TC Council Packet 06-24-2014 TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 24, 2014
AVON LIQUOR AUTHORITY MEETING BEGINS AT 6:00 PM
REGULAR MEETING BEGINS AT 6:15 PM
AVON TOWN HALL, ONE LAKE STREET
Page 1
PRESIDING OFFICIALS
MAYOR RICH CARROLL MAYOR PRO TEM JENNIE FANCHER
COUNCILORS DAVE DANTAS, CHRIS EVANS, ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA C. EGGER TOWN CLERK: DEBBIE HOPPE
ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS.
GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT, AND COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC.
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MATERIALS.
AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY.
THE AVON TOWN COUNCIL MEETS THE 2ND AND 4THTUESDAYS OF EACH MONTH.
______________________________________________________________________________________________________________
AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 6:00 PM (SEE SEPARATE AGENDA PAGE 3)
REGULAR MEETING BEGINS AT 5:15 PM
1. CALL TO ORDER & ROLL CALL
2. APPROVAL OF AGENDA
3. SWEARING IN AND SEATING OF NEW COUNCIL MEMBER MATT GENNETT (MUNICIPAL JUDGE BUCK ALLEN)
4. PUBLIC COMMENT
5. ACTION ITEMS
5.1. FIRST READING OF ORDINANCE 14-10 - CAPITAL LEASE FINANCING FOR SNOW PLOW
(ASSISTANT TOWN MANAGER SCOTT WRIGHT)
5.2. APPOINTMENT OF VACANT COUNCIL SEATS ON REGIONAL BOARDS (TOWN CLERK DEBBIE HOPPE)
5.2.1. VAIL VALLEY PARTNERSHIP ADVISORY BOARD
5.2.2. ECONOMIC DEVELOPMENT SUB-COMMITTEE
5.2.3. EAGLE RIVER WATER & SANITATION DISTRICT LIAISON
5.3. MOTION TO APPROVE AN OUTSIDE DATE EXTENSION NOTICE(S) TO NOT LATER THAN OCTOBER 15, 2014
(TOWN ATTORNEY ERIC HEIL)
5.4. MINUTES FROM JUNE 10, 2014 MEETING (TOWN CLERK DEBBIE HOPPE)
6. WORK SESSION
6.1. AVON RECREATION CENTER EXPANSION AND RECREATIONAL IMPROVEMENTS IN NOTTINGHAM PARK – OPEN
HOUSE PRESENTATION MATERIALS, INCLUDING REVIEW OF ALTERNATIVES FOR BOND ISSUE
(TOWN MANAGER VIRGINIA EGGER, PARKS & RECREATION SUPERINTENDENT JOHN CURUTCHET, DIRECTOR
OF ECONOMIC INITIATIVES SUSAN FAIRWEATHER)
6.2. REVIEW OF BEAVER CREEK BOULEVARD BIKE LANE MARKINGS (PLANNING MANAGER MATT PIELSTICKER)
6.3.STAFF PRESENTATION: POLICE CHIEF BOB TICER: POLICY REVIEW AND DIRECTION FOR TRAFFIC PATROL AND
TICKETING
7. WRITTEN REPORTS
7.1. MONTHLY FINANCIAL REPORT
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 24, 2014
AVON LIQUOR AUTHORITY MEETING BEGINS AT 6:00 PM
REGULAR MEETING BEGINS AT 6:15 PM
AVON TOWN HALL, ONE LAKE STREET
Page 2
7.2. GIFT REPORTING DISCLOSURE REPORT FOR HOFFMANN COMMERCIAL REAL ESTATE REDS, WHITES & BREWS
AMERICAN MADE FESTIVAL
8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
8.1. VILAR PERFORMING ARTS CENTER MEETING (COUNCILOR WOLF)
8.2. VAG STAGE UPDATE (COUNCILOR WOLF AND COUNCILOR DANTAS)
8.3.AVON POSTMASTER MEETING (COUNCILOR WOLF)
9. COUNCIL COMMENTS
10. MAYOR REPORT AND FUTURE AGENDA ITEMS
11. EXECUTIVE SESSION
11.1 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 THE UPPER EAGLE REGIONAL WATER AUTHORITY MASTER AGREEMENT
11.2 FOR A CONFERENCE WITH THE TOWN ATTORNEY FOR THE PURPOSE OF RECEIVING LEGAL ADVICE ON LEGAL
REPRESENTATION UNDER C.R.S. §24-6-402(2)(B)
12. ACTION ITEM
12.1. RESOLUTION 14-14 APPROVING AMENDMENTS TO MASTER SERVICE AGREEMENTS WITH UERWA
(TOWN ATTORNEY ERIC HEIL)
12.2. APPROVAL OF WATER COURT FILING FOR AVON’S WHITEWATER PARK (TOWN WATER ATTORNEY JAY
MONTGOMERY)
13. ADJOURNMENT
FUTURE AGENDA ITEMS:
July 8th: Review of Avon Road and Pedestrian Mall Bids and Contractor(s) Award
July 22nd: Council Retreat; Action on IGA to Participate in Eagle County Election
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 24, 2014
AVON LIQUOR AUTHORITY MEETING BEGINS AT 6:00 PM
AVON TOWN HALL, ONE LAKE STREET
Page 3
PRESIDING OFFICIALS
CHAIRMAN RICH CARROLL
VICE CHAIRMAN JEANNIE FANCHER
BOARD MEMBERS DAVE DANTAS, CHRIS EVANS, ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: DEBBIE HOPPE
ALL LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, AND AVON LIBRARY
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. PUBLIC HEARING SPECIAL EVENTS PERMIT
Applicant Name: Walking Mountains Science Center
Event Name: Reach for the Peak Award Dinner
Event Dates: July 10, 2014; 6 pm until 10 pm
Location: 318 Walking Mountains Lane
Event Manager: Gina Garrett
5. ELECTION OF AVON LIQUOR AUTHORITY VICE-CHAIRPERSON
6. MINUTES FROM JUNE 10, 2014
7. ADJOURNMENT
PAGE 1 OF 1
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Debbie Hoppe, Town Clerk
Date: June 24, 2014
Agenda Topic: Election of Avon Liquor Authority Vice-Chairperson
The Avon Home Rule Charter sets forth the election and duties of the Vice-Chairperson as follows:
Section 5.08.030 Local Licensing Authority – Membership – Organization – Compensation
(a) Until such time as the Town Council may determine otherwise by ordinance, the membership
of the Local Liquor Licensing Authority shall be composed of each and every member of the Town
Council.
(b) At the next meeting of the Local Liquor Licensing Authority following the final passage of the
ordinance codified in this Chapter a chairperson and vice-chairperson shall be elected by those
members present at that time from among the entire membership of the authority. The chairperson
shall preside at meetings, rule on questions pertaining to procedure and admissibility of evidence and
perform such other duties as may be necessary. The vice-chairperson shall assume the duties of the
chairperson when the chairperson is absent or incapacitated. A quorum shall consist of four (4)
members, and a decision of a majority of the members present at any meeting shall control. The
chairperson or acting chairperson shall have full voting rights the same as any other member.
(c) Members of the Local Liquor Licensing Authority shall be compensated in the sum of twenty-
five dollars ($25.00) for each meeting attended; except that no member shall receive more than fifty
dollars ($50.00) in compensation for his or her services rendered during any one (1) month. (Ord. 79-
22 §2 (B, C, G))
It is recommended the Mayor entertain nominations, by motion and vote, for the Vice-Chairperson
position, followed by the Council membership interviewing the nominee(s). A vote would follow with
a paper ballot being completed by the Mayor and Councilors. The Town Clerk would record the results
by reading out each ballot and name of Councilor submitting the vote.
Election is by a simple majority.
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, JUNE 10, 2014
AVON TOWN HALL, ONE LAKE STREET
FINAL - ALB 06-10-2014 Minutes Page 1
1. CALL TO ORDER AND ROLL CALL
Mayor Carroll called the meeting to order at 5:10 pm. A roll call was taken and Council members present
were Chris Evans, Jennie Fancher, Buz Reynolds, and Jake Wolf. Dave Dantas arrived late. Also present were
Town Manager Virginia Egger, Town Attorney Eric Heil, Planning Manager Matt Pielsticker, Director of
Economic Initiatives Susan Fairweather, and Town Clerk Debbie Hoppe as well as members from the public.
2. APPROVAL OF AGENDA
There were no changes to the agenda.
3. PUBLIC COMMENT
4. PUBLIC HEARING SPECIAL EVENTS PERMIT
4.1. Applicant Name: Team Evergreen Bicycle Club
Event Name: Triple Bypass
Event Dates: June 12, 2014; 11 am until 8 pm
Location: Nottingham Lake Park – Upper Soccer Field
Event Manager: Jennifer Anderson
The application was presented with no concerns for the Special Event application. Board Member Fancher
moved to approve the Special Events Permit for Team Evergreen Bicycle Club for the Triple Bypass Event;
Board Member Reynolds seconded the motion, and it passed unanimously by all present. (Board Member
Dantas abstained due to late arrival.)
5. RENEWAL OF LIQUOR LICENSES
1.1. Applicant: YERF LLC d/b/a Ticino Italian Restaurant
Location: 100 W. Beaver Creek Blvd Unit 127
Type: Hotel and Restaurant Liquor License
Manager: Charles Frey
The application was presented with no concerns for the renewal application. Board Member Dantas moved
to approve the Hotel and Restaurant Liquor License for YERF LLC d/b/a Ticino Italian Restaurant; Board
Member Wolf seconded the motion, and it passed unanimously.
1.2. Applicant: TCF 1 LLC d/b/a Castle Peak Grill
Location: 0101 Fawcett Road #100
Type: Hotel and Restaurant Liquor License
Manager: Dan Leary
The application was presented with no concerns for the renewal application. Board Member Evans moved
to approve the Hotel and Restaurant Liquor License for TCF 1 LLC d/b/a Castle Peak Grill; Board Member Wolf
seconded the motion, and it passed unanimously .
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, JUNE 10, 2014
AVON TOWN HALL, ONE LAKE STREET
FINAL - ALB 06-10-2014 Minutes Page 2
6. MINUTES FROM MAY 27, 2014
Board Member Evans moved to approve the Minutes from May 27, 2014; Board Member Dantas seconded
the motion, and it passed unanimously.
There being no further business to come before the Board, the meeting adjourned at 5:15 pm.
RESPECTFULLY SUBMITTED:
____________________________________
Debbie Hoppe, Town Clerk
APPROVED:
Rich Carroll ______________________________________
Dave Dantas ______________________________________
Chris Evans ______________________________________
Jennie Fancher ______________________________________
Albert “Buz” Reynolds ______________________________________
Jake Wolf ______________________________________
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Debbie Hoppe, Town Clerk
Date: June 24, 2014
Agenda Topic: Swearing in and Seating of New Council Member Matt Gennett
Honorable Judge Buck Allen will be present for the swearing in and seating of new Council Member
Matt Gennett, after which Councilor Gennett will take his seat with Avon Town Council.
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Debbie Hoppe, Town Clerk
Date: June 24, 2014
Agenda Topic: Appointment of Vacant Council Seats on Regional Boards
Former Mayor Pro Tem Todd Goulding served in the following positions. Consideration before
Council is appointment of current Council members to one or more of entities. Action would be by
motion and vote with a simple majority.
5.4.1 The Vail Valley Partnership Economic Development Leadership Council is a program of the
Partnership and part of the Economic Council of Eagle County. It is a volunteer committee/task force
that is instrumental in developing Eagle County’s Economic Development Plan. They welcome any
and all participation in this group moving forward; this group will serve as economic ambassadors to
help with business retention and other efforts related to our county wide economic development
efforts. There are no scheduled recurring meetings at this time; it’s being used as an ad-hoc
committee/task force.
Former Mayor Pro Tem Todd Goulding served on the Leadership Council as well as Councilor Chris
Evans.
5.4.2 The Economic Development Sub-Committee is an internal Town committee. Todd Goulding
has requested that he remain on the sub-committee.
5.4.3 EAGLE RIVER WATER & SANITATION DISTRICT LIAISON – In following up with the District, I learned
the District does not have a liaison position. Therefore, an appointment is not needed.
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 Update
DATE: June 20, 2014
SUMMARY: This memorandum provides an update on the Village (at Avon) Settlement. Various
documents could not be finalized and completed in time for a July 8 bond closing. A new schedule is being
prepared for an August 1, 2014 bond closing which anticipates finalizing and completing all documents by
mid July. Documents not completed and finalized at this time include sever lender consents, a loan
modification from Bank of the West, lender escrow instructions and several TCMD Reissue Bond
documents. In additional, I have been informed that Laramie Participation and Royal Bank of Scotland are
preparing a response letter to the Town Council’s letter concerning the requested restrictive covenant on
Lot 5, Filing 1, Village (at Avon).
An extension of the Outside Date beyond July 31, 2014 will be required for an August Bond Closing. As I
am preparing documents related to the Escrow Agreement I request Council consider approving an
additional extension of the Outside Date to October 15, 2014.
COURT STATUS CONFERENCE: The next Telephone Status Conference with the Court is set for August
20, 2014 at 11:00 a.m.
REQUESTED ACTION: Approval by motion for an Outside Date Extension Notice, or notices, not to
exceed October 15, 2014.
Thank you, Eric
M EMORANDUM & PLANNING, LLC
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 06-10-2014 Minutes Page 1
1. CALL TO ORDER & ROLL CALL
Mayor Carroll called the meeting to order at 5:10 PM. A roll call was taken and Council members present
were Jennie Fancher, Buz Reynolds, Jake Wolf, Dave Dantas and Chris Evans. Also present were Town
Manager Virginia Egger, Town Attorney Eric Heil, Senior Planner Matt Pielsticker, Director of Economic
Initiatives Susan Fairweather, Director of Finance Scott Wright and Town Clerk Debbie Hoppe as well as
members from the public.
2. APPROVAL OF AGENDA
Mayor Carroll asked to add two agenda items, 7.2 Village (at Avon) update and 8.2 Trails at West Avon
Preserve update. Town Attorney Eric Heil asked to add an Executive Session. Town Manager Virginia
Egger would like to discuss whether there would be July 8th meeting. Council agreed to add items.
3. PUBLIC COMMENT
3.1. JAMES VAN BEEK, CANDIDATE FOR EAGLE COUNTY SHERIFF
James Van Beek spoke to his candidacy.
Kathy Ryan, Avon resident, spoke about new bike symbols, park rules and volunteer Police officer.
4. ACTION ITEMS
4.1. PUBLIC HEARING AND ACTION ON AMPLIFIED SOUND PERMIT-WALKING MOUNTAINS SCIENCE CENTER
The application was presented with no concerns for the Amplified Sound Permit. Councilor Wolf motioned
to approve Amplified Sound Permit for Walking Mountains Science Center; Councilor Dantas seconded the
motion and it passed unanimously.
5. WORK SESSION
5.1. REVIEW OF RECREATION CENTER PHASE 2 EXPANSION AND NOTTINGHAM PARK IMPROVEMENTS AND
DIRECTION FOR PUBLIC OUTREACH PROGRAM
(PARKS AND RECREATION DIRECTOR JOHN CURUTCHET & TOWN MANAGER VIRGINIA EGGER)
COUNCILOR DANTAS LEFT THE MEETING AT 6:45 PM.
5.2. REPORT ON WATER RESOURCES IN THE UPPER EAGLE REGIONAL WATER AUTHORITY PORTFOLIO – WATER
AND STORAGE RIGHTS AND IMPACT OF THE STATE OF COLORADO WATER COMPACT IN DROUGHT PERIODS
(UERWA LEGAL COUNSEL GLENN PORZAK)
Glenn Porzak, Linn Brooks and Diane Johnson were present for discussion.
5.3. ANNUAL TOWN COUNCIL-EAGLE COUNTY COMMISSIONERS WORK SESSION
Jill Ryan, Kathy Chandler-Henry, Keith Montag and John Lewis were present for the discussion.
5.4. OPTIONS REGARDING VACANT TOWN COUNCILOR SEAT & PROCESS IF DECISION IS TO FILL AT THIS TIME
(TOWN ATTORNEY ERIC HEIL & TOWN MANAGER VIRGINIA EGGER)
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 06-10-2014 Minutes Page 2
6. ACTION ITEMS
6.1. APPOINTMENT OF A COUNCILOR AND AN ALTERNATE TO THE UPPER EAGLE REGIONAL WATER AUTHORITY
Mayor Carroll moved to appoint Councilor Reynolds as the primary principal member from the Town of
Avon to the Upper Eagle Regional Water Authority; Councilor Fancher seconded the motion and it was
passed unanimously by those present (Councilor Dantas was absent).
Councilor Evans moved to continue Todd Goulding’s involvement in the Upper Eagle Regional Water
Authority as the Town of Avon’s alternate member; Councilor Wolf seconded the motion and it was
passed unanimously by those present (Councilor Dantas was absent).
6.2. APPOINTMENT OF MAYOR PRO TEM
Appointment was discussed after Executive Session – See below.
6.3.MINUTES FROM MAY 27, 2014 MEETING (TOWN CLERK DEBBIE HOPPE)
Councilor Fancher moved to approve minutes from May 27, 2014 meeting; Councilor Wolf seconded the
motion and it was passed unanimously by those present (Councilor Dantas was absent).
7. WORK SESSION
7.1. REVIEW OF PROCESS FOR COMCAST FRANCHISE RENEWAL (TOWN MANAGER VIRGINIA EGGER)
J.K. Perry Executive Director from TV5 was present for discussion.
7.2 Village (at Avon) Update (Town Attorney Eric Heil)
8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
8.1. POST OFFICE-HOME AND BUSINESS DELIVERY (COUNCILOR DAVE DANTAS)
Councilor Wolf updated council on recent meeting with Postmaster General; on home delivery
possibilities.
9. COUNCIL COMMENTS
Mayor Carroll gave an update on the trails that are being built in the West Avon Preserve.
10. MAYOR REPORT AND FUTURE AGENDA ITEMS
11. EXECUTIVE SESSION
Councilor Reynolds moved to meet in Executive Session at 9:40 for a conference with the Town Attorney
for the purpose of receiving legal advice under C.R.S. §24-6-402(2)(b) concerning the Village (at Avon)
litigation settlement; the motion was seconded by Councilor Wolf and it passed unanimously by those
present (Councilor Dantas was absent).
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 06-10-2014 Minutes Page 3
Councilor Reynolds made a motion to end the Executive Session and reconvene to Regular Session at
9:54 p.m.; seconded by Councilor Wolf. The vote was unanimous, with Councilor Dantas absent during
the Executive Session.
Mayor Carroll stated that the Regular Session was now reconvened and 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 your objections at this time. Mayor Carroll then stated that hearing
no objections the meeting would proceed to any remaining business.
Councilor Reynolds made a motion to authorize the Mayor to sign a letter dated June 10, 2014,
addressed to Michael Lindholm and Marcus Lindholm, regarding a Restrictive Covenant for Lot 5;
Councilor Evans seconded the motion and it was passed unanimously by those present.
Councilor Dantas returned to meeting at 9:45 pm.
APPOINTMENT OF MAYOR PRO TEM (AGENDA ITEM 6.2)
Councilor Wolf nominated Councilor Wolf.
Councilor Reynolds nominated Councilor Dantas.
Councilor Carroll nominated Councilor Fancher.
A vote was taken with Mayor Carroll, Councilor Evans and Councilor Fancher voting for Councilor
Fancher; and Councilor Dantas and Councilor Reynolds voting for Councilor Dantas and Councilor Wolf
voting for Councilor Wolf.
Next the top two vote getters, Councilor Fancher and Councilor Dantas were voted on.
Mayor Carroll moved to appoint Councilor Fancher as Mayor Pro Tem; Councilor Evans seconded;
Mayor Carroll, Councilor Fancher, Councilor Wolf and Councilor Evans voting yes; Councilor Dantas and
Councilor Reynolds voting no.
12. ADJOURNMENT
There being no further business to come before the Council, the regular meeting adjourned at 10:13 pm.
RESPECTFULLY SUBMITTED:
_________________________________
Debbie Hoppe, Town Clerk
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014
AVON TOWN HALL, ONE LAKE STREET
FINAL - Avon Council Meeting 06-10-2014 Minutes Page 4
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Jennie Fancher ________________________________
Albert “Buz” Reynolds ________________________________
Jake Wolf ________________________________
PAGE 1 OF 3
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: John Curutchet, Parks & Recreation Director
Susan Fairweather, Director of Economic Initiatives
Virginia Egger, Town Manager
Date: June 18, 2014
Agenda Topic: Avon Recreation Center Phase 2 Expansion and Recreational Improvements in
Nottingham Park – Open House Materials, including Review of Options for a
Bond Issue
----------------------------------------------------------------------------------------------------------------------------------------------------------------
Background
At its Regular Meeting on June 10, 2014, Council considered the Recreation Center Phase 2 Expansion
and a Public Outreach Program to gage public interest in the proposed improvements. Council directed
staff to:
• Develop an additional option for Nottingham Park improvement expenses to include:
o Removing the artificial turf estimate ($534,000) replacing it with natural turf estimate
($350,000); and obtain an estimate on a hybrid grass/turf surface ($346,500)
o Add the construction cost of Destination Jump Splash Learn (Playground) ($700,000)
• Obtain estimated figures for financing the proposed improvements with 25YR and 30YR bond
issue options
• Propose dates for Open Houses
Debt Service Options for Funding Recreation Projects, including Phase 2 Recreation Center Expansion
The following table lists the recreation projects identified in The Nottingham Park Recreation Amenities
and Indoor Sports/Community Center (2013 Report), the most prominent being the expansion of the
Recreation Center, and estimated costs. The 2013 Report was provided in the Council Packet of June 10,
2014.
Option 1 indicates which projects can be funded if annual debt service, currently being paid on an
expiring General Obligation Bond ($546,000), is extended. 3.302 mills support the current debt service.
This would be a “Limited” debt issuance question to the voters.
• Total proceeds range from $9,207,000 (25YR) to $10,098,200 for a 30YR bond.
• Three projects cannot be funded with either a 25YR or 30YR bond: Waterslide-Pool Renovation,
Playground, and Shower Remodel.
• The remaining projects can be fully funded if a 30YR bond is issued.
• A bond issue yield short-fall of $882,000 results if a 25YR bond is issued for these same projects.
• Options for funding the three projects not in this bond issue include grant application for the
playground (maximum available from GOCO is $350,000) and Capital Project Funds.
Option 2 provides debt service estimates if all listed projects are financed through a bond issue. This
would be an “Unlimited” debt issuance question to the voters.
• Debt service increases to $669,088 for 25YR bond and $609,351 (30YR bond) for all projects,
which, respectively, is $123,088 and $63,351 higher than the current debt service of $546,000.
• The mill levy would be increased from the current 3.302 mills to 4.013 and 3.655, respectively.
• Bonding for these additional projects would add $1,045,000 to the Capital Projects Fund for
other pay-as-you-go non-recreation related projects.
PAGE 2 OF 3
PROPOSED RECREATION PROJECTS
Project Option 1 Option 2 Notes
Recreation Center: Phase 2
Expansion: 32,725 sq. ft. $7,700,000 $7,700,000 Indoor sports areas and multi-use
community center to include additional
space for activities such as basketball,
yoga and fitness space, increased area for
cardio/weights and special events
(birthday parties, film or writer’s festivals)
Parking for Recreation Center $1,290,000 $1,290,000 84 spaces Rec. Center South, 87 spaces
on Lake Street, 38 spaces on Benchmark
Road, South of Seasons Building
Ice Rink/Summer Activity Center $290,000 $290,000
Upper Field Reconstruction:
Artificial Turf (Option 1) Natural
Turf (Option 2)
$534,000 $350,000* *Hybrid grass artificial turf rebuild:
$346,500
Restroom Remodel $275,000 $275,000 2016 CIP -$25,000 design
2017 CIP -$250,000 Construction
Water Slide – Pool Theme
Renovation $175,000 2014 CIP $100,000
(if not in Bond as a larger project)
Destination Jump, Splash/Learn
(Playground) $770,000 * 2014 CIP -$70,000 design
GOCO Grant for Construction
Shower Remodel $100,000 2014 CIP
TOTAL BOND PROJECTS $10,089,000
$10,850,000
BOND REVENUE/ DEBT SERVICE SCENERIOS
Revenue Mill Rate/
Debt Service
30 year bond term –OPTION 1 $10,098,200 3.302 /$546,000 Limited GO Bonds; No D/S Shortfall
30 year bond term – OPTION 2 $10,850,000 3.655 / $609,351 Unlimited GO Bonds; No financing or
annual D/S shortfall
25 year bond term – OPTION 1 $9,207,000 3.302 / $546,000 Limited GO Bonds; Financing Shortfall of
$882,000 ($10,089,000 - $9,207,000)
25 year bond term – OPTION 2 $10,850,000 4.013 / $669,088 Unlimited GO Bonds; No financing or
annual D/S shortfall
* Consider using funds now in CIP to finish Nottingham Pavilion.
NOTES: The mill rates used above assume that there is no change in the Town’s current net assessed value of
$166,734,780 and the current debt service mill rate of 3.302 for the 2014 levy.
The estimated annual payment for residential and commercial properties for Options 1 & 2 will be available for
Council’s Tuesday work session. The payment will be based upon an assessed valuation of $300,000.
Sample ballot language for Unlimited and Limited Debt Questions are included with this memo.
PAGE 3 OF 3
Public Outreach: Staff recommends four Open Houses to present the proposed improvements and
funding alternatives. Dates suggested are:
• Wednesday July 16, 2014 5:30 p.m. to 7:30 p.m. Wildridge Fire Station and Park
• Wednesday July 23, 2014 5:30 p.m. to 7:30 p.m. Eagle Bend Apartments Community Room
• Saturday July 26, 2014 9:30 a.m. to 11:30 a.m. Aspens Mobile Home Park Community Center
and 2:30 p.m. to 4:30 p.m. Avon Recreation Center lobby
The Open House agenda will include presentations by Council members, Town Manager, Staff and a
representative from JACOBS Engineering, who has been retained by the Town Manager to prepare
schematics for the presentations. Public comments and questions from the public would follow.
Attendees will be able to vote project- by-project by placing a dot on favored projects, and the survey
utilized last year to gain comment will also be distributed.
JACOBS Engineering has been asked to prepare the following schematics for the Open Houses:
• A schematic showing the expanded Recreation Center, distribution of parking, new social ice
rink/summer activity center in front of the Recreation Center, plus new stage, pedestrian
walkway interface and location of other facilities in the park
• Pictures of ice rink alternatives – social and full regulation size at the Rec Center or in the park
• Yoga studio and fitness center expansion depictions or pictures for increasing space and
appropriate ambiance for these uses
• Discrete boards for each proposed amenity so that Open House attendees can show preference
by placing a dot for each amenity
• Summary of the public process if a bond issue is successful and design –construction schedule
• Summary of role of a leadership committee to promote the bond issue under election campaign
laws
The Town will be responsible for:
• Project costs and estimated annual revenue – mill levy rate – price per residential and
commercial unit/assessed valuation (Option 1 and/or 2)
• Programming for the expanded facilities
• Survey handout for attendees
• Collecting names of community members interested in serving on a leadership committee to
assure passage of ballot question (Should Council decide to place a question before the voters,
staff recommends Council consider in the next two months finding the leadership for the
formation of a committee to campaign for the bond issue, including raising funds as allowed for
and reporting under State campaign laws.)
Next Steps after Open Houses
• Council Work Session on August 12 – Discussion on Ballot Issue
• Council Action Item on August 26 - Ordinance Setting the Ballot Question
Council Direction
• Staff requests confirmation that the proposed Open House schedule is satisfactory and the
proposed agenda for the Open Houses is sufficient.
• Direction is needed whether one or both funding options should be presented to the public.
1
UNLIMITED TAX GENERAL OBLIGATION
SHALL TOWN OF AVON DEBT BE INCREASED BY UP TO $______________ WITH A
MAXIMUM REPAYMENT COST OF UP TO $_________ AND SHALL TOWN TAXES BE INCREASED BY UP TO $__________ SUBJECT TO THE FOLLOWING:
(1) SUCH DEBT MAY BE ISSUED FOR THE PURPOSE OF FINANCING
RECREATION FACILITIES AND IMPROVEMENTS INCLUDING ________, AND
ANY COSTS NECESSARY OR INCIDENTAL THERETO, INCLUDING WITHOUT LIMITATION, ANY COSTS WHICH THE TOWN MAY INCUR IN CONNECTION
WITH THE DEBT OR IMPROVEMENTS TO BE FINANCED AND THE COST OF
ESTABLISHING RESERVES TO SECURE THE PAYMENT OF SUCH DEBT;
(2) SUCH DEBT MAY BE EVIDENCED BY THE ISSUANCE OF BONDS, LOAN AGREEMENTS, INTERGOVERNMENTAL AGREEMENTS OR OTHER MULTIPLE
FISCAL YEAR FINANCIAL OBLIGATIONS WHICH CONSTITUTE A GENERAL
OBLIGATION OF THE TOWN PAYABLE FROM ANY TOWN REVENUES AS THE
TOWN COUNCIL MAY PLEDGE TO THE PAYMENT OF THE DEBT;
(3) THE TOWN’S MILL LEVY MAY BE INCREASED IN ANY YEAR WITHOUT LIMITATION AS TO RATE BUT ONLY IN AN AMOUNT TO PAY THE PRINICIPAL OF, PREMIUM IF ANY, AND INTEREST ON SUCH DEBT; AND
(4) SUCH DEBT MAY BE SOLD OR ENTERED INTO FROM TIME TO TIME AT A PRICE ABOVE, BELOW OR EQUAL TO THE PRINCIPAL AMOUNT OF SUCH
DEBT, ON SUCH TERMS AND CONDITIONS AS THE TOWN MAY DETERMINE,
INCLUDING PROVISIONS FOR REDEMPTION OF THE DEBT PRIOR TO
MATURITY WITH OR WITHOUT PAYMENT OF PREMIUM;
AND SHALL THE TOWN BE AUTHORIZED TO ISSUE DEBT TO REFUND THE DEBT
AUTHORIZED IN THIS QUESTION, PROVIDED THAT AFTER THE ISSUANCE OF
SUCH REFUNDING DEBT THE TOTAL OUTSTANDING PRINCIPAL AMOUNT OF ALL
DEBT ISSUED PURSUANT TO THIS QUESTION DOES NOT EXCEED THE MAXIMUM
PRINCIPAL AMOUNT SET FORTH ABOVE, AND PROVIDED FURTHER THAT ALL DEBT ISSUED BY THE TOWN PURSUANT TO THIS QUESTION IS ISSUED ON TERMS
THAT DO NOT EXCEED THE REPAYMENT COSTS AUTHORIZED IN THIS QUESTION;
AND SHALL THE PROCEEDS OF SUCH DEBT AND ANY INVESTMENT INCOME
THEREON BE COLLECTED, RETAINED, AND SPENT AS A VOTER APPROVED
REVENUE CHANGE UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW?
2
PUBFIN/1666893.1
LIMITED TAX GENERAL OBLIGATION
SHALL TOWN OF AVON DEBT BE INCREASED BY UP TO $______________ WITH A
MAXIMUM REPAYMENT COST OF UP TO $_________ SUBJECT TO THE FOLLOWING:
(1) SUCH DEBT MAY BE ISSUED FOR THE PURPOSE OF FINANCING RECREATION
FACILITIES AND IMPROVEMENTS INCLUDING ________, AND ANY COSTS
NECESSARY OR INCIDENTAL THERETO, INCLUDING WITHOUT LIMITATION, ANY
COSTS WHICH THE TOWN MAY INCUR IN CONNECTION WITH THE DEBT OR IMPROVEMENTS TO BE FINANCED AND THE COST OF ESTABLISHING RESERVES
TO SECURE THE PAYMENT OF SUCH DEBT;
(2) SUCH DEBT MAY BE EVIDENCED BY THE ISSUANCE OF BONDS, LOAN
AGREEMENTS, INTERGOVERNMENTAL AGREEMENTS OR OTHER MULTIPLE FISCAL YEAR FINANCIAL OBLIGATIONS PAYABLE FROM ANY TOWN REVENUES
AS THE TOWN COUNCIL MAY PLEDGE TO THE PAYMENT OF THE
DEBT INCLUDING THE TOWN’S EXISTING DEBT SERVICE MILL LEVY OF 3.302
MILLS WHICH WAS AUTHORIZED AT THE 1993 ELECTION TO FUND
ROUNDABOUTS AND WHICH MAY BE CONTINUED FOR PURPOSES OF PAYING THIS DEBT; AND
(3) SUCH DEBT MAY BE SOLD OR ENTERED INTO FROM TIME TO TIME AT A PRICE
ABOVE, BELOW OR EQUAL TO THE PRINCIPAL AMOUNT OF SUCH DEBT, ON SUCH
TERMS AND CONDITIONS AS THE TOWN MAY DETERMINE, INCLUDING PROVISIONS FOR REDEMPTION OF THE DEBT PRIOR TO MATURITY WITH OR
WITHOUT PAYMENT OF PREMIUM;
AND SHALL THE TOWN BE AUTHORIZED TO ISSUE DEBT TO REFUND THE DEBT
AUTHORIZED IN THIS QUESTION, PROVIDED THAT AFTER THE ISSUANCE OF SUCH REFUNDING DEBT THE TOTAL OUTSTANDING PRINCIPAL AMOUNT OF ALL
DEBT ISSUED PURSUANT TO THIS QUESTION DOES NOT EXCEED THE MAXIMUM
PRINCIPAL AMOUNT SET FORTH ABOVE, AND PROVIDED FURTHER THAT ALL
DEBT ISSUED BY THE TOWN PURSUANT TO THIS QUESTION IS ISSUED ON TERMS
THAT DO NOT EXCEED THE REPAYMENT COSTS AUTHORIZED IN THIS QUESTION; AND SHALL THE PROCEEDS OF SUCH DEBT AND ANY INVESTMENT INCOME
THEREON BE COLLECTED, RETAINED, AND SPENT AS A VOTER APPROVED
REVENUE CHANGE UNDER ARTICLE X, SECTION 20 OF THE COLORADO
CONSTITUTION OR ANY OTHER LAW?
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Matt Pielsticker, AICP, Planning Manager
Date: June 24, 2014 Meeting
Agenda Topic: Bike Lanes
Building on recent efforts to bring awareness and increase safety for cyclists in Town, including the
introduction of bike symbols (or “sharrows”) to the entirety of Avon Road, Town staff has studied
the feasibility of adding bike lanes to West and East Beaver Creek Boulevard. During the Work
Session staff will present the entire plan to be implemented this summer, including:
• W. Beaver Creek Blvd
o From Avon Elementary to Lake Street - shift travel lanes approximately 3.5’ to
accommodate westbound bike lane. Add additional bike symbols and signage.
o From Lake Street to Avon Road - remove turn lanes, add additional parallel on-
street parking where feasible, and add 6’ wide bike lanes in both directions
throughout.
• E. BC Blvd
o From Avon Road to City Market - remove turn lanes, and add minimum 6’ wide
bike lanes. Additional bike symbols and signage will be added.
o From City Market to Post Blvd – add bike symbols and signage throughout.
The Town Council appropriated $35,000 for the bike lane striping this year. I look forward to
your comments and direction.
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Robert L. Ticer, Chief of Police
Date: Tuesday, June 24, 2014
Agenda topic: Avon Police Department Patrol Operations Overview
The purpose of the work session with Council is to review Patrol Operations of the Avon Police
Department, to answer questions and ensure that the Department is meeting the Town Council’s direction
in this important activity.
The Avon Police Department Patrol Division is the backbone of the Department. The Division is divided
into to two patrol teams of six officers and one sergeant responsible for coverage and response in the
Town 24 hours per day, 7 days per week. The sergeants report to the Patrol Lieutenant. The teams are
broken further into day and night shifts, which consist of 3 officers assigned to each time period. The
sergeants are flexible and rotate between days and nights, depending upon coverage needs and other
operational duties to maximize service during times of high call volume.
The Avon Police Department and Patrol Division have three goals: Community Education, Crime
Reduction/Deterrence, and Traffic Safety. Each Avon Police Officer is focused on these goals and
Making a Difference positively in the community. Patrol Division is responsible for the following: First
responders to community emergencies; criminal investigations; general patrol; traffic enforcement; traffic
crash investigations; response to 911 emergency calls; response to non-emergency calls for service,
staffing special events; and other duties as assigned.
Several strategies for patrol operations are utilized, such as the Data Driven Approach to Crime and
Traffic Safety (DDACTS), which is an evidence-based problem solving approach that includes the
following seven guiding principles: 1. Partners and stakeholder’s input. 2. Data collection. 3. Data
analysis. 4. Strategic operations. 5. Information sharing and outreach. 6. Monitoring, evaluation, and
adjustments. 7. Outcomes. Additionally, officers are deployed to specific locations for problem solving
based upon community input/complaints such as speeding and traffic or requests for extra patrols based
upon specific crime trends.
In addition to general community policing by the patrol teams, the detectives and chief assist in patrol
coverage and augment staffing as necessary. The Avon Police Department participates in the Gore Range
DUI Task Force, which is a regional law enforcement response to reduce impaired driving in the local
communities. This program along with the National Click it or Ticket campaign to increase seat belt
usage are funded through state grants.
Page 2
Avon Police Officers are effectively trained and equipped for their work. The Department conducts
quarterly trainings and focuses on specific trainings to continuously improve the level of expertise in the
Department. Avon Police Patrol Officers drive fully-marked Chevrolet Tahoes that are equipped with
mobile data computers and cellular telephones. These technologies allow officers to remain mobile,
which ensures rapid response to emergencies. In fact, Avon Police response times to emergencies
averages between 2 and 4 minutes, which is significantly quicker than the national average of 10-11
minutes.
The Avon Police Department measures success through the performance metrics which consists of the
following: 1. Community Survey. 2. Internal survey (bi-annual ethics survey). 3. Crime and traffic
statistics analysis. 4. Police response times. The community survey is pending; however the police
department receives community input through a variety of means including day to day community
interactions; complaint/compliments; and through channels such as the Citizens Police Academy. The
results of the anonymous internal surveys over the last several years indicate a team of satisfied, ethical,
and highly trained professionals.
Through high visibility patrols and intelligence led policing, the Avon Police Department has seen many
positive trends and decreases in crime and traffic crashes over the last several years. Total crime,
assaults, theft, robbery, burglary, vehicle theft, vandalism, and traffic crashes, have been at all-time lows
recently.
Traffic enforcement has remained a priority in the Division for a dual purpose: One, to reduce/deter
crime and two, to improve traffic safety. Officers remain visible in their patrols and stop on average 8.4
traffic violators per day and issue 1.9 traffic citations during these contacts. Officer use excellent
judgment and discretion during these contacts with a goal to improve drive safety. Using the data driven
model and intelligence led policing, officers focus on locations in town for patrol as first priority where
the highest number of calls for service and most serious-life threatening calls are located. These areas are
the core of Avon, Interstate 70, and East Avon. Additional Patrols are directed in Wildridge and West
Avon.
Success: The Avon Police Department’s Patrol Division, in partnership with the community, have
achieved over the last several years efficiency in policing, increased partnerships, lower crime, improved
traffic safety, minimal complaints, positive compliments, and buy-in. Additionally, many professional
organizations have recognized the Department for their professional work including, Mothers Against
Drunk Driving; Colorado Department of Transportation; the National Highway Traffic Safety
Administration, Colorado Association of Chiefs of Police, and last year by the International Association
of Chiefs of Police who awarded the Department with the prestigious Civil Rights Award for positive
work in the immigrant community.
Moving Forward: The Avon Police Department, through the aforementioned programs and strategies and
through direction of the Town/Community leaders, will continue to improve. The Department is
exploring additional strategies to further improve their policing model and efficiencies through crime
mapping technologies, country wide electronic citations, and evaluation of officer proactive times.
FISCAL YEAR 2014
FINANCIAL REPORT
June 24, 2014
______________________________________________________________________________________
1. Fiscal Year 2014 Financial Report Cover Memo
2. Sales and Accommodations Tax Reports – April 2014
3. Real Estate Transfer Tax Report and Monthly Detail – May 2014
4. General Fund Year-To-Date Expenditures- May 2014
5. Fleet Maintenance Fund Year-To Date Expenditures- May 2014
6. Transit Fund Year-To Date Expenditures- May 2014
7. DestiMetrics Executive Summary- May 2014
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Kelly Huitt, Budget Analyst
Date: June 18, 2014
Re: Fiscal Year 2013 Financial Report – April/May 2014
Revenues:
SALES TAX
• Sales tax revenue for the month of April is up $74,432.43, or 24.21% compared to April 2013, and up 21.45%
compared to the monthly budget. This increase includes approximately $15,000 from new businesses, and after adjusting for new business growth, 19.30% is the actual gain in revenue for the month. April 2014 sales tax revenue is the highest ever for the month of April.
• April collections report increases in all industries over 2013 except for Miscellaneous Retail which was down
($3,308.41) or (13.60%). The decrease is due to a business closure in this industry, and there was also a
business miscoded to Miscellaneous Retail that was removed and placed in the correct category. Revenue from Home/Garden is up 89.51% for the month, Sporting Goods Rental/Retail is up almost $9,000 or 37.40% and Other is up $12,725.06, or 35.84%.
ACCOMMODATIONS TAX
• Accommodations tax revenue for April is up $5,131.53, or 19.37% compared to April 2013, and up 15.92% compared to the monthly budget. April 2014 accommodations tax revenue is the highest on record for the month of April historically.
• April accommodations tax collections are up for Hotels at 2.59%, Timeshares at 77.95%, while Vacation
rentals are down (9.74%).
REAL ESTATE TRANSFER TAX
• 2014 real estate transfer tax collections for May equal $183,745.60. This is a 50.88% increase from May 2013
and 80.01% over the monthly budget.
Expenditures:
• General Fund expenditures at the end of May are 42.7% of the budgeted amounts.
• Fleet expenditures to date are at 40.43% of the total budget.
• Transit funds are 44.55% spent compared to the annual appropriation. This includes $177,168.48 for gondola
operations during the 2014 portion of the ski season.
DestiMetrics:
• Avon’s occupancy was at 22.3% for the month of May, which is a 13.1% increase over May 2013.
• June’s anticipated occupancy is 27.0%, a -16.6% decrease over 2013.
• Looking back at the past six months, occupancy was up 6.9% while average daily rate was up 7.5% and revenue per average room night increased 14.9% over 2013.
• Occupancy for the upcoming six months on the books is 1.3% higher than 2013 at 11.8%.
• Rooms booked during May 2014 for arrival May – October has changed by 3.6% compared to rooms booked during May 2013 for arrival in the following six months.
TOWN OF AVON
SALES TAX WORKSHEET
2014 Actual vs. Budget
Budget YTD Collections Budget % of change
2009 2010 2011 2012 2013 2014 2014 Variance from 2013
January 552,648.47$ 515,009.18$ 511,040.76$ 519,784.89$ 677,943.78$ 693,355$ 638,863.27$ (54,491.56)$ -5.76%
February 516,349.68 504,752.59 532,903.25 533,546.48 636,702.27 651,176 673,722.03 22,546.21 5.81%
March 536,913.42 620,937.20 665,532.70 643,910.29 720,267.31 736,640 793,301.96 56,661.50 10.14%
April 319,833.51 309,937.09 305,269.73 304,220.84 307,407.13 314,395 381,839.56 67,444.43 24.21%
May 267,960.76 242,830.16 236,424.93 270,082.79 309,938.72 316,984
June 396,066.29 377,920.42 406,828.27 430,588.57 490,329.18 501,475
July 409,956.20 421,975.98 452,873.44 472,215.40 537,479.66 549,698
August 374,965.99 361,702.25 419,977.29 455,439.86 504,332.25 515,797
September 350,585.25 359,139.22 391,546.49 424,793.75 475,362.88 486,169
October 286,412.11 288,859.84 299,193.35 341,711.43 356,925.96 365,040
November 281,696.02 284,528.70 301,407.41 336,060.63 362,460.94 370,700
December 786,701.84 818,360.74 921,815.61 852,868.64 981,917.79 1,004,239
Total 5,080,089.54$ 5,105,953.37$ 5,444,813.23$ 5,585,223.57$ 6,361,067.87$ 6,505,668$ 2,487,726.82$ 92,160.58$ 6.21%
Actual Collections
$0
$100,000
$200,000
$300,000
$400,000
2010 2011 2012 2013 2014
Year
Sales Tax Collections for April
TOWN OF AVON
SALES TAX WORKSHEET
2014 Actual vs. Budget
$-
$250,000
$500,000
$750,000
$1,000,000
$1,250,000
$1,500,000
$1,750,000
$2,000,000
$2,250,000
$2,500,000
2010 2011 2012 2013 2014
YTD Sales Tax Collections
$-
$50,000
$100,000
$150,000
$200,000
$250,000
$300,000
$350,000
$400,000
$450,000
$500,000
$550,000
$600,000
$650,000
$700,000
$750,000
$800,000 Sales Tax Monthly Comparison 2012-2014
2012
2013
2014
TOWN OF AVON
ACCOMMODATIONS TAX WORKSHEET
2014 Actual vs. Budget
Budget YTD Collections Budget % of change
2009 2010 2011 2012 2013 2014 2014 Variance 2013
January 84,919.00$ 87,938.84$ 85,233.73$ 90,118.88$ 108,508.43$ 111,733$ 129,851.78$ 18,119.08$ 19.67%
February 83,502.22 99,336.34 114,035.90 106,016.32 137,503.61 141,589 150,317.06 8,727.60 9.32%
March 84,909.85 105,518.15 122,145.16 115,043.42 153,208.80 157,761 168,597.39 10,836.07 10.04%
April 26,821.29 26,496.88 26,214.58 20,786.24 26,494.49 27,282 31,626.02 4,344.26 19.37%
May 19,090.36 12,425.51 15,152.82 16,664.44 24,527.17 25,256
June 34,439.33 32,857.68 49,999.66 56,012.17 66,578.91 68,557
July 47,864.32 51,170.82 62,928.07 66,726.73 73,008.92 75,178
August 39,155.19 42,188.56 52,037.55 58,358.93 67,688.07 69,699
September 21,134.69 30,090.34 35,521.81 42,245.24 44,661.37 45,988
October 17,043.78 20,614.06 21,801.56 25,879.51 27,154.53 27,961
November 15,268.58 20,582.47 24,971.33 22,786.42 28,171.04 29,008
December 96,847.30 98,561.90 135,984.00 112,759.02 131,361.43 135,265
Total 570,995.91$ 627,781.55$ 746,026.17$ 733,397.32$ 888,866.77$ 915,279$ 480,392.25$ 42,027.00$ 12.84%
Actual Collections
-
5,000.00
10,000.00
15,000.00
20,000.00
25,000.00
30,000.00
35,000.00
2010 2011 2012 2013 2014
Accommodations Tax Collections for April
Town of Avon
Real Estate Transfer Tax
May 2014 Collections Detail
YTD Collections $ change % of change
2009 2010 2011 2012 2013 2014 2013 2013
January 34,468.00$ 237,133.00$ 57,540.00$ 50,204.00$ 22,535.00$ 85,126.74$ 62,591.74$ 277.75%
February 95,703.38 362,719.22 230,705.50 41,750.07 55,872.69 562,219.70 506,347.01 906.25%
March 6,023.70 284,243.65 187,099.47 84,760.49 125,927.64 50,375.06 (75,552.58) -60.00%
April 92,238.95 210,185.30 249,482.30 219,195.80 144,437.80 197,656.36 53,218.56 36.85%
May 37,803.12 112,431.30 187,668.62 270,170.12 121,784.12 183,745.60 61,961.48 50.88%
June 365,324.28 66,271.14 49,606.58 169,040.47 90,309.74
July 208,800.24 63,509.36 46,707.37 71,057.40 386,434.78
August 87,827.30 88,823.40 106,785.21 232,505.93 97,579.70
September 159,877.84 159,861.96 140,876.56 96,389.34 157,010.67
October 205,537.52 222,575.20 64,005.33 176,889.62 169,839.80
November 131,944.57 115,654.16 98,057.44 150,549.86 112,491.82
December 336,431.50 236,117.45 198,448.03 145,134.57 83,382.60
Total 1,761,980.40$ 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,567,606.36$ 1,079,123.46$ 608,566.21$ 129.33%
Budget 1,600,000$
Variance, Favorable (Unfavorable)(520,876.54)
Actual Collections
$-
$100,000.00
$200,000.00
$300,000.00
$400,000.00
$500,000.00
$600,000.00
$700,000.00
$800,000.00
$900,000.00
$1,000,000.00
$1,100,000.00
$1,200,000.00
$1,300,000.00
2010 2011 2012 2013 2014
YTD Real Estate Transfer Tax Collections
Town of Avon
Real Estate Transfer Tax
May 2014 Collections Detail
Purchaser Name Property Amount Received
Balance Forward 895,377.86$
Heritage Title - Blackham Lodge at Brookside #312 10,670.00
Stewart Title - DeMeillac 520 W Beaver Creek Blvd #A-103 (Buck Creek)6,560.00
Land Title - O'Halloran and Razus 1061 W Beaver Creek Blvd #J-204 (Sunridge)780.00
Land Title - Thomas Trust 137 Benchmark #405 (Seasons)6,640.00
Land Title - Evans 175 Lake St #405, wk 35 (Falcon Pointe)63.80
Title Co of the Rockies Christie Lodge CL #31 1,479.90
Title Co of the Rockies Mtn Vista #14-21 176.00
Stewart Title - Beaver Creek Landing 851 W Beaver Creek Blvd #B6 (Benchmark)2,800.00
Land Title - Beltran Falcon Pointe #208 135.90
Title Co of the Rockies Mtn Vista #14-20 296.00
Title Co of the Rockies Christie Lodge CL #30 1,414.70
Land Title - Delmont Falcon Pointe #408, wk23 20.00
Land Title - Zietz Falcon Pointe #502, wk27 63.80
Land Title - Kean Chapel Spare # BR-225 5,720.00
Land Title - Johns Family LLP Nightstar #C 8,800.00
Title Co of the Rockies Mtn Vista #14-19 557.90
Stewart Title - Pullins Greenbrier #D-29 4,300.00
Title Co of the Rockies Christie Lodge CL#29 2,366.80
Land Title - Ehlman Falcon Pointe #207, wk 22 63.80
Stewart Title - Bruun Greenbrier #B-15 1,060.00
Title Co of the Rockies Christie Lodge CL #28 957.00
Heritage Title - Pompano Chapel Spare # BR-314 7,760.00
Land Title - Benedict Lodge at Brookside #207 4,800.00
Land Title - Nelson 2455 Old Trail #C (Villamonte)5,580.00
Land Title - Braksick 126 Riverfront Ln #406 26,000.00
Land Title - Macartney 3000 Eaglebend Dr, Lot 10, filing 3 11,000.00
Land Title - Ebert 811 W Beaver Creek Blvd #D-4 2,120.00
Land Title - Davis Chapel Square #BR-202 8,100.00
Heritage Title - Redden Stonebriar Townhomes #4 6,800.00
Chicago Title Mtn Vista #14-16 219.00
Chicago Title Mtn Vista #14-14 219.00
Chicago Title Riverfront #14-18 736.00
Chicago Title Riverfront #14-17 436.00
Land Title - Kaufman 126 Riverfront Ln #450 55,000.00
Land Title - Sibold Falcon Pointe #105, wk 8 50.00
Total May Revenue 183,745.60
Total YTD Revenue 1,079,123.46
Total 2014 Budget 1,600,000.00
Variance, Favorable (Unfavorable)(520,876.54)$
Dept./Div.2014 Encumbrances Year To Date Available
Number Description Budget Outstanding Expenditures Balance YTD/Budget
General Government:
Legislative:
111 Mayor and Town Council 578,920$ 750$ 329,222$ 248,948$ 57.00%
112 Boards and Commissions 15,299 - 4,024 11,275 26.30%
113 Town Attorney 155,000 111,553 43,550 (103) 100.07%
115 Town Clerk 170,427 6,795 89,494 74,138 56.50%
Total Legislative 919,646 119,098 466,290 334,258 63.65%
Judicial:
121 Municipal Court 98,235 14,578 38,273 45,384 53.80%
Executive:
131 Town Manager 294,403 - 87,469 206,934 29.71%
132 Human Resources 229,806 2,362 90,044 137,400 40.21%
133 Community Relations 111,569 - 46,922 64,647 42.06%
Total Executive 635,778 2,362 224,435 408,981 35.67%
Finance Department:
141 Finance 741,372 29,326 259,261 452,785 38.93%
143 Information Systems 337,296 10,980 160,898 165,418 50.96%
149 Nondepartmental 290,998 16,180 201,251 73,567 74.72%
Total Financial Administration 1,369,666 56,486 621,410 691,770 49.49%
Total General Government 3,023,325 192,524 1,350,408 1,480,393 51.03%
Community Development:
212 Planning 245,489 4,841 82,060 158,588 35.40%
213 Building Inspection 127,353 - 50,284 77,069 39.48%
214 Economic Development 111,605 - 28,806 82,799 25.81%
Total Community Development 484,447 4,841 161,150 318,456 34.26%
Police Department:
311 Administration 553,701 16,054 204,211 333,436 39.78%
312 Patrol 1,964,020 33,466 697,496 1,233,058 37.22%
313 Investigations 221,954 - 89,072 132,882 40.13%
Total Police 2,739,675 49,520 990,779 1,699,376 37.97%
Public Works:
412 Engineering 269,478 484 80,761 188,233 30.15%
413 Roads and Bridges 1,434,574 97,675 514,916 821,983 42.70%
Total Public Works 1,704,052 98,159 595,677 1,010,216 40.72%
Department Expenditure Summaries
General Fund #10 May 2014 Expenditures to Date
Dept./Div.2014 Encumbrances Year To Date Available
Number Description Budget Outstanding Expenditures Balance YTD/Budget
Department Expenditure Summaries
General Fund #10 May 2014 Expenditures to Date
Parks and Recreation:
513 Special Events 427,106 11,437 95,572 320,097 25.05%
514 Administration 223,113 6,626 95,772 120,715 45.90%
515 Adult Programs 28,657 - 10,529 18,128 36.74%
516 Aquatics 394,409 9,043 165,520 219,846 44.26%
517 Childcare 36,486 - 12,915 23,571 35.40%
518 Fitness 158,237 86 100,552 57,599 63.60%
519 Guest Services 235,050 5,159 78,536 151,355 35.61%
521 Youth Programs 118,979 138 31,961 86,880 26.98%
522 Cabin 43,643 - 6,460 37,183 14.80%
551 Parks & Grounds 1,065,325 68,139 370,438 626,748 41.17%
571 Buildings & Facilities 1,053,353 57,221 441,697 554,435 47.36%
Total Parks and Recreation 3,784,358 157,849 1,409,952 2,216,557 41.43%
TOTAL OPERATING
EXPENDITURES 11,735,857$ 502,893$ 4,507,966$ 6,724,998 42.70%
Dept./Div.2014 Encumbrances Year To Date Available
Number Description Budget Outstanding Expenditures Balance YTD/Budget
EXPENDITURES
Public Works:
434 Fleet Maintenance 1,546,142$ 51,219$ 573,817$ 921,106$ 40.43%
Total Operating Expenditures 1,546,142 51,219 573,817 921,106 40.43%
TOTAL EXPENDITURES 1,546,142$ 51,219$ 573,817$ 921,106$ 40.43%
Expenditure Summary
Fleet Maintenance Enterprise Fund #61 May 2014 Expenditures to Date
Dept./Div.2014 Encumbrances Year To Date Available
Number Description Budget Outstanding Expenditures Balance YTD/Budget
EXPENDITURES
431 Transit Administration 219,197$ 2,775$ 87,505$ 128,917$ 41.19%
432 Transit Operations 997,403 2,417 483,376 511,610 48.71%
435 Wash Bay 189,479 692 49,582 139,205 26.53%
Total Operating Expenditures 1,406,079 5,884 620,463 779,732 44.55%
TOTAL EXPENDITURES 1,406,079$ 5,884$ 620,463$ 779,732$ 44.55%
Expenditure Summary
Transit Enterprise Fund #52 May 2014 Expenditures to Date
Destination: Avon Destination Period: Bookings as of May 31, 2014
Data based on a sample of up to 10 properties in the Avon Destination destination, representing up to 748 Units ('DestiMetrics Census'*) )
a. Last Month Performance: Current YTD vs. Previous YTD 2013/142012/13
Year over Year
% Diff
22.2%19.6%13.1%
$106$108 -1.4%
$23$21 11.5%
b. Next Month Performance: Current YTD vs. Previous YTD
27.0%32.3%-16.6%
$148$153 -3.4%
$40$49 -19.4%
c. Historical 6 Month Actual Performance: Current YTD vs. Previous YTD
49.0%45.8%6.9%
$227$211 7.5%
$111$97 14.9%
d. Future 6 Month On The Books Performance: Current YTD vs. Previous YTD
11.8%11.6%1.3%
$157$157 -0.1%
$18$18 1.2%
e. Incremental Pacing - % Change in Rooms Booked last Calendar Month: May. 31, 2014 vs. Previous Year
5.7%5.5%3.6%
ADR
Copyright 2006 - 2014, DestiMetrics, LLC. All Rights Reserved. Information provided here is CONFIDENTIAL INFORMATION and is the exclusive property of DestiMetrics LLC. It is expressly not for reproduction, distribution publication
or any other dissemination without the express written permission of DestiMetrics, LLC. Sample reports may be provided to interested persons, specifically for purposes of their evaluation of a potential subscription and are subject to
Copyrights of this product. Data and Metrics represented on this report are representative of the Sample Properties only and may not be representative of the entire Community or Industry. Persons using this data for strategic
purposes do so at their own risk and hold DestiMetrics harmless.
Avon Destination RevPAR for the upcoming 6 months changed by (1.2%)RevPAR
Rooms Booked during last month (May, 2014) compared to Rooms Booked during the same
period last year (May, 2013) for arrival May to October has changed by (3.6%)Booking Pace (May)
ADR (May)
Avon Destination Occupancy for the upcoming 6 months changed by (1.3%)Occupancy
* DestiMetrics Census: Total number of rooms reported by participating DestiMetrics properties as available for short-term rental in the reporting month. This number can vary monthly as inventories and report participants change
over time.
DESCRIPTION: The Reservation Activity Outlook Report tracks occupancy, average daily rate (ADR), and revenue per available room (RevPAR); the key metrics most of interest to lodging properties. The report
combines the data sets of participating properties into a destination wide view that features three data sets (providing that sufficient information is available) including: i) current YTD occupancy, ii) last YTD
occupancy, iii) last season's ending occupancy.
The Reservation Activity Outlook Report is generated on a monthly basis, usually for a 12 month subscription period, and is created from data provided by a group of properties participating in a cooperative
manner, and representing a valid set of data as a result.
Report results are provided only to those properties who participate by submitting their data. Additionally, participating properties can order (on an a-la-carte basis) an individual report which shows the
reservation activity of their property, measured against an aggregated set of competitive properties that they choose from amongst DestiMetrics's other participants.
As is the case in all DestiMetrics data, all information provided by individual properties is strictly confidential, except when aggregated with other data and indistinguishable as a result.
Avon Destination Average Daily Rate for the prior 6 months changed by (7.5%)ADR
Avon Destination RevPAR for the prior 6 months changed by (14.9%)RevPAR
Avon Destination Average Daily Rate for the upcoming 6 months changed by (-0.1%)
Avon Destination Occupancy for next month (June) changed by (-16.6%)Occupancy (June)
Avon Destination Average Daily Rate for next month (June) changed by (-3.4%)ADR (June)
Avon Destination RevPAR for next month (June) changed by (-19.4%)RevPAR (June)
Avon Destination Occupancy for the prior 6 months changed by (6.9%)Occupancy
Avon Destination RevPAR for last month (May) changed by (11.5%)RevPAR (May)
RESERVATIONS ACTIVITY REPORT
Avon Destination
Executive Summary
Avon Destination Occupancy for last month (May) changed by (13.1%)Occupancy (May)
Avon Destination Average Daily Rate for last month (May) changed by (-1.4%)
6/6/2014
Copyright (c) 2006 - 2014, DestiMetrics, LLC All Rights Reserved.
Confidential Information not for reproduction and protected by law. info@DestiMetrics.com www.DestiMetrics.com 1
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Town Council
From: Debbie Hoppe, Town Clerk
Date: June 24, 2014
Agenda Topic: Disclosure Report: Hoffmann Commercial Real Estate Reds, Whites & Brews American Made
Festival Guest Ticket
Please find attached the Town Clerk Gift Reporting Disclosure Report for June 2014, which lists the
Hoffmann Commercial Real Estate Reds, Whites & Brews American Made Festival Guest Ticket for the upcoming
event. Town Council is not required to take any action; however, any Town Council member may request
Council consideration of a report gift to determine whether such gift constitutes a conflict of interest.
The Town Code of Ethics requires disclosure of any gifts received which exceed $50 in value. “Gifts”
includes any present, or offer of future, individual gift, favor, loan, service or thing of value in excess of
$50.00 and such gift is offered due to such person’s status as a Town Officer then such Officer shall
report such gift and the estimated value to the Town Clerk. The Avon Municipal Code requires the
Town Clerk to disclose through a report any gifts offered to any Town Officer per Section 2.30.170 of
the Town Code of Ethics.
Town of Avon
Town Clerk Disclosure Report
In accordance with §7, Article XXIX of the Colorado Constitution and Section 2.30.170, Chapter 2.30
Avon Town Code of Ethics of the Avon Municipal Code, and any other applicable Avon Home Rule
Charter provision, ordinance or resolution adopted by the Town of Avon, I, Debbie Hoppe, Town Clerk
for Town of Avon, submit the following list of such gifts reported to be received by officers of the
Town of Avon:
1. 2014 Hoffmann Commercial Real Estate Reds, Whites & Brews American Made Festival (Festival)
Event Pass for use by one guest of the Mayor and each Councilor on June 28, 2014, with each pass
valued at $90.00. The Mayor and each Councilor also have received a one-day pass as a condition
of the Festival Agreement so they are able to observe the event to help in any future
determination as to whether the Festival should again be permitted to occur in the Town of Avon
in a subsequent year.
Submitted to Avon Town Council on June 24, 2014.
_________________________________
Debbie Hoppe, Town Clerk
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 Avon Town Council members
FROM: Eric J. Heil, Town Attorney
RE: Amendments to Authority Agreement
DATE: June 20, 2014
SUMMARY: The Upper Eagle River Water Authority (“Authority”) has proposed amendments to the 1984
Establishing Agreement and the 1998 Master Service Agreement and has proposed consolidating the two
agreements into one agreement, the “Authority Agreement”. This memorandum identifies the substantive
changes in the Authority Agreement compared to the existing agreements. Attached is Resolution 14-14
which would adopt the Authority Agreement and Version 19 of the Authority Agreement.
SUBSTANTIVE CHANGES:
Base Charge: The existing agreements require unanimous consent of the members to increase the Base
Charge more than the inflationary index. The new Authority Agreement would require a majority plus one
(i.e. 5 votes).
Plant Investment Fees: The existing agreements require unanimous consent of the members to increase
the Plant Investment Fees more than the inflationary index. The Authority Agreement would require a
majority plus one (i.e. 5 votes).
Surcharge: The existing agreement only recognizes the ability of each member to impose a surcharge in
each members respective jurisdiction. The Authority Agreement expands the ability to impose a Surcharge
within a specified area to the Authority, which would require a simple majority vote (i.e. 4 votes).
Debt Service Fee/Rate: The existing agreements do not expressly address Debt Service Fees and Rates,
although the Authority members have approved such fees for repayment of debt. The Authority Agreement
includes a specific definition of such term and allows the establishment and setting of the Debt Service Fee
by simple majority vote (i.e. 4 votes).
Treated Water Storage Fee: The existing agreements do not expressly address a Treated Water Storage
Fee although the Authority has imposed this fee. The Authority Agreement includes a specific definition of
such term and allows the establishment and setting of the Treated Water Storage Fee by simple majority
vote (i.e. 4 votes).
Cash-in-Lieu of Water Rights Fee: The existing agreements do not expressly address a Cash-in-Lieu of
Water Rights Fee although the Authority has accepted cash-in-lieu of water rights. The Authority
Agreement includes a specific definition of such term and allows the establishment and setting of a Cash-
in-Lieu of Water Rights Fee by a simple majority vote (i.e. 4 votes).
Other amendments update and clarify language related to the Authority’s practices and accounting for
costs, such as the definition of “Cost of Authority Assets.”
PROPOSED MOTION: “I move to approve Resolution No. 14-14 A RESOLUTION APPROVING
THE AUTHORITY AGREEMENT AMENDING AND RESTATING THE AGREEMENT
ESTABLISHING THE UPPER EAGLE REGIONAL WATER AUTHORITY AND THE
MASTER SERVICE CONTRACT (“Authority Agreement”)
Thank you, Eric
M EMORANDUM & PLANNING, LLC
Resolution No. 14-14 Approving the Authority Agreement
June 24, 2014
TOWN OF AVON, COLORADO
RESOLUTION NO. 14-14
SERIES OF 2014
A RESOLUTION APPROVING THE AUTHORITY AGREEMENT
AMENDING AND RESTATING THE AGREEMENT ESTABLISHING
THE UPPER EAGLE REGIONAL WATER AUTHORITY AND THE
MASTER SERVICE CONTRACT (“Authority Agreement”)
WHEREAS, the Upper Eagle River Water Authority (“Authority”) have proposed amendments
and updates to the 1984 Establishing Agreement and 1998 Master Service Agreement as well as
have proposed consolidating both agreements into one agreement for efficiency, convenience
and accuracy; and
WHEREAS, the Avon Town Council finds that the Authority Agreement is acceptable and will
enhance the governance and function of the Authority;
WHEREAS, CRS §29-1-204.2 authorizes the establishment of an authority by a combination of
municipalities and special districts with such purpose and powers as is set forth in the Authority
Agreement; and,
WHEREAS, the Avon Town Council finds that the Authority Agreement will promote the
health, safety and general welfare of the Avon community by improving the governing terms by
which the Authority provides water to the Town of Avon, the other members of the Authority,
and third parties who receive water from the Authority.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, that the Town of Avon hereby approves the Authority Agreement
attached hereto as Exhibit A; authorizes the Mayor to execute the Authority Agreement; and
authorizes the Mayor, Town Manager and Town Attorney to review and approve any additional
amendments to Authority Agreement to correct typographical, citation, reference and grammar
errors and such amendments as may be determined acceptable to the other members of the
Authority which do not adversely affect the interests of the Town of Avon.
ADOPTED June 24, 2014.
AVON TOWN COUNCIL
BY:_______________________________ Attest:_____________________________
Rich Carroll, Mayor Debbie Hoppe, Town Clerk
ATTACHMENT A: RES. NO. 14-14
{00219485.DOC / 19}
AUTHORITY AGREEMENT
AMENDING AND RESTATING THE
AGREEMENT ESTABLISHING THE
UPPER EAGLE REGIONAL WATER AUTHORITY
AND THE MASTER SERVICE CONTRACT
THIS AMENDED AND RESTATED AGREEMENT, (“Authority
Agreement”) establishing the Upper Eagle Regional Water Authority (“Authority”) is
made and entered into this _____ day of _____________, 2014, by and among
ARROWHEAD METROPOLITAN DISTRICT, TOWN OF AVON (its predecessor
being the Avon Metropolitan District), BEAVER CREEK METROPOLITAN
DISTRICT, BERRY CREEK METROPOLITAN DISTRICT, EAGLE-VAIL
METROPOLITAN DISTRICT, and EDWARDS METROPOLITAN DISTRICT, all of
which are municipal or quasi-municipal corporations of the State of Colorado, all of
which are located in the County of Eagle, State of Colorado, and which shall hereinafter
be referred to as “Contracting Parties.”
RECITALS
WHEREAS, each of the Contracting Parties is authorized to own and operate
water systems or facilities and is empowered to supply water for domestic and other
public and private purposes by any available means, and to provide all necessary
property, diversion works, reservoirs, treatment works and facilities, equipment and
appurtenances incident thereto; and
WHEREAS, any combination of municipalities, special districts or other political
subdivisions of this state that are authorized to own and operate water systems or
facilities may establish, by contract with each other, a separate governmental entity, to be
known as a water authority, to be used by the contracting parties to effect the
development of water resources, systems, or facilities in whole or in part for the benefit
of the inhabitants of such contracting parties or others at the discretion of the board of
directors of the water authority, C.R.S. § 29-1-204.2 (the “Act”); and
WHEREAS, such contractual relationships between local governments are
encouraged by Section 18(2)(a) and (b), Article XIV of the Colorado Constitution,
Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., to provide intergovernmental
services and facilities, when authorized by their governing bodies; and
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 2
WHEREAS, the Authority was established by the Contracting Parties as a
political subdivision and a public corporation of the State of Colorado, separate from the
Contracting Parties and having the duties privileges, immunities, rights, liabilities, and
disabilities of a public body politic and corporate, by the Agreement Establishing the
Upper Eagle Regional Water Authority made on September 18, 1984 and as amended on
April 1, 1985 (“EA”); and
WHEREAS, the Contracting Parties entered into an Amended and Restated
Master Service Contract (“MSC”) made as of January 1, 1998 that remains in effect. The
Contracting Parties and the Authority desire to amend and restate the Amended and
Restated Master Service Contract and replace it by this Agreement to re-affirm the
conveyance of their individual Water Systems to the Authority and for simplification and
accommodation of changes in operation and law; and
WHEREAS, the establishment of the Authority by the Contracting Parties in
Eagle County, Colorado, has served a public purpose and has promoted the health, safety,
prosperity, security and general welfare of the inhabitants and taxpayers of the
Contracting Parties, Eagle County, and the State of Colorado; and
WHEREAS, the Authority provides treated water to customers of third parties by
contract under substantially the same terms, conditions and costs under which it provides
treated water to its Water Service Customers, as hereinafter defined. The third parties
presently so served are:
A. EMD Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT II
LLC, and PVRT NOTT III LLC, per agreement with Eagle-Vail originally
dated May 15, 1997, with a First Amendment dated June 22, 1999, under
which the Town of Avon has been substituted for Eagle-Vail to provide
water service to the Village at Avon that has now been annexed to the
Town of Avon;
B. Kensington Partners, Stag Gulch Partners, and Galena Partners (collectively
known as the Partnerships), per an Amended and Restated Water Service
Agreement with Cordillera Metropolitan District as successor to Squaw
Creek Metropolitan District to provide water service to the Cordillera
service area;
C. Bachelor Gulch Metropolitan District, under Section 9(b) of an Exclusion
Agreement between Beaver Creek and Vail Associates, Inc., dated January
4, 1995; and
D. Chateau St. Claire (now known as The Ascent), per a Water Service
Agreement with Eagle-Vail, dated December 12, 1996, which is now
annexed to and served through the Town of Avon.
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 3
WHEREAS, it is the responsibility of the Authority to provide a dependable legal
and physical supply of water to the Contracting Parties in all reasonably foreseeable
hydrologic conditions; and
WHEREAS, it is the responsibility of the Authority to meet its water service
obligations to any third party it serves by contract.
WHEREAS, the Contracting Parties and the Authority now wish to replace the
EA and the MSC, which are hereby known as the “Authority Agreement.”
NOW, THEREFORE, in consideration of the mutual performance of the
covenants, agreements and promises set forth hereinafter, the Contracting Parties agree to
replace, amend and restate Agreement Establishing the Upper Eagle Regional Water
Authority made on September 18, 1984 and as amended on April 1, 1985, and the
Amended and Restated Master Service Contract made and entered into as of January 1,
1998, by this Authority Agreement to read in its entirety as follows:
ESTABLISHMENT OF UPPER EAGLE REGIONAL WATER AUTHORITY
1. Effective Date. The effective date of this Agreement shall be January 1, 2014.
As of the effective date of this Agreement, the Agreement Establishing the Upper
Eagle Regional Water Authority made on September 18, 1984 and as amended on
April 1, 1985, and the Amended and Restated Master Service Contract made and
entered into as of January 1, 1998 are hereby superseded and all actions of the
Authority taken prior to the Effective Date are hereby ratified and affirmed, and
any contracts or stipulations entered into or decrees obtained remain in full force
and effect, except as provided in Paragraph 49. The organization of the Authority
pursuant to law and the obligations incurred by and the bonds of such Authority
issued after September 18, 1984, and the proceedings related thereto, are hereby
validated.
2. Term. This Agreement shall remain in effect until the Authority has no bonds,
notes or other obligations outstanding in accordance with the terms of such
obligations and the Contracting Parties unanimously consent to the dissolution of
the Authority. The Initial Term of this Agreement shall be ten (10) years ending
on December 31, 2023, but such term shall be subject to automatic renewal and
extension for successive ten (10) year terms thereafter unless all of the Contracting
Parties unanimously approve changes to this Agreement during any extended term
to be effective on the first day of the extended term, including provision for
payment of all bonds, notes and other obligations outstanding in accordance with
their terms.
3. Establishment of the Upper Eagle Regional Water Authority. By contract
with each other as authorized by the Act, the Contracting Parties do hereby ratify
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 4
and affirm the establishment of the Upper Eagle Regional Water Authority
(“Authority”) on September 18, 1984, a political subdivision and a public
corporation of the State of Colorado, separate from the Contracting Parties and
having the duties, privileges, immunities, rights, liabilities, and disabilities of a
public body politic and corporate. Since its establishment, the Authority has been
and shall be used by the Contracting Parties to effect the development of water
resources, systems, and facilities in whole or in part for the benefit of their
inhabitants or others at the discretion of the Board of Directors of the Authority.
For 30 years the Contracting Parties have developed water resources, systems and
facilities for the benefit of their inhabitants which are now owned or leased by and
operated by the Authority to provide water service directly to Authority Water
Service Customers residing within and without the jurisdictional boundaries of the
Contracting Parties. The Authority operates as the largest water service provider
in Eagle County and is governed by a board of directors appointed by the
governing bodies of the Contracting Parties. The legislative power of the
Authority is vested in its Board of Directors. The Board of Directors operates by a
majority vote on some items, a super-majority (majority plus one) vote on other
items and unanimous consent to add a Contracting Party or to modify this
Agreement. The Authority may continue to operate in perpetuity until rescinded
or terminated by the Contracting Parties, except that such contract may not be
rescinded or terminated so long as the Authority has bonds, notes, or other
obligations outstanding, unless provision for full payment of such obligations, by
escrow or otherwise has been made. Under the Act, the Authority’s powers
include, but are not limited to the power to make and enter into contracts; to
employ agents and employees; to acquire, construct, manage, maintain, or operate
water systems, facilities, works or improvements, or any interest therein; to
condemn property for public use as rights-of-way; to incur debts, liabilities, or
obligations; to sue and be sued in its own name; to have and use a corporate seal;
to fix, maintain, and revise fees, rates, and charges for functions, services or
facilities provided by the Authority; to adopt, by resolution, rules and regulations
respecting the exercise of its powers and the carrying out of its purposes; to
exercise any other powers which are essential to the provision of functions,
services or facilities by the entity and which are specified in this Authority
Agreement; to do and perform any acts and things authorized by the Act under,
through, or by means of an agent or by contracts with any person, firm or
corporation; to permit other municipalities, special districts, or political
subdivisions of this state that are authorized to provide water to enter the contract
at the discretion of the Board of Directors, subject to fulfilling any and all
conditions or requirements of the contract establishing the Authority, except that
rates need not be uniform between the Authority and the Contracting Parties; and
to provide for the rehabilitation of any surfaces adversely affected by the
construction of water pipelines, facilities, or systems through the rehabilitation of
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 5
plant cover, soil stability, and other measures appropriate to the subsequent
beneficial use of such lands.
4. Definitions. The terms listed in this Paragraph shall have the meanings herein
specified for all purposes of this Agreement, and of any instrument or document
appertaining hereto, except where the context, by clear implication otherwise
requires.
a. “Act” shall mean C.R.S. § 29-1-204.2, as amended, which provides for
creation of, and establishes powers attendant to, water authorities.
b. “Annual Budget” shall mean, with respect to a Contract Year, the budget
of the Authority prepared in accordance with Paragraph 25 hereof for such
Contract Year, or, in the case of an amended Annual Budget, for the
remainder of such Contract Year.
c. “Annual Costs” shall mean, with respect to a Contract Year, and to the
extent not paid or to be paid from the proceeds of Obligations or other
funds legally available to the Authority, the Cost of Authority Assets, and
all costs and expenses of the Authority that are paid or incurred during such
Contract Year and are allocable to Authority Assets, including, but not
limited to, the payment of the Debt Service, the Operation and Maintenance
Expenses, and all Depreciation and Replacement Expenses.
d. “Authority” shall mean the Upper Eagle Regional Water Authority.
e. “Authority Assets” shall mean the water rights and facilities owned by the
Authority on the effective date of this Agreement, including the
Contracting Parties’ former Water Systems, and the shares in the Eagle
Park Reservoir Company representing up to 579 acre-feet of Eagle Park
Reservoir Project Yield water. Definition and scope of Authority Assets
shall automatically be further modified in the future by water rights and
facilities acquired by or disposed of by the Authority during the term of this
Agreement.
f. “Base Charge” shall mean the amount charged each SFE irrespective of
quantity of water used, which charge may be modified as provided in
subparagraph a of paragraph 22 of this Authority Agreement.
g. “Cash-in-Lieu of Water Rights Fee” shall mean a payment of cash in lieu
of the dedication of water rights, in the discretion of the Authority’s Board
of Directors, sufficient to serve the applicant’s proposed water demands
and uses as required by the Authority’s Board of Directors.
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 6
h. “Contract Year” shall mean a year coterminous with the fiscal year of the
Authority for the purpose of calculating Annual Costs.
i. “Costs of Authority Assets” shall mean the Authority’s capital costs
properly attributable to the construction and other acquisition of Authority
Assets, including, but not limited to:
(1) the cost of acquisition by or for the Authority of real or personal
property or any interest therein;
(2) costs of physical construction, engineering, inspection, fiscal, and
legal expenses relating to Authority Assets;
(3) interest which is estimated will accrue during the construction or
other acquisition period and for a period not exceeding one (1) year
thereafter on Obligations;
(4) any discount on the sale of the Obligations; costs of financial,
professional, and other estimates relating to Authority Assets;
(5) any administrative, operating, and other expenses of the Authority
prior to and during any acquisition period and for a period not
exceeding one (1) year thereafter, attributable to Authority Assets as
may be determined by the Board of Directors;
(6) all other expenses as may be necessary or incident to the financing,
acquisition, improvement, equipping, and completion of Authority
Assets and the placing of the same in operation; and
(7) provision of reserves for working capital, Operation and
Maintenance Expenses or for payment or security of principal or
interest on the Obligations as the Board of Directors may determine.
j. “Debt Service” shall mean, with respect to any period, the aggregate of the
amounts of principal, interest and redemption premium, if any, required to
be paid from revenues of the Authority during said period on any
Obligations then outstanding in accordance with their terms.
k. “Debt Service Rate/Fees” shall mean a billing rate that when applied to the
Customer account’s SFE factor, results in a portion of the charges due from
the Customer to the Authority. Revenues collected by the Authority from
Debt Service Fees are used by the Authority specifically to pay debt service
on borrowed funds. Any increase in the Debt Service Fee for a new bond
issue must be approved by a majority, plus 1 (currently at least 5 of 6) of
the governing bodies of the Contracting Parties to be effective.
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 7
l. “Depreciation and Replacement Expenses” shall mean a charge to
operations of the Cost of Authority Assets based on the calculated useful
life of such Assets.
m. “Dwelling Unit” shall mean a habitation of an average size.
n. “Obligations” shall mean bonds, notes, or other evidences of borrowing by
the Authority for purposes of acquiring or constructing Authority Assets.
o. “Operation and Maintenance Expenses” shall mean all expenses incurred
in the operation and maintenance of the Authority’s Water System and
normally recurring expenses incurred by the Authority in the conduct of its
activities which are properly Authority costs under generally accepted
accounting principles as applied to governmental units. Such term does not
include Depreciation and Replacement Expenses or reserves therefor, or
Debt Service on the Authority’s Obligations, or principal of or interest on
any other borrowing of the Authority.
p. “Plant Investment Fee” shall mean the one time charge per SFE for each
property served by the Authority as a pro-rata share of the capital costs
necessary to serve new development. Receipts from Plant Investment Fees
may offset the Debt Service Fee unless the Board of Directors reserves such
revenues for capital improvements in a Restricted Reserve Fund. Plant
Investment Fee is subject to increases by the Board of Directors of the
Authority as provided in subparagraph a of paragraph 23 of this Authority
Agreement.
q. “Service Charge” shall be the charge to each customer for Water Service
by the Authority, which charge shall be calculated as provided in
subparagraph b of paragraph 22 of this Authority Agreement. As so
calculated, the Service Charge may be identified as the Water Usage
Charge in Statements issued by the Authority.
r. “Single Family Equivalent Unit (SFE)” shall mean a use which is
estimated to have an impact upon the Water System equal to that of the
average usage of a Dwelling Unit, as determined by the Authority.
s. “Surcharge” shall mean a charge unilaterally imposed by a Contracting
Party or the Authority on a customer within any Contracting Party’s
jurisdictional boundaries.
t. “Treated Water Storage Fee” shall mean a fee charged to a customer for
water storage facilities for property which is newly included into a
Contracting Party, either by annexation, inclusion or contract, or property
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 8
which has received an increase in its allowed density, which action has
resulted in a need for additional treated water storage.
u. Water Rights Cash-in-Lieu Fee” shall mean a cash payment made in lieu
of water rights dedication where water rights are not available to the
developer to dedicate and payment of such Fee has been specifically and
formally approved by the Board of Directors of the Authority.
v. “Water Rights Fund” shall mean the fund or escrow of monies received
for water rights purchases and expenses. Water Rights Cash-in-Lieu Fees
and related revenues shall be deposited to this Fund.
w. “Water Service” shall mean the Authority’s construction and other
acquisition of Authority Assets, its diversion, storage, treatment,
transmission of water for use by inhabitants of the Authority’s service area
or others, and its maintenance of Authority Assets at all times in good and
workable condition and available for such transmission.
x. “Water Service Customer” shall mean customers of the Authority
residing within and without the jurisdictional boundaries of the Contracting
Parties receiving water service from the Authority.
y. “Water System” shall mean all facilities and properties, real, personal,
mixed or otherwise, now owned or hereafter acquired for provision of
Water Service by any Contracting Party or the Authority through purchase,
construction, or otherwise, and in any way appertaining thereto, whether
situated within or without the limits of the Contracting Parties, or both
within or without the limits of the Contracting Parties, excluding water
rights.
z. “Water Tap Fee” shall mean the impact fee or similar development charge
that may be imposed by a Contracting Party pursuant to C.R.S. § 29-20-
104.5 to fund expenditures by such local government on water capital
facilities needed to serve new development within its jurisdictional
boundaries. Water Tap Fees shall, unless formally requested not to, be
collected by the Authority and remitted to the Contracting Party imposing
the Water Tap Fee for expenditure on capital facilities needed to serve the
new development for which the Water Tap Fee was imposed.
5. Purposes. The purposes of the Authority are to supply water for domestic and
other public and private purposes; to provide all necessary water diversion works,
reservoirs, treatment works and facilities, equipment and appurtenances incident
thereto; to effect the development of water resources, systems or facilities, in
whole or in part, for the use and benefit of the Contracting Parties, their
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inhabitants, and others; and to provide efficient, effective, and reliable water
service.
6. Functions or Services. The functions or services to be provided by the Authority
are the provision of treated water to persons residing within the boundaries of the
Contracting Parties and to others residing within the Service Area of the Authority
and having a water tap served by the Authority’s water distribution system
(collectively “Water Service Customers”), by:
a. Acquiring raw water from the Contracting Parties, from others with whom
the Authority contracts to furnish treated water, and from those persons or
entities who have raw water available for treatment and use by the
Contracting Parties or others.
b. Acquiring, constructing, owning, reconstructing, improving, rehabilitating,
repairing, operating, and maintaining by way of illustration and not
limitation, the following: raw water diversion, transmission and storage
facilities; water treatment facilities and treated water storage systems,
together with any and all appurtenances thereto; or interests in any of the
above-described facilities, for the purpose of diverting and delivering raw
water to the treatment facilities, treating such water, and delivering treated
water from the treatment facilities to the Authority’s Water Service
Customers.
c. Acquiring water rights and developing water resources for treatment,
augmentation and use by the Contracting Parties, their inhabitants, and
others.
d. Selling treated water to the Authority’s Water Service Customers.
e. Providing such other services or functions as may be authorized by law and
determined by the Authority Board of Directors, to be in the best interests
of the Contracting Parties and the Authority’s Water Service Customers.
7. Powers of the Authority. To enable the Authority to carry out its functions and
provide the services described herein, the Authority, acting by and through its
Board of Directors, shall have the following general powers:
a. To develop water resources, systems and facilities, in whole or in part, for
the benefit of the Contracting Parties and the Authority’s Water Service
Customers or others, at the discretion of the Board of Directors, subject to
fulfilling the terms and conditions of this Agreement.
b. To acquire, own, construct, manage, maintain, or operate water systems,
facilities, works, or improvements, or any interest therein.
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c. To acquire, hold, lease (as lessor or lessee), sell or otherwise dispose of any
legal or equitable interest in real or personal property, including water
rights, utilized for the purposes of raw water diversion, storage,
transmission and treatment, storage and distribution of treated water, in the
discretion of the Authority’s Board of Directors.
d. To conduct its business and affairs for the benefit of the Contracting Parties
and its Water Service Customers, in the discretion of the Authority’s Board
of Directors.
e. To enter into, make and perform contracts of every kind with other local
governmental entities, the State of Colorado, or any political subdivision
thereof, the United States, or any political subdivision thereof, and any
individual, firm, association, partnership, corporation or any other
organization of any kind.
f. To hire agents, including, but not limited to, engineers, attorneys, architects
and consultants, and employees.
g. To incur debts, liabilities or obligations to the extent and in the manner
permitted by law, and borrow money and, from time to time, to make,
accept, endorse, execute and deliver bonds, notes and other obligations of
the Authority for moneys borrowed; or in payment for property acquired, or
for any of the other purposes, services or functions of the Authority, as
provided by law; and to the extent permitted by law, to secure the payment
of any such obligations by mortgage, pledge, deed, indenture, agreement or
other collateral instrument, or by other lien upon or assignment of all or any
part of the properties, rights, assets, contracts, easements, revenues and
privileges of the Authority; provided, however, in no event shall the
Authority be authorized to encumber any interest in water rights assigned
or leased to the Authority by a Contracting Party, unless authorized by the
Contracting Party.
h. To own, operate and maintain real and personal property and facilities in
common with others, and to conduct joint, partnership, cooperative or other
operations with others, and to exercise all powers granted herein in joint,
partnership or cooperative efforts and operations with others.
i. To condemn property for public use as rights-of-way for the Authority’s
facilities, including, but not limited to pipelines, vaults, valves, pumps,
water storage tanks, treatment facilities, electric utility services, and all
appurtenances thereto; provided such property is not owned by any public
utility and devoted to public use pursuant to State authority.
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j. To adjudicate, operate and administer changes of water rights and plans for
augmentation, and to keep appropriate records in connection therewith.
The water rights held by or leased to the Authority shall be used in an
integrated fashion for the benefit of all Authority members and contractees,
such an integrated water system being one of the purposes for which the
Authority was formed.
k. To sue, and to be sued, in its own name.
l. To have and use a corporate seal.
m. To fix, maintain and revise fees, rates and charges for all water functions,
services or facilities provided by the Authority; such rates and charges to be
in such amount or amounts as necessary to provide for the acquisition or
development of raw water, the operation and maintenance of Authority
facilities, debt service and reserves, capital improvements and other
obligations and expenses of the Authority. All Water Service Customers
shall be charged at the same rate for treated water delivered to their water
meter, unless non-uniformity of rates is required by bond covenants, and in
such case, the non-uniformity of rates shall be subject to the approval of the
Authority’s Board of Directors. The requirement for uniform rates for the
Water Service Customers shall not prohibit the Authority from a rate
structure incorporating peak period pricing concepts or an increasing block
or tier rate based upon per capita consumption rates. The Authority shall
not utilize a declining block rate structure. The requirement for uniform
rates for the Water Service Customers shall not prohibit the Authority from
entering into water service agreements with third parties providing for
different fees, rates and charges in the discretion of the Board of Directors.
n. To adopt, by resolution, rules and regulations respecting the exercise of its
powers and carrying out of its purposes.
o. To receive contributions, gifts, bequests or other grants of cash, equipment
or services from the Contracting Parties or other entities, individuals, or
political subdivisions.
p. To do and perform any acts and things authorized by the Act under,
through, or by means of an agent or by contracts with any person, firm,
corporation or special district.
q. Subject to approval of the governing bodies of the Contracting Parties as
hereinafter provided, to permit other municipalities, special districts, or
political subdivisions of this State that are authorized to supply water to
enter the Agreement as an additional Contracting Party at the discretion of
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the Board of Directors, subject to fulfilling any and all conditions or
requirements of the Agreement or requirements established by the Board of
Directors; except that rates need not be uniform between the Authority and
an additional Contracting Party.
r. To provide for, if required, the rehabilitation of any surfaces adversely
affected by the Authority’s construction of water pipelines, facilities or
systems through the rehabilitation of plant cover, soil stability, pavement,
and other measures appropriate to the subsequent beneficial use of such
lands.
s. In general, to exercise all powers which are now, or hereinafter may be,
conferred by law upon a water authority organized pursuant to the Act, or
its contracting parties, or necessary, incidental, convenient or conducive to
the attainment of its purposes and provision of its functions, services and
facilities, subject to such limitations as are, or may be, prescribed by law or
this Agreement.
8. Board of Directors. The governing body of the Authority shall be the Board of
Directors in which all legislative power of the Authority is vested.
a. Number: The number of Directors shall be equal to the number of
Contracting Parties (currently six). Each Contracting Party shall be entitled
to fill one Director’s position which shall be by appointment made by the
governing body of that Contracting Party. Each Director shall be entitled to
cast one (1) vote. The Director representing a Contracting Party in default
under the Agreement shall lose voting rights until the default is cured.
b. Appointment: The governing body of each Contracting Party shall appoint
one (1) principal member of the Board of Directors, and one or more
alternate members who, in the discretion of the Contracting Party, may or
may not be an elected official of that Contracting Party. Such alternate
member shall act and vote only in the absence of the principal member
appointed by the same body.
c. Term: Each Director shall serve at the pleasure of the governing body of
the Contracting Party by whom he or she was appointed until replaced at
the pleasure of that governing body.
d. Vacancies: A vacancy occurring in the Board of Directors, whether such
vacancy be the result of loss of eligibility, resignation, death, removal or
disability, shall be filled in the same manner of appointment or selection as
provided above.
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e. Compensation: Directors may receive compensation for their services
within statutory limits, if any, as may be provided by resolution of the
Board of Directors, and the Board of Directors, by resolution, shall provide
for reimbursement to the Directors of their actual expenses incurred on
behalf of the Authority.
f. Regular Meetings: The Board of Directors, from time to time, may provide
by resolution for the time and place of holding regular meetings without
notice to the Directors, other than such resolution.
g. Special Meetings: Special meetings of the Board of Directors may be held
as often as the needs of the Authority require, upon notice to each Director
as hereinafter provided.
h. Notice of Meetings: Notice of the time and place designated for all regular
meetings shall be posted in at least three public places within the Service
Area of the Authority, and, in addition, one such notice shall be posted in
the office of the Eagle County Clerk and Recorder. Such notices shall
remain posted and shall be changed in the event that the time or place of
such regular meetings is changed. Special meetings may be called by any
director by informing the other directors of the date, time, and place of such
special meeting, and the purpose for which it is called, and by posting
notice as provided by law at least seventy-two hours prior to said meeting.
Notice of any regular or special meeting may also be posted on the
Authority’s website. All official business of the Board of Directors shall be
conducted only during said regular or special meetings at which a quorum
is present, and all said meetings shall be open to the public.
i. Waiver: Whenever any notice is required to be given to any Director of the
Authority under the provisions of law or this Agreement, a waiver thereof
in writing signed by such Director, whether before or after the time stated
therein, shall be equivalent to the giving of such notice. Attendance of a
Director at any meeting of the Board of Directors shall constitute a waiver
by such Director of notice of such meeting, except when such Director
attends such meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully convened.
j. Quorum: A majority of the Directors then in office shall constitute a
quorum for the transaction of business; provided that, if less than a quorum
is present, the Directors present may adjourn the meeting from time to time,
provided, further, that the Secretary shall notify any absent Directors of the
time and place of such adjourned meeting. Unless otherwise provided
herein, the act of a majority of the Directors present at a meeting at which a
quorum is present shall be an act of the Board of Directors.
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k. Duties of the Board: The duties of the Board of Directors shall be:
(1) To govern the business and affairs of the Authority.
(2) To exercise all powers of the Authority.
(3) To comply with the provisions of Part 1 (Local Government Budget
Law of Colorado), Part 5 (Local Government Uniform Accounting
Law) and Part 6 (Local Government Audit Law) of Article 1, Title
29 of C.R.S., as amended.
(4) To adopt a budget which complies with statutory and other
restrictions imposed by law on the affairs of the Authority.
(5) To monitor, accept, authorize and/or approve the financial
transactions of the Authority.
(6) To provide for the services of a firm of independent certified public
accountants to audit and examine, at least annually, the financial
records and accounts of the Authority, and to report thereupon to the
Board of Directors.
(7) To keep records of the Authority’s proceedings.
(8) To adopt such by-laws as appropriate for the conduct of its business
not in conflict herewith.
9. Officers. The Officers of the Authority shall be a Chairman, Vice-Chairman,
Secretary, Treasurer, and such other officers and assistant officers as may be
authorized by the Board of Directors from time to time, to perform such duties as
may be approved by the Board of Directors. The Chairman, Vice-Chairman and
Treasurer shall be principal members of the Board of Directors, but the other
Officers of the Authority need not be members of the Board.
a. Regular Elections and Term of Office: At the first regularly scheduled
meeting after regular special district elections, the members of the Board of
Directors shall elect Officers who shall serve as Officers of the Authority
until the next succeeding election of Officers or until their successors are
elected and qualified. Vacancies or new offices may be filled at any
meeting of the Board of Directors.
b. Removal: Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors, with or without
cause, whenever in its judgment the best interests of the Authority will be
served thereby.
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c. Duties of Officers: In addition to duties designated by the Board of
Directors, the duties of the officers shall include the following:
(1) Chairman. The Chairman shall preside at all meetings of the Board
of Directors and, except as otherwise delegated by the Board of
Directors, shall execute all legal instruments of the Authority.
(2) Vice-Chairman. The Vice-Chairman shall, in the absence of the
Chairman, or in the event of his inability or refusal to act, perform
the duties of the Chairman, and when so acting, shall have all the
powers of, and be subject to all restrictions upon, the Chairman.
(3) Secretary. The Secretary shall maintain the official records of the
Authority, including this Agreement, by-laws, rules and regulations
established by the Board of Directors, minutes of the meetings of the
Board of Directors, and a register of the names and addresses of the
Directors and Officers, and shall issue notice of meetings and attest
and affix the corporate seal to all documents of the Authority.
(4) Treasurer. The Treasurer shall serve as financial official of the
Authority, and pursuant to the budget adopted by the Board of
Directors governing the financial transactions of the Authority and
the restrictions imposed by law, be responsible for the receipt,
custody, investment and disbursement of the Authority’s funds and
securities, and for duties incident to the office of Treasurer.
(5) General Manager; Legal Counsel, Auditor and Special Consultants.
The Board of Directors may appoint a General Manager or contract
with an administrator to serve in such capacity for such term and
upon such conditions, including compensation, as the Board may
establish, or the Board of Directors may enter into an Operations
Agreement for management services as authorized by Section 28 of
this Authority Agreement. The General Manager or administrator
shall report directly to the Board of Directors of the Authority. Such
General Manager or administrator shall have general supervision
over the administration of the affairs, employees and business of the
Authority and shall be charged with the hiring and discharging of
employees and the management of the Authority properties. Such
General Manager or administrator shall have the care and custody of
the general funds of the Authority and shall deposit or cause to be
deposited the same in the name of Authority in such banks or
savings associations as the Board of Directors may select. Such
General Manager or administrator will approve all vouchers, orders
and checks for payment, and shall keep or cause to be kept regular
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books of account of all Authority transactions and shall obtain, at the
Authority’s expense, such bond for the faithful performance of his or
her duties as the Board of Directors may designate. The Board of
Directors may delegate such powers and duties to the General
Manager or administrator as it deems appropriate, and authorize its
General Manager to execute any contracts approved by the Board of
Directors in each Contract Log, or otherwise in a formal meeting.
The Board of Directors may also engage the services of General
Counsel, Water Counsel, Special Counsel, the Auditor, and any
special consultants as necessary to the management and operations
of the Authority.
(6) Assistant Secretaries and Assistant Treasurers. The Board may
appoint such assistants as it deems necessary and appropriate.
(7) Miscellaneous. The duties and functions of the Secretary and the
Treasurer may be performed by a single individual who shall be a
principal member of the Board. If the individual performing the
duties of Secretary is not a member of the Board of Directors, such
individual may receive such compensation as is deemed appropriate
by the Board of Directors.
d. Bonds of Offices. The Treasurer and any other Officer or agent of the
Authority charged with the responsibility for the custody of any of its funds
or property shall give bond in such sum and with such surety as the Board
of Directors shall determine. The Board of Directors, in its discretion, may
also require any other Officer, agent or employee of the Authority to give
bond in such amount and with such surety as shall be determined. The cost
of such bond shall be an expense payable by the Authority.
10. Indemnification of Directors, Officers and Employees.
a. Directors, Officers and Employees: Each Director, Officer or Employee of
the Authority, whether or not then in office, and his or her personal
representatives, shall be indemnified by the Authority to the extent
permitted by law against all costs and expenses actually and necessarily
incurred by him or her in connection with the defense of any action, suit or
proceeding in which he or she may be involved or to which he or she may
be made a party by reason of his or her being, or having been, such
Director, Officer or Employee, except in relation to matters as to which he
or she shall be finally adjudged in such action, suit or proceeding to be
liable for willful negligence or misconduct in the performance of his or her
duties. The Authority shall pay the costs and expenses actually and
EXHIBIT A: AUTHORITY AGREEMENT
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reasonably incurred by a Director, Officer or Employee in connection with
the defense of any allegation, action and proceeding arising out of an act or
omission of such person during the performance of such person’s duties
within the scope of such person’s service or appointment, including
reasonable attorneys’ fees, where the action lies or could lie in tort,
including any such action brought pursuant to Federal law in any court of
this State, in accordance with the Colorado Governmental Immunity Act.
As a prerequisite to such payment, the Director, Officer or Employee must
furnish the District with an affidavit stating that the action against him or
her is not purely personal; that, to his or her reasonable belief, the act or
omission upon which the claim is based reasonably relates to the business
affairs of the Authority; and that the Director, Officer or Employee acted in
good faith and in a manner which a reasonable person would have acted
under the circumstances and which was not opposed to the best interests of
the Authority. However, the Authority shall not pay such judgment or
settlement and shall seek reimbursement from the Director, Officer or
Employee for the actual costs of his or her defense, including actual
attorneys’ fees, where it is determined by a court of competent jurisdiction
(a) that the injuries did not arise out of an act or omission of the Director,
Officer or Employee occurring during his or her term of appointment or
employment with the Authority and within his or her scope of duties or
employment, or (b) that, unless otherwise expressly authorized by the
Board of Directors of the Authority, the Director’s, Officer’s or Employee’s
act or omission was willful and wanton. Such costs and expenses shall
include amounts reasonably paid in settlement for the purpose of curtailing
the cost of litigation in the reasonable discretion of the Board. The
foregoing right of indemnification shall not be exclusive of other rights to
which the Director, Officer or Employee may be entitled as a matter of law
or by agreement.
b. Payment: All claims to be paid as a result of the indemnification provided
hereunder shall be paid by the Authority or its insurer up to, but not to
exceed the applicable limitations under the Colorado Governmental
Immunity Act. The Authority specifically reserves any defenses which are
available to any Director, Officer or Employee under the Colorado
Governmental Immunity Act or by common law. The Authority may pay
judgments and settlements in accordance with the Colorado Governmental
Immunity Act even if sovereign immunity bars the action against the
Authority.
11. Prior Conveyances of Water Systems. Except for certain golf course water
systems, the Contracting Parties and other parties served by contract have
previously conveyed to the Authority their individual water systems. The
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customers of the Contracting Parties thereby became Water Service Customers of
the Authority. The Authority shall make Rules and Regulations concerning the
operation of the Authority’s Water System, except as to the amount of the Water
Tap Fees and Surcharges. These Water Systems were accepted by the Authority
in “as is” condition and (subject to any contract obligations) all future
maintenance, repair and upgrade expenses became the obligations of the
Authority, and not the obligations of the Contracting Parties or the third party
served by contract.
12. Water Rights. The Contracting Parties have leased to the Authority all of the
Contracting Parties’ right, title and interests in and to the Contracting Parties’
water rights (“Water Rights”), including the right to use all diversion ditches,
pipelines, headgates and structures, reservoirs or other storage structures, pumps,
casings, and other improvements and easements associated or used in connection
with the Water Rights (the “Associated Improvements”), for the Authority’s use in
carrying out its functions and providing Water Service in accordance with the
terms hereof. The Authority shall maintain the Associated Improvements. The
Contracting Parties shall have the right to continue to own their individual water
rights and Associated Improvements, or to convey them to the Authority. The
Authority shall be solely responsible for future adjudication and diligence
proceedings for the Water Rights. The Contracting Parties affirmatively consent
to the Authority’s adjudication of any changes to the Water Rights that are deemed
appropriate by the Authority upon prior notice to the Contracting Parties,
including, but not limited to, the type of use, place of use, points of diversion, and
quantification of historic use.
13. Assets Held in Trust. All assets and properties of the Authority shall be held in
trust by the Authority for the Contracting Parties for the purposes herein
mentioned, including the payment of liabilities of the Authority.
14. Financial Obligations of the Authority. The bonds, notes, and other obligations
issued by the Authority shall not be the debts, liabilities, or obligations of the
Contracting Parties because the Contracting Parties have provided for payment to
the Authority of funds from proprietary revenues for water services rendered by
the Authority; from proprietary revenues or other public funds as contributions to
defray the costs of any its purposes; and from proprietary revenues or other public
funds as advances for any purpose subject to repayment by the Authority. The
Authority is authorized to issue bonds, notes, or other obligations payable solely
from the revenues derived from the function, service, system or facility or the
combined functions, services, systems, or facilities of the Authority or from any
other available funds of the Authority.
The terms, conditions and details of any bonds, notes, and other obligations of the
Authority, the procedures related thereto, and the refunding thereof shall be set
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forth in the resolution authorizing said bonds, notes, or other obligations and, as
nearly as may be practicable, shall be substantially the same as those provided in
part 4 of article 35 of title 31, C.R.S., relating to water and sewer revenue bonds;
except that the purposes for which the same may be issued shall not be so limited
and except that said bonds, notes, and other obligations may be sold at public or
private sale. Bonds, notes, or other obligations so issued by the Authority shall
not constitute an indebtedness of any Contracting Party within the meaning of any
constitutional or statutory limitations or other provision. Each bond, note, or other
obligation so issued by the Authority shall recite in substance that said bond, note,
or other obligation, including the interest thereon, is payable solely from the
revenues and other available funds of the Authority pledged for the payment
thereof and that said bond, note, or other obligation does not constitute a debt of
the Authority or the Contracting Parties within the meaning of any constitutional
or statutory limitation or provision. Notwithstanding any statutory provision to the
contrary, such bond, notes, and other obligations of the Authority may be issued to
mature at such times not beyond forty years from their respective issue dates, shall
bear interest at such rates, and shall be sold at, above, or below the principal
amount thereof, all as shall be determined by the Board of Directors of the
Authority.
The resolution, trust indenture, or other security agreement under which any
bonds, notes, or obligations of the Authority are issued shall constitute a contract
with the holders thereof, and it may contain such provisions as shall be determined
by the Board of Directors of the Authority to be appropriate and necessary in
connection with the issuance thereof and to provide security for the payment
thereof, including, without limitation, any mortgage or other security interest in
any revenues, funds, rights, or properties of the Authority. To the extent permitted
by law, the bonds, notes, and other obligations of the Authority and the income
therefrom shall be exempt from taxation by the State of Colorado, except
inheritance, estate, and transfer taxes.
15. Consolidation of Two or More Contracting Parties. If any two (2) or more of
the Contracting Parties consolidate either their water service function or all of their
respective functions, then, in that event, the entity in existence, after court
approval of such consolidation, shall be the successor in interest to all those
Contracting Parties which have been so consolidated. Upon issuance of a court
order establishing a consolidated entity, those Contracting Parties consolidating
shall no longer be entitled to separate representation on the Authority’s Board of
Directors. Instead, the consolidated entity shall be entitled to one (1) principal
member on the Board of Directors whose selection and term shall be as provided
herein. As successor in interest, the consolidated entity shall have all rights,
powers, duties, and obligations hereunder as the original Contracting Parties.
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16. Dissolution of the Authority. Dissolution (including any sale of Authority
Assets) shall require the unanimous consent of the Contracting Parties and
provision for a successor entity or entities that will continue to provide service to
the Water Service Customers. If the Authority then has financial obligations or
outstanding bonds, any provision for dissolution shall specifically provide either
that all such financial obligations shall be paid in full by the Authority or that
funds or securities meeting the investment requirements established in part 6 of
article 75 of title 24, C.R.S., shall be placed in escrow, prior to dissolution, in a
state or national bank within this state having trust powers and which is a member
of the federal deposit insurance corporation and stating that such funds or
securities will be sufficient for the payment of the financial obligations and
outstanding bonds of the Authority and all expenses related thereto, including
charges of any escrow agent.
17. Adding or Deleting Parties. No party may be added to this Agreement as a
Contracting Party without the unanimous consent of all Contracting Parties
authorized by a written document formally approved by the governing body of
each Contracting Party. A party added as a Contracting Party shall be subject to
such terms and conditions as the Board of Directors, in its sole discretion, may
determine; provided, however, that a new Contracting Party shall be assessed a
capital investment fee to cover its pro rata share of the costs of those capital assets
previously purchased or constructed by the Authority for joint use by all
Contracting Parties.
A Contracting Party may withdraw from this Agreement by written document
authorized by the governing body of such Contracting Party, which shall be
presented to the Authority not earlier than June 1st or later than July 15th of any
calendar year; provided, however, such withdrawing Contracting Party shall
remain liable for any and all financial obligations and all indebtedness incurred
pursuant to any contract between the Authority and the Contracting Party pursuant
to which the Authority provides service to the Contracting Party.
If a withdrawing Contracting Party wishes to no longer receive water service from
the Authority and to reacquire the components of its individual Water System not
used to provide water service to Customers of the Authority residing outside the
jurisdictional boundaries of the withdrawing Contracting Party, the Authority and
the withdrawing Contracting Party shall agree on terms regarding the re-
conveyance of such components to the withdrawing Contracting Party and the
ownership, use and maintenance of any components of the withdrawing
Contracting Party's individual Water System used to provide water service to
Customers of the Authority residing outside the jurisdictional boundaries of the
withdrawing Contracting Party.
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Upon withdrawal, a withdrawing Contracting Party shall have no further interest,
right or title in or to any assets or equity of the Authority, and shall forfeit its
status as a “Contracting Party” with regard to its Board of Directors position and
voting rights inherent therein, unless there is a specific agreement to the contrary;
provided, however, that the following shall immediately vest in such withdrawing
Contracting Party:
a. Any water rights conveyed, assigned, leased or otherwise contributed to the
Authority by such withdrawing Contracting Party which shall vest in the
withdrawing Contracting Party by the Authority reconveying or reassigning
such water rights to the withdrawing Contracting Party or terminating the
lease to such water rights.
b. Any direct flow or storage water rights that are owned by the Authority and
originally conveyed, assigned or otherwise contributed or paid for by a
third party or otherwise allocated by the Authority to any withdrawing
Contracting Party in return for a commitment to provide water service to a
given parcel or parcels of property located within the boundaries of the
withdrawing Contracting Party shall immediately vest in the withdrawing
Contracting Party. Such vesting shall occur by the Authority reconveying
or reassigning such water rights to the withdrawing Contracting Party.
c. The amount of Eagle Park Reservoir water owned by the Authority and
allocated to any withdrawing Contracting Party in the Eagle Park Reservoir
Agreement dated October 23, 1996, among the Authority and the
Contracting Parties shall immediately vest in any withdrawing Contracting
Party. Such vesting shall occur by the Authority assigning the shares of
stock in the Eagle Park Reservoir Company for such amount of Eagle Park
Reservoir water to the withdrawing Contracting Party.
d. The amount of Green Mountain Reservoir water available to the Authority
under a valid contract with the Bureau of Reclamation and allocated to any
withdrawing Contracting Party, if any, in the decree of the District Court in
and for Water Division No. 5 in Case No. 92CW291 shall be assigned by
the Authority to the withdrawing Contracting Party. The Authority shall
request such assignment and implement the effect of such assignment as
soon as possible after the date of withdrawal.
18. Water Right Report. The foregoing categories of water rights shall be identified
in the water right report entitled the “Analysis of Water Rights, Future Water Use,
and Related Water Rights Issues” prepared for each Contracting Party and updated
every two years from the effective date of this Agreement by the Authority’s water
counsel and water resource engineer (the “Water Right Reports”). The Water
Right Reports shall also identify any other direct flow water rights that are owned
EXHIBIT A: AUTHORITY AGREEMENT
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by the Authority and not originally conveyed by a Contracting Party, and any
other storage water rights that are owned or leased by the Authority and not
originally conveyed or assigned by a Contracting Party (the “Unallocated Water
Rights”). The Unallocated Water Rights shall not be conveyed or assigned to a
withdrawing Contracting Party and shall be retained by the Authority for its use
and for the benefit of the remaining Contracting Parties.
WATER SERVICE BY THE AUTHORITY
19. Water Service. The Authority agrees to sell and furnish to persons and entities
which are present and future customers of the Water System, all Water Service as
these Water Service Customers shall reasonably require, subject to any use
limitations then in effect and to the extent that the Authority shall have the
capacity to provide such Water Service. The Water Service Customers shall pay
the Authority the Base Charge, Debt Service Charge and Service Charges for all
Water Service provided by the Authority; provided, however, that the obligation to
pay for all such Water Service shall be and is an obligation of the Water Service
Customers during the term hereof and, except as provided in Paragraph 49, is not a
lien, charge or liability against the Contracting Parties or against any property or
funds of the Contracting Parties, and the obligations to pay the Authority for all
Water Service furnished hereunder does not constitute a debt, liability or
obligation of the Contracting Parties and the Contracting Parties are not required
to pay such obligation. The Water Service Customers shall make and pay for all
connections to the Authority’s Water System.
The Contracting Parties shall have the obligation continuously to provide rights to
raw water to the Authority, in amounts which are adequate to allow provision of
Water Service to present and future customers of the Authority who connect to
the portion of the Authority’s Water System within each Contracting Party’s
jurisdictional boundaries. It is mutually understood the Authority will acquire or
design and construct such Authority Assets and all necessary appurtenances
thereto, so as to enable it reasonably to provide all Water Service to its Water
Service Customers, present and future as part of an integrated water supply
system.
20. Covenants and Representations of the Authority and the Contracting Parties.
a. The Authority shall use reasonable diligence to provide Water Service
hereunder and shall maintain the Authority’s Water System in good
condition at all times. It is the intent of this Agreement that the Authority
provide water to the present and future Water Service Customers of the
Authority and third parties which is treated to meet State and/or Federal
Safe Drinking Water Standards and in compliance with environmental laws
and regulations. If operation of the Water System shall be interrupted, or
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 23
become defective by reason of force majeure, the Authority shall not be
liable therefor or for damages caused thereby.
b. The Authority shall diligently enforce and take all reasonable steps, actions
and proceedings necessary for the enforcement of all terms, covenants and
provisions of this Agreement.
c. The Authority covenants and agrees that it will operate, maintain and
manage the Authority’s Water System or cause the same to be operated,
maintained and managed in an efficient and economical manner, consistent
with sound municipal utility practice and in accordance with standards
normally used by municipal utilities owning like properties to provide
efficient, effective, and reliable water service.
d. The Contracting Parties covenant to provide to the Authority adequate
rights to raw water from their Water Rights or any other source, to allow
continuous provisions of adequate Water Service to the present and future
Water Service Customers of the Authority, and to meet Authority’s
obligations under this Agreement. The Contracting Parties represent that
their Water Rights and related interests are free and clear of all liens and
encumbrances and, subject to physical availability of water, are sufficient to
provide for all water needs of the Contracting Parties within their present
boundaries, but recognize the Authority may use their water rights
throughout the Authority’s integrated water service system.
e. The provisions of this Agreement are covenants of the Contracting Parties
and the Authority for the benefit and protection of the Authority, the
Contracting Parties and the owners and holders of Obligations, it being
recognized that the owners and holders of such Obligations shall be third-
party beneficiaries of such covenants, and it is understood by the
Contracting Parties that the initial purchaser of any issue of Obligations has
and will agree to the purchase of Obligations conditioned upon these
covenants.
f. For and in consideration of the payments to be made by the present and
future Water Service Customers of the Authority under this Agreement, the
Authority agrees to use reasonable diligence to provide Water Service to
the present and future Water Service Customers of the Authority under the
terms of this Agreement, and such payments by the present and future
Water Service Customers of the Authority shall be in consideration for the
Authority’s agreement to provide such Water Service.
21. Rate Covenant. The Board of Directors of the Authority shall establish, maintain
and collect from present and future Water Service Customers of the Authority and
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 24
third parties, reasonable Plant Investment Fees, Water Storage Fees, Base Fees and
Service Charges for the Water Service provided which shall produce revenues at
least sufficient, together with other revenues legally available to the Authority, to
enable the Authority to provide Water Service to present and future Water Service
Customers of the Authority and third parties and to comply with any rate
maintenance covenants of Obligations.
22. Water Use Fees. Periodic fees and charges imposed by the Authority for the use
of water may include the following:
a. Base Charge. The Board of Directors of the Authority shall establish the
Base Charge to be paid monthly by every Water Service Customer and
which shall mean the amount charged each SFE irrespective of quantity of
water used. The Base Charge is subject to increases by the Board of
Directors of the Authority, provided that such increases do not exceed the
increase(s) in the Denver-Boulder-Greeley Consumer Price Index since
December 31 of the calendar year in which the Base Charge was previously
increased. If the proposed increase exceeds the increases in the Denver-
Boulder-Greeley Consumer Price Index since December 31 of the calendar
year in which the Base Charge was previously increased, such increase
must be approved by a majority plus one (currently at least five of the six)
of the governing bodies of the Contracting Parties to be effective.
b. Service Charge. The Service Charge of the Authority to its Water Service
Customers shall be:
(1) non-discriminatory;
(2) fair and reasonable; and
(3) adequate (after taking into consideration other moneys available or
anticipated to be received) in each Contract Year so that the Service
Charges in each Contract Year shall be at least equal to:
(i) Operation and Maintenance Expenses;
(ii) An amount equal to 110% of the debt service requirements
for such Contract Year on or with respect to the outstanding
Obligations payable from the revenue of the Authority unless
the debt service is otherwise provided for;
(iii) An amount equal to any payments required to be made to any
reserve fund, on or with respect to the outstanding
Obligations payable from the revenues of the Authority;
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{00219485.DOC / 19} 25
(iv) An amount equal to current costs of improvements to the
Authority’s Water System, excluding major capital additions,
made in the ordinary course of business; and
(v) Any amounts required to meet then existing deficiencies
pertaining to any fund or account relating to any outstanding
Obligations, including any deficiencies in any bond reserve
funds and any operations reserve funds.
(4) The Service Charge shall be determined by dividing the estimated
Annual Costs to treat and deliver water by the estimated annual
amount of water treated and delivered to all the Parties and third
parties served by the Authority. The resulting average water cost is
then used to establish the rates to be charged for each tier in the
Authority’s tiered rate structure where the rate charged for water use
increases as more water is used. The objective is to recover the
Annual Costs through the sale of water to all customers.
(5) If the Board of Directors of the Authority proposes to establish a
new Service Charge, other than in connection with an Annual
Budget, it shall give the Contracting Parties and third parties written
notice that it is establishing a new Service Charge for Water Service,
setting forth such Charge, on a date certain which shall not be less
than thirty (30) days from the mailing of the notice of each
Contracting Party and third party, all such notices to be mailed
simultaneously.
c. Debt Service Fees. The Board of Directors of the Authority shall establish
a debt service billing rate that when applied to the Customer account’s SFE
factor, results in collection of the charges due from the Customer to the
Authority for its proportionate share of the Authority’s Debt Service.
Revenues collected by the Authority from Debt Service Fees shall be used
by the Authority specifically to pay debt service on borrowed funds.
d. Differential Service Charge. The Board of Directors of the Authority may
establish and unilaterally impose a Differential Service Charge on a
customer or an area served by the Authority to accommodate a differential
cost of service or capital facility needs of said area. Notice of such
Differential Service Charge shall be given in writing to the Contracting
Party whose territory includes the area in which the Differential Service
Charge shall be imposed.
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 26
e. Surcharges. A charge may be unilaterally imposed by a Contracting Party
or the Authority on a customer within that Contracting Party’s jurisdictional
boundaries that is to be collected by the Authority.
23. New Development / Facility Expansion Fees. Fees and charges imposed or
collected by the Authority may include the following:
a. Plant Investment Fee. The Board of Directors of the Authority shall
establish a Plant Investment Fee which shall be the one time charge per
SFE to each property served by the Authority required to be paid to connect
to the Authority’s Water System. The Plant Investment Fee is imposed for
recovery of capital investments associated with major components of the
Water System. The assessment is based on the particular impact of the
facility being connected. The Plant Investment Fee is subject to increases
by the Board of Directors of the Authority, provided that such increases do
not exceed the increase(s) in the Denver-Boulder-Greeley Consumer Price
Index since December 31 of the calendar year in which the Plant
Investment Fee was previously increased. If the proposed increase exceeds
the increases in the Denver-Boulder-Greeley Consumer Price Index since
December 31 of the calendar in which the Plant Investment Fee was
previously increased, such increase must be approved by a majority plus
one (currently at least five of the six) of the directors of the Authority to be
effective; provided, however, any proposal to increase the Plant Investment
Fee shall be introduced at least forty-five (45) days prior to the date of its
approval by the Board of Directors and written notice of such change shall
be given to the governing body of each Contracting Party at least thirty (30)
days prior to approval by the Board of Directors.
b. Treated Water Storage Fees. The Contracting Parties have adopted a
system of assessing Treated Water Storage Fees. Such Fees shall be
assessed by and collected and retained by the Authority as provided by the
Rules and Regulations of the Authority.
c. Cash-in-Lieu of Water Rights Fee. A Cash-in-Lieu of Water Rights Fee
may be established by the Board of Directors as a payment of cash in lieu
of the dedication of water rights, in the discretion of the Authority’s Board
of Directors, sufficient to serve the proposed water demands and uses of an
applicant for water service from the Authority.
d. Water Tap Fee. A Water Tap Fee may be established unilaterally by a
Contracting Party as herein provided (see Definitions) for a specific period
of time and may be collected by and remitted to that Contracting Party by
the Authority to fund expenditures by such local government on water
EXHIBIT A: AUTHORITY AGREEMENT
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capital facilities needed to serve new development within its jurisdictional
boundaries.
e. Line Extensions and System Additions. Extensions of existing lines and
construction of System additions may be approved by the Authority and the
cost of the extension or construction may be passed on to developers.
When constructed and accepted by the Authority, such line extensions and
system additions shall become part of the Authority’s Water System.
24. Easements. The Contracting Parties mutually agree that the Authority or its agent
shall have full access to or over any easement, right-of-way or property granted to
or held by the Contracting Parties for purposes of water mains and all
appurtenances thereto if, and to the extent, required by the Authority for any and
all purposes required for the Authority Assets.
25. Annual Budget. In compliance with the provisions of Part 1 (Local Government
Budget Law of Colorado), Part 5 (Local Government Uniform Accounting Law)
and Part 6 (Local Government Audit Law) of Article 1, Title 29 of C.R.S., as
amended,
a. The Authority shall prepare, or cause to be prepared, an Annual Budget
which shall itemize estimates of Annual Costs and all revenues, income or
other funds to be applied to such Annual Costs for and applicable to each
Contract Year. The Authority shall prepare such Annual Budget in a timely
fashion, which will allow the Contracting Parties and the Authority to
comply with applicable budget laws.
b. The Authority, prior to the beginning of each Contract Year, shall adopt the
Annual Budget for such Contract Year, and the Service Charges for such
Contract Year, and shall cause copies of such Annual Budget and the
schedule of Service Charges to be promptly delivered to the Contracting
Parties.
c. If at any time or from time to time after the adoption of the Annual Budget
in accordance with subparagraphs a. and b. of this paragraph, the Authority
estimates that the actual Annual Costs or revenues for the Contract year, or
any part thereof for which such Annual Budget applies, will be greater or
less than the Annual Costs or revenues set forth in the Annual Budget, then
the Authority may prepare an amended Annual Budget. The amended
Annual Budget shall be timely adopted by the Authority and promptly
transmitted to the Contracting Parties.
d. In the event the Annual Budget for the ensuing Contract Year has not been
adopted on or before the first day of any Contract Year, the total amount
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budgeted for the preceding Contract Year shall be the total amount of the
temporary budget for such purposes for the ensuing Contract Year. Such
temporary budget shall be effective only until such time as a permanent
Annual Budget has been finally adopted and approved. The Board of the
Authority shall be responsible for the allocation for expenditure of the total
amount of the temporary budget until a permanent budget is adopted and
approved.
26. Billing. The Contracting Parties hereby delegate to the Authority all rights to
collect fees, charges, penalties and interest payable to the Authority. The
Authority shall directly read the meters and bill the present and future Water
Service Customers of the Authority and third parties for Service Charges,
Surcharges if applicable, and other charges monthly.
27. Records and Accounts. The Authority shall keep accurate records and accounts
of Authority Assets and of the transactions relating thereto, as well as of the
operations of the Authority, in accordance with generally accepted accounting
principles as applied to governmental units. Within one hundred twenty (120)
days after close of each Contract Year, the Authority shall cause such records and
accounts, and all transactions of the Authority with respect to such Contract Year
to be subject to an annual audit by an independent certified public accountant. A
copy of each such annual audit shall be sent by the Authority to the Contracting
Parties. The Authority shall comply with the provisions of Part 1 (Local
Government Budget Law of Colorado), Part 5 (Local Government Uniform
Accounting Law) and Part 6 (Local Government Audit Law) of Article 1, Title 29
of C.R.S., as amended.
OPERATIONS AND ADMINISTRATION
28. Operations Agreement. The Board of Directors of the Authority may enter into
an Operations Agreement with any third party water utility operator, including but
not limited to the Eagle River Water and Sanitation District, to provide
management, annual capital plan management, engineering, operations and
preventive, predictive and corrective maintenance, meter reading and billing,
accounting and financial requirements, laboratory activities, and quality assurance
necessary to manage and operate Authority's Facilities in compliance with this
Agreement and legal and regulatory requirements and at levels which meet or
exceed those generally accepted standards customary to the industry. In lieu of an
Operations Agreement with a third party utility operator, the Board of Directors of
the Authority may determine to provide some or all of the foregoing services by
hiring and employing sufficient highly-trained, qualified and experienced
personnel, including management, engineering, maintenance, financial,
accounting, customer service and billing, technical, laboratory and administrative
staff who meet applicable State of Colorado certification and/or licensing
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 29
requirements, to manage, operate, maintain and otherwise administer the
Authority's Facilities. An Operations Agreement shall not be required and the
Board of Directors may choose to provide for operations and administration of the
Authority solely through Authority employees and consultants.
29. Execution of Contracts. Except as otherwise provided by law, the Board of
Directors may authorize any officer or officers, agent or agents, or the General
Manager to enter into any contract, or execute and deliver any instrument in the
name and on behalf of the Authority.
30. Negotiable Instruments. All checks, drafts or other orders for payment of money
and all notes, bonds, or other evidences of indebtedness issued in the name of the
Authority shall be signed by such officer or officers, agent or agents, employee or
employees of the Authority, and in such manner as, from time to time, shall be
determined by resolution of the Board of Directors.
31. Deposits. All funds of the Authority shall be deposited, from time to time, to the
credit of the Authority, pursuant to law, in such bank or banks as the Board of
Directors may select.
32. Fiscal Year. The fiscal year of the Authority shall be the calendar year.
33. Principal Place of Business. The principal place of business of the Authority
shall be 846 Forest Road, Vail, CO 81657, unless changed. Annually, on or
before the 1st day of February of each year, and within thirty (30) days following
any change, the Authority shall file with the Division of Local Government the
name of the agent for service of process on the Authority, and the address of the
principal place of business of the Authority.
34. Debt Not That of Contracting Parties. Pursuant to Section 29-1-204.2(5),
C.R.S., the bonds, notes and other obligations of the Authority shall not be the
debts, liabilities or obligations of the Contracting Parties or parties which may be
future Contracting Parties.
35. Notices. Any formal notice, demand or request provided for in this Agreement
shall be in writing and shall be deemed properly served, given or made if delivered
in person or sent by registered or certified mail, postage prepaid (provided that
bills sent hereunder may be sent by first class mail) to the Contracting Parties.
36. Default.
a. It is an event of default by a Contracting Party hereunder if:
(1) the Contracting Party defaults in the punctual performance or
observation of any covenants, agreements, or conditions on the part
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 30
of the Contracting Party in this Agreement for a period of thirty (30)
days after the notifying Party or the Authority shall have given the
Contracting Party notice thereof in the manner provided in paragraph
35;
(2) a voluntary or involuntary petition under federal or state bankruptcy
laws by or against a Contracting Party is filed or a receiver for any
of the Contracting Party’s assets is appointed; or
(3) a Contracting Party is dissolved and this Agreement is not assigned
by the Party in accordance with paragraph 47.
b. It is an event of default by the Authority hereunder if the Authority fails or
defaults in the punctual performance or observation of the covenants,
agreements or conditions on the part of the Authority in this Agreement,
except that the Authority will only be in default of its covenants to use
reasonable diligence to provide Water Services contained in paragraph 20 if
it has totally failed to provide any Water Services for a period of two (2)
days or more after the notifying Contracting Party shall have given the
Authority notice thereof in the manner provided in paragraph 35.
37. Remedies Upon Default.
a. Upon the occurrence and continuance of an event of default by any party to
this Agreement, the non-defaulting party or parties may take one or more of
the following remedial actions:
(1) utilize the defaulting party’s water rights to provide the Water
Service contemplated under this Agreement.
(2) proceed against the defaulting party, its governing body, and its
agents, officers, and employees to protect the rights of the non-
defaulting party or parties hereunder by mandamus or other suit,
action or special proceedings in equity or at law, in any court of
competent jurisdiction, either for appointment of a receiver (the
consent to such appointment being expressly hereby granted by the
defaulting party) or for the specific performance of any covenant or
agreement contained herein or an award of execution of any power
herein granted for the enforcement of any proper legal or equitable
remedy as the non-defaulting party or parties may deem most
effectual to protect and enforce the rights aforesaid, or thereby to
enjoin any act or thing which may be unlawful or in violation of any
right of the non-defaulting party or parties, or to require the
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 31
governing body of the defaulting party to act as if it were the trustee
of an express trust, or any combination of such remedies.
b. Upon the occurrence and continuance of an event of default by a party, the
non-defaulting party or parties or any receiver appointed in any proceedings
to protect the rights of the non-defaulting party or parties hereunder may
prescribe fees, rates and other charges and may collect, receive and apply
all amounts arising thereafter in the same manner as the defaulting party
itself might do.
c. Upon the occurrence and continuance of an event of default by a party to
this Agreement, the non-defaulting party or parties shall have all of the
rights and remedies provided at law and in equity, except that in no event
shall the defaulting party or parties be relieved of their obligations
hereunder.
d. The failure of a party to this Agreement to proceed in any manner herein
provided shall not relieve any other party or any of its officers, agents or
employees of any liability for failure to perform or carry out any duty,
obligation or other commitment. Each right or privilege of each party is in
addition and is cumulative to any other right or privilege, and the exercise
of any right or privilege by or on behalf of such party.
38. Existing Debt of Contracting Parties. Any debt of any Contracting Party for
construction of the Water System of the Contracting Party shall remain and be the
obligation of that Contracting Party and not of the Authority.
39. Force majeure.
a. If for any reason of force majeure any of the Contracting Parties hereto or
the Authority shall be rendered unable, wholly or in part, to carry out its
obligations under this Agreement and, subject to physical availability of
water, to provide rights to raw water to the Authority as herein provided,
then if such party shall give notice, and the full particulars of such reasons
in writing to the Contracting Parties and the Authority within a reasonable
time after the occurrence of the event or cause relied on, the obligations of
the party giving such notice, so far as it is affected by such force majeure,
shall be suspended during the continuance of the inability then claimed, but
for no longer period, and such party shall endeavor to remove or overcome
such inability with all reasonable dispatch. The term force majeure, as
employed herein, shall mean acts of God; strikes; lockouts, or other
industrial disturbances; acts of the public enemy; orders or actions of any
kind of the government of the United States or of the State of Colorado or
any civil or military authority; insurrections; riots; epidemics; landslides;
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 32
lightning; earthquakes; fires; hurricanes; storms; floods; washouts;
droughts; arrests; restraints of government and people; civil disturbances;
explosions; breakage or accident to dams, machinery, pipelines, or canals
or other structures or machinery; on account of any other cause not
reasonably within the control of the party claiming such inability. It is
understood and agreed that the settlement of strikes and lockouts shall be
entirely within the discretion of the party having the difficulties, and that
the above requirement that any force majeure shall be remedied with all
reasonable dispatch shall not require the settlement of strikes and lockouts
by acceding to the demand of the opposing parties when such settlement is
unfavorable in the judgment of the party having the difficulty.
b. No damage shall be recoverable from the Authority or any Contracting
Party by reason of the causes above mentioned.
40. Insurance.
a. The Authority shall maintain, or cause to be maintained in force for the
benefit of the Authority, such insurance as shall be reasonably available and
as is usually carried by municipal water utilities constructing and operating
water treatment, storage and transmission facilities. In addition, the
Authority shall maintain general liability insurance coverage in an amount
not less than $350,000 per person/$990,000 per occurrence, and $1,000,000
aggregate, or any such higher amounts as may be called for under the
Colorado Governmental Immunities Act, Section 24-10-101, et seq.,
C.R.S.; provided, however, in any event, the Authority shall maintain, or
cause to be maintained, in force, insurance in such amounts and against
such risks as required by any bond resolution.
b. The Authority will secure and maintain fidelity insurance or bonds in the
amount of at least Twenty-Five Thousand Dollars ($25,000.00) on the
treasurer and any officer or agent of the Authority charged with the
responsibility for the custody of any of its funds or property. The Board of
Directors, in its discretion, may also require any other officer, agent, or
employee of the Authority to give bond in such amount and with such
surety as shall be determined. Costs of such bond shall be an expense
payable by the Authority.
c. The Authority may establish and create a special fund for the purpose of
providing a self-insurance fund. Amounts to be deposited in, or credited to,
such fund in any Contract Year shall be accounted for as Operation and
Maintenance Expenses. To the extent that moneys are deposited in such
fund, if created, such moneys shall be invested in Investment Securities, as
EXHIBIT A: AUTHORITY AGREEMENT
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defined in any bond resolution. To the extent of the amounts held in such
fund, the face amount of appropriate insurance policies may be reduced.
41. Reports. The Authority shall prepare and issue to the Contracting Parties the
following reports for each Contract Year:
a. financial and operating statements relating to Authority Assets;
b. status of construction of Authority Assets during construction; and
c. analysis of operations relating to the Authority.
42. Access. The Contracting Parties shall at all times have reasonable access to
examine any and all books and records of the Authority and to inspect the
Authority’s Water System. The Authority and the Contracting Parties each give
the other the right to enter the premises of the other at all reasonable times for the
purpose of repairing or removing facilities and performing work incidental to
delivery and receipt of Water Service furnished hereunder.
43. Governmental Rates, Regulations and Laws. This Agreement shall be subject
to all valid rules, regulations and laws applicable thereto, as promulgated by the
United States of America, the State of Colorado, or any other governmental body
or agency having lawful jurisdiction or any authorized representative or agency of
any of them, which rules, regulations and laws shall not impair the obligation of
contracts, including this Authority Agreement.
44. Merger. This Agreement constitutes the entire agreement among the parties, and
all prior and contemporaneous conversations, negotiations, possible alleged
agreements, representations, covenants, and warranties concerning the subject
matter hereof are merged herein, except as provided in paragraph 49.
45. Severability. The parties hereto agree that if any provision, or part of a provision,
of this Agreement should contravene or be held invalid under the laws of the State
of Colorado by any court having competent jurisdiction, such contravention or
invalidity shall not invalidate the whole Agreement, but it shall be construed as
though not containing that particular provision, or part thereof, and the rights and
obligations of the parties shall be construed and in force accordingly.
46. Amendments. This Agreement may be amended only by written document
approved by formal authority of the governing bodies of all of the Contracting
Parties; provided, however, that such amendment will not affect other Obligations
outstanding of the Authority unless provision for full payment of such Obligations,
by escrow or otherwise, has been made pursuant to such Obligations.
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47. Assignment; Successors and Assigns. This Agreement shall not be assignable by
a Contracting Party unless the Authority consents in writing to such assignment,
provided that such assignment does not materially and adversely affect the rights
or security of owners of the Authority’s Obligations, and shall not be assignable
by the Authority without the written consents of all the Contracting Parties. This
Agreement shall be binding upon and inure to the benefit of and be enforceable by
the successors, assigns and legal representatives of the parties hereto.
48. Original Counterparts. This Agreement may be executed in counterparts, each
of which will be an original, but all of which together shall constitute one and the
same instrument.
49. Savings Provision. In the event that,
a. any provision of this Agreement shall violate any covenant in or constitute
a default under any document authorizing Obligations of the Authority or
the Contracting Parties’ existing bond resolutions;
b. this Agreement, in whole or in part, is held to be unenforceable; or
c. if a Contracting Party withdraws from the Authority,
then the provisions of the Agreement Establishing the Upper Eagle Regional
Water Authority made on September 18, 1984 and as amended on April 1, 1985,
and the Amended and Restated Master Service Contract made and entered into as
of January 1, 1998, shall apply to the extent necessary to avoid violation of any
such covenant or constituting such default and to establish the relationship and
rights and obligations of the withdrawing Contracting Party and the Authority.
IN WITNESS WHEREOF, the Contracting Parties have caused this Agreement
to be executed effective the date first above written.
ARROWHEAD METROPOLITAN DISTRICT
By:
_______________, President
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 35
Attest:
_____________, Secretary
TOWN OF AVON, COLORADO, successor to
the Avon Metropolitan District
By:
_______________, Mayor
Attest:
_____________, Town Clerk
BEAVER CREEK METROPOLITAN
DISTRICT
By:
_______________, President
Attest:
_____________, Secretary
BERRY CREEK METROPOLITAN
DISTRICT
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 36
By:
_______________, President
Attest:
_____________, Secretary
EAGLE-VAIL METROPOLITAN DISTRICT
By:
_______________, President
Attest:
_____________, Secretary
EDWARDS METROPOLITAN DISTRICT,
formerly known as the Edwards Water District
By:
_______________, President
Attest:
_____________, Secretary
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 37
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing Agreement was acknowledged before me this _____ day of
_____________, 2014 by _______________________________ as President and
_________________________ as Secretary of the ARROWHEAD METROPOLITAN
DISTRICT.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing Agreement was acknowledged before me this _____ day of
_____________, 2014 by _______________________________ as Mayor and
_________________________ as Town Clerk of the TOWN OF AVON, COLORADO.
Witness my hand and official seal.
My commission expires:
Notary Public
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 38
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing Agreement was acknowledged before me this _____ day of
_____________, 2014 by _______________________________ as President and
_________________________ as Secretary of the BEAVER CREEK METROPOLITAN
DISTRICT.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing Agreement was acknowledged before me this _____ day of
_____________, 2014 by _______________________________ as President and
_________________________ as Secretary of the BERRY CREEK METROPOLITAN
DISTRICT.
Witness my hand and official seal.
My commission expires:
Notary Public
EXHIBIT A: AUTHORITY AGREEMENT
{00219485.DOC / 19} 39
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing Agreement was acknowledged before me this _____ day of
_____________, 2014 by _______________________________ as President and
_________________________ as Secretary of the EAGLE-VAIL METROPOLITAN
DISTRICT.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing Agreement was acknowledged before me this _____ day of
_____________, 2014 by _______________________________ as President and
_________________________ as Secretary of the EDWARDS METROPOLITAN
DISTRICT.
Witness my hand and official seal.
My commission expires:
Notary Public
EXHIBIT A: AUTHORITY AGREEMENT
MOSES, WITTEMYER, HARRISON AND WOODRUFF, PC
MEMORANDUM
TO: Avon Town Council
FROM: Jay Montgomery, Anne Bensard
RE: Recreational In-Channel Diversion Water Right
DATE: June 20, 2014
DISCUSSION:
The Town of Avon’s water right for in-channel use of water for recreational boating
through the Town’s Whitewater Park is a conditional water right, which can be made absolute
upon a finding by the Water Court that the decreed flows have been used for the decreed
purposes associate with recreational boating. The decree that was entered six years ago also
requires that the Town obtain a finding that it has been reasonably diligent in placing the decreed
amounts of flows to beneficial use. An application for finding of diligence or to make the water
right absolute must be filed by the last day of June 2014 or the water rights will be cancelled.
We have prepared an application requesting both a finding of diligence and decree
making the water rights absolute for all the various flow rates described in the decree. We have
evidence that the decreed flow rates have been fully used and that, therefore, the Town is entitled
to a decree making the water rights absolute. If there is opposition to the claim to make absolute,
or if the court were to find that the Town did not fully and beneficially use the full amount of
decreed flows, the Town should nonetheless be entitled to a decree continuing the water rights as
conditional for another six years. Therefore the application we have drafted contains alternative
claims for finding of diligence and to make absolute.
RECOMMENDATION:
Because the conditional water rights decreed for the Whitewater Park would be lost if an
application is not filed by the June 30 deadline, and because ample evidence supports the
alternative claims for finding of reasonable diligence and to make the water rights absolute, we
recommend that Town Council authorize the filing of an application with the Water Court by the
Town’s attorneys as outlined above.
00079981-3 {
DISTRICT COURT, WATER DIVISION NO. 5,
COLORADO
109 Eighth Street, Suite 104
Glenwood Springs, Colorado 81601
_______________________________________________ CONCERNING THE APPLICATION FOR WATER
RIGHTS OF TOWN OF AVON
IN EAGLE COUNTY
James R. Montgomery, #10989
Richard Mehren, #32231
Anne D. Bensard, #45316
Moses, Wittemyer, Harrison and Woodruff, P.C.
P. O. Box 1440
Boulder, Colorado 80306-1440
Telephone: (303) 443-8782
Facsimile: (303) 443-8796
jmontgomery@mwhw.com; rmehren@mwhw.com;
abensard@mwhw.com
▲ COURT USE ONLY ▲
__________________________
Case No.: 14CW___
(05CW258)
APPLICATION FOR FINDING OF REASONABLE DILIGENCE
AND TO MAKE ABSOLUTE
1. Name, address, and telephone number of applicant:
Town of Avon (“Avon”)
c/o/ Virginia Egger, Town Manager
P.O. Box 975
Avon, CO 81620
Telephone: (970) 748-4010
2. Name of structure: Avon Whitewater Course.
3. Description of conditional water right:
A. General Description of Recreational In-Channel Diversion: The Avon Whitewater
Course (“Course”), the approximate location of which is depicted in the map
attached hereto as Exhibit A, contains three control structures known as Bob, Sr.,
Bob, Jr., and Baby Bob. The Course is approximately 348 feet in length from the
Baby Bob invert (the upstream control structure) to the Bob, Sr. invert (the
downstream control structure). The recreational in-channel diversion water right
(“RICD”) is defined by the specific points between the control structures and not
Town of Avon
Case No. 14CW_____
Page 2
00079981-3
for the entire 348-foot reach. The Course is located in the channel of the Eagle
River near the intersection of Avon Road and Hurd Lane where Avon Road
crosses the Eagle River at the bridge named Bob (“the Bridge”). The approximate
locations of the three control structures are depicted on the map attached hereto as
Exhibit A. Each of the three control structures controls the entire flow within the
river channel. The control structures are designed to perform at different rates of
flow. Baby Bob has been constructed as a pour-over hole and is located the
furthest upstream of the Bridge. Bob, Jr. has been constructed as a wave hole and
is located 75 feet upstream of the upstream face of the Bridge. Bob, Sr. has been
constructed as a constriction wave and is located 20 feet downstream of the
downstream face of the Bridge. The three control structures are designed to divert,
capture, control, and concentrate the flow of water in the Course between the
specific points to create water features that allow the minimum stream flows for
three distinct recreation experiences for different skill levels to be placed to
beneficial use.
B. Original Decree: Case No. 05CW258, District Court, Water Division No. 5, State
of Colorado, entered on June 28, 2008.
C. Legal description of each control structure:
i. Baby Bob: Located in the NE 1/4 of the SE 1/4, Sec. 12, Township 5 S.,
R. 82 W., 6th P.M., 2,450 feet west of east section line and 2,400 feet north
of south section line.
ii. Bob, Jr.: Located in the SW 1/4 of the NE 1/4, Sec. 12, Township 5 S., R
82 W., 6th P.M., 2,600 feet west of the east section line and 2,350 feet
south of the north section line.
iii. Bob, Sr.: Located in the SE 1/4 of the NW 1/4, Sec. 12, Township 5 S., R.
82 W., 6th P.M., 2,550 feet east of west section line and 2,300 feet south of
north section line.
D. Source: Eagle River, tributary to the Colorado River.
E. Appropriation date: December 31, 2005.
F. Rates of flow: The rates of flow for different levels of recreational use are as
follows:
Town of Avon
Case No. 14CW_____
Page 3
00079981-3
Level One Flows, for beginner freestyle kayaking
Calendar Period Flow (cfs)
April 20 - August 7 200 cfs, CONDITIONAL
Level Two Flows, for intermediate freestyle kayaking
Calendar Period Flow (cfs)
May 1 - July 20 350 cfs, CONDITIONAL
Level Three Flows, for advanced freestyle and competitive kayaking
Calendar Period Flow (cfs)
Eight Specified 12-hour 1,400 cfs, CONDITIONAL
Days between May 25-July 7
(“High Flow Dates”)
G. Use: Recreational in-channel boating purposes, including recreational boating,
kayaking, and rafting. The use of the RICD for navigation by kayaks and rafts in
and through the Course is a beneficial use.
4. Outline of work and expenditures during the diligence period towards completion of the
appropriation and application of the water to beneficial use: During the period from June,
2008 until June 2014 (“Diligence Period”), Avon has worked diligently to develop the
RICD, as demonstrated by the following activities:
A. In summer 2008, Avon partnered with the Westin Riverfront Resort and the Vail
Daily to hold a “Big Air Shootout Competition” at the Course, as part of its
recreation center special events program, to promote the Course and RICD.
Participants uploaded videos of themselves doing tricks in the Course to the Vail
Daily. The Big Air Contest ran from May 15, 2008 to July 15, 2008. The prize for
first place was $2,500, which was paid by the Westin Riverfront Resort. Avon
staff and volunteers judged the event.
B. The Avon Parks Department regularly maintains the Course during the summer
kayaking and rafting season. Maintenance occurs in two primary areas: (1) the
boat launch on the south shore, and (2) the north shore pedestrian access and
overlook. Maintenance includes trash collection, noxious weed removal, fence
repair, and graffiti removal. At the end of the season, the Parks Department and
Engineering Department inspect the shoreline and control structures in the Course
to determine if the shoreline or control structures require repairs after the spring
Town of Avon
Case No. 14CW_____
Page 4
00079981-3
runoff. They also schedule any necessary repair work. In 2010, the north shore
experienced damage and the pedestrian overlook and shoreline were
reconstructed. Avon spent approximately $10,690 on this work. Over the
diligence period, Avon has expended approximately $10,000 in staff labor costs
for maintenance of the Course.
C. Avon has posted signs notifying users of the start and end of the Course.
D. Avon expended approximately $______ in legal fees related to filing statements
of opposition to Water Court cases for protection of its water rights, including the
RICD that is the subject of this application.
E. Avon has expended approximately $_____ in legal fees related to the diligence
activities related to the RICD that is the subject of this application.
5. Claim to make absolute:
A. Date of diversion in priority and application to beneficial use:
i. Level One Flows: July 1, 2008.
ii. Level Two Flows: July 15, 2008.
iii. Level Three Flows: June 7, 2014.
B. Amount:
i. Level One Flows: 200 cfs
ii. Level Two Flows: 350 cfs
iii. Level Three Flows: 1,400 cfs
C. Use: Recreational in-channel boating purposes, including recreational boating,
kayaking, and rafting. The use of the RICD for navigation by kayaks and rafts in
and through the Course is a beneficial use.
D. Place of beneficial use: The Course, as described above in paragraph 3.C.
E. Evidence that diversion was made in priority: Since its opening, the Course has
been consistently used by both individual and commercial boaters, including
kayakers and rafters, for recreational boating purposes. There is a consistent
pattern of use of the Course for boating purposes. Based on measurements at
Town of Avon
Case No. 14CW_____
Page 5
00079981-3
USGS Gage No. 09067020, Avon requests to make Level One, Level Two, and
Level Three Flows absolute as described below. The RICD is adequately
measured by USGS Gage No. 09067020, which is located 3,200 feet downstream
of the Course.
i. Individual boaters used the Course from 2008 through the date of filing.
During the high runoff in May and June of each year, several rafting
companies float the park, including Saga and Nova Guides.
Documentation of such use by individual and commercial boaters may
include magazine and news publications, photographs, videos, blog posts,
and statements by boating users of the Course.
ii. In 2008, Avon held the Big Air Shootout, discussed above in paragraph
4.A. This event ran from May 15, 2008 until July 15, 2008. Both
individual and commercial boaters used the Course during this period to
make both the Level One and Level Two Flows absolute.
(i) Level One Flows were put to beneficial use at various times during
the diligence period. As an example, the minimum flow rate
necessary for a reasonable recreational experience at Level One
Flows (200 cfs) was met and exceeded on July 1, 2008.on this
date. Between the RICD’s hours of 8:00 am and 8:00 pm, USGS
Gage No. 09067020 measured a peak flow of 2,940 cfs at 8:45 am
and a minimum flow rate of 2,450 cfs at 7:15 pm. At these flow
rates, Baby Bob controlled, concentrated, and diverted, without
waste, water to create waves, hydraulic holes, large changes in
current direction, and whitewater features that were used by
kayakers and other boaters for the intended recreational
experiences.
(ii) Level Two Flows were put to beneficial use at various times
during the diligence period. As an example, the minimum flow rate
necessary for a reasonable recreational experience at Level Two
Flows (350 cfs) was met and exceeded on July 15, 2008. Between
the RICD’s hours of 8:00 am and 8:00 pm, USGS Gage No.
09067020 measured a peak flow of 1,040 cfs at 8:00 am and a
minimum flow of 871 cfs at 7:30 pm. At these flow rates, Baby
Bob and Bob Jr. controlled, concentrated, and diverted, without
waste, water to create waves, hydraulic holes, large changes in
current direction, and whitewater features that were used by
Town of Avon
Case No. 14CW_____
Page 6
00079981-3
kayakers and other boaters for the intended recreational
experiences.
iii. Level Three Flows were put to beneficial use at various times during the
diligence period. As an example, the minimum flow rate necessary for a
reasonable recreational experience at Level Three Flows (1,400 cfs) was
met and exceeded on June 7, 2014. Between the RICD’s hours of 8:00 am
and 8:00 pm, USGS Gage No. 09067020 measured a peak flow of 3,130
cfs at 8:00 am and a minimum flow of 2,700 cfs at 3:15 pm. At this flow
rate, Baby Bob, Bob Jr., and Bob Sr. controlled, concentrated, and
diverted, without waste, water to create waves, hydraulic holes, large
changes in current direction, and whitewater features that were used by
kayakers and other boaters for the intended recreational experiences. As
required by the decree entered in Case No. 02CW258, on June 5, 2014,
Avon provided notice to the Division Engineer and Water Commissioner
of its intent to designate its eight high flow dates for the purpose of putting
Level Three Flows to beneficial use. These eight high flow dates were
June 7, 2014 - June 14, 2014.
6. Names and addresses of owners or reputed owners of the land upon which any new
diversion or storage structure, or modification to any existing diversion or storage
structure is or will be constructed or upon which water is or will be stored, including any
modification to the existing storage pool.
[Confirm with Town that Avon owns this property]
WHEREFORE, Avon requests that the Court enter a decree making the RICD absolute
for recreational in-channel boating purposes, as described above, and/or finding that Avon has
exercised reasonable diligence with respect to the RICD, and continuing in full force and effect,
for an additional diligence period, any portion of the RICD that the Court finds remains
conditional.
Respectfully submitted this _____ day of June, 2014.
MOSES, WITTEMYER, HARRISON AND
WOODRUFF, P.C.
James R. Montgomery, #10989
Richard J. Mehren, #32231
Anne D. Bensard, #45316
Town of Avon
Case No. 14CW_____
Page 7
00079981-3
ATTORNEYS FOR APPLICANT,
TOWN OF AVON
E-FILED PURSUANT TO C.R.C.P. 121. Duly signed original on file at the law offices of
Moses, Wittemyer, Harrison and Woodruff, P.C.
00079981-3 {
VERIFICATION AND ACKNOWLEDGMENT OF APPLICANT OR OTHER
PERSON HAVING KNOWLEDGE OF THE FACTS STATED IN THIS
APPLICATION FOR FINDING OF REASONABLE DILIGENCE AND TO
MAKE ABSOLUTE
Being first duly sworn, I hereby state that I have read this APPLICATION FOR
FINDING OF REASONABLE DILIGENCE AND TO MAKE ABSOLUTE, that I have
personal knowledge of the facts stated, and that I verify its contents to the best of my knowledge,
information, and belief.
Virginia Egger
The foregoing instrument was acknowledged before me in the County of Eagle,
State of Colorado, this ______ day of June, 2014, by the person whose signature appears above.
Notary Public
My commission expires:
The person signing this verification is Town Manager for the Town of Avon.