described above, in accordance with the provisions of the Avon TownMunicipal Code related thereto in effect from time to time. Each Time-share Owner or its rental agent shall be responsible for payment of the Public Accomodations Tax due upon the leasing or rental of all or any portion of a Time-share Period by the Time-share Owner. Because neither Owner (solely in its capacity as developer of the Development) nor the Association would be the party renting a Time-share Period for use by another party, neither Owner nor the Association shall be responsible for collecting or liable to the Town for payment of any amounts due from rental of any Time-share Period by a Time-share Owner if the Time-share Owner rents directly to a third- party. However, Owner shall be liable for payment of any Public Accommodations Tax due or owing as a result of the rental of any Time-share Periods associated with Time-share Interests owned by it, and any rental management company affiliated with Owner will collect and remit payment of any Public Accommodations Tax due or owing as a result of the rental of any Time- share Periods through such entity. 4.3 Sales Tax. The Town’s sales tax levy, as provided for in Chapter 3.08 of the Municipal Code shall apply in all circumstances to the Development. Similar to the provision for Public Accommodations Tax in Section 4.2 of this Agreement, usage of the Development by Time-Shareshare Occupants, and for sales and marketing purposes by the Owner or the Association shall not be considered lodging services as defined by Chapter 3.08 of the Municipal Code or subject to the Sales Tax. Sales tax shall be levied and collected upon any lodging services provided to any party not described above. Page 8 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 4.4 Real Property Transfer Tax. All transfers of interests or possessory rights in and to real estate located within the Development by deed, lease, assignment of lease, agreement for sale of stock or contract and including the sale of Time-share Interests represented by Time-share Points shall be subject to the Town’s Real Property Transfer Tax as provided for in Chapter 3.12 of the Municipal Code. The Town acknowledges that, in certain circumstances, the sale of a Time-share Interest may be subject to a statutory right of rescission in favor of the buyer. In acknowledgment of the fact that the exercise of such rescission right has the effect of voiding the conveyance of the Time-share Interest, the Town determines that the transfer of the Time-share Interest is not complete until expiration of the rescission period for purposes of Avon TownMunicipal Code §3.12.030, and for this reason the Real Property Transfer Tax shall be held in escrow following the closing. If the buyer exercises its right of rescission, no Real Property Transfer Tax shall be due or payable. If the buyer does not exercise its right of rescission, the Real Property Transfer Tax shall be distributed to the Town out of escrow promptly after expiration of the rescission period. The Town recognizes that from time to time the Owner will trade or upgrade a Time- share Owner into additional Time-share Interests at the Property or for time-share interests at a new location or for a new product. In order to effectuate these trades and upgrades, from time to time Time-share Owners may need to deed that Time-share Owner’s existing Time-share Interest back to Owner in order to receive a new deed with the upgraded Time-share Interest and applicable TimeshareTime-share Points. Each of the three (3) scenarios for trades and upgrades are further described below: (a) Upgrade at the Property. From time to time an existing Time-share Owner may want to acquire additional Time-share Points at the Property. In order to effectuate such upgrade in Time-share Points, a Time-share Owner would submit the original deed to that Time-share Owner’s Time-share Interest to Owner. Owner would then provide a new deed to the Time-share Owner which would show both the Time-share Owner’s original Time-share Points, and the newly acquired Time-share Points. (i) Deed to Owner. Owner attributes a value of Ten and No/100 Dollars ($10.00) to the deed from Time-share Owner to Owner, thus the Town acknowledges and agrees that the taxable consideration for any such deed from Time-share Owner to Owner in this instance would be Ten and No/100 Dollars ($10.00). (ii) New Deed to Time-share Owner. Because the Time-share Owner has already paid the applicable Real Property Transfer Tax on the original deed to Time-share Owner, the Parties acknowledge and agree that the total consideration for the new deed being issued to the Time-share Owner in this subsection (a) would be the Time-share Owner’s additional consideration paid for the additional Time-share Points. By way of example, if a Time-share Owner originally purchased a Time-share Interest with “X” Time-share Points valued at the equivalent of $50,000, and that Time-share Owner desired to upgrade and purchase “Y” Page 9 of 28 Lot 61 – Wyndham Project Development Agreement Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 additional points valued at $25,000 at the Property, although a new deed would be issued to the Time-share Owner for “X+Y” Time-share Points with a total value of $75,000, because the Time-share Owner has already paid the Real Property Transfer Tax for the original $50,000, the total taxable value for the new deed would be $25,000. (b) Trade from the Property. From time to time existing Time-share Owners may desire to trade that Time-share Owner’s Time-share Interest toward time-share interest at another property owned by or affiliated with the Owner. By way of example, a Time-share Owner at the Property may desire to trade his or her Time-share Interest for a time-share interest at the Owner’s Orlando time- share resort. In this case the Time-share Owner would deed his or her Time-share Interest in the Property back to Owner, and would receive a new deed for a time- share interest at the Orlando property. The Owner attributes a value of Ten and No/100 Dollars ($10.00) to the deed from Time-share Owner to Owner, thus the Town acknowledges and agrees that the taxable consideration for any such deed from Time-share Owner to Owner in this instance would be Ten and No/100 Dollars ($10.00) for the Real Property Transfer Tax. Any Time-share Interests returned to the Owner shall be sold to another third party purchaser, and Owner acknowledges and agrees that upon the resale of any such returned Time-share Interests shall be subject to the full Real Property Transfer Tax, with no limitation on the number of taxable resales on such returned Time-share Interests. (c) Trade to the Property. From time to time existing time-share owners at other time-share resorts owned by or affiliated with the Owner may desire to trade that time-share owner’s time-share interest toward a Time-share Interest at the Property. In this situation, the Parties acknowledge and agree that the consideration for the Real Property Transfer Tax shall be the full value of the new Time-share Interest acquired at the Property. By way of example, a time-share owner at Owner’s time-share resort in Orlando may desire to trade his or her time- share interest in Orlando for a Time-share Interest and Time-share Points valued at $100,000 at the Property, the total consideration and taxable value of this transaction would be $100,000. Each transfer that is entitled to any exemption from the Real Property Transfer Tax described herein shall be reported to the Town in the manner required by the Avon Town Code from time to time. Neither Owner nor the Association shall be responsible for collecting or otherwise liable for the payment of the Real Property Transfer Tax for the sale of a Time-share Interest sold by a Time-share Owner to a third-party purchaser. ARTICLE V Public Improvements 5.1 Public Improvements. Owner agreesand Town agree to provide the public improvements set forth in this Agreement. (the “Public Improvements”). Such obligations directly Page 10 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 relate to the Applications complying with the minimum required development standards set forth in the Avon Municipal Code and are a material to the terms, conditions, covenants and mutual promises bargained for by Town and Owner in this Agreement. 5.2 Installation of Public Improvements or Payment in Lieu. (a) Area A of Exhibit B: Owner agrees to install all landscaping, hardscape, street lights and other similar improvements, including street lights consistent with the 2012 Mall Improvement Plan, within Area A of Exhibit B as called out in the Development Plan. (b) Area B of Exhibit B: Owner Town agrees to install Area B of Exhibit B (the LSL Path) as called out in the Development Plan. That portion of The LSL Path shall be served by a snowmelt system and the cost of the LSL Path closest to Benchmark Road, and extending to the paved connection to the Development’s trash room, shall be oversized in width and structural capacity in order to accommodate use of same by trash removal vehicles servingshall be borne by the Town. The Town agrees to complete all construction within Area B of Exhibit B on or before the date that construction of the Development. The design and oversizing shall be subject is complete, as evidenced by Owner’s application to the approval by the Town Engineer prior to issuance of a building permit. The Owner shall maintain pedestrian access through Lettuce Shed Lanefor a certificate of occupancy for the duration of construction.Development. (c) Area C of Exhibit B: Owner Town agrees to install, or reimburse the Town for the cost of installation, all landscaping within Area C of Exhibit B as called out on the Development Plan, in a manner consistent with the 2012 Mall Improvement Plan. The Owner shall maintain pedestrian access through Lettuce Shed LaneThe Town agrees to complete all construction within Area C of Exhibit B on or before the date that construction of the Development is complete, as evidenced by Owner’s application to the Town for the duration of construction except that periodic closures may occur during non-peak periods subject to approval by the Town. Protectiona certificate of pedestrians may be required and may include a barrier and/or covered walkway as prescribed by Chapter 33 of the International Building Code and subject to approval by the Town’s Chief Building Official. occupancy for the Development. (d) Area D of Exhibit B: Owner shall install all landscaping approved within Area D of Exhibit B as called out on the Development Plan, but for noshall not install any other improvements within Tract G, including any paved path therein. (e) Area E of Exhibit B: Owner shall install all landscaping approved within Area E of Exhibit B. Owner shall be responsible for access improvements to the site from Benchmark Road including any snowmelt system installation and related improvements necessary to tie into the Town’s proposed sidewalk improvements. An existing heated sidewalk installed by the Town on Benchmark Road encroaches approximately one and one-half (1.5) feet onto the Property which conflicts with the construction of proposed subsurface and surface improvements. The Town shall be responsible for reconstructing this sidewalk to a location outside the Property that is no less than six (6) feet wide and conforms to the Development Plan. Page 11 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 (f) Area F of Exhibit B: Owner shall install improvements as called out on the Development Plan that will occur in the Transportation Center including underground utilities and a trash truck ramp.. These improvements shall be coordinated with the Transit Superintendent to minimize impacts to the Transportation Center operations. All work in the Transportation Center must occur during spring and fall off-season shoulder periods, as determined by Owner and approved by the Town’s Chief Building Official. Any construction that will require closure of the bus lane or pedestrian sidewalk will be limited to 30 days and require 60 days’ notice to the Transit Superintendent. (g) Heat Recovery: The Town shall extend the Heat Recovery system to the Transportation Center and to the property in late 2013 or early 2014. Construction entails installing four (4) buried pipelines in Lettuce Shed Lane, two (2) of which will run to a manifold located in the northwest corner of the Transportation Center and two (2) to the property at a location specified by the Owner. The installation of the Heat Recovery pipes requires coordination with the Owner’s construction of Public Improvements in Lettuce Shed Lane. (Area A of Exhibit B). The Owner shall inform the Town of the construction schedule within Lettuce Shed Lane at the issuance of the building and right-of-way permits so that the Town can schedule the construction of the Heat Recovery pipes. Town acknowledges that Owner is not obligated or required to connect to the Heat Recovery system. (h) Damage during Construction Activity: If any construction by Owner, or any encroachment or other site condition, causes damage to any Town-owned improvement within Benchmark Road, Owner shall reconstruct same up to the boundary of the Property to its condition existing immediately prior to any such damage. 5.3 Subdivision. The Owner shall apply for and the Town shall approve a subdivision application consistent with the Municipal Code and Development Plan prior to the issuance of a Temporary Certificate of Occupancy or Certificate of Occupancy. The property line for the Property and Lettuce Shed Lane shall be relocated to two (2) feet to the east of the LSL Path, so that the area to the east is included within the Property, and Lettuce Shed Lane is reconfigured to exclude such area. 5.4 Utilities. The Owner shall install any utilities or other similar improvements consistent with the Development Plan to be constructed within Lettuce Shed Lane. The Town shall grant such easements or a Rightright-of-Wayway permit as are required for same. 5.5 Timing of Public Improvements. The Town shall complete on or before the date of completion of the Development, which date shall be defined as the date that Owner receives from the Town a Temporary Certificate of Occupancy or Certificate of Occupancy for the Development, all improvements required to be provided by the Town in this Agreement. The Owner shall inform the Town of all construction plans within Town land and ROW ninety (90) days prior to the start of construction. 5.6 Warranty Period. The Public Improvements constructed and installed by Owner shall be warranted to be free from defects in workmanship or quality for a period of two (2) years after acceptance of all the work by the Town. In the event of any such defect, the Town may require Page 12 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 Owner to correct the defect in material or workmanship. Ten percent (10%) of the total actual cost of completion of all Public Improvements to be installed and constructed by Owner shall be collected by the Town from the Owner as collateral during such two (2) year period as a guaranty of performance of any work required pursuant to the above described warranty. In the event any corrective work is performed during the two-year warranty period then the warranty on said corrected work shall be extended for two (2) years from the date on which it is completed. Collateral equal to 125% of the cost of any corrected work, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Owner, if sufficient funds are not held by the Town, in accordance with Section 7.32.100, for a period of two (2) years from the date of completion of the corrected work. 5.7 Engineering Certification. Upon completion of portions of the Public Improvements to be installed and constructed by Owner, Owner will cause his engineers (who shall have been actively engaged in observing the construction of the Improvements and be registered in the State of Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on-site observation, review of sufficient construction-observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as- constructed plans, including surveys, and other supporting documentation shall be submitted with the certification. The as-constructed plans shall be submitted on paper and in a digital format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 5.8 Inspection Procedures. All work shall be done under the inspection procedures and standards established by the Town and Holy Cross Energy, Eagle River Water and Sanitation District, ExcelXcel Energy, Qwest CommunicationsCenturyLink, Comcast or any other utility (“Utilities”), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All work shall not be deemed complete until the reasonable approval and acceptance of the Public Improvements by the Town and/or the Utilities. Such inspections by the Town and Utilities shall not relieve the Owner or hisOwner’s agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (a) Cost of Inspections: The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Owner and subject to the limitations set forth in paragraph 5.8(b) below. (b) Notice of Non-Compliance: In the event that the Town through its inspectors reasonably determines that the Public Improvements to be installed and constructed by Owner are not in compliance with the Approved Plans, it shall give written notice of such non-compliance (“Notice of Non-Compliance”) to the Owner. The Notice of Non- Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Page 13 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 Non-Compliance must be provided to the Owner within two (2) working days of the date of the inspection. 5.9 Indemnification and Hold Harmless. (a) Owner shall install or cause to be installed all Public Improvements that Owner is required to construct in a good and workmanlike manner in accordance with the applicable regulations of the Town and in accordance with a Subdivision Improvement Agreement between Owner and the Town. Owner shall indemnify, defend and hold harmless the Town (and its officials, agents, representatives, employees, contractors, and successors and assigns) from all claims, demands, damages (including, without limitation, consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys’ fees) resulting from claims for bodily injury (including death) to any person or damage to any property, arising during the construction of the Public Improvements or otherwise arising on the Property or from Owner’s activities in performing this Agreement (including, without limitation, maintenance, repair and replacement activities).), including without limitation any claim that all or any portion of the Public Improvements installed and constructed by Owner on Town land or ROW constitute a dangerous and/or unsafe condition within a public right-of-way; provided, however, that this indemnity shall not apply to any claims, demands, damages (including, without limitation, consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys’ fees) resulting from any act or omission of the Town or its officials, agents, representatives, employees, contractors, and successors and assigns. (b) Town shall install or cause to be installed all Public Improvements that Town is required to construct in a good and workmanlike manner in accordance with the applicable regulations of the Town. To the extent permitted by law, Town shall indemnify, defend and hold harmless the Owner (and its officials, agents, representatives, employees, contractors, and successors and assigns) from all claims, demands, damages (including, without limitation, consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys’ fees) resulting from claims for bodily injury (including death) to any person or damage to any property, arising during the construction of the Public Improvements or otherwise arising on the Property or from Town’s activities in performing this Agreement (including, without limitation, maintenance, repair and replacement activities); provided, however, that this indemnity shall not apply to any claims, demands, damages (including, without limitation, consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys’ fees) resulting from any act or omission of the Owner or its officials, agents, representatives, employees, contractors, and successors and assigns. ARTICLE VI MAINTENANCE AND ONGOING OBLIGATIONS 6.1 Operations and Maintenance Obligations. Owner and the Town understand and acknowledge that certain aspects of the maintenance, operation and use of the Development, Page 14 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 Lettuce Shed Lane, Tract G, Benchmark Road, and the Transportation Easement require designation of maintenance responsibilities, rights and obligations. The following provisions shall address such ongoing maintenance matters: (a) Trash Removal and Deliveries. Owner shall have the right to use the LSL Path and Lettuce Shed Lane, as provided for in Exhibit C, as necessary for trash removal from the Development. Owner shall schedule trash pick-up activities between the hours of 10 am and 3 pm to cause the least disruption to occupants of the Development and users of Lettuce Shed Lane. The hours of trash pick-up activities may be modified by mutual agreement between the Owner and Town Manager. Owner shall maintain the exterior of its trash removal area in a neat and clean condition, and shall promptly clean any spills and trash or repair damage caused by its use of any Town land and right-of-way for trash removal. The Town may clean any spills or trash or repair damage and charge the Owner, if the Owner does not clean any spills or trash or repair any damage or trash immediately upon notification from the Town. (b) Other Deliveries. All other Owner and Tenant deliveries shall not use LSL Path, Lettuce Shed Lane, Tract G or the Transportation Center. 6.2 Operations and Maintenance. (a) Area A of Exhibit B: The Owner shall maintain, repair, and replace all landscaping, storm ceptor and other improvements located within Area A of Exhibit B at Owner’s sole expense as called out in the Development Plan. Owner and Town agree to cooperate to ensure that the landscaping located within Areas A and C of Exhibit B are consistently maintained. (b) Area B of Exhibit B: The Town shall maintain, repair, and replace all improvements located within Area B of Exhibit B at the Town’s sole expense as called out in the Development Plan, except as expressly provided in Section 6.1(a) above. Owner shall not be permitted to use the LSL Path and Lettuce Shed Lane right-of-way as access for the removal of trash from the Development. (c) Area C of Exhibit B: The Town shall maintain, repair, and replace all landscaping and other improvements located within Area C of Exhibit B at Town’s sole expense as called out on the Development Plan. The Town agrees with Owner to cooperate to ensure that the landscaping located within Areas A and C of Exhibit B are consistently maintained. (d) Area D of Exhibit B: The Owner shall maintain, repair, and replace all landscaping and other improvements located within Area D of Exhibit B at Owner’s sole expense as called out in the Development Plan. (e) Area E of Exhibit B: The Owner shall maintain, repair, and replace all landscaping and other improvements located within Area E of Exhibit B at the Owner’s sole expense as called out on the Development Plan. Page 15 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 (f) Area F of Exhibit B: The Owner shall be entitled to construct and maintain any and all building overhangs as depicted on the Development Plan, and same shall be entitled to exist as permanent encroachments within the Transportation Easement. 6.36.2 Snowmelt. The Owner shall have the right, but not the obligation, to connect to the Town’s heat recovery system for purposes of providing all or a portion of heat needed to snowmelt the entry drive, patios, trash room access pad, and automobile courtyard at the Development. Any such connection shall be at the Town’s then-current standard fees and charges for connection and service. 6.3 Generator Testing. Owner agrees that it shall test the back-up generator located at the Development not more frequently than once per month, and shall conduct any such tests between the hours of 10:00 a.m. and 5:00 p.m.; provided, however, that Owner may conduct tests at other times if required due to emergency, equipment failure, or other event that, in Owner’s reasonable discretion, necessitates that the back-up generator be tested. 6.4 Ongoing Cooperation. The Owner and Town mutually agree to cooperate with the other Party in a reasonable manner to address any ongoing issues of development or use of the Property, including any unforeseen matters such as encroachment of improvements onto adjacent Town land and ROW and maintenance practices and operations. 6.5 Revocable Encroachment License. The Town hereby grants to the Owner a revocable license (“License”) for the encroachment and occupation for landscaping and, snowmelt system and other improvements constructed by Owner in Areas A, D and E (“PrivateOwner Maintained Public Improvements”), provided, however, that nothing in this Agreement is intended to waive, alter, modify, or permit any violation of any local law applicable within the Town. Town may revoke and terminate this License upon providing ninety (90) days prior written notice to Owner of Town’s election to revoke and terminate this License. To the extent that the location or other specifications of this License or any exhibit conflicts with local laws, the local law shall govern. (a) The Owner agrees that the Town is not liable, and will not assume any liability, responsibility, or costs for any damage, maintenance, or repair of any PrivateOwner Maintained Public Improvements erected or maintained by the LicenseeOwner under this Agreement. (b) The Owner agrees to repair and reconstruct any damage to the Town land or ROW upon termination of the License or removal of the Private Improvements described in this Section 6.5 and any other improvements erected by the Owner on the Town land or ROW and and the Owner shall return the Town land or ROW with the Public Improvements installed and constructed by Owner under this Agreement to its original condition as accepted by the Town at the cost and expense of the Owner and at no cost or expense to the Town unless such requirement is waived by the Town. In the event that Owner does not remove the Private Improvements and repair and restore Town Property to the condition prior to this Agreement within the time period determined in above, then Owner shall be deemed to have abandoned the Private Improvements and any rights thereto and the Town Page 16 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 may proceed to remove the Private Improvements. The Town may seek recovery of all costs incurred for the removalrestoration of PrivatePublic Improvements from Town Property,installed and constructed by Owner, including repair of damages to Town land or ROW, and restoration of Town land or ROW, including legal costs and attorney fees. (c) The Owner agrees to procure and maintain, at its own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the licensed premises in the minimum amount of $600,000.00 per occurrence. Such policy or policies shall name the Town as an “additional insured”. However, the Owner’s failure to take such steps to insure the premises shall not waive, affect, or impair any obligation of the Owner to indemnify or hold the Town harmless in accordance with this Agreement. (d) The Owner’s rights and interest in the PrivateOwner Maintained Public Improvements shall run with the land and shall continue in the event that the Owner conveys all or any portion of the Owner’s interest in the property or properties obtaining access or receiving benefit from the improvements and encroachments described in this Agreement. (e) The Owner agrees that it will never institute any action or suit at law or in equity against the Town or any of its officers or employees, nor institute, prosecute, or in any way aid in the institution or prosecution of any claim, demand, or compensation for or on account of any damages, loss, or injury either to person or property, or both, known or unknown, past, present or future, arising as a result of or from the License granted to the Owner by this Section 6.5. This provision includes but is not limited to claims relating to road maintenance, snow removal or other public works activities performed by or on behalf of the Town. 6.6 Water Rights. The Property is currently allocated 35.8 Single Family Equivalents for water rights and it is anticipated that the property will require additional SFEs for the project to be determined and required by the Upper Eagle Regional Water Authority. The Owner shall purchase cash-in-lieu water rights from the Upper Eagle Regional Water Authority. The Owner shall provide proof of payment of water rights and water tap fees prior to the issuance of a building permit. ARTICLE VII DEFAULTS, REMEDIES AND TERMINATION 7.1 Default by Town. A “breach” or “default” by the Town under this Agreement shall be defined as the Town'sTown’s failure to perform its obligations under this Agreement, after the applicable cure period described in Section 7.3, below. 7.2 Default by Owner. A “breach” or “default” by Owner shall be defined as Owner’s failure to fulfill or perform any obligation of Owner contained in this Agreement following the applicable cure period described in Section 7.3, below, or Owner’s failure to fulfill or perform any obligation of Owner contained in any other agreement relating to the Property between the Town and Owner or the Town following any applicable cure period contained in such Page 17 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 agreement. The failure by Owner to cause the Association to collect and remit the Amenities Fee to the Town as provided in Section 4.1 shall constitute a default by Owner. 7.3 Notices of Default. In the event of a default by either Party under this Agreement, the non-defaulting Party shall deliver written notice to the defaulting Party of such default, at the address specified in Section 89.6, and the defaulting Party shall have five (5) days for monetary obligations and thirty (30) days for non-monetary obligations from and after receipt of such notice to cure such default. With respect to non-monetary obligations, if such default is not of a type that can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time up to one hundred eighty (180) days given the nature of the default to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure. 7.4 Remedies for Default by Town. If a default by Town under this Agreement is not cured as described in Section 7.3, the Owner shall have the right to enforce the Town’s obligations by an action for any equitable remedy, including injunction or specific performance to the extent permitted by law, or an action to recover damages. Each remedy in this Section 7.4 is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law or in equity. 7.5 Remedies for Default by Owner or Association. If any default by Owner or the Association under this Agreement is not cured as described in Section 7.3, the Town shall have the right to enforce the Owner’s or Association’s obligations hereunder by an action for any equitable remedy, including injunction or specific performance, or an action to recover damages. Each remedy in this Section 7.5 is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law or in equity. In addition, a default of this Agreement by Owner or the Association shall constitute a violation of the Avon Development Code and non-compliance with the Development Plan for this Property and the Town shall have all enforcement rights as described in Sections 7.04.160, 7.04.170, 7.04.180, 7.04.190, and 7.04.200 of the Avon Development Code and other applicable sections of the Avon Development Code concerning enforcement and penalties for violations, as the Avon Development Code may be amended from time to time. 7.6 Mediation. The Parties agree that prior to submitting any controversy or claim arising out of or relating to this Agreement, including, without limitation, any breach, default, or interpretation hereof, to a legal process, and as a prerequisite to initiating any legal process, the Parties shall attempt to resolve the controversy or claim in good faith in accordance with the procedures stated in this Section 7.6. The Party asserting the breach, default, controversy or claim shall first provide written notice to the other Party, citing this Section 7.6, and requesting consideration by the other Party to resolve the controversy or claim. The Parties shall use reasonable efforts to resolve the dispute within thirty (30) days from the date of the notice commencing this process. If the dispute is not resolved within thirty (30) days of the date of the notice, or by such longer period as may be mutually agreed by the Parties, then either Party may initiate a legal action. The Parties may mutually agree to appoint an independent neutral third Page 18 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 party (the “Mediator”) to assist them in resolving the dispute. In such an instance, (i) each Party agrees to provide the Mediator access to all relevant and non-privileged documents and may impose reasonable confidentiality provisions; (ii) the Parties may make representations and submissions to the Mediator but there shall be no formal hearing unless the Mediator requires a formal hearing and provides a written notice to the Parties; (iii) the Mediator shall make his recommendations in writing as soon as is reasonably possible but not later than thirty (30) days following the receipt of representations and submissions by each Party; (iv) the Mediator’s recommendation shall not be binding upon the Parties, but would become binding upon the Parties if voluntarily accepted by both Parties in writing; and (v) the fees of the Mediator shall be paid equally by the Parties. Following receipt by the Parties of the recommendations made by the Mediator, the Parties shall have ten (10) days, or such longer period as may be mutually agreed by the Parties, to accept said recommendation or a mutually acceptable alternative. ARTICLE VIII ASSOCIATION MATTERS 8.1 Owner shall form the Association upon completion of the Development and prior to any occupancy thereof; provided, however, that in the event that the Association has not been formed as required, Owner shall be liable for all obligations of the Association hereunder until such time as the Association is formed. 8.2 In addition to the rights and obligations of the Association as specifically stated in this Agreement, at such a time as the Association is formed, the Association shall be deemed to be the Owner with respect to the provisions, rights and obligations of Section 4.1 and Article VI of this Agreement and Wyndham Vacation Resorts, Inc. shall have no further liability or obligations whatsoever with respect to said Section 4.1 and Article VI. The provisions of any other Section of this Agreement necessary to give effect to the Association’s rights and obligations under the foregoing Articles and Sections shall also be deemed to control. The Association shall specifically have no obligations under Article V of this Agreement. except the on-going obligation to indemnify and hold harmless the Town for Owner Maintained Public Improvements. The Association Governing Documents will contain a provision stating that the Association shall be subject to this Agreement as provided herein, and recite the Association’s obligations under Section 4.1 and Article VI of this Agreement. In addition, the Association Governing Documents shall state that the Town is a limited third-party beneficiary solely for the purpose of enforcing the performance of the Association’s agreements under Section 4.1 and Article VI of this Agreement. 8.3 The Association Governing Documents will contain an acknowledgement and disclosure to each Time-share Owner that, in the event the Time-share Owner shall rent its Time- Shareshare Period, the Time-share Owner or its rental management company must obtain a Town business license and the Public Accommodations Tax shall apply to such rental as described in Section 4.2 hereof and the Avon Town Code. 8.4 Any failure of the Association Governing Documents to contain provisions required by this Agreement shall be a default by Owner and the Association under this Agreement, and Page 19 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 the Town shall be entitled as a remedy therefor to obtain an order for reformation of the Association Governing Documents so that they are in compliance with this Agreement. ARTICLE IX MISCELLANEOUS 9.1 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 9.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and the Owner, and nothing contained in this Agreement shall be construed as making the Town and the Owner joint venturers or partners. 9.3 Applicability of Avon Municipal Code. All matters not covered by this Agreement are controlled by the Avon Municipal Code to the extent applicable. This Agreement does not prevent the Town from imposing additional requirements not inconsistent with this Agreement as conditions for approval of a subdivision or the granting of a building permit. 9.4 Waiver. No waiver of one or more of the terms of this Agreement shall be effective unless in writing. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 9.5 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long at the intent of this Agreement is not frustrated. 9.6 Notices. Any notice or communication required or permitted under the terms of this Agreement shall be in writing, may be given by the Parties hereto or such Party’s respective legal counsel, and shall be deemed given and received (i) when hand delivered to the intended recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the intended recipient’s facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing Party). Any notice shall be delivered, mailed, or sent, as the case may be, to the appropriate address set forth below: If to Town: Town of Avon Attention: Town Manager P.O. Box 975 Avon, Colorado 81620 Page 20 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 Telephone: 970-748-4005 Facsimile: 970-748-4078 And: Town of Avon Attention: Town Attorney PO Box 975 Avon, CO 81620 If to Owner: Development Planning and Construction Wyndham Worldwide 6277 Sea Harbor Drive Orlando, FL 32821 Direct: 407-626-4554 Facsimile: 407-626-4530 And: Legal Services Wyndham Vacation Ownership, Inc 6277 Sea Harbor Drive Orlando, FL 32821 Direct: (407) 626-6271 Facsimile: (407) 626-5222 And: Greg Perkins, Esq. Gregory Perkins LLC 710 West Lionshead Circle Suite B Vail, Colorado 81657 Telephone: 970-306-7554 Facsimile: 866-393-9835 Each Party may change its addresses and/or fax numbers for notices pursuant to a written notice that is given in accordance with the terms hereof. As used herein, the term “business day” shall mean any day other than a Saturday, a Sunday or a legal holiday for which U.S. Mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. 9.7 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and the Owner in writing following the public notice and public hearing procedures required for approval of this Agreement. For the purpose of any amendment to this Agreement, “Owner” shall mean only the Owner as defined herein and those parties, if any, who have specifically been granted, in writing by Owner, the power to enter into such amendments. Page 21 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 9.8 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest or the legal representatives of the Parties hereto. Owner shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Agreement: (a) to the Association; and (b) to an entity or entities formed for the purpose of developing the Property which are managed by an affiliate of Owner and comprised of affiliates of Owner. Further, Owner shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, purchasers or long-term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property; provided, however, that the third party assignee fully assumes in writing all obligations of Owner assigned to such party and the Town consents in writing to such third party assignment, which consent will not be unreasonably withheld or delayed if Owner has reasonably demonstrated to the Town that the third party assignee has the financial capability to perform the obligations under this Agreement so assigned. In no event shall any Time-Shareshare Owner be individually liable for any obligations of the Owner or the Association pursuant to this Agreement. Nothing in this Section shall be deemed to limit or in any way restrict the sale or other conveyance of property within the Property. 9.9 Counterparts. This Agreement shall be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 9.10 No Waiver of Governmental Immunity:. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 9.11 Article X, Section 20/TABOR:. 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 continuing availability of funds beyond the term of the Town'sTown’s current fiscal period ending upon the next succeeding December 31. Financial obligations of Funds for the construction of Public Improvements by the Town payable after the current fiscal year are contingent upon funds for that purpose beingas set forth in Sections 5.2(b) and (c) have been appropriated, budgeted, and otherwise made available in accordance withtherefore, the rules, regulations,performance of Town’s obligations under Sections 5.2(b), (c) and resolutions of Town of Avon,(g) is not subject to further appropriation and other applicable law. Upon the shall not be construed to be a multi-year fiscal obligation in violation of TABOR. Town’s obligations to perform operations and maintenance under Sections 6.1(b) and (c) shall be subject to annual appropriation and any reduction of such appropriation or failure to appropriate such Page 22 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 funds,by the Town shall not constitute a default of this Agreement shall be terminated.by the Town. [SIGNATURE PAGE FOLLOWS] Page 23 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above. TOWN: TOWN OF AVON By:__________________________________ ____________________, Mayor ATTEST ___________________________________ __________________, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Subscribed before me this _______ day of _________________, 20__, by _________________ as Mayor and ___________________ as Town Clerk of Town of Avon, a Colorado municipal corporation. My commission expires: _______________________ __________________________________________ Notary Public Page 24 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 OWNER: WYNDHAM VACATION RESORTS, INC., a Delaware corporation By:____________________________________ Its:____________________________________ Page 25 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 STATE OF __________ ) ) ss. COUNTY OF ___________ ) Subscribed before me this _______ day of _________________, 20__, by ________________________ as _________________________________ of WYNDHAM VACATION RESORTS, INC., a Delaware corporation. My commission expires: _______________________ __________________________________________ Notary Public EXHIBIT A DEVELOPMENT PLAN Page 27 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 EXHIBIT B Public Property Improvement Map Page 28 of 28 Lot 61 – Wyndham Project Development Agreement Version 79 – Feb 720, 2013 EXHIBIT C Trash Removal Operations Map Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: Village (at Avon) Settlement Implementation Update DATE: February 22, 2013 Summary: This memorandum provides an update on the settlement implementation for the Village (at Avon) litigation. Council Presentation: Town Staff is working on a comprehensive presentation of the structure of the Village (at Avon) documents along with presentation of the remaining documents which will require Council review and approval. This effort will be critical to developing an institutional knowledge of the documents related to the Village (at Avon). The scope of this presentation is expected to require additional time and the goal is to complete the presentation for the March 12, 2013 Council meeting. Please see the attached e-mail sent to the other parties which describes certain remaining documents and target dates for completion. Water Tank Project: Traer Creek Metropolitan District has advanced sufficient funds to allow the Upper Eagle River Water Authority to continue finalizing construction drawings for the Water Storage Tank. Additional revisions to documents related to the Water Storage Tank were proposed by Traer Creek LLC and are near finalization. The Upper Eagle River Water Authority has indicated that early May, 2013 appears to be the earliest schedule that the Authority may be able to complete the Water Storage Tank bid process and be ready to close on bond financing to construct the Water Storage Tank. Amendments to the Traer Creek Metropolitan District and The Village Metropolitan District Service Plans: A public hearing and review of proposed amendments to the Traer Creek Metropolitan District and The Village Metropolitan District Service Plans was continued to February 26, 2013. Town Staff requests an additional continuance of this public hearing to March 12, 2013. Traer Creek LLC has provided comments to the Districts and we anticipate additional revisions to the Service Plan Amendments. As of the time of preparing this memorandum we have not received proposed additional revisions to the Service Plan amendments to address Traer Creek LLC comments. The Add-On Retail Sales Fee Collection Services Agreement: Traer Creek and TCMD have provided revisions to the Add-On Retail Sales Fee Collection Services Agreement which we are reviewing. We anticipate that this document will be ready to present to Council at the March 12, 2013 Council meeting. Amendments to the Mixed-Use and Commercial Declarations: We have provided proposed revisions to the Mixed-Use and Commercial Declarations regarding the Town’s right to enforce the Add-On Retail Sales Fee. We anticipate that document will be ready to present to Council at the March 12, 2013 Council meeting. Various Conveyance Documents: We are continuing to review additional revisions to the conveyance documents transferring land and assets to TOA as well as reviewing title exceptions. We anticipate that M EMORANDUM & PLANNING, LLC Avon Town Council Village (at Avon) Litigation Settlement Update February 22, 2013 Page 2 of 2 final versions of deeds with title exceptions and title insurance policies for land parcels will be ready to present to Council at the March 12, 2013 Council meeting. Receipt and Closing Escrow Agreement: Council previously approved the form of the Receipt and Closing Escrow Agreement on November 7, 2012; however, additional revisions and refinements to accurately reference all the documents required for complete settlement was acknowledged in Ord. No. 12- 10 approving this agreement along with the Annexation and Development Agreement and other documents. Other parties have provided comments and updates to the Receipt and Closing Escrow Agreement which we are reviewing. We anticipate that a final version of the Receipt and Closing Escrow Agreement will be ready to present to Council at the March 12, 2013 Council meeting. Review of Bond Documents: We do not have a definitive schedule for the production of draft bond documents by Traer Creek Metropolitan District and the Upper Eagle River Water Authority at this time although we understand that both parties have commenced bond document preparation. Once a draft set is produced, we will review to verify compliance with the Annexation and Development Agreement and present such documents to Council. Status Conference with Court: The next status conference call with the court is scheduled for March 21, 2013 at 1:00 p.m. Requested Action: Motion to continue the public hearing for the Traer Creek Metropolitan District and The Village Metropolitan District Service Plan Amendments to March 12, 2013. [PLEASE NOTE: If additional revisions are not received by this Friday, I may suggest continuing this public hearing March 26, 2013 to allow adequate time to complete the Town’s review.] Proposed Motion: “I move to continue the public hearing for the Service Plan Amendments for Traer Creek Metropolitan District and The Village Metropolitan District to March 12, 2013 [or March 26, 2013].” Thank you, Eric Friday,  February  22,  2013  9:17:51  AM  Mountain  Standard  Time Page  1  of  2 Subject:Avon  Tasks  and  Schedule Date:Friday,  February  22,  2013  8:52:46  AM  Mountain  Standard  Time From:Eric  Heil To:Caswell,  Brandee  L.,  Gray,  Katie  M.,  Mary  Jo  Dougherty,  Kathy  Kanda,  Ayers,  Munsey,  Kimberly Martin,  Marcus  Lindholm,  Michael  Lindholm,  Dan  Leary CC:Virginia  Egger,  Larry  Brooks,  Meredith  Van  Horn To  All:    this  message  is  a  follow-­‐up  to  our  discussion  on  Wednesday  afternoon  concerning  the  status  and  proposed   schedule  for  the  Avon  Town  Council  to  complete  review  and  approval  of  the  remaining  documents  which  require   Town's  approval.    Overall,  the  Town  has  tentatively  scheduled  the  March  12  Avon  Town  Council  for  a   comprehensive  presentation  of  the  Village  (at  Avon)  documents  and  review  and  approval  of  remaining   documents.    Council  has  requested  receipt  of  materials  at  least  a  week  earlier  than  the  preceding  Friday  packet   deadline  due  to  the  volume  of  reading  and  the  addition  of  two  new  Council  members.    Thus,  my  tentative   deadline  to  finish  materials  for  the  March  12  Council  meeting  is  March  1.    I  do  not  foresee  completing  the  Receipt   and  Escrow  Agreement  or  revisions  to  remaining  conveyance  documents  by  March  1,  so  the  next  tentative  target   date  to  complete  these  documents  is  March  15. Amendments  to  TCMD  and  VMD  Service  Plans:    Town  needs  to  receive  any  additional  revisions  today  (Friday)  in   order  to  perform  and  complete  its  review  to  forward  to  Council  on  March  1.     Add-­‐On  Retail  Sales  Fee  Collection  Agreement:    Town  has  received  revisions  and  is  currently  reviewing.    I  hope  to   provide  comments  early  next  week  and  have  this  agreement  finalized  to  forward  to  Council  on  March  1. Amendments  to  Declarations:    I  had  discussed  additional  minor  revisions  with  Kim  Martin  which  only  included   adding  specific  references  to  the  Development  Agreement  to  better  define  purpose,  rate  and  obligation  of  the   Add-­‐On  Retail  Sales  Fee.    I  have  not  received  additional  revisions  from  Kim.    If  time  permits  this  week-­‐end  I  may   attempt  to  complete  revisions  to  this  document  to  circulate  next  week  so  that  it  may  be  finalized  to  forward  to   Council  on  March  1. Asphalt  Overlay  Escrow  Account  Agreement:    I  revised  this  Agreement  to  remove  Traer  Creek  LLC  as  party  and   circulated  it  to  the  other  parties.    McGeady  Sisneros  provided  some  comments  which  I  will  try  to  review  soon.    I   would  like  to  have  this  Agreement  finalized  to  forward  to  Council  on  March  1. Closing  Receipt  and  Escrow  Agreement:    My  understanding  is  that  we  have  consensus  to  use  this  document  as  a   necessary  document  for  the  receipt  and  handling  of  documents  which  have  been  fully  executed  as  well  as  for   establishing  procedures  and  requirements  for  the  closing.    Town  has  received  comments  on  additional  revisions   from  McGeady  Sisneros  which  I  will  try  to  review  soon.    I  also  understand  that  the  proposed  recording  order  for   documents  must  be  created  and  that  the  parties  have  generally  felt  that  Traer  Creek  LLC  is  the  most  appropriate   party  to  create  the  proposed  recording  order  of  documents.    I  am  not  expecting  this  document  to  be  finalized  by   March  1;  however,  I  do  believe  it  is  very  important  to  finalize  by  early  March  so  that  Avon  Town  Council  can   review  and  approve  on  March  26  and  other  parties  can  execute  by  mid-­‐March  so  that  we  have  an  operative   agreement  for  deposit  of  executed  documents.    Goal  date  to  finalize  is  March  15. Nottingham  Dam  Easement  Agreement:    Dan  Leary  had  requested  additional  revisions  to  this  document  which  I   have  not  yet  drafted.    I  hope  to  do  this  soon.    Goal  date  to  finalize  is  March  15. Wet  Well  Easement  Agreement:    Traer  Creek  LLC  (RP-­‐LLC?)  requested  a  less  formal  agreement  concerning  the   Town's  access  to  the  wet  well  area.    Town  would  like  to  have  some  written  documentation  of  rights  to  access  the   wet  well  area.    Goal  date  to  finalize  is  March  15. Lot  2  and  Lot  3  Conveyance:    The  release  of  the  deeds  of  trust  is  the  most  significant  issue  remaining  for  these   conveyances.    Goal  date  to  finalize  is  March  15. Page  2  of  2 CARADA:    There  were  a  number  of  revisions  requested  and  additional  revisions  are  necessary  to  reflect  changes   to  parties  in  other  agreements.    I  hope  to  circulate  a  revised  document  after  focusing  on  completing  the   documents  for  Council  by  next  Friday,  March  1.    Final  revisions  will  not  require  Council  review.    Goal  date  to   finalize  is  March  13. Thanks,  Eric Eric J. Heil, Esq., A.I.C.P. Heil Law & Planning LLC 2696 S. Colorado Blvd, Ste 550 Denver, CO 80222 D 303.975.6120 M 303.518.4678 eric@heillaw.com www.heillaw.com This message contains confidential and privileged information. If you have received this message in error, please contact Heil Law & Planning LLC immediately and promptly delete this message. TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Joe Histed, Parks and Facilities Superintendent John Curutchet, Recreation Superintendent Meryl Jacobs, Recreation Department Director Virginia Egger, Town Manager Date: February 21, 2013 Agenda Topic: Public Hearing on Second Reading of Ordinance No. 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments The Town Council passed on first reading Ordinance No. 13-04 on February 12, 2013. The second reading will occur next Tuesday; a public hearing is required on second reading. If the formation of the Parks and Recreation Department is approved by Council at Second Reading, a final review of the Public Works Director position will completed prior to advertisement. The Director of Parks and Recreation position will not be recruited until after Town Manager Virginia Egger completes a comprehensive review of the “Recreation Department” during the 2nd quarter of 2013. The information that follows was included in the staff memo at First Reading and provides the analysis for this recommendation and ordinance. The Town of Avon’s Public Works Director and Community Development Director positions have been vacant for several months due to resignations. The retirement of Recreation Director Meryl Jacob, tendered in January, opens a third top management position. All three positions are fully funded in the current year budget. Prior to recruiting new Directors, staff has critically evaluated the workloads of each department, current and anticipated, and the organizational effectiveness and operating efficiencies of each department in providing respective municipal services. Our findings and recommendations for organizational and staffing changes follow. Formation of a Parks and Recreation Department At the present time, the Parks Division is in the Public Works Department. The majority of the Parks Division work is as self-described - caring for the parks and appurtenant facilities, including supporting recreational programs throughout the year. In addition, the Parks Division maintains all Town landscaping and hardscapes. During snowplow periods, two Parks employees assist, as needed, with street plowing. The Parks Division’s responsibilities are most closely aligned with Recreation and not Public Works. In addition to these primary responsibilities, Parks also provides custodial services and facility maintenance to some of the Town’s facilities, but not all. Work demands of the Town’s electrician are overseen and shared with Roads and Bridges. Memo Ordinance No.13-04 2 | Page Organizationally, the Parks Division is functionally directed by both Public Works and Recreation Directors. While the sharing of departmental resources maximizes staff hours, the competing priorities within the two departments and management oversight does not always yield efficiency in priority setting or the use of labor and equipment. Joe Histed, Meryl Jacobs, and John Curutchet were asked to review and recommend an organizational structure to improve the lines of communication, reduce management bureaucracy, and establish divisions which encompass complete services versus duties arrayed among various divisions. They presented their ideas to Public Works Division leaders, Directors Scott Wright and Justin Hildreth and Town Manager Virginia Egger. The recommendation from this work is to reorganize responsibilities and form a Parks and Recreation Department, and to provide three divisions within it: • Parks and Grounds Division – responsible for all landscaping, parks, lake and pedestrian and transit hardscape. • Recreation Division – responsible for recreational activity at the Recreation Center and Special Events. Moves responsibility for maintenance and repair to the Buildings Division. • Buildings Division – responsible for the operations and maintenance of all buildings, custodial services and the heat recovery system. Currently these services are assigned across departments with no unified program for the maintenance and repair of the interiors and exteriors of the Town’s various buildings. Public Works will be reduced to three divisions: Fleet, Transportation and Roads and Bridges. The reorganization has the following benefits:  Reduces management overlap, oversight and negotiation – The Parks and Recreation Director will determine work priorities based upon recreation activity demand. In addition, it is anticipated the Parks and Recreation Director, with an administrative assistant, will be able to serve as the Division Superintendent of the Recreation Division, reducing the need for one mid-level superintendent.  Combines employees with like or comparable skill sets into one department, allowing for clearer lines of communication, cross-training and priority work delegation.  Provides enhanced and unified support for Special Events and recreation programs by employing labor and equipment, as needed, across the three divisions in one Department.  Improves and standardizes procurement practices across the three divisions, thereby reducing expenditures and duplication.  Ends the fragmented maintenance of facilities across departments. A Buildings Division can develop a comprehensive maintenance plan for all buildings and better assess day-to-day demands and priorities, improving scheduling and staff deployment. Current budget can afford a HVAC preventative and maintenance contract, which is considered a high priority with deferred maintenance on these systems leading to unnecessary repairs over time. Memo Ordinance No.13-04 3 | Page Implementation of the reorganization will be minimal. A reclassification of the Recreation Department’s Maintenance Supervisor position to Building Superintendent is required. Team training is mandatory. Some office relocation is needed, but will provide improved access to employees within and among divisions and will significantly increase space use efficiency. Finance Director Scott Wright has identified the need to update the budget to reflect the re organization. This would be timed with a mid-year budget update. If Council concurs with the proposed reorganization, a recommended motion follows. It is noted that in preparation of the Ordinance it was determined that Chapter 2.02 does not reflect the current administrative departments correctly: Human Resources and Transportation are not administrative departments, but rather divisions within the Administrative Services and Public Works Departments, respectively. The attached Ordinance addresses that correction as well. Recommended Motion: I move to approve on Second Reading Ordinance No. 13-04 Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments. Attachment: Exhibit A – Department of Parks and Recreation Proposed Organizational Chart Department of Parks and Recreation Proposed Organizational Chart Exhibit A Director of Parks & Recreation Parks & Grounds Superintendent Parks & Grounds Supevisor Operations Parks & Grounds Maintenance Worker II (3) Grounds Maintenance Worker I PTS (3) Parks & Grounds Supervisor Landscaping Parks & Grounds Maintenance Worker II (2) Grounds Maintenance Worker I PTS (2) Recreation Superintendent Aquatics Coordinator Pool Coordinator (2) Part-time Lifeguards Special Events & Fitness Supervisor Special Event Coordinator (.5) Recreation Program Supervisor Part-time Child Care & Program Attendants Front Desk Supervisor Front Desk Coordinator Part Time Front Desk & Cabin Attendants Buildings Superintendent Master Electrician Buildings Technician Maintenance Technician (3) Part-time, Contract & Temp. labor Administration (.5) Ord 13-04 Establishing a Parks and Recreation Department, February 12, 2013 Page 1 of 3 TOWN OF AVON, COLORADO ORDINANCE NO. 13-04 SERIES OF 2013 AN ORDINANCE AMENDING SECTION 2.02.010 OF THE TOWN OF AVON MUNICIPAL CODE TO ESTABLISH A PARKS AND RECREATION DEPARTMENT AND ELIMINATE THE HUMAN RESOURCES AND TRANSPORTATION ADMINISTRATIVE DEPARTMENTS WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; WHEREAS, Section 2.02.010 of the Avon Municipal Code establishes the administrative departments of the Town; WHEREAS, after a review of the functions and duties of the Public Works Department Parks and Facilities Division, it has been determined that this work is best administered under the direction of the Recreation Director and will result in greater efficiency and cost savings; that changing the name of the Recreation Department to the Parks and Recreation Department will more fully state the relationship of the Town’s parks to the recreational activities of the Town; that the Human Resources and Transportation departments no longer function as discrete departments but rather are divisions within Administrative Services and Public Works, respectively; and that correcting the status of Human Resources and Transportation in Chapter 2.02 should be completed at this time; WHEREAS, Section 8.3(g) of the Avon Home Rule Charter states in part that the Town Manager shall recommend to Council any proposal he or she thinks advisable to establish, consolidate or abolish administrative departments and the Town Manager has provided recommendations concerning the proposed changes to administrative departments in this Ordinance; WHEREAS, the Town Council finds that the reorganization of the Parks and Facilities Division to be administered by a retitled Parks and Recreation Department will promote the health, safety and general welfare of the Avon community; WHERAS, the Town Council desires to correct the current listing of administrative departments to eliminate Human Resources and Transportation as discrete departments; 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 13-04 Establishing a Parks and Recreation Department, February 12, 2013 Page 2 of 3 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 2.02.010 Amended. Section 2.02.010 of the Avon Municipal Code is hereby amended by repealing and re-enacting such section in its entirety to read as follows: “2.02.010 Departments Enumerated. The administrative departments of the Town shall be as follows: (a) Community Development (b) Public Works (c) Police (d) Finance (e) Administrative Services (f) Parks and Recreation (g) Transportation (h) Engineering” Section 3. Codification 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 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 thirty (30) 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 Ord 13-04 Establishing a Parks and Recreation Department, February 12, 2013 Page 3 of 3 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 at the Avon Town Hall, the Avon Recreation Center and the Avon Public Library 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. INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for February 26, 2013 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. ____________________________ Rich Carroll, Mayor Published by posting at the Avon Town Hall, the Avon Recreation Center and the Avon Public Library 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 February 26, 2013. ____________________________ Rich Carroll, Mayor Published by posting by title at the Avon Town Hall, the Avon Recreation Center and the Avon Public Library. ATTEST: __________________________ Patty McKenny, Town Clerk TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Patty McKenny, Assistant Town Manager Date: February 21, 2013 Agenda Topic: Resolution No. 13-07 Adopting Town of Avon 2013-14 Strategic Plan and 2013 Work Plan Please find revisions to the Town of Avon 2013-14 Strategic Plan and 2013 Work Plan (Strategic & Work Plans), which are a result of Council comments during your February 12th work session during review of the document. Both redline and clean copies are provided in this packet, as well as an adopting Resolution. The Strategic & Work Plans began to be formulated during Town Council’s Retreat held on January 14, 2013, which brought the Council together in order to engage in discussions that focused on identifying the future direction of the Town. Council priorities were grouped into three tiers and incorporated into a draft 2013 -14 Strategic Plan. The 2013 Work Plan is the supporting document that describes the work to be conducted over the next year. The formal action to adopt the Plan will be the approval of Resolution No. 13-07 as attached. Attachments: a. Resolution No. 13-07, Resolution Adopting the Town of Avon 2013-14 Strategic Plan and 2013 Work Plan b. 2013-14 Strategic Plan and 2013 Work Plan (Final Copy) c. Redlined Version of 2013-14 Strategic Plan and 2013 Work Plan TOWN OF AVON, COLORADO RESOLUTION NO. 13-07 SERIES OF 2013 RESOLUTION ADOPTING TOWN OF AVON 2013 - 14 STRATEGIC PLAN AND 2013 WORK PLAN WHEREAS, the Avon Town Council participated in a Retreat on January 14, 2013 in order to discuss and identify the priorities, strategic work and future direction for the Town over the next two years; and WHEREAS, the Avon Town Council agreed to commit to highest level of fiduciary responsibility, effectiveness and efficiency in providing government services and an attentive practice to open and transparent governance to lead the successful implementation of strategic plans for growth and development of Avon; and WHEREAS, the Avon Town Council has set forth its direction in the attached 2013-14 Strategic Plan and 2013 Work Plan, which establishes priorities and actions, with attention to be given first to the following topics: Business and Culture of Town Hall, Economic Development, Village at Avon Partnership, Special Events, 2015 World Alpine Championships, Water Issues, and Transit Consolidation; and WHEREAS, the Avon Town Council has reviewed this document at its regular Town Council meetings on February 12th and 26th in order to provide opportunities for the public to participate in the effort to identify both Town priorities and direction for 2013 and 2014; and WHEREAS, the Town Council has committed to timely review of the 2013-14 Strategic Plan and 2013 Work Plan, with an opportunity for the Avon Town Council to meet during the 3rd quarter of 2013 to evaluate and amend these plans accordingly. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Avon Town Council adopts the 2013-14 Strategic Plan and 2013 Work Plan as a critical implementation tool to help guide the Town in achieving a successful and vibrant vision for the growth and development of Avon. ADOPTED AND APPROVED by the Avon Town Council 26th day of February 2013. By:__________________________________ Attest:______________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 1 2013-14 STRATEGIC PLAN 2013 WORK PLAN Adopted by the Avon Town Council Resolution 13-05, Series of 2013 February 26, 2013 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 2 Overview The Town of Avon, surrounded by natural beauty, is today a strong community that will build on its strengths to become a nationally and internationally recognized year-round mountain resort community. Committed to providing a high level of municipal services for our citizens and visitors, and the stewardship of our natural resources, Avon will expand its cultural, recreational and educational offerings in partnership with our broader community and regional public and private sector agencies, thereby ensuring sustained economic vitality and a vibrant community experience. Recent resort-oriented accommodations projects in Avon are of a higher standard than the Town attracted at its founding and in its early years. It is this superior level of quality development that Avon believes will be its comparative advantage in the future, and, therefore, will work to attract and promote these types of developments by ensuring Town plans and incentives are constructed in a manner which provides the development community clear and timely information; and by steadfastly maintaining a professional and solution-oriented municipal business. The Town will continue to value and support our full-time and part-time resident population by providing an exceptional level of municipal services and by working to retain existing businesses as the Town seeks to expand its retail and commercial base, while fostering our sense of community through both our spirit and the built environment. The importance of vibrancy and activity within the Town will be supported by attracting an array of new and diverse cultural and recreational events to Avon which are in concert with the values of our community and serve to nurture a cohesive sense of place and public. It is the Town of Avon’s elected officials and staff commitment to fiduciary responsibility, effectiveness and efficiency in providing government services and a practiced belief in open and transparent governance that will lead the successful implementation of this vision for the growth and development of Avon. 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 3 Strategic Plan Fiscal Years 2013 - 2014 Tier 1 Priority: Fiscal Year 2013 1) Develop Business-like Practices and Culture of Town Hall – Ensure that Town government is operated as a “competitive” business and in a manner which is client-focused and solution-oriented, meeting the highest standards of fiduciary responsibility, implementing best practices, and using Town resources effectively and efficiently in every department. Tier 2 Priorities: Fiscal Year 2013 2) Economic Development – Ensure that the Town of Avon is prepared for new development and re- development. Evaluate Urban Renewal Authority expansion and other incentives to promote quality development of a high standard; update the Avon Comprehensive Plan as needed and work closely with the Planning and Zoning Commission to understand respective roles so that developers have a good sense of what can and what cannot be negotiated. 3) Village at Avon Partnership – Meet with representatives of the Village at Avon and the Traer Creek Metropolitan District to develop understandings and trust necessary for the future development of the Village. This outreach and communication is the responsibility of all elected and appointed officials and the employees of the Town of Avon. Tier 2 Priorities: Fiscal Years 2013-2014 4) Special Events – Identify near term opportunities for special events and develop a longer term special events strategy. In March, hold a work session to establish the duties and membership of a Cultural Arts and Special Events Commission to lead this effort for the Town. Be spontaneous, when appropriate. 5) 2015 World Alpine Championships – Planning for all three phases of this internationally renowned event must be initiated: 1) Pre-event promotion and marketing; 2) Stellar events and promotion of Avon as a place to return to need to be produced during the event; and 3) Post-event requires a follow-up promotional plan to encourage and/or book guest return visits. Tier 3 Priorities: Fiscal Years 2013- 2014 6) Water Issues – Identify water issues and develop a timetable and approach for resolution over the next year or two; manage what can be done against higher priorities. 7) Transit Consolidation – Avon should be a leader in working to provide a consolidated transit operation in the valley. With negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus planning for the 2015 World Cup, begin to build on these opportunities for a longer term cooperative partnership. 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 4 2013 Work Plan Develop Business-like Practices and Culture of Town Hall Tier 1 Priority: Fiscal Year 2013 Leader: Mayor Rich Carroll Staff: Town Manager Virginia Egger Ensure that Town government is managed and operated as a “competitive” business and in a manner which is client-focused and solution-oriented, meeting the highest standards of fiduciary responsibility, implementing best practices, and using Town resources effectively and efficiently in every department. 1st Quarter January – March 2013 1.1 Develop Core Values and Cultural Statement with Staff; implement with orientation session and on-going team building exercises 1.2 Determine organizational structure and staffing for Public Works, Recreation and Community Development Department prior to recruiting vacant Director positions, assessing whether the position(s) should be filled; implement decisions 1.3 Recruit and hire for Director vacancies based upon final organizational plan 1.4 Evaluate and establish IT priorities – provide a rigorous review of cost-benefit for proposed improvements and carry-out a mandate for efficiency 1.5 Finalize work plans for all departments for seasonal and 2013 budget goals, including new maintenance plans for Village at Avon improvements 2nd Quarter April – June 2013 2.1 Complete a comprehensive review of all Town departments to assess the necessity of tasks and functions, effectiveness and efficiency in meeting department responsibilities, staffing levels, and future needs; present to Town Council 2.2 Develop budget process and schedule for Council approval; evaluate developing 2 – 3 year General Fund budgets 2.3 Staff training on “competitive” business practices and fiduciary responsibility 2.4 Complete all Village at Avon implementing documents 2.5 3rd Quarter – July – September 2013 3.1 Hold Council Retreat to evaluate and amend 2013-14 Strategic Plan and 2013 Work Plan, as needed 3.2 Review and update Asset and Capital Five Year Plans 3.3 Mid-year 2013 budget review and amendment, if needed 4th Quarter October – December 2013 4.1 Review and update Strategic Plan 4.2 Budget preparation, hearings and adoption 4.3 Prepare 2014 Work Plans 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 5 2013 Work Plan Economic Development Tier 2 Priority: Fiscal Year 2013 & 2014 Leaders: Economic Development Subcommittee Councilors Todd Goulding and Chris Evans Staff: Town Manager Virginia Egger, Community Development and Finance Department Staff Ensure that the Town of Avon is prepared for new development and re-development. Evaluate URA expansion and other incentives to promote quality development of a high standard; update the Comprehensive Plan as needed and work closely with the Planning and Zoning Commission to understand respective roles so that developers have a good sense of public benefit expectations, incentives and minimum development requirements for critical project elements, such as parking. 1st Quarter January – March 2013 1.1 Develop a land development “tool box” which identifies appropriate incentives and a regulatory framework to support and partner with land developers and the building community. This will encourage the project standards and reasonable surety for developments to create and permit projects in a manner that respects the time-value of resources. 2nd Quarter April – June 2013 2.1 Evaluate expansion of URA into other qualified areas of Avon 2.2 If URA expansion is desirable, solicit RFQ and identify budgetary needs 2.3 Host a business summit for existing businesses to listen to how the Town of Avon can support business vitality  Define and implement the Town “brand”  Evaluate the benefit of a business survey; and  Create action plan with the business community 2.4 Review and update the Town’s Private-Public Partnership Policy and investment Policy, as needed. 2.5 Evaluate and select data base and revenue software/spreadsheet system to assist with statistical analysis of key metrics identification in collaboration with Avon businesses and regional economic development committees; understand the demographic characteristics of visitors to the region 2.6 Identify with the Planning and Zoning Commission: 1) Elements of the Comprehensive Plan, and, as appropriate, area specific and service plans, such as the District Plans and Transportation Plan, which should be amended to meet the current vision of the Town; and 2) Code amendments, including “clean-up” of definitions, charts, etc. identified through use of the Code over the past year and sections which should be updated, and sections which should be updated, such as the sign code. 2.7 Develop the scope, public process, including possible Community Survey, and schedule for commencement and completion of the Comprehensive Plan Update. 2.8 Negotiate and finalize multi-year Comcast Franchise Agreement 3rd Quarter – July – September 2013 3.1 Complete URA expansion, if being pursued 3.2 Commence Comprehensive Plan Update. 2.9 Commence Municipal Code clean-up amendments, including functional review of the regulatory process to ensure applications meet the Comprehensive Plan and land use codes and provide a review process that is substantive, not unnecessarily duplicative or unreasonably lengthy. Assess the delegation of decision-making authority to meet the Town’s client-focused and solution-oriented mandate. 4th Quarter October – December 2013 4.1 Complete Comprehensive Plan Update 4.2 Complete Code Clean-up 4.3 Commence work on other prioritized updates for specific land use plans, such as East Avon, Transportation Development, etc. 4.3 Evaluate opportunity for a “sister city/ international city” partnership 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 6 2013 Work Plan Village at Avon Partnership Tier 2 Priority - 2013 Leaders: Traer Creek Liaison Appointees Dave Dantas and Jennie Fancher Staff: Town Manager Virginia Egger, Public Works, Parks, Community Development and Engineering Staff Meet with representatives of the Village at Avon and the Traer Creek Metropolitan District to develop understandings and the trust necessary for the future development of the Village. This outreach and communication is the responsibility of all elected and appointed officials and the employees of the Town of Avon. 1st Quarter January – March 2013 1.1 Complete Settlement documents which require execution by the Town of Avon; continue to assist and advise on other document approvals, as appropriate, to complete all Settlement agreements. 1.2 Collect, consolidate, organize and prepare action summaries of all Village at Avon documents, agreements and assignments within Town Hall. The Community Development Department will be the primary contact and responsible party for understanding and managing the Village at Avon settlement agreements once finalized by Town Council. 1.3 Meet with Village at Avon districts to review infrastructure responsibilities and processes for design approvals; communicate maintenance plan for FY 2013 1.4 Liaison Appointees and appropriate staff will meet in a general overview session in January and March to discuss current issues and future opportunities 2nd Quarter April – June 2013 2.1 Liaison Appointees and appropriate staff will meet in a general overview session in May and June to discuss current issues and future opportunities 2.2 Assist as appropriate to complete Water Tank design and Water Authority bond issue 2.3 Identify and request, as determined, use of Traer Creek property for 2013 special events 3rd Quarter – July – September 2013 3.1 Liaison Appointees and appropriate staff will meet in a general overview session in August to discuss current issues and future opportunities 3.2 Upon completion of bond issue, Settlement document completion and escrow release, begin Village at Avon infrastructure clean-up and maintenance 3.3 Identify and request, as determined, use of Traer Creek property for 2014 & 2015 World Alpine Championships 4th Quarter October – December 2013 4.1 Liaison Appointees and appropriate staff will meet in a general overview session in October and November to discuss current issues and future opportunities 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 7 2013 Work Plan Special Events Tier 2 Priority – Fiscal Years 2013-2014 Leaders: Councilors Jake Wolf and Buz Reynolds Staff: Town Manager Virginia Egger and Parks and Recreation Staff Identify near term opportunities for special events and develop a longer term special events strategy. In March, hold a work session to establish the duties and membership of a Cultural Arts and Special Events Commission to lead this effort for the Town. Be spontaneous, when appropriate. Beaver Creek Resort, with its recreational and cultural activities, is an important economic driver of the Avon economy, offering a vast array of amenities which add to the richness of the day-to-day life of Avon residents, the community and tourists. Avon will work closely to further build the relationship with Beaver Creek Resort Company and Vail Resorts that supports business brands, the tourist economy and community offerings, including but not limited meeting the transportation, security and amenity needs of a mature resort and community. 1st Quarter January – March 2013 1.1 Town Leaders and appropriate staff meet in March to: 1) Identify opportunities and tasks to increase special events for 2013; 2) Evaluate establishing a Cultural, Arts and Special Events Commission to promote and assist with the production of recreational, cultural, educational and social events 1.2 Evaluate success of Fire & Ice, including recommendation for continuation of the event or variation 2nd Quarter April – June 2013 2.1 Implement actions for Summer 2013 new Special Events, if any 2.2 Implement a process to identify, solicit, produce and to evaluate the value (spending, ROI, community interest) Special Events: the goal is to develop a strategic plan to grow Special Events next Five Years 3rd Quarter – July – September 2013 3.1 Implement actions for Fall 2013 new Special Events, if any 3.2 Draft Special Events Strategic Plan for FY 2014-15, with Cultural, Arts and Special Events Commission, if formed 4th Quarter October – December 2013 4.1 Implement actions for Winter 2013 new Special Events, if any 4.2 Budget for 2014 Special Events 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 8 2013 Work Plan 2015 World Alpine Championships – February 3 – 15, 2015 Tier 2 Priority: Fiscal Years 2013-2014 Leader: Mayor Rich Carroll and Mayor Pro Tem Staff: Town Manager Virginia Egger, Transportation, Police and Parks and Recreation Staff Planning for all three phases of this internationally renowned event must be initiated: 1) Pre-event promotion and marketing; 2) Production of stellar events and promotion of Avon as a place to return to need to be produced during the event; and 3) Post-event requires a follow-up promotional plan to encourage and/or book guest return visits. 1st Quarter January – March 2013 1.1 Identify Town staff participation to date and current participation activities 1.2 Meet with Vail Valley Foundation Ceil Folz to connect and commit Avon to support of the event and opportunities within Avon 1.3 Meet with representatives of Avon lodging community to discuss opportunities for 2015 2nd Quarter & 3rd Quarter – April – September 2013 2.1 Develop comprehensive action plan for special events, marketing, logistics, security, sponsorship, partnerships 2.2 Commence implementation 2.3 Evaluate value of promotional video and social media in marketing Avon 4th Quarter October – December 2013 4.1 Continue implementation of plan 4.2 Update, as needed, mall improvement plans and be fully ready for bid and construction in 2014 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 9 2013 Work Plan Water Issues Tier 3 Priority: Fiscal Years 2013-2014 Leaders: Mayor Rich Carroll and Councilor Todd Goulding Staff: Town Manager Virginia Egger, Engineering Staff and Special Water Counsel Identify and water issues and develop a timetable and approach for resolution over the next two years; manage what can be done against higher priorities. 1st Quarter January – March 2013 1.1 Join the Upper Eagle River Water Authority in a “Water Summit” to identify all issues and develop a timetable and project approach for addressing issues on a prioritized basis. Seek to resolve all issues by November 1, 2014. 1.2 Organize water and wastewater documents and files at Town Hall; institutionalize knowledge. 1.3 Hannewald Barn – Community Development Department to provide a report to Town Council at its March 26th work session regarding the historic preservation status of the barn and restrictions, if any, to relocation; report on historic and relocation status by April 1st to the ERWSD. 1.4 Begin in March with the Water Authority, Avon representatives and Mountain Star residents the identification and resolution of the Mountain Star water tank, fire flow, irrigation and system delivery issues. Seek to resolve these important matters in a timely manner. 1.5 As requested by the Water Authority, review and take action on March 12th on water rate increase for 2013 bond improvements. 2nd Quarter April – June 2013 2.1 Evaluate water counsel role and responsibilities; execute special water counsel retention agreement. 2.2 Contact Urban Run-off Group to request Avon Executive Committee appointment. Participate with the Group to understand activities and possible 2014 funding request for a Gore Creek Water Quality Improvement Plan. 2.3 Evaluate and remediate liability concerns, if any, for Avon Drinking Water Facility fenced area with the Water Authority. 2.4 With the Water Authority, beginning in early May, develop an understanding of how water rights and water use are accounted for and develop a process for future transactions. 3rd Quarter – July – September 2013 3.1 Draft and execute an agreement with the ERWSD for long term cost sharing and O&M responsibilities of the Heat Recovery System. 3.2 Review Town and ERWSD 2002 Recreational Path Berm maintenance agreement; meet with ERSWD to decide on appropriate improvements and maintenance: incorporate in Avon’s 2014 budget. 3.3 In September, review the basis for the Avon’s water fees, which are assessed in addition to those tap fees and operational fees assessed by the Water Authority. 4th Quarter October – December 2013 4.1 Schedule 1) ERWSD presentation of its 20-year wastewater infrastructure master plan, including possible rate increase needs and Town’s 1041 requirements; and 2) Water Authority and ERWSD presentation on Eagle Mine’s metal loading issues on the Eagle River. 4.2 Schedule with the Water Authority work plans for 2014 issues: 4.2.1 Schedule review of Authority Agreement with Council and Water Authority representatives to begin identifying and developing solutions for needed amendments; plan to adopt changes no later than November 2014. 4.2.2 Resolve Avon Drinking Water Facility fenced area for ownership and/or lease to the Water Authority. Deadline for resolution: September, 2014 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 26, 2013 Pa g e 10 2013 Work Plan Transit Consolidation Tier 3 Priority – Fiscal Years 2013-2014 Leaders: Councilors Buz Reynolds and Jake Wolf Staff: Town Manager Virginia Egger, Public Works Director and Transit Division Staff Avon should be a leader in working to provide a consolidated transit operation in the valley. With negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus planning for the 2015 World Cup, begin to build on these opportunities for a longer term cooperative partnership. 1st Quarter January – March 2013 1.1 Update cost estimates for vehicle storage at I-70 RTF 1.2 Update draft agreement for storage 1.3 Develop marketing plan for I-70 RTF storage and Fleet Services 1.4 Finalize use and contracting of grant funds remaining for Transit: $130,000 1.5 Finalize decision on use of $600,000 grant funds for I-70 RTF construction 1.6 Council direction on AGS participation 1.7 Throughout the year, fully participate in regional transportation and parking forums and in CDOT I-70 corridor planning 2nd Quarter April – June 2013 2.1 Finalize negotiations and lease with ECO Transit for I-70 RTF storage 2.2 Market to other potential clients for bus/vehicle storage and Fleet Services 2.3 Evaluate transit services for FY 2014 and opportunities for regional efficiencies 2.4 As appropriate, participate in Regional Collaboration efforts on transit 3rd Quarter – July – September 2013 3.1 Finalize I-70 RTF lease agreements for 100% year-round occupancy 3.2 Assess demographic characteristics of bus riders and how best to disseminate information about transit service and about the Town 4th Quarter October – December 2013 TBD DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 1 DRAFT VISION STATEMENT 2013-14 STRATEGIC PLAN 2013 WORK PLAN Adopted by the Avon Town Council Resolution 13-05, Series of 2013 Resolution xxx-xx [Month] ___,February 26, 2013 Formatted: Centered DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 2 Vision StatementOverview The Town of Avon, surrounded by natural beauty, is today a strong community that will build on its strengths to become a nationally and internationally recognized year-round mountain resort community. Committed to providing a high level of municipal services for our citizens and visitors ,and the stewardship of our natural resources, Avon will expand its cultural, recreational and educational offerings in partnership with our broader community and regional public and private sector agencies, thereby ensuring sustained economic vitality and a vibrant community experience. Recent resort-oriented accommodations projects in Avon are of a higher standard than the Town attracted at its founding and in its early years. It is this superior level of quality development that Avon believes will be its comparative advantage in the future, and, therefore, will work to attract and promote these types of developments by ensuring Town plans and incentives are constructed in a manner which provides the development community clear and timely information; and by steadfastly maintaining a professional and solution-oriented municipal business. The Town will continue to value and support our full-time and part-time resident population by providing an exceptional level of municipal services and by working to retain existing businesses as the Town seeks to expand its retail and commercial base, while fostering our sense of community through both our spirit and the built environment . The importance of vibrancy and activity within the Town will be supported by attracting an array of new and diverse cultural and recreational events to Avon which are in concert with the values of our community and serve to nurture a cohesive sense of place, and public spirit.. It is the Town of Avon’s elected officials and staff commitment to fiduciary responsibility, effectiveness and efficiency in providing government services and a practiced belief in open and transparent governance that will lead the successful implementation of this vision for the growth and development of Avon. DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 3 Strategic Plan Fiscal Years 2013 - 2014 Tier 1 Priority: Fiscal Year 2013 1) Build the Business StandardsDevelop Business-like Practices and Culture of Town Hall – Ensure that Town government is operated as a “competitive” business and in a manner which is client- focused and solution-oriented, meeting the highest standards of fiduciary responsibility, implementing best practices, and using Town resources effectively and efficiently in every department. Tier 2 Priorities: Fiscal Year 2013 2) Economic Development – Ensure that the Town of Avon is prepared for new development and re- development. Evaluate Urban Renewal Authority expansion and other incentives to promote quality development of a high standard; update the Avon Comprehensive Plan as needed and work closely with the Planning and Zoning Commission to understand respective roles so that developers have a good sense of what can and what cannot be negotiated. 3) Village at Avon Partnership – Meet with representatives of the Village at Avon and the Traer Creek Metropolitan District to develop understandings and trust necessary for the future development of the Village. This outreach and communication is the responsibility of all elected and appointed officials and the employees of the Town of Avon. Tier 2 Priorities: Fiscal Years 2013-2014 4) Special Events – Identify near term opportunities for special events and develop a longer term special events strategy. In March, hold a work session to establish the duties and membership of a Cultural Arts and Special Events Commission to lead this effort for the Town. Be spontaneous, when appropriate. 5) 2015 World Alpine Championships – Planning for all three phases of this internationally renowned event must be initiated: 1) Pre-event promotion and marketing; 2) Stellar events and promotion of Avon as a place to return to need to be produced during the event; and 3) Post-event requires a follow-up promotional plan to encourage and/or book guest return visits. Tier 3 Priorities: Fiscal Years 2013- 2014 6) Water Issues – Identify water issues and develop a timetable and approach for resolution over the next year or two; manage what can be done against higher priorities. 7) Transit Consolidation – Avon should be a leader in working to provide a consolidated transit operation in the valley. With negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus planning for the 2015 World Cup, begin to build on these opportunities for a longer term cooperative partnership. DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 4 2013 Work Plan Build the Business StandardsDevelop Business-like Practices and Culture of Town Hall Tier 1 Priority: Fiscal Year 2013 Leader: Mayor Rich Carroll Staff: Town Manager Virginia Egger Ensure that Town government is managed and operated as a “competitive” business and in a manner which is client- focused and solution-oriented, meeting the highest standards of fiduciary responsibility, implementing best practices, and using Town resources effectively and efficiently in every department. 1st Quarter January – March 2013 1.1 Develop Core Values and Cultural Statement with Staff; implement with orientation session and on-going team building exercises 1.2 Determine organizational structure and staffing for Public Works, Recreation and Community Development Department prior to recruiting vacant Director positions, assessing whether the position(s) should be filled; implement decisions 1.3 Recruit and hire for Director vacancies based upon final organizational plan 1.4 Evaluate and establish IT priorities – provide a rigorous review of cost-benefit for proposed improvements and carry-out a mandate for efficiency 1.5 Finalize work plans for all departments for seasonal and 2013 budget goals, including new maintenance plans for Village at Avon improvements 1.6 Complete all Village at Avon implementing documents 2nd Quarter April – June 2013 2.1 Complete a comprehensive review of all Town departments to assess the necessity of tasks and functions, effectiveness and efficiency in meeting department responsibilities, staffing levels, and future needs; present to Town Council 2.2 Develop budget process and schedule for Council approval; evaluate developing 2 – 3 year General Fund budgets 2.3 Staff training on “competitive” business practices and fiduciary responsibility 2.4 Complete all Village at Avon implementing documents 2.32.5 3rd Quarter – July – September 2013 3.1 Hold Council Retreat to evaluate and amend 2013-14 Strategic Plan and 2013 Work Plan, as needed 3.13.2 Review and update Asset and Capital Five Year Plans 3.23.3 Mid-year 2013 budget review and amendment, if needed 4th Quarter October – December 2013 4.1 Review and update Vision & Strategic Plan 4.2 Budget preparation, hearings and adoption 4.3 Prepare 2014 Work Plans DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 5 DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 6 2013 Work Plan Economic Development Tier 2 Priority: Fiscal Year 2013 & 2014 Leaders: Economic Development Subcommittee Councilors Todd Goulding and Chris Evans Staff: Town Manager Virginia Egger, Community Development and Finance Department Staff Ensure that the Town of Avon is prepared for new development and re-development. Evaluate URA expansion and other incentives to promote quality development of a high standard; update the Comprehensive Plan as needed and work closely with the Planning and Zoning Commission to understand respective roles so that developers have a good sense of public benefit expectations, incentives and minimum development requirements for critical project elements, such as parking. 1st Quarter January – March 2013 1.1 Develop a land development “tool box” which identifies appropriate incentives and a regulatory framework to support and partner with land developers and the building community. This will encourage the project standards and reasonable surety for developments to create and permit projects in a manner that respects the time-value of resources. 1.2 Identify with the Planning and Zoning Commission: 1) Elements of the Comprehensive Plan, and, as appropriate, area specific and service plans, such as the District Plans and Transportation Plan, which should be amended to meet the current vision of the Town; and 2) Code amendments, including “clean-up” of definitions, charts, etc. identified through use of the Code over the past year and sections which should be updated, and sections which should be updated, such as the sign code. 2nd Quarter April – June 2013 2.1 Evaluate expansion of URA into other qualified areas of Avon 2.2 If URA expansion is desirable, solicit RFQ and identify budgetary needs 2.3 Host a business summit for existing businesses to listen to how the Town of Avon can support business vitality  Define and implement the Town “brand”  Evaluate the benefit of a business survey; and  Create action plan with the business community 2.4 Review and update the Town’s Private-Public Partnership Policy and investment Policy, as needed. 2.42.5 Evaluate and select data base and revenue software/spreadsheet system to assist with statistical analysis of key metrics identification in collaboration with Avon businesses and regional economic development committees; understand the demographic characteristics of visitors to the region 2.6 Identify with the Planning and Zoning Commission: 1) Elements of the Comprehensive Plan, and, as appropriate, area specific and service plans, such as the District Plans and Transportation Plan, which should be amended to meet the current vision of the Town; and 2) Code amendments, including “clean-up” of definitions, charts, etc. identified through use of the Code over the past year and sections which should be updated, and sections which should be updated, such as the sign code. 2.7 Develop the scope, public process, including possible Community Survey, and schedule for commencement and completion of the Comprehensive Plan Update. 2.5 Code clean-up amendments, including functional review of the regulatory process to ensure applications meet the Comprehensive Plan and land use codes and provide a review process that is substantive, not unnecessarily duplicative or unreasonably lengthy. Assess the delegation of decision-making authority to meet the Town’s client- focused and solution-oriented mandate. 2.62.8 Negotiate and finalize multi-year Comcast Franchise Agreement 3rd Quarter – July – September 2013 DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 7 3.1 Complete URA expansion, if being pursued 3.2 Commence Comprehensive Plan Update; determine if a Community Survey is a first step in this process. 2.9 Commence Municipal Code clean-up amendments, including functional review of the regulatory process to ensure applications meet the Comprehensive Plan and land use codes and provide a review process that is substantive, not unnecessarily duplicative or unreasonably lengthy. Assess the delegation of decision-making authority to meet the Town’s client-focused and solution-oriented mandate. 4th Quarter October – December 2013 4.1 Complete Comprehensive Plan Update, if needed 4.2 Complete Code Clean-up 4.3 Code sections needing update, such as sign code, to meet Comprehensive Plan updateCommence work on other prioritized updates for specific land use plans, such as East Avon, Transportation Development, etc. 4.3 Evaluate opportunity for a “sister city/ international city” partnership DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 8 2013 Work Plan Village at Avon Partnership Tier 2 Priority - 2013 Leaders: Traer Creek Liaison Appointees Dave Dantas and Jennie Fancher Staff: Town Manager Virginia Egger, Public Works, Parks, Community Development and Engineering Staff Meet with representatives of the Village at Avon and the Traer Creek Metropolitan District to develop understandings and the trust necessary for the future development of the Village. This outreach and communication is the responsibility of all elected and appointed officials and the employees of the Town of Avon. 1st Quarter January – March 2013 1.1 Complete Settlement documents which require execution by the Town of Avon, continue to assist and advise on other document approvals, as appropriate, to complete all Settlement agreements. 1.2 Collect, consolidate, organize and prepare action summaries of all Village at Avon documents, agreements and assignments within Town Hall. The Community Development Department will be the primary contact and responsible party for understanding and managing the Village at Avon settlement agreements once finalized by Town Council. 1.21.3 Meet with Village at Avon districts to review infrastructure responsibilities and processes for design approvals; communicate maintenance plan for FY 2013 1.31.4 Liaison Appointees and appropriate staff will meet in a general overview session in January and March to discuss current issues and future opportunities 2nd Quarter April – June 2013 2.1 Liaison Appointees and appropriate staff will meet in a general overview session in May and June to discuss current issues and future opportunities 2.2 Assist as appropriate to complete Water Tank design and Water Authority bond issue 2.3 Identify and request, as determined, use of Traer Creek property for 2013 special events 3rd Quarter – July – September 2013 3.1 Liaison Appointees and appropriate staff will meet in a general overview session in August to discuss current issues and future opportunities 3.2 Upon completion of bond issue, Settlement document completion and escrow release, begin Village at Avon infrastructure clean-up and maintenance 3.3 Identify and request, as determined, use of Traer Creek property for 2014 & 2015 World Alpine Championships 4th Quarter October – December 2013 4.1 Liaison Appointees and appropriate staff will meet in a general overview session in October and November to discuss current issues and future opportunities DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 9 Formatted: Justified, Space After: 10 pt DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 10 2013 Work Plan Special Events Tier 2 Priority – Fiscal Years 2013-2014 Leaders: Councilors Jake Wolf and Buz Reynolds Staff: Town Manager Virginia Egger and Parks and Recreation Staff Identify near term opportunities for special events and develop a longer term special events strategy. In March, hold a work session to establish the duties and membership of a Cultural Arts and Special Events Commission to lead this effort for the Town. Be spontaneous, when appropriate. Beaver Creek Resort, with its recreational and cultural activities, is an important economic driver of the Avon economy, offering a vast array of amenities which add to the richness of the day-to-day life of Avon residents, the community and tourists. Avon will work closely to further build the relationship with Beaver Creek Resort Company and Vail Resorts that supports business brands, the tourist economy and community offerings, including but not limited meeting the transportation, security and amenity needs of a mature resort and community. 1st Quarter January – March 2013 1.1 Town Leaders and appropriate staff meet in March to: 1) Identify opportunities and tasks to increase special events for 2013; 2) Evaluate establishing a Cultural, Arts and Special Events Commission to promote and assist with the production of recreational, cultural, educational and social events 1.2 Evaluate success of Fire & Ice, including recommendation for continuation of the event or variation 2nd Quarter April – June 2013 2.1 Implement actions for Summer 2013 new Special Events, if any 2.2 Implement a process to identify, solicit, produce and to evaluate the value (spending, ROI, community interest) Special Events: the goal is to develop a strategic plan to grow Special Events next Five Years 3rd Quarter – July – September 2013 3.1 Implement actions for Fall 2013 new Special Events, if any 3.2 Draft Special Events Strategic Plan for FY 2014-15, with Cultural, Arts and Special Events Commission, if formed 4th Quarter October – December 2013 4.1 Implement actions for Winter 2013 new Special Events, if any 4.2 Budget for 2014 Special Events DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 11 2013 Work Plan 2015 World Alpine Championships – February 3 – 15, 2015 Tier 2 Priority: Fiscal Years 2013-2014 Leader: Mayor Rich Carroll and Mayor Pro Tem Staff: Town Manager Virginia Egger, Transportation, Police and Parks and Recreation Staff Planning for all three phases of this internationally renowned event must be initiated: 1) Pre-event promotion and marketing; 2) Production of stellar events and promotion of Avon as a place to return to need to be produced during the event; and 3) Post-event requires a follow-up promotional plan to encourage and/or book guest return visits. 1st Quarter January – March 2013 1.1 Identify Town staff participation to date and current participation activities 1.2 Meet with Vail Valley Foundation Ceil Folz to connect and commit Avon to support of the event and opportunities within Avon 1.3 Meet with representatives of Avon lodging community to discuss opportunities for 2015 2nd Quarter & 3rd Quarter – April – September 2013 2.1 Develop comprehensive action plan for special events, marketing, logistics, security, sponsorship, partnerships 2.2 Commence implementation 2.3 Evaluate value of promotional video and social media in marketing Avon 4th Quarter October – December 2013 4.1 Continue implementation of plan 4.2 Update, as needed, mall improvement plans and be fully ready for bid and construction in 2014 DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 12 2013 Work Plan Water Issues Tier 3 Priority: Fiscal Years 2013-2014 Leaders: Mayor Rich Carroll and Councilor Todd Goulding Staff: Town Manager Virginia Egger, Engineering Staff and Special Water Counsel Identify and water issues and develop a timetable and approach for resolution over the next two years; manage what can be done against higher priorities. 1st Quarter January – March 2013 1.1 Join the Upper Eagle River Water Authority in a “Water Summit” to identify all issues and develop a timetable and project approach for addressing issues on a prioritized basis. Seek to resolve all issues by November 1, 2014. 1.2 Organize water and wastewater documents and files at Town Hall; institutionalize knowledge. 1.3 Hannewald Barn – Community Development Department to provide a report to Town Council at its March 26th work session regarding the historic preservation status of the barn and restrictions, if any, to relocation; report on historic and relocation status by April 1st to the ERWSD. 1.4 Begin in March with the Water Authority, Avon representatives and Mountain Star residents identification and resolution of the Mountain Star water tank, fire flow, irrigation and system delivery issues. Seek to resolve these important matters in a timely manner. 1.21.5 As requested by the Water Authority, review and take action on March 12th on water rate increase for 2013 bond improvements. 1.31.6 Evaluate water counsel role and responsibilities; execute special water counsel retention agreement 2nd Quarter April – June 2013 2.1 Evaluate water counsel role and responsibilities; execute special water counsel retention agreement. 2.2 Contact Urban Run-off Group to request Avon Executive Committee appointment. Participate with the Group to understand activities and possible 2014 funding request for a Gore Creek Water Quality Improvement Plan. 2.3 Evaluate and remediate liability concerns, if any, for Avon Drinking Water Facility fenced area with the Water Authority. 2.4 With the Water Authority, beginning in early May, develop an understanding of how water rights and water use are accounted for and develop a process for future transactions. 2.12.5 Water Summit Outcomes – Include schedule here prior as developed on February 5th to Council adoption of 2013 Work Plan 3rd Quarter – July – September 2013 3.1 Draft and execute an agreement with the ERWSD for long term cost sharing and O&M responsibilities of the Heat Recovery System. 3.2 Review Town and ERWSD 2002 Recreational Path Berm maintenance agreement; meet with ERSWD to decide on appropriate improvements and maintenance: incorporate in Avon’s 2014 budget. DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 13 3.3 In September, review the basis for the Avon’s water fees, which are assessed in addition to those tap fees and operational fees assessed by the Water Authority. Water Summit Outcomes – 3.13.4 Include schedule here prior as developed on February 5th to Council adoption of 2013 Work Plan 4th Quarter October – December 2013 4.1 Schedule 1) ERWSD presentation of its 20-year wastewater infrastructure master plan, including possible rate increase needs and Town’s 1041 requirements; and 2) Water Authority and ERWSD presentation on Eagle Mine’s metal loading issues on the Eagle River. 4.2 Schedule with the Water Authority work plans for 2014 issues: 4.2.1 Schedule review of Authority Agreement with Council and Water Authority representatives to begin identifying and developing solutions for needed amendments; plan to adopt changes no later than November 2014. 4.2.2 Resolve Avon Drinking Water Facility fenced area for ownership and/or lease to the Water Authority. Deadline for resolution: September, 2014 4.14.3 Water Summit Outcomes – Include schedule here prior as developed on February 5th to Council adoption of 2013 Work Plan DRAFT VISION STATEMENT – 2013-2014 STRATEGIC PLAN & 2013 WORK PLAN February 2612, 2013 Pa g e 14 Transit Consolidation Tier 3 Priority – Fiscal Years 2013-2014 Leaders: Councilors Buz Reynolds and Jake Wolf Staff: Town Manager Virginia Egger, Public Works Director and Transit Division Staff Avon should be a leader in working to provide a consolidated transit operation in the valley. With negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus planning for the 2015 World Cup, begin to build on these opportunities for a longer term cooperative partnership. 1st Quarter January – March 2013 1.1 Update cost estimates for vehicle storage at I-70 RTF 1.2 Update draft agreement for storage 1.3 Develop marketing plan for I-70 RTF storage and Fleet Services 1.4 Finalize use and contracting of grant funds remaining for Transit: $130,000 1.5 Finalize decision on use of $600,000 grant funds for I-70 RTF construction 1.6 Council direction on AGS participation 1.7 Throughout the year, fully participate in regional transportation and parking forums and in CDOT I-70 corridor planning 2nd Quarter April – June 2013 2.1 Finalize negotiations and lease with ECO Transit for I-70 RTF storage 2.2 Market to other potential clients for bus/vehicle storage and Fleet Services 2.3 Evaluate transit services for FY 2014 and opportunities for regional efficiencies 2.4 As appropriate, participate in Regional Collaboration efforts on transit 3rd Quarter – July – September 2013 3.1 Finalize I-70 RTF lease agreements for 100% year-round occupancy 3.2 Assess demographic characteristics of bus riders and how best to disseminate information about transit service and about the Town 4th Quarter October – December 2013 TBD Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Page 1 of 7 AMENDMENT TO TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER THIS EMPLOYMENT AGREEMENT AMENDMENT (“Amended Agreement”) effective February 26, 2013, by and between Virginia Egger (“Manager”) and the Town of Avon, Colorado (“Town”), a Home Rule municipality of the State of Colorado (individually “Party” and collectively “Parties”), and is made in contemplation of the following is and subject to the terms and conditions herein contained. RECITALS WHEREAS, the Parties signed a “TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER” (“Agreement”), effective on August 28, 2012; and WHEREAS, the Town feels it is important to establish specific performance review periods in Paragraph 5, and to provide information to Manager in regards to when performance criteria shall be provided to Manager; and WHEREAS, the Parties agree that the TOWN OPERATIONS ASSESSMENT MEETING required in Paragraph 10 of the Agreement should be provided over a longer period of time as reflected in the Council’s 2013-2014 Strategic Plan and 2013 Work Plan, adopted by Resolution 13-07, and, therefore should be deleted as a condition of employment; and WHEREAS, the Parties agree it is best to update those terms and conditions which are no longer relevant and to incorporate those changes and all terms and conditions from the original Agreement into this Amended Agreement, which are not being amended, thereby providing in this Amended Agreement all terms and conditions of the Manager’s employment. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, and the above Recitals, which are incorporated herein, the Parties agree to the following terms and conditions. 1.0 EMPLOYMENT. Manager is employed as Town Manager of the Town for an indefinite period as an employee at will subject to the terms and conditions of Manager’s employment, the Town of Avon Employee Handbook and the Avon Home Rule Charter. 2.0 DUTIES. Manager is employed as Town Manager in a fulltime capacity of the Town with the duties and functions specified in the Town of Avon Home Rule Charter and as legally specified and directed by the Town Council. 3.0 COMPENSATION. The Town agrees to pay Manager a base annual salary (“Base Salary”) of ONE HUNDRED FORTY THREE THOUSAND DOLLARS Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Page 2 of 7 ($143,000.00) upon commencement of this Agreement and continuing under this Amended Agreement. Manager shall also receive a ONE THOUSAND DOLLARS ($1,000.00) per month allowance as additional salary for housing and automobile in addition to the Base Salary. The Base Salary of Manager shall be subject to adjustment based upon pay for performance adjustments of the Town following Manager’s performance evaluation by the Town Council at the end of 2014 and/or at subsequent annual performance evaluations. Payment of the Base Salary under this Amended Agreement shall be made in equal installments on a biweekly basis during the term of this Amended Agreement. 4.0 RELOCATION EXPENSES. The Town shall reimburse Manager for all moving expenses incurred prior to commencement of her employment or during her employment, but not later than December 1, 2013, based upon the average of three quotes from qualified movers. Manager shall also be entitled to reimbursement for travel, lodging and meal expenses up to $1,000.00 incurred during the transition prior to the commencement of employment. Manager shall provide copies of all receipts for reimbursement of expenses. 5.0 PERFORMANCE REVIEW. The Town Council shall review the performance of Manager during the week of July 8, 2013 and thereafter during the second week of November of each calendar year. The Town Council also may require a performance evaluation at any time a majority of the Council deems a review is necessary. The Town Council shall advise and inform Manager as to the Town Council’s opinion and expectations regarding her performance as Town Manager based upon specific performance criteria, which shall be provided to her by the Council not later than March 13, 2013, and thereafter at each performance review. 6.0 RETIREMENT. The Town shall pay as retirement contribution an amount equal to the amount paid by Manager to the 401(a) Retirement Plan of the Town, which currently is eleven percent (11%) of the Base Salary of Manager. In addition, Manager shall be entitled to participate in the 457 Deferred Compensation Retirement Plan of the Town which is a voluntary contribution plan subject to the limitation of the Internal Revenue Service. 7.0 INSURANCE BENEFITS. The Town shall provide and pay that portion of the premiums for health, dental, vision, and term life insurance for Manager and her dependents equal to that which is provided to all other fulltime employees of the Town in accordance with Section 3 Employee Benefits of the Town Employee Handbook as may be amended from time to time. 8.0 PAID TIME OFF. The Manager shall be entitled to paid time off (“Paid Time Off”) in accordance with Section 3 of the Employee Handbook as may be amended from time to time, provided that Manager shall begin accruing Paid Time Off at the rate of an employee with five (5) years of employment with the Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Page 3 of 7 Town which accrual shall begin on the date of commencement of employment set forth in Paragraph 10 below. 9.0 OTHER BENEFITS. Manager shall be entitled to any other benefits that are provided by the Town to other fulltime executive employees. 10.0 COMMENCEMENT OF EMPLOYMENT AS TOWN MANAGER. The Effective Date of this Agreement shall be August 28, 2012, irrespective of the date or dates upon which the Parties execute it. Manager shall commence her duties as Town Manager on December 1, 2012. 11.0 FACILITIES. The Town shall furnish office facilities and assistance for Manager as the Town Council deems appropriate for the performance of Manager’s duties. 12.0 LIMITATION ON PROFESSIONAL ACTIVITIES. Manager shall not engage in any non-Town employment activities for compensation without the express written consent of the Town Council. It is the intent of the Parties that Manager’s employment Amended Agreement is for fulltime employment. Participation in professional organizations and voluntary programs are encouraged provided they are consistent with the responsibilities of the Town Manager of the Town. The Town shall pay Manager’s membership fees and reasonable costs of participation in the International City Manager’s Association and other memberships including professional development activities which the Town Council determines are consistent with her employment. 13.0 CONFERENCE ATTENDANCE. The Town shall pay for all expenses related to Manager’s attendance at the International City Manager’s Association annual conference, the Colorado Association of Ski Towns annual conference, the Colorado Municipal League annual conference, and at least one other out of state conference to be selected at the discretion of the Manager. Manager may propose additional job related training, education and professional membership and participation which shall be subject to review and approval by the Town Council. 14.0 TERMINATION. This Amended Agreement may be terminated only as follows: 14.1 The Town may terminate Manager’s employment with or without cause (“Cause,” as defined below in Section 16.3), upon the vote of the majority of the Town Council; or 14.2 Manager may terminate Manager’s employment, without notice, if the Town, the citizens of the Town, or the Colorado General Assembly acts to amend any provision of the Town of Avon Home Rule Charter, Town ordinances, or appropriate enabling legislation so as to materially alter the role, powers, duties authority, or responsibilities of the Town Manager or the form of government of the Town; or Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Page 4 of 7 14.3 Manager may terminate Manager’s employment, without notice, by resigning the position of Town Manager following a Town Council proposal that Manager resign; or 14.4 Manager may terminate Manager’s employment owing to a breach of contract by the Town where the Town has failed to cure the alleged breach within forty-five (45) days of written notice by Manager to the Town of the alleged breach. 15.0 SEVERANCE. 15.1 The Town shall pay severance (“Severance,” as defined below in Section 16.2), to Manager if Manager’s employment is terminated for any reason set forth in Section 15. Town shall not be obligated to pay severance if Manager’s employment is terminated for Cause, defined below in Section 16.3, or in the case that Manager resigns voluntarily as set forth in Section 17. 15.2 The amount of Severance payment shall be four (4) months Base Salary and benefits at Manager’s then current rate of Base Salary and benefits. A. Severance payment shall be paid biweekly or shall be paid in a lump sum within seven (7) business days of termination at the sole discretion of the Town and shall be reduced by all taxes and other withholdings required by law. B. Severance payment shall include compensation for all accrued Paid Time Off and paid holidays. C. Severance shall include payment of all premiums necessary for Manager to maintain health and dental insurance for herself and her dependents through COBRA or other applicable laws or regulations providing continuation coverage for four (4) months following the termination of her employment. 15.3 For the purpose of this Amended Agreement, Cause shall include: A. Conduct by Manager which is fraudulent or dishonest; or B. Manager’s conviction of a felony or crime involving moral turpitude under any federal or state law; or C. Gross negligence or malfeasance in office; or D. Excessive use of alcohol or drugs, which renders Manager unfit or unable to perform her duties, as determined by the Town Council. Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Page 5 of 7 15.4 If the Town Council intends to consider termination of Manager’s employment for Cause, the Town Council shall give Manager written notification stating matters constituting the basis for termination for Cause (“Notice of Termination for Cause”). If Manager desires to question whether the matters stated in the Notice of Termination for Cause are accurate or whether they constitute Cause, she shall have the right to do so by written notice (“Notice of Appeal”) to the Town Council given within ten (10) days after her receipt of the Notice of Termination for Cause. In the event the Town and Manager are unable to resolve the issue within fifteen (15) days after the Notice of Appeal, such dispute shall be submitted to binding arbitration as provided in Section 18. In the event the arbitration decision determines Manager’s termination was not for Cause, Manager shall thereupon be deemed to have been terminated without Cause effective the date of the Notice of Termination for Cause and she shall be entitled to Severance. 15.5 In the event the Town Council offers to permit Manager to resign in lieu of being terminated for Cause, such resignation, if it occurs, will constitute a termination without Cause under this Amended Agreement and Manager shall be entitled to Severance. 16.0 RESIGNATION. In the event that Manager voluntarily resigns her position with the Town in a manner not contemplated by Sections 15.2, 15.3 or 15.4, Manager shall provide a minimum of forty-five (45) days written notice unless the Parties otherwise agree. Upon the effective date of resignation, Manager shall be entitled to no further compensation or benefits under this Amended Agreement. 17.0 ARBITRATION. Whenever any dispute arises under the Amended Agreement, the Parties agree that upon written demand of either Party, such dispute shall be submitted to binding arbitration to the Judicial Arbiter Group, Inc. located in Denver, or its successor, or such other arbitrator as the Parties may mutually select, pursuant to the rules and procedure as determined by arbitrator. Provided, however, the arbitration hearing shall be held within thirty (30) days of appointment of the arbitrator unless otherwise agreed by both Parties. Furthermore, each Party shall be entitled to one deposition. The Colorado Rules of Evidence shall not apply unless otherwise agreed by the Parties, although the arbitrator shall have discretion to determine whether any proffered evidence is sufficiently reliable and probative to be admitted. The determination of the arbitrator shall be final and absolute. The decision of the arbitrator may be entered as a judgment in any court in the State of Colorado or elsewhere. 18.0 COMPLIANCE WITH THE LAW. It is the intent of the Town and Manager to comply with the provision of Article X, Section 20 of the Constitution of the State of Colorado, including, in particular, subsection 4(b). Therefore, the Parties agree that this Amended Agreement is subject to an annual appropriation by the Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Page 6 of 7 Town Council and that the failure to make such appropriation will be deemed a termination without Cause, unless such action is the result of a prior termination for Cause pursuant to Sections 15 and 16 above. 19.0 INDEMNIFICATION. In conjunction with the liability insurance policy provided by the Town, the Town shall defend, save harmless, and indemnify Manager against any and all losses, damages, judgments, interest, settlements, fines, court costs, and other liabilities incurred by, imposed upon, or suffered by Manager in connection with or resulting from any claim, action, suit, or proceeding, actual or threatened, arising out of an alleged act or omission in the performance of Manager’s duties as Town Manager or resulting from the exercise of judgment or discretion in connection with the performance of duties or responsibilities on behalf of the Town unless the act or omission involves willful or wanton conduct or intentional misconduct. Manager may request the Town to provide independent legal representation acceptable to Manager at the Town’s expense and the Town shall not unreasonably withhold approval. Legal representation provided by the Town for Manager shall extend until a final determination of the legal action including any appeals brought by either party. Any settlement of any claim must be made with prior approval of the Town in order for indemnification as provided in this Section to be available. 20.0 NOTICES. All written notifications contemplated in this Amended Agreement shall be sent the following addresses provided that the Manager may amend the address for notification by providing writing notice of such address change: If to the Town: If to Manager: Mayor Town of Avon 1 Lake Street P.O. Box 975 Avon, Colorado 81130 Virginia Egger P.O. Box 19000-403 Avon, CO 81620 With Copy to: Eric Heil, Town Attorney Heil Law & Planning, LLC 2696 S. Colorado Blvd. Ste. 550 Denver, CO 80222 21.0 ENTIRE AGREEMENT. This Amended Agreement constitutes the entire agreement of the Parties as to the subject matter hereof and may not be changed orally, but only by written agreement signed by both Parties for any waiver, changes, modification, or extension. 22.0 BINDING EFFECT. The Amended Agreement shall be binding upon the Town Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Page 7 of 7 and Manager and, as applicable, upon their heirs, personal representatives, successors, and authorized assigns. 23.0 ASSIGNMENT. The rights and obligations of this Amended Agreement are personal in nature and shall not be assigned or other conveyed without the prior written consent of both parties. 24.0 NO THIRD PARTY BENEFICIARY. It is expressly understood and agreed that enforcement of the terms and conditions of this Amended Agreement , and all rights of action relating to such enforcement, shall be strictly reserved to the Town and Manager, and nothing contained in this shall give or allow any such claim or right of action by any third person to this Amended Agreement. It is the expressed intention of the Town and Manager that any person other than the Town or Manager receiving services or benefits under this Amended Agreement shall be deemed to be an incidental beneficiary only. 25.0 SEVERABILITY. The validity or partial invalidity of any portion of this Amended Agreement will not affect the validity of any other provision. In the event that any provision of this Amended Agreement is held to be invalid, the Parties shall negotiate and diligently seek to reach agreement regarding the intent of the Parties concerning any such invalid provision. Accordingly, if any provision of this Amended Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they has been executed by both Parties subsequent to the expungement of the invalid provision. AMENDED AGREEMENT READ, UNDERSTOOD AND APPROVED by the Town of Avon and the Manager. TOWN OF AVON , COLORADO BY:___________________________ ATTEST:__________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk Approved as to form:_________________________ Eric J. Heil, Town Attorney MANAGER By:___________________________ Virginia Egger Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 1 of 8 AMENDMENT TO TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into effective August 28, 2012 (“Effective Date”) by and between Virginia Egger (“Manager”) and the Town of Avon, Colorado (“Town”), a Home Rule municipality of the State of Colorado (individually “Party” and collectively “Parties”), subject to the terms and conditions herein contained. THIS EMPLOYMENT AGREEMENT AMENDMENT (“Amended Agreement”) effective February 26, 2013, by and between Virginia Egger (“Manager”) and the Town of Avon, Colorado (“Town”), a Home Rule municipality of the State of Colorado (individually “Party” and collectively “Parties”), and is made in contemplation of the following is and subject to the terms and conditions herein contained. RECITALS WHEREAS, the Parties signed a “TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER” (“Agreement”), effective on August 28, 2012; and WHEREAS, the Town feels it is important to establish specific performance review periods in Paragraph 5, and to provide information to Manager in regards to when performance criteria shall be provided to Manager; and WHEREAS, the Parties agree that the TOWN OPERATIONS ASSESSMENT MEETING required in Paragraph 10 of the Agreement should be provided over a longer period of time as reflected in the Council’s 2013-2014 Strategic Plan and 2013 Work Plan, adopted by Resolution 13-07, and, therefore should be deleted as a condition of employment; and WHEREAS, the Parties agree it is best to update those terms and conditions which are no longer relevant and to incorporate those changes and all terms and conditions from the original Agreement into this Amended Agreement, which are not being amended, thereby providing in this Amended Agreement all terms and conditions of the Manager’s employment. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, and the above Recitals, which are incorporated herein, the Parties agree to the following terms and conditions. 1.0 EMPLOYMENT. Manager is employed as Town Manager of the Town for an indefinite period as an employee at will subject to the terms and conditions of Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 2 of 8 Manager’s employment, the Town of Avon Employee Handbook and the Avon Home Rule Charter. 2.0 DUTIES. Manager is employed as Town Manager in a fulltime capacity of the Town with the duties and functions specified in the Town of Avon Home Rule Charter and as legally specified and directed by the Town Council. 3.0 COMPENSATION. The Town agrees to pay Manager a base annual salary (“Base Salary”) of ONE HUNDRED FORTY THREE THOUSAND DOLLARS ($143,000.00) upon commencement of this Agreement and continuing under this Amended Agreement.. Manager shall also receive a ONE THOUSAND DOLLARS ($1,000.00) per month allowance as additional salary for housing and automobile in addition to the Base Salary. The Base Salary of Manager shall be subject to adjustment based upon pay for performance adjustments of the Town following Manager’s performance evaluation by the Town Council at the end of 2014 and/or at subsequent annual performance evaluations. Payment of the Base Salary under ththis Amended e Agreement shall be made in equal installments on a biweekly basis during the term of this Agreement Amended Agreement. 4.0 RELOCATION EXPENSES. The Town shall reimburse Manager for all moving expenses incurred prior to commencement of her employment or during her employment, but not later than December 1, 2013, based upon the average of three quotes from qualified movers. Manager shall also be entitled to reimbursement for travel, lodging and meal expenses up to $1,000.00 incurred during the transition prior to the commencement of employment. Manager shall provide copies of all receipts for reimbursement of expenses. As a convenience to Town to expedite relocation to Avon, to expedite commencement of employment and as a condition of accepting employment, the Town shall provide temporary housing described as Sherwood Meadows Apartment Unit 1A from December 1, 2012 to April 30, 2013 at no cost or charge to Manager. 5.0 PERFORMANCE REVIEW. The Town Council shall review the performance of Manager approximately six (6) months during the week of July 8, 2013 and after commencement of employment, then thereafter approximately at the end ofduring the second week of December November of each calendar year. The Town Council also may require a performance evaluation at anytime a majority of the Council deems a review is necessary. The Town Council shall advise and inform Manager as to the Town Council’s opinion and expectations regarding her performance as Town Manager based upon specific objectives performance criteria, which shall be provided to her by the Council not later than March 13, 2013, and thereafter at each performance review. set out annually and aligned to Town Council goals. Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 3 of 8 5.06.0 RETIREMENT. The Town shall pay as retirement contribution an amount equal to the amount paid by Manager to the 401(a) Retirement Plan of the Town, which currently is eleven percent (11%) of the Base Salary of Manager. In addition, Manager shall be entitled to participate in the 457 Deferred Compensation Retirement Plan of the Town which is a voluntary contribution plan subject to the limitation of the Internal Revenue Service. 6.07.0 INSURANCE BENEFITS. The Town shall provide and pay that portion of the premiums for health, dental, vision, and term life insurance for Manager and her dependents equal to that which is provided to all other fulltime employees of the Town in accordance with Section 3 Employee Benefits of the Town Employee Handbook as may be amended from time to time. 7.08.0 PAID TIME OFF. The Manager shall be entitled to paid time off (“Paid Time Off”) in accordance with Section 3 of the Employee Handbook as may be amended from time to time, provided that Manager shall begin accruing Paid Time Off at the rate of an employee with five (5) years of employment with the Town which accrual shall begin on the date of commencement of employment set forth in Paragraph 10 below. 8.09.0 OTHER BENEFITS. Manager shall be entitled to any other benefits that are provided by the Town to other fulltime executive employees. 9.010.0 COMMENCEMENT OF EMPLOYMENT AS TOWN MANAGER. The Effective Date of this Agreement shall be August 28, 2012, irrespective of the date or dates upon which the Parties execute it. Manager shall commence her duties as Town Manager on December 1, 2012. 10.011.0 TOWN OPERATIONS ASSESSMENT MEETING. After three (3) months, Town Council and Manager shall meet to discuss Manager’s assessment of current and future Town operations. 11.012.0 FACILITIES. The Town shall furnish office facilities and assistance for Manager as the Town Council deems appropriate for the performance of Manager’s duties. 12.013.0 LIMITATION ON PROFESSIONAL ACTIVITIES. Manager shall not engage in any non-Town employment activities for compensation without the express written consent of the Town Council. It is the intent of the Parties that Manager’s employment agreement is for fulltime employment. Participation in professional organizations and voluntary programs are encouraged provided they are consistent with the responsibilities of the Town Manager of the Town. The Town shall pay Manager’s membership fees and reasonable costs of participation in the International City Manager’s Association and other Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 4 of 8 memberships including professional development activities which the Town Council determines are consistent with her employment. 13.014.0 CONFERENCE ATTENDANCE. The Town shall pay for all expenses related to Manager’s attendance at the International City Manager’s Association annual conference, the Colorado Association of Ski Towns annual conference, the Colorado Municipal League annual conference, and at least one other out of state conference to be selected at the discretion of the Manager. Manager may propose additional job related training, education and professional membership and participation which shall be subject to review and approval by the Town Council. 14.015.0 TERMINATION. This Agreement Amended Agreement may be terminated only as follows: 14.115.1 The Town may terminate Manager’s employment with or without cause (“Cause,” as defined below in Section 16.3), upon the vote of the majority of the Town Council; or 14.215.2 Manager may terminate Manager’s employment, without notice, if the Town, the citizens of the Town, or the Colorado General Assembly acts to amend any provision of the Town of Avon Home Rule Charter, Town ordinances, or appropriate enabling legislation so as to materially alter the role, powers, duties authority, or responsibilities of the Town Manager or the form of government of the Town; or 14.315.3 Manager may terminate Manager’s employment, without notice, by resigning the position of Town Manager following a Town Council proposal that Manager resign; or 14.415.4 Manager may terminate Manager’s employment owing to a breach of contract by the Town where the Town has failed to cure the alleged breach within forty-five (45) days of written notice by Manager to the Town of the alleged breach. 15.016.0 SEVERANCE. 15.116.1 The Town shall pay severance (“Severance,” as defined below in Section 16.2), to Manager if Manager’s employment is terminated for any reason set forth in Section 15. Town shall not be obligated to pay severance if Manager’s employment is terminated for Cause, defined below in Section 16.3, or in the case that Manager resigns voluntarily as set forth in Section 17. 15.216.2 The amount of Severance payment shall be four (4) months Base Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 5 of 8 Salary and benefits at Manager’s then current rate of Base Salary and benefits. A. Severance payment shall be paid biweekly or shall be paid in a lump sum within seven (7) business days of termination at the sole discretion of the Town and shall be reduced by all taxes and other withholdings required by law. B. Severance payment shall include compensation for all accrued Paid Time Off and paid holidays. C. Severance shall include payment of all premiums necessary for Manager to maintain health and dental insurance for herself and her dependents through COBRA or other applicable laws or regulations providing continuation coverage for four (4) months following the termination of her employment. 15.316.3 For the purpose of this Agreement Amended Agreement, Cause shall include: A. Conduct by Manager which is fraudulent or dishonest; or B. Manager’s conviction of a felony or crime involving moral turpitude under any federal or state law; or C. Gross negligence or malfeasance in office; or D. Excessive use of alcohol or drugs, which renders Manager unfit or unable to perform her duties, as determined by the Town Council. 15.416.4 If the Town Council intends to consider termination of Manager’s employment for Cause, the Town Council shall give Manager written notification stating matters constituting the basis for termination for Cause (“Notice of Termination for Cause”). If Manager desires to question whether the matters stated in the Notice of Termination for Cause are accurate or whether they constitute Cause, she shall have the right to do so by written notice (“Notice of Appeal”) to the Town Council given within ten (10) days after her receipt of the Notice of Termination for Cause. In the event the Town and Manager are unable to resolve the issue within fifteen (15) days after the Notice of Appeal, such dispute shall be submitted to binding arbitration as provided in Section 18. In the event the arbitration decision determines Manager’s termination was not for Cause, Manager shall thereupon be deemed to have been terminated without Cause effective the date of the Notice of Termination for Cause and she shall be entitled to Severance. Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 6 of 8 15.516.5 In the event the Town Council offers to permit Manager to resign in lieu of being terminated for Cause, such resignation, if it occurs, will constitute a termination without Cause under this Agreement Amended Agreement and Manager shall be entitled to Severance. 16.017.0 RESIGNATION. In the event that Manager voluntarily resigns her position with the Town in a manner not contemplated by Sections 15.2, 15.3 or 15.4, Manager shall provide a minimum of forty-five (45) days written notice unless the Parties otherwise agree. Upon the effective date of resignation, Manager shall be entitled to no further compensation or benefits under this Agreement Amended Agreement. 17.018.0 ARBITRATION. Whenever any dispute arises under the Agreement Amended Agreement, the Parties agree that upon written demand of either Party, such dispute shall be submitted to binding arbitration to the Judicial Arbiter Group, Inc. located in Denver, or its successor, or such other arbitrator as the Parties may mutually select, pursuant to the rules and procedure as determined by arbitrator. Provided, however, the arbitration hearing shall be held within thirty (30) days of appointment of the arbitrator unless otherwise agreed by both Parties. Furthermore, each Party shall be entitled to one deposition. The Colorado Rules of Evidence shall not apply unless otherwise agreed by the Parties, although the arbitrator shall have discretion to determine whether any proffered evidence is sufficiently reliable and probative to be admitted. The determination of the arbitrator shall be final and absolute. The decision of the arbitrator may be entered as a judgment in any court in the State of Colorado or elsewhere. 18.019.0 COMPLIANCE WITH THE LAW. It is the intent of the Town and Manager to comply with the provision of Article X, Section 20 of the Constitution of the State of Colorado, including, in particular, subsection 4(b). Therefore, the Parties agree that this Agreement Amended Agreement is subject to an annual appropriation by the Town Council and that the failure to make such appropriation will be deemed a termination without Cause, unless such action is the result of a prior termination for Cause pursuant to Sections 15 and 16 above. 19.020.0 INDEMNIFICATION. In conjunction with the liability insurance policy provided by the Town, the Town shall defend, save harmless, and indemnify Manager against any and all losses, damages, judgments, interest, settlements, fines, court costs, and other liabilities incurred by, imposed upon, or suffered by Manager in connection with or resulting from any claim, action, suit, or proceeding, actual or threatened, arising out of an alleged act or omission in the performance of Manager’s duties as Town Manager or resulting from the exercise of judgment or discretion in connection with the performance of duties or responsibilities on behalf of the Town unless the act or omission involves willful Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 7 of 8 or wanton conduct or intentional misconduct. Manager may request the Town to provide independent legal representation acceptable to Manager at the Town’s expense and the Town shall not unreasonably withhold approval. Legal representation provided by the Town for Manager shall extend until a final determination of the legal action including any appeals brought by either party. Any settlement of any claim must be made with prior approval of the Town in order for indemnification as provided in this Section to be available. 20.021.0 NOTICES. All written notifications contemplated in this Agreement Amended Agreement shall be sent the following addresses provided that the Manager may amend the address for notification by providing writing notice of such address change: If to the Town: If to Manager: Mayor Town of Avon 1 Lake Street P.O. Box 975 Avon, Colorado 81130 Virginia Egger P.O. Box 19000-403 Avon, CO 81620P.O. Box 6635 Ketchum, ID 83340 With Copy to: Eric Heil, Town Attorney Heil Law & Planning, LLC 2696 S. Colorado Blvd. Ste. 550 Denver, CO 80222 21.022.0 ENTIRE AGREEMENT. This Agreement Amended Agreement constitutes the entire agreement of the Parties as to the subject matter hereof and may not be changed orally, but only by written agreement signed by both Parties for any waiver, changes, modification, or extension. 22.023.0 BINDING EFFECT. The Agreement Amended Agreement shall be binding upon the Town and Manager and, as applicable, upon their heirs, personal representatives, successors, and authorized assigns. 23.024.0 ASSIGNMENT. The rights and obligations of this Agreement Amended Agreement are personal in nature and shall not be assigned or other conveyed without the prior written consent of both parties. 24.025.0 NO THIRD PARTY BENEFICIARY. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement Amended Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the Town and Manager, and nothing contained in this Agreement Amendment to Town Manager Employment Agreement with Virginia Egger February 26, 2013 Avon Town Manager Employment Agreement August 28, 2012 Page 8 of 8 Amended Agreement shall give or allow any such claim or right of action by any third person to this Agreement Amended Agreement. It is the expressed intention of the Town and Manager that any person other than the Town or Manager receiving services or benefits under this Agreement Amended Agreement shall be deemed to be an incidental beneficiary only. 25.026.0 SEVERABILITY. The validity or partial invalidity of any portion of this Agreement Amended Agreement will not affect the validity of any other provision. In the event that any provision of this Agreement Amended Agreement is held to be invalid, the Parties shall negotiate and diligently seek to reach agreement regarding the intent of the Parties concerning any such invalid provision. Accordingly, if any provision of this Agreement Amended Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they has been executed by both Parties subsequent to the expungement of the invalid provision. AMENDED AGREEMENT READ, UNDERSTOOD AND APPROVED by the Town of Avon and the Manager. TOWN OF AVON, COLORADO BY:___________________________ ATTEST:__________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk Approved as to form:_________________________ Eric J. Heil, Town Attorney MANAGER By:___________________________ Virginia Egger 1 | P age DRAFT Town of Avon Memorandum of Understanding Town Manager Performance Evaluation Criteria TO: Virginia Egger, Town Manager FROM: Rich Carroll, Mayor Date: February 26, 2013 Re: Evaluation Criteria The Avon Town Council has asked me to outline the general procedure for your performance evaluation, scheduled for the week of July 8, 2013, and to inform you of the criteria that will be used for that review. The information is as follows: Review Procedure: Step 1. Town Council shall appoint an ad hoc committee from its membership, at its first meeting in June, 2013, to conduct the performance evaluation. Step 2. The ad hoc committee shall oversee the solicitation and completion of written: 1. Self-Evaluation completed by you based upon the criteria listed below; 2. Peer Evaluations – These confidential evaluations will be completed by a selected group of staff who work for the Town of Avon using the criteria listed below. Peers shall be selected by the Town Council and shall not be disclosed to you. Council will request your input in regards to any staff who you may wish be included in the Peer group; 3. Council Evaluations completed by all Councilors and the Mayor based upon the criteria listed below; and 4. Community Evaluations – These confidential evaluations will be completed by a selected group of community members who you have worked with during your review term, including but not limited to the media, nonprofits and other political jurisdictions. These community members shall be selected by the Town Council and shall not be disclosed to you. Council will request your input in regards to any community member who you may wish to be included in the Community group. Step 3. The ad hoc Committee shall meet with the Council in Executive Session and prepare from the evaluations a written performance evaluation and provide the evaluation to you not less than three (3) days before meeting with you to review your performance. Step 4. The Council shall meet with you in Executive Session and review your performance during the week of July 8, 2013. Evaluation Criteria: Self-Evaluation, Peer Evaluations and Councilor/Mayor Evaluations: The following Evaluation Criteria shall be used in your Self-Evaluation, Peer Evaluations and the Mayor and Councilors written evaluations. These criteria shall be provided in an evaluation form, which will include other pertinent and common information used in evaluation forms, such as name, period of review, etc. LEADERSHIP – The ability of the Town Manager to lead, direct, and supervise employees to effectively achieve the Council’s Strategic Plan, other initiatives, Department work plans and day-to-day responsibilities. Consider the following in your evaluation: 1. Effectively communicates to staff and the public Council’s expectations, actions and direction 2. Demonstrates ability to effectively build consensus, coach, mentor, motivate, and reward staff 2 | P age 3. Empowers staff to make good decisions through appropriate delegation, and effective training and feedback on work performance, with an expected outcome of work which exceeds expectations 4. Consistently shows initiative in meeting the day-to-day needs of the Town and in identifying with staff methods to improve productivity and implement best practices 5. Exhibits inclusive, collaborative, rigorous and comprehensive decision-making 6. Builds a cohesive and motivated team of employees who understand and actively advance the core values, spirit and culture of Town Hall MANAGEMENT - The ability of the Town Manager to plan, organize, and manage Town departments to ensure the implementation of programs and services and achievement of Town Council’s Strategic Plan and other directives. Consider the following in your evaluation: 1. Assists the Town Council in formulating policies and strategic plans, and in identifying and planning other work of the Town to effectively carry-out the near and long term projects and activities desired under Council leadership 2. Develops, organizes, evaluates, and modifies programs, plans, activities and services to meet the needs of the Town 3. Effectively manages the Town’s revenues through preparing budgets which meet the special project and day-to-day municipal services, provides accurate and realist budget forecasts and actual budget information, allocates resources strategically, and contributes recommendations for cost reduction and/or revenue generation 4. Holds the highest standards for fiduciary responsibility and fiscal accountability 5. Effective in managing personnel and the allocation of resources for employee’s to be successful; is fair and ensures that employees are recognized for good work and are informed appropriately and consistently when performance requires improvement 6. Is an effective problem solver by anticipating, defining and bringing the sound solutions to problems in collaboration with the right people and utilizing efficiently the resources of the Town 7. Is a good communicator who listens, exhibits tact and consideration in verbal and written communication; and, is clear, understandable and professional in the presentation or exchange of information 8. Is a good decision-maker, including timeliness of action and utilizing appropriate methods and processes for reaching decisions, and in conveying decisions in a professional and supportive manner 9. An effective mediator, who is takes the responsibility for solving conflicts in an appropriate and timely manner achieving solutions which are fair and informed RELATIONSHIPS – Builds and maintains strong, positive and progressive working relationships with the Town Council and employees, the Avon community, other governmental jurisdictions, development and resort stakeholders and other agencies, which advance mutual interests and interactions and represent the Town as a partner and solution-oriented organization. Consider the following in your evaluation: 1. Establishes and maintains positive and effective working relationships 2. Exhibits objectivity and openness to the viewpoint of others 3. Works cooperatively in group situations by showing respect and using problem solving approach 4. Works actively to resolve conflicts by giving and accepting constructive feedback 5. Recognizes the contributions of others WORK PRODUCT – Meets a high standard in terms of the quality and thoroughness of Town documents, the volume of work done and accuracy. Consider the following in your evaluation: 1. Delivers an accurate and thorough work product, free of mistakes and complete in detail 2. Able to prioritize workload, multi-tasks job assignments, and stay focused under pressure 3. Meets deadlines 3 | P age Community Evaluations: The following Evaluation Criteria shall be used in Community written evaluations. These criteria shall be provided in an evaluation form, which will include other pertinent and common information used in evaluation forms, such as name, period of review, etc. RELATIONSHIPS – Builds and maintains strong, positive and progressive working relationships with the Avon community, other governmental jurisdictions, development and resort stakeholders and other agencies, which advance mutual interests and interactions and represent the Town as a partner and solution-oriented organization. Consider the following in your evaluation: 1. Is available, accessible and responsive to requests 2. Effectively represents the Town and Town Council 3. Establishes and maintains positive and effective working relationships 4. Exhibits objectivity and openness to the viewpoint of others 5. Works cooperatively in group situations by showing respect and using problem solving approach 6. Works actively to resolve conflicts by giving and accepting constructive feedback 7. Recognizes the contributions of others 8. Effectively communicates to the public Council’s expectations, actions and direction