TC Council Packet 10-28-2014 TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, OCTOBER 28, 2014
AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM
REGULAR MEETING BEGINS AT 5:15 PM
AVON TOWN HALL, ONE LAKE STREET
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PRESIDING OFFICIALS
MAYOR RICH CARROLL
MAYOR PRO TEM JENNIE FANCHER
COUNCILORS DAVE DANTAS, CHRIS EVANS, MATT GENNETT
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA 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.
______________________________________________________________________________________________________________
OCTOBER 28TH - 4:00 P.M. – SITE WALK – MEET AT TOWN HALL
THE MAIN STREET MALL – NEW TOWN HALL (SKIER BUILDING) - LETTUCE SHED LAND – POSSIBILITY PLAZA
THREE OR MORE COUNCIL PERSONS MAY BE ATTENDING THE SITE WALK
AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:00 PM (SEE SEPARATE AGENDA PAGE 3)
REGULAR MEETING BEGINS AT 5:15 PM
1. CALL TO ORDER & ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
3.1. PROCLAMATION HONORING EAGLE COUNTY GIVES (MICHELLE MALONEY)
4. ACTION ITEMS
4.1. PUBLIC HEARING ON SECOND READING OF ORDINANCE 14-15, SERIES OF 2014, COMCAST FRANCHISE
AGREEMENT (ASSISTANT TO THE TOWN MANAGER PRESTON NEILL)
5. WORK SESSION
5.1. 2014 CAPITAL PROJECTS CONSTRUCTION UPDATE (TOWN MANAGER VIRGINIA EGGER)
5.2. DISCUSSION OF SKIER BUILDING INTERIOR FINISH PROCESS (MAYOR RICH CARROLL)
5.3. 2015-2016 BUDGET WORK SESSION - ALL FUNDS AND FIVE-YEAR CAPITAL IMPROVEMENTS PLAN
(ASSISTANT TOWN MANAGER SCOTT WRIGHT)
5.4. PROCUREMENT POLICY DIRECTION TO AMEND (ASSISTANT TO THE TOWN MANAGER PRESTON NEILL)
5.5. TRAILS ADVISORY GROUP – PURPOSE, DUTIES AND PROCESS FOR SELECTION
(PLANNING MANAGER MATT PIELSTICKER)
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, OCTOBER 28, 2014
AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM
REGULAR MEETING BEGINS AT 5:15 PM
AVON TOWN HALL, ONE LAKE STREET
Page 2
6. ACTION ITEMS
6.1. FIRST READING OF ORDINANCE 14 –19 AMENDING AVON MUNICIPAL CODE TITLE 6: ANIMALS TO ALLOW FOR
DOGS TO BE PERMITTED OFF-LEASH AT ALL TIMES, UNDER VOICE CONTROL, WITH OWNERS REQUIRED TO CARRY
LEASHES IN THE WEST AVON PRESERVE (PLANNING MANAGER MATT PIELSTICKER)
6.2. LETTERS OF SUPPORT FOR COLORADO PARKS AND WILDLIFE GRANT APPLICATIONS FOR TRAIL PLANNING AND
MAINTENANCE WORK (PLANNING MANAGER MATT PIELSTICKER)
6.3.FIRST READING OF ORDINANCE 14-18 APPROVING ACQUISITION OF TRACT S, BLOCK 3, WILDRIDGE FOR HIKING
AND BIKE TRAIL (PLANNING MANAGER MATT PIELSTICKER)
6.4. ACTION ON MOSES, WITTEMYER, HARRISON & WOODRUFF, P.C. REVISED AGREEMENT FOR LEGAL SERVICES
AS WATER COUNSEL (TOWN MANAGER VIRGINIA EGGER)
6.5. MINUTES FROM OCTOBER 14, 2014 MEETING (TOWN CLERK DEBBIE HOPPE)
7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
7.1. COUNCILOR JAKE WOLF UPDATES
7.1.1 ECRTA Board Meeting
7.1.2 Playground Committee
7.1.3 Harmony Park Musical Playground
7.1.4 Creative Industries Update
7.1.5 Community Gardens at Avon Elementary
7.1.6 Performance Pavilion Update
7.1.7 AED/CPR Training Reminder for November 11th
8. COUNCIL COMMENTS
9. MAYOR REPORT AND FUTURE AGENDA ITEMS
10. WRITTEN REPORTS
10.1. MONTHLY FINANCIALS (BUDGET ANALYST KELLY HUITT)
10.2. TOWN STAFF APPROVAL AUTHORIZATION FOR VILLAGE AT AVON PUBLIC IMPROVEMENTS AGREEMENT
(ATTORNEY ERIC HEIL)
11. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC)
11.1. MEET PURSUANT TO COLORADO REVISED STATUTE §24-6-402(4) (F) FOR THE PURPOSE OF DISCUSSING
PERSONNEL MATTERS RELATED TO THE ANNUAL PERFORMANCE REVIEW OF THE TOWN ATTORNEY & TOWN
MANAGER
12. ADJOURNMENT
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, OCTOBER 28, 2014
AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM
AVON TOWN HALL, ONE LAKE STREET
Page 3
PRESIDING OFFICIALS
CHAIRMAN RICH CARROLL
VICE CHAIRMAN JENNIE FANCHER
BOARD MEMBERS DAVE DANTAS, CHRIS EVANS,
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
MATT GENNETT
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. RENEWAL OF LIQUOR LICENSES
4.1. Applicant: Vail Valley Mexican Foods, LLC d/b/a Agave
Location: 1060 Beaver Creek Blvd.
Type: Hotel and Restaurant
Manager: Richard Wheelock
4.2. Applicant: Fork & Knife, Inc. d/b/a Blue Plate
Location: 42 E. Beaver Creek Blvd.
Type: Hotel and Restaurant
Manager: Adam Roustom
4.3. Applicant: Avon Properties Leasing, LLC d/b/a Village Warehouse Wines
Location: 101 Fawcett Road
Type: Liquor Store
Manager: Peter Cuccia
5. MINUTES FROM OCTOBER 14, 2014
6. ADJOURNMENT
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, OCTOBER 14, 2014
AVON TOWN HALL, ONE LAKE STREET
ALB 10-14-2014 Minutes.docx 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 Board members present were
Dave Dantas, Chris Evans, Jennie Fancher, Matt Gennett, Buz Reynolds and Jake Wolf. Also present were
Town Manager Virginia Egger, Town Attorney Eric Heil, Planning Manager Matt Pielsticker, Assistant to Town
Manager Preston Neill 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. RENEWAL OF LIQOUR LICENSES
4.1. Applicant: Nova Entertainment, LLC d/b/a Loaded Joes
Location: 82 E. Beaver Creek Blvd. #104
Type: Hotel and Restaurant
Manager: Kent Beidel
The application was presented with no concerns for the renewal application. Board member Dantas moved
to approve the Hotel and Restaurant Liquor License for Nova Entertainment, LLC d/b/a Loaded Joes; and
Board member Evans seconded the motion and it passed unanimously with those present.
4.2. Applicant: Suncor Energy Sales, Inc. d/b/a Shell
Location: 46 Nottingham Road
Type: 3.2% Beer Retail
Manager: Anakut Loya
The application was presented with no concerns for the renewal application. Board member Dantas moved
to approve the 3.2% Beer Retail Liquor License for Suncore Energy Sales, Inc. d/b/a Shell; and Board member
Evans seconded the motion and it passed unanimously with those present.
4.3. Applicant: Pazzo’s Pizzeria, Inc. d/b/a Pazzo’s Pizzeria
Location: 82 E. Beaver Creek Blvd.
Type: Hotel and Restaurant
Manager: Mark Colwell
The application was presented with no concerns for the renewal application. Board member Dantas moved
to approve the Hotel and Restaurant Liquor License for Pazzo’s Pizzeria, Inc. d/b/a Pazzo’s Pizzeria; and
Board member Evans seconded the motion and it passed unanimously with those present.
6. MINUTES FROM SEPTEMBER 23, 2014
Board member Wolf moved to approve the Minutes from September 23, 2014; Board member Gennett
seconded the motion and it passed unanimously with those present.
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, OCTOBER 14, 2014
AVON TOWN HALL, ONE LAKE STREET
ALB 10-14-2014 Minutes.docx Page 2
7. Adjournment
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 ______________________________________
Matt Gennett ______________________________________
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Richelle Curran, Records Administrator/ Deputy Town Clerk
Date: October 28, 2014
Agenda Topic: Proclamation Honoring Eagle County Gives
Michelle Maloney with Vail Valley Charitable Fund, would like to present to the Avon Town Council
information regarding the “Proclamation Honoring Eagle County Gives”.
The Town Council is asked to consider adopting the attached Proclamation that supports Colorado
Gives Day on Tuesday, December 9, 2014. According to its supporters this is a statewide day of
philanthropy where citizens are encouraged to “Give Where You Live” by logging
onto www.coloradogives.org and investing in local charitable organizations. The fourth annual
Colorado Gives Day takes place midnight to midnight on Tuesday, December 9, 2014.
This year, thirty-two Eagle County-based non-profits will be taking part in Colorado Gives Day on
December 9, 2014.
Colorado Gives Day is a project of an online resource created by Community First Foundation that
profiles Colorado non-profits and encourages charitable giving within our state. The Colorado
Gives website www.coloradogives.org provides comprehensive, objective, and up-to-date
information about hundreds of Colorado non-profit organizations, along with an on-line donation
system to support those organizations. Last year, Colorado Gives Day raised $20.5 million for
Colorado charities in one 24-hour period, and $690,000 locally.
COLORADO GIVES DAY: Suggested Proclamation Town of Avon
WHEREAS, charitable giving in the Town of Avon, Colorado is critical
to providing support that local nonprofit organizations need to make
our community a desirable place to live; and
WHEREAS, research shows an increase in online giving both locally and
nationally, and many believe it is the future of philanthropy; and
WHEREAS, Community First Foundation and FirstBank have
partnered in an effort to increase charitable giving in our community
through the online giving initiative Colorado Gives Day; and
WHEREAS, Colorado Gives Day in 2013 raised $20.5 million in a single
24-hour period via online donations, $690,000 to Eagle County
nonprofits, at coloradogives.org a website allowing donors to direct their
contributions to one or more of the thirty (32) local, Eagle County,
charities featured on the site, making it an ideal resource for facilitating
charitable giving to our locally-based nonprofit organizations; and
WHEREAS, Colorado Gives Day is December 9 this year, and all
citizens are encouraged to participate because all donations, large or
small, can make a difference to nonprofits in need.
NOW, THEREFORE, BE IT PROCLAIMED BY Mayor Richard
Carroll and the Town Council of the Town of Avon, Colorado THAT:
Tuesday, December 9, 2014, will be known as Colorado Gives Day in our
community.
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TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Preston Neill, Executive Assistant to the Town Manager
Virginia Egger, Town Manager
Date: October 28, 2014
Agenda Topic: Public Hearing Second Reading Ordinance 14-15 COMCAST Franchise Agreement
Second Reading of Ordinance 14-15, which will approve the COMCAST Franchise Agreement, if adopted, has
been noticed for a public hearing at Tuesday’s meeting. Attachment A summarizes the background of the
Franchise Agreement and process for review.
Approval of the Franchise Agreement is a two reading process. Council approved First Reading on
September 23, 2014, and continued Second Reading, which had been scheduled for October 14, 2014, to the
October 28, 2014 meeting.
A total of three (3) display ads ran in the Vail Daily announcing the public hearing first for October 14th and
then for the subsequent October 28th meeting. The ad also provided COMCAST’S contact information for
citizen service concerns. One citizen comment has been received and is provided with this packet.
KEY ELEMENTS:
Since First Reading, the status of key elements of the Franchise Agreement is as follows. All elements have
been agreed to by COMCAST except as noted.
• General Procedures: The Franchise Agreement parallels the Town of Vail’s Franchise Agreement for all
provisions except where noted below.
• Definition of Gross Revenue: The Franchise Agreement finds that franchise fees are not a tax and are
therefore need to be included in “Gross Revenue”. COMCAST has provided a syntactic improvement to
clarify this definition and the edit is acceptable to staff and the Town Attorney Eric Heil. (Page xx)
• Franchise Term: In order to allow the termination date to coincide with the termination date
established in the ten (10) year agreement between the Town of Vail and COMCAST of Colorado, the
Franchise Agreement has a term of eight (8) years, beginning on the effective date, January 1, 2015.
• Franchise Fee: As compensation for the use of public ways, COMCAST shall make quarterly payments
as a “Franchise Fee” to the Town an amount equal to five percent (5%) of gross revenue.
• PEG Access Channels: Two (2) Public, Educational, or Governmental (PEG) Access Channels will be
provided by COMCAST, at no charge. In addition, the Town of Avon would continue to receive from
COMCAST, in quarterly payments, a “PEG Fee” in the amount equal to fifty cents ($0.50) per residential
PAGE 2 OF 4
subscriber per month as capital support for PEG access. The Franchise Agreement allows increasing the
fee up to $0.75 for residential subscribers. For current bulk subscribers, a fee of $0.25 continues, and
may be increased to $0.40. Both potential fee increases must be approved by Council through a public
hearing process. Bulk subscribers are assessed on a per unit/per month basis.
COMCAST POSITION: Town staff and Attorney Heil continue to recommend including the above
provisions regarding the PEG Fee. This approach requires the Town to hold a public hearing prior
to increasing the fee, but does not require COMCAST to also approve an increase. The attached
letter from COMCAST states their position on the PEG Fee and describes that if either party
believes that the PEG Contribution should be modified in a reasonable amount to address future
needs, the parties shall share all relevant information supporting their positions and negotiate in
good faith to determine if the PEG Contribution should be increased or decreased, and if so, in
what amount. If the parties mutually agree that an increase in the PEG Fee is warranted, the Town
shall conduct a public hearing prior to taking any action on any increase. COMCAST asks that this
section read as follows:
9.5 PEG FEE
(A) Comcast shall collect and provide to Town a monthly fee as capital support for PEG access ("PEG Fee") in an amount determined by the Town. As of the Effective Date of this
Agreement the PEG FEE shall be fifty cents ($0.50) per subscriber per month for individual
residential and commercial subscribers, and twenty-five cents ($0.25) per subscriber per month
subject to bulk-billing.
The PEG Fee shall be used solely for PEG access equipment and facilities. Comcast shall make PEG Fee payments quarterly, no later than forty-five (45) days following the end of the quarter.
To evaluate whether the City’s PEG Access capital costs have increased or decreased with
time, the Town and Grantee may meet to discuss whether to increase or to decrease the PEG
Contribution. The primary purpose of such meetings will be for the parties to review prior expenditures and future capital plans to determine if the current PEG Contribution is
reasonably appropriate to meet future needs. The Town and Grantee may suggest to each
other, based upon their own assessments of reasonable past practices and future anticipated
needs, whether the current level of PEG Contribution is appropriate. If either party believes
that the PEG Contribution should be modified in a reasonable amount to address such future needs, the parties shall share all relevant information supporting their positions and negotiate in
good faith to determine if the PEG Contribution should be increased or decreased, and if so, in
what amount. Such discussions regarding potential adjustment to the PEG Contribution will be
conducted pursuant to the Franchise amendment procedures in Section 14.4 of this Franchise.
If the parties mutually agree that an increase in the PEG Fee is warranted, the Town shall conduct a public hearing prior to taking any action on any increase. The Town shall provide
written notice to Comcast at least forty-five (45) days in advance of such public hearing which
notice shall state the proposed PEG Fee increase to be considered. Any PEG Fee increase shall
be approved by either ordinance or resolution.
(B) To the extent permitted by law, the PEG Fee may be itemized on Customer billing statements and recovered from Customers over the term of this Agreement. Comcast shall not
be responsible for paying the PEG Fee with respect to gratis or Bad Debt accounts.
PAGE 3 OF 4
• Access Channel Trigger: No additional access channel (total would be three channels) is included in the
Franchise Agreement. Staff discussed this with Channel 5 representative JK Perry, who concurred that
the current two channels offered will be adequate through the term of the Franchise Agreement.
• Customer Service Standards: The Town of Avon Customer Service Standards (CSS) has been added to
the Franchise Agreement. These standards establish uniform requirements for the quality of service
that COMCAST is expected to offer to customers. In order to ensure the provision of quality customer
service, the Town has received the standards created by the Colorado Communications and Utilities
Alliance (CCUA) from COMCAST to implement. These standards have been adopted by numerous
municipalities throughout Colorado, and include, but are not limited to, 24/7 local telephone access for
service/repair requests and billing/service inquiries, 24/7 accessibility to dispatchers and technicians, a
complaint procedure and an established window for problem resolution following a customer service
call.
• Regulatory Changes: Section 14.5 was included in the Franchise Agreement at First Reading. It
subsequently has been redrafted to reflect COMCAST’s comment that changes to the Cable Act could
reduce as potentially expand changes during the term of this Agreement which has the effect of
increasing a municipality’s rights with regard to: the franchise fee or other fees, required minimum
technology standards, minimum public access channels, minimum service standards, or regulation of
combined or expanded cable based services, including but not limited to phone and internet. The re-
write acknowledges, that should change(s) occur, either party, Town or COMCAST may initiate a re-
negotiation of the Franchise Agreement, and may, through a period of time should re-negotiation not
be successful allow for the termination of the Agreement, again, by either party.
COMCAST POSITION: While Town staff continues to recommend the inclusion of Section 14.5, as is,
COMCAST’s attached letter explains their belief that this section is unnecessary and unilateral.
COMCAST’s recommendation is that in the event there is any change to the Cable Act during the
term of the Agreement, which has the effect of expanding or reducing a municipality’s regulatory
authority, then the Town or COMCAST may seek amendment of the Franchise, with modification
only possible by written agreement between the Town and COMCAST. COMCAST asks that this
section read as follows:
14.5 REGULATORY CHANGES
In the event there is any change to the Cable Act during the term of this Agreement, which has
the effect of expanding or reducing a municipality’s regulatory authority, then the Town or
Grantee may seek amendment of this Franchise pursuant to the franchise amendment procedure provided under Section 14.4.
MOTION:
If Council wishes to proceed with the Agreement after the Public Hearing and Second Reading, the
recommended motion is: I move to approve Ordinance 14-15 [with or without modifications].
ATTACHMENTS:
ATTACHMENT A - FRANCHISE AGREEMENT BACKGROUND & REVIEW PROCESS
COMCAST Letter
Citizen Comment: Karl Krueger Email
Ordinance 14-15 approving Avon-COMCAST Franchise Agreement, and including Town of Avon Customer Service
Standards
PAGE 4 OF 4
ATTACHMENT A
FRANCHISE AGREEMENT BACKGROUND
&
REVIEW PROCESS
BACKGROUND:
The purpose of a cable Franchise Agreement is to grant to a franchisee, such as COMCAST, the right to
access and use Town of Avon public ways (right-of-ways) for the installation and repair of wires and other
equipment, such as pedestals, for the operation of a cable system. The Town is compensated for the use
of public way through a franchise fee, which is currently 5% of COMCAST’s Gross Revenue within the Town.
In addition to important requirements for how business activity is administered in the right-of-way, the
Franchise also includes a requirement that two Public Education or Governmental (PEG) Access Channels
be provided, with the Town having management authority to designate a provider, and certain
requirements for use of the stations. The franchisee collects and provides to the Town a capital support
fee for the PEG, which is currently fifty cents ($0.50) per month per individual residential subscriber and 25
cents ($0.25) per month per bulk-billing subscriber.
The most recent Franchise Agreement between the Town of Avon and COMCAST of Colorado was a 15-
year agreement originally approved with TCI Cablevision of the Rockies, Inc. and later assigned to
COMCAST. It expired on December 31, 2010. Pursuant to the Federal Telecommunications Act, the expired
Agreement continues on a month-to-month basis until both the Town and COMCAST agree to a new
Franchise Agreement. After the expiration, the Town stated it wished to defer the negotiation of a new
franchise until such time as Vail completed its review and approval of a new franchise. The Franchise
Agreement between the Town of Vail and COMCAST of Colorado was completed in 2012 and commenced
on January 1, 2013.
PROCESS:
A comparative analysis was conducted between the Model Agreement and the Vail-COMCAST Agreement
for the purpose of identifying the differences and similarities. The comparative review was shared with
COMCAST and COMCAST submitted a response to the Town.
The Town Council met in Work Sessions to discuss Franchise Agreement renewal on the following dates:
• Tuesday, April 22, 2014
• Tuesday, June 10, 2014
• Tuesday, September 9, 2014
At the September 9, 2014, Town Council meeting, Council provided direction to staff for preparing a
franchise renewal with Comcast. Attached is Ordinance 14-15, which reflects Council’s direction. The
Ordinance approves the Town of Avon-Comcast Franchise, and grants to COMCAST the right to access and use
Town of Avon public ways (right-of-ways) for the installation and repair of wires and other equipment, such as
pedestals, for the operation of a cable system.
Approval of the Franchise Agreement requires two readings of the attached Ordinance. September 23, 2014,
was First Reading. October 28, 2014 is the Public Hearing and Second Reading.
October 13, 2014
Avon Town Council
1 Lake St
Avon, CO 81620
Mayor Carroll and Council Members,
Per our discussion, Town staff requested that we provide our perspective on the final issues remaining
in our Franchise renewal negotiations that are yet to be resolved. As you well know, the Franchise is a
bilateral agreement that requires not only the approval of Council but approval from the Comcast
organization as well. As such, we will need to come to a compromise on the two issues listed below
before we will be able to reach an agreement.
However, before we address the provisions that require further negotiation, I am pleased to report that
we did further digging into the issue of bulk-billing, and we learned that bulk subscribers in Avon are
assessed a PEG fee on a per unit basis. While we have sought to reduce or eliminate the bulk PEG fee in
most communities, we have agreed to continue it in the Town’s new Franchise.
Below are the two provisions that require further negotiation:
9.5 PEG Fee: We have several concerns with the prior language, and those concerns stem from the
current circumstances in Avon: a) the Town already charges $0.50 per subscriber, which represents the
highest level PEG fee for a town of Avon’s size; b) the Town does not currently operate a PEG channel
under the Town’s authority; and c) while the Town originally sought the ability to increase the PEG fee
to match a similar provision in the Vail franchise, Vail’s authority only allows them to go from $0.25 to
$0.50, and interestingly, Vail does not even assess a PEG fee currently. Therefore, we think it is
premature to be discussing an increase in the PEG fee, and more importantly, any adjustment to the
PEG fee will need to be mutually agreed upon, consistent with every other provision in the Franchise.
In the latest draft that we have provided to the Town, we have struck the language describing the
Town’s authority to unilaterally increase the fee from $0.50 to $0.75 following a public hearing, and we
have replaced this with language we offered previously. The language we have proposed requires
discussion between Comcast and the Town and mutual agreement via the amending process, if there is
going to be a change. Our proposed changes do not prohibit an increase (or decrease), but merely
provide for a more thorough examination by both parties and mutual agreement before any changes are
made.
14.5 Regulatory Changes: As mentioned previously, we believe this section is entirely unnecessary. If
Federal law changes, we will be required to comply with those changes. However, if the Town insists on
including language related to changes in Federal law – changes that are highly speculative at this time –
we will need to make significant adjustments to the Town’s proposed language. First, we are concerned
with the unilateral nature of the Town’s proposed addition. This is a bilateral agreement, and as such, it
must ensure that we both have the right to pursue changes to the document. Second, we cannot agree
to include language that speculates on changes to Federal law and that further speculates on what those
changes might hypothetically mean for the Town’s regulatory authority.
Thus, we believe the most effective and simple compromise is to reference our amending process and
utilize that process if/when the time comes and the circumstances warrant changes. That is precisely
why we have an amending process, and we are open to making that language more robust if the Town
so desires.
While these two issues remain, we have reached agreement on all other provisions, and once we reach
agreement on the remaining items, I am confident that we will have produced a document that
represents a mutually beneficial compromise. We look forward to discussing these remaining issues,
bringing negotiations to a close, and completing the renewal process.
Sincerely,
Andy Davis
Director, Regulatory and Government Affairs
Comcast
cc: Virginia Egger, Town Manager
Preston Neill, Executive Assistant to the Town Manager
Ordinance 14-15 Approving a Franchise Agreement with
Comcast of Colorado
Page 1 of 3
TOWN OF AVON
ORDINANCE 14-15
SERIES of 2014 AN ORDINANCE APPROVING A FRANCHISE AGREEMENT WITH COMCAST OF COLORADO VI, LLC FOR THE PROVISION OF CABLE
SERVICES IN THE TOWN OF AVON
WHEREAS, the Town of Avon, Colorado, (“Town”) and TCI Cablevision, the predecessor of Comcast Colorado VI, LLC (“Comcast”), entered into a Franchise Agreement on January 1,
1996, to allow TCI Cablevision to provide cable service to subscribers of such service in the
Town of Avon, which Franchise Agreement expired on December 31, 2010, and then continued
on a month by month basis in accordance with the Federal Telecommunications Act of 1996; WHEREAS, negotiations for a new Franchise Agreement have been on-going;
WHEREAS, during negotiations the performance and technical issues of the expired Franchise
Agreement were met within the Town; WHEREAS, no outstanding areas of noncompliance have been identified within the Town;
WHEREAS Section 17.6 of the Avon Town Charter authorizes the Town Council to grant a
franchise by ordinance and to establish the term, fees, compensation, conditions and any other matters related to the granting of franchises; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with the requirements of the Avon Home Rule Charter by
setting a public hearing in order to provide the public an opportunity to provide public comment on this Ordinance and that approval of this Ordinance on first reading does not constitute a
representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Franchise Agreement Approved. The Franchise Agreement between the Town
and Comcast is hereby approved in the form attached hereto, for a term of eight (8) years,
commencing on January 1, 2015.
Ordinance 14-15 Approving a Franchise Agreement with
Comcast of Colorado
Page 2 of 3
Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and
Town Clerk are authorized to execute documents approved in this Ordinance and take such other
actions as may be reasonably necessary to implement the actions in this Ordinance.
Section 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by
posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours.
[Signature page follows]
Ordinance 14-15 Approving a Franchise Agreement with
Comcast of Colorado
Page 3 of 3
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING on September 23, 2014, and setting such public
hearing for October 28, 2014, at the Council Chambers of the Avon Municipal Building, located
at One Lake Street, Avon, Colorado.
____________________________
Rich Carroll, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least six days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on October 28, 2014.
____________________________
Rich Carroll, Mayor
Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk.
ATTEST: APPROVED AS TO FORM:
_______________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney
TOWN OF AVON - COMCAST
FRANCHISE AGREEMENT
October 28, 2014
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 1 of 34
TABLE OF CONTENTS
FRANCHISE AGREEMENT ................................................................................................................................. 5
SECTION 1. DEFINITIONS ..................................................................................................................................... 5
SECTION 2. GRANT OF FRANCHISE ...................................................................................................................... 8
2.1 Grant ...................................................................................................................................................... 8
2.2 Use of Public Ways ................................................................................................................................. 9
2.3 Term ....................................................................................................................................................... 9
2.4 Effective Date ....................................................................................................................................... 10
2.5 Competitive Equity ............................................................................................................................... 10
2.6 Familiarity with Agreement and Acceptance ....................................................................................... 10
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS .................................................................................. 11
3.1 Franchise Fee ....................................................................................................................................... 11
3.2 Payments ............................................................................................................................................. 11
3.3 Audits ................................................................................................................................................... 11
3.4 Additional Commitments Not Franchise Fees ...................................................................................... 11
3.5 Payment on Termination ..................................................................................................................... 12
3.6 Service Packages .................................................................................................................................. 12
3.7 Tax Liability .......................................................................................................................................... 12
SECTION 4. ADMINISTRATION AND REGULATION ............................................................................................ 12
4.1 Rates and Charges ................................................................................................................................ 12
4.2 No Rate Discrimination ........................................................................................................................ 12
4.3 Time Limits Strictly Construed ............................................................................................................. 13
4.4 Performance Evaluations ..................................................................................................................... 13
4.5 Late Fees and Disconnection................................................................................................................ 13
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS ............................................................................... 13
5.1 Indemnification .................................................................................................................................... 13
5.2 Indemnification Procedures and Defense ............................................................................................ 14
5.3 Insurance .............................................................................................................................................. 14
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 2 of 34
5.4 Letter of Credit ..................................................................................................................................... 15
SECTION 6. CUSTOMER SERVICE ....................................................................................................................... 16
6.1 Service Availability ............................................................................................................................... 16
6.2 Customer Service Standards ................................................................................................................ 16
6.3 Customer Privacy ................................................................................................................................. 16
6.4 Customer Service Agreement and Manual .......................................................................................... 16
SECTION 7. RECORDS ......................................................................................................................................... 17
7.1 Required Records ................................................................................................................................. 17
7.2 Proprietary Information ....................................................................................................................... 18
7.3 Copies of Federal and State Reports .................................................................................................... 18
SECTION 8. PROGRAMMING ............................................................................................................................. 19
8.1 Broad Programming Categories ........................................................................................................... 19
8.2 Obscenity ............................................................................................................................................. 19
8.3 Services for the Disabled ...................................................................................................................... 19
8.4 Parental Control Device ....................................................................................................................... 19
8.5 Complimentary Cable Service .............................................................................................................. 19
SECTION 9. ACCESS ............................................................................................................................................ 20
9.1 Access Channels ................................................................................................................................... 20
9.2 Underutilized Access Channels ............................................................................................................ 20
9.3 Access Channel Location ...................................................................................................................... 20
9.4 Access Channel Promotion................................................................................................................... 21
9.5 PEG Fee ................................................................................................................................................ 21
9.6 Return Lines ......................................................................................................................................... 21
SECTION 10. USE OF PUBLIC WAYS ............................................................................................................................ 21
10.1 Construction and Maintenance ........................................................................................................... 22
10.2 Location and Movement of Facilities ................................................................................................... 22
10.3 Acquisition of Facilities ........................................................................................................................ 23
10.4 Reservation of Public Ways .................................................................................................................. 23
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 3 of 34
10.5 Discontinued Facilities ......................................................................................................................... 23
10.6 Use of Conduit or Ducts ....................................................................................................................... 24
10.7 Undergrounding ................................................................................................................................... 24
10.8 Tree Trimming ...................................................................................................................................... 25
10.9 GIS Mapping ......................................................................................................................................... 25
SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS ......................................................................... 25
11.1 Technical Performance ........................................................................................................................ 25
11.2 Cable System Performance Testing ...................................................................................................... 25
11.3 Standby Power ..................................................................................................................................... 25
SECTION 12. VIOLATIONS AND REVOCATION ............................................................................................................ 25
12.1 Procedure for Remedying Violations ................................................................................................... 26
12.2 Alternative Remedies ........................................................................................................................... 26
12.3 Liquidated Damages ............................................................................................................................. 26
12.4 Revocation ........................................................................................................................................... 27
12.5 Purchase of the Cable System .............................................................................................................. 28
SECTION 13. TRANSFER .............................................................................................................................................. 28
13.1 Transfer of Ownership or Control ........................................................................................................ 28
SECTION 14. MISCELLANEOUS ................................................................................................................................... 30
14.1 Cumulative Rights ................................................................................................................................ 30
14.2 Costs to be Borne by Comcast ............................................................................................................. 30
14.3 Binding Effect ....................................................................................................................................... 30
14.4 Modification ......................................................................................................................................... 30
14.5 Regulatory Changes ............................................................................................................................. 30
14.6 Governing Law and Venue ................................................................................................................... 30
14.7 No Joint Venture .................................................................................................................................. 31
14.8 Waiver .................................................................................................................................................. 31
14.9 Severability ........................................................................................................................................... 31
14.10 Force Majeure…………………………………………………………………………………………………………………................ 31
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 4 of 34
14.11 Entire Agreement……………………………………………………………………………………………………………................ 31
14.12 Notices………………………………………………………………………………………………………………………………............. 31
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 5 of 34
FRANCHISE AGREEMENT
This Franchise Agreement ("Agreement") is made between the Town of Avon, Colorado,
a Colorado home rule municipality ("Town") and Comcast of Colorado VII, LLC ("Comcast"),
on October 14, 2014.
WHEREAS, the Town, having determined that the financial, legal, and technical ability
of Comcast is reasonably sufficient to provide the services, facilities, and equipment necessary to
meet the future cable-related needs of the community, desires to enter into this Agreement with
Comcast for the operation and maintenance of a cable system on the terms and conditions set forth herein.
NOW THEREFORE, the Town and Comcast agree as follows:
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings, provided
that terms not defined, or those defined, but not capitalized within the text, shall be given their
common and ordinary meaning, and the word "shall" is always mandatory:
"Access" includes Public Access, Educational Access and Governmental Access, collectively and
means the availability for Noncommercial use by various governmental and educational
agencies, institutions and organizations in the community of particular channels on the Cable
System to receive and distribute Video Programming to subscribers as permitted under
applicable law.
"Access Channel" means any Channel designated for Access purposes or otherwise made
available to facilitate Access programming.
"Affiliate" when used in connection with Comcast means any Person who owns or controls, is
owned or controlled by, or is under common ownership or control of Comcast.
"Bad Debt" means amounts lawfully owed by a Customer and accrued as revenues on the books
of Comcast, but not collected after reasonable efforts by Comcast.
"Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of
local television Broadcast Signals and PEG Access Channels required in this Franchise and any
additional programming added by the Town and made available to all Customers in the Franchise
Area.
"Broadcast Signal" means a television or radio signal transmitted over the air to a wide
geographic audience, and received by a Cable System off-the-air by antenna, microwave, satellite
dishes or any other means.
"Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, as amended by the
Telecommunications Act of 1996, and any amendments thereto.
"Cable Operator" means any Person or group of Persons, including Comcast, who provides
Cable Service over the Cable System and directly or through one or more Affiliates owns a
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 6 of 34
significant interest in such Cable System or who otherwise controls or is responsible for, through any arrangement, the management and operation of the Cable System.
"Cable Service" means the one-way transmission to Customers of Video Programming, or other programming service and Customer interaction, if any, that is required for the selection or use of such Video Programming or other programming service.
"Cable System" means Comcast's facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, designed to provide Cable Service that includes Video Programming and provided to Customers in the Franchise Area.
"Channel" means a portion of the frequency band capable of carrying a Video Programming Service or combination of Video Programming Services, whether by analog or digital signal, on a twenty-four (24) hour per day basis or a portion thereof.
"Customer" means a Person who lawfully receives Cable Service from the Cable System with Comcast's express permission.
"Designated Access Provider" means an entity designated by the Town to manage or co-manage
Public, Educational or Governmental Access Channels and facilities. The Town may be a Designated Access Provider.
"Dwelling Unit" means any building or portion thereof that has independent living facilities,
including provisions for cooking, sanitation and sleeping, and that is designed for residential occupancy.
"Educational Access" means Access where Schools are the primary users having editorial
control over programming and services.
"Emergency" means any condition constituting a clear and present danger to life or property.
"Expanded Basic Service" means cable programming services not included in the Basic Service
and excluding premium or pay-per-view services.
"FCC" means the Federal Communications Commission or its lawful successor.
"Fiber Optic" means a transmission medium of optical fiber cable, along with all associated
electronics and equipment capable of carrying electric lightwave pulses.
"Franchise Area" means the area within the jurisdictional boundaries of the Town, including any
areas hereafter annexed by Town.
"Franchise Fee" includes any tax, fee or assessment of any kind imposed by the Town on
Comcast or Customers, or both solely because of their status as such, but excluding: (i) any tax,
fee or assessment of general applicability (including any such tax, fee, or assessment on both
utilities and Cable Operators or their services, but not including a tax, fee, or assessment that is
unduly discriminatory against Cable Operators or cable Customers); (ii) capital costs that are
required by the Agreement to be incurred by Comcast for Access facilities; (iii) requirements or
charges incidental to the awarding or enforcing of the Agreement, including but not limited to,
payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated damages;
or (iv) any fee imposed under Title l7, United States Code.
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 7 of 34
"Governmental Access" means Access where governmental institutions or their designees are the
primary users having editorial control over programming and services.
"Gross Revenue" means all revenue derived directly or indirectly by Comcast or its Affiliates
from the operation of the Cable System in the Franchise Area, including without limitation
monthly and other fees charged Customers for Cable Service including Basic Service, Expanded
Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service, optional Premium Service, pay-per-view and per-program Channels, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, remote
control rental fees, late fees and administrative fees, consideration received by Comcast from
programmers for carriage of Cable Service on the Cable System and recognized as revenue under
generally accepted accounting principles ("GAAP"), revenues from rentals of converters or other
Cable System equipment, advertising sales revenues (including local, regional and a pro rata
share of national advertising carried on the Cable System in the Franchise Area but excluding
commissions paid to an unaffiliated agency), revenues from program guides, additional outlet
fees, revenue from the sale or carriage of other Cable Service, and revenues from home shopping.
Franchise Fees are included in Gross Revenue. Gross Revenue does not include (i) to the extent
consistent with GAAP, Bad Debt, provided, however, that any part of such Bad Debt that is
written off but subsequently collected shall be included in Gross Revenue in the period collected; or (ii) any taxes on services furnished by Comcast that are imposed directly on any Customer or user by the State, Town or other governmental unit and that are collected by Comcast on behalf of said governmental unit; or (iii) capital costs or contributions required by this Franchise.
"Headend" or "Hub" means a facility for signal reception and dissemination on a Cable System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for Broadcast Signals or other signals, and all other related equipment and Facilities.
"Incremental Costs" means Comcast's direct and actual material and labor cost (excluding profit) of constructing, relocating or placing additional facilities for the Town, excluding the costs that Comcast would otherwise incur to construct, relocate or place facilities for Comcast including,
but not limited to, trenching, pipe bedding, backfilling, compacting, restoring the surface, and
other charges, costs or expenses.
"Interconnect" or "Interconnection" means the provision of Access Channel programming to a
geographically contiguous cable system, including technical, engineering, physical, and other
necessary components to accomplish, complete and adequately maintain such provisioning.
"Late fee" means and includes any assessment, charge, cost, fee or sum, however characterized,
that Comcast imposes upon a Customer solely for late payment of a bill is a late fee.
"Leased Access Channel" means any Channel or portion of a Channel commercially available for programming in accordance with Section 612 of the Cable Act.
"Noncommercial" means, in the context of Access Channels, those particular products and services that are not promoted or sold in order to generate revenue that exceeds the costs of operations for the Town or any Designated Access Provider. This term shall not be interpreted to
prohibit an Access Channel operator or programmer from soliciting and receiving contributions
used to produce and transmit Video Programming on an Access Channel, or from acknowledging
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 8 of 34
a contribution, in the manner of the Corporation for Public Broadcasting or some similar manner, subject to applicable law.
"Person" means any natural person, lawful trustee, successor, assignee, transferee, or personal representative, sole proprietorship, partnership, joint venture, association, or limited liability entity or corporation, or any other form of entity or organization.
"Public Access" means Access where any member of the general public may be a programmer on a nondiscriminatory basis, subject to operating rules formulated by the Town or its designee. Such rules shall not be designed to control the content of public access programming. Such rules
may also address the extent to which and manner in which members of the general public who
are not residents of the Town may be programmers on the Access Channel.
"Public Way" means land in the Franchise Area acquired for or dedicated to the public and
maintained under public authority, including but not limited to public streets, roads, highways,
avenues, lanes, alleys, bridges, sidewalks, easements, and similar public property.
"Residential Subscriber" means any Person who receives Cable Service delivered to a Dwelling
Unit, excluding such multiple Dwelling Units billed on a bulk-billing basis.
"Standard Installation" means a one hundred twenty five (125) foot drop connecting to the exterior demarcation point.
"State" means the State of Colorado.
"Tier" means a category of Cable Service provided by Comcast for which a separate rate is
charged.
"Video Programming" means programming provided by, or generally considered comparable to
programming provided by, a television broadcast station, or cable programming provider
primarily consisting of full motion video and audio.
SECTION 2. GRANT OF FRANCHISE
2.1 GRANT
(A) The Town hereby grants to Comcast a nonexclusive authorization to make reasonable and
lawful use of the Public Ways to construct, operate, maintain, reconstruct, repair and upgrade the
Cable System for the purpose of providing Cable Service, subject to this Agreement and
applicable law. Comcast shall provide Cable Service, as authorized by this Agreement, in the
Franchise Area in accordance with line extension and density provisions as provided herein. The
franchise granted by this Agreement is subject to all prior rights, interests, easements, or
franchises granted by Town or its predecessors to any Person to any property or Public Way,
including the right of the Town to use same for any purpose it lawfully deems fit. This
Agreement conveys limited rights and interests in only those Public Ways in which the Town has
an actual interest; it is not a warranty of title or interest in any property.
(B) Comcast shall comply with the Avon Town Code and the lawful exercise of the Town’s police power. Subject to the Town’s lawful exercise of its police power, in the event of a conflict between the Avon Town Code and the Agreement, the Agreement shall govern. Comcast
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 9 of 34
acknowledges that the Town may enforce or modify its generally applicable regulatory policies by lawful exercise of the Town's police powers throughout the term of this Agreement, and
Comcast agrees to comply with such lawful enforcement or modifications. Comcast reserves the
right to challenge provisions of any ordinance, rule, regulation or other enactment of the Town
that conflicts with its contractual rights under the Franchise, either now or in the future. This
Agreement shall not be interpreted to prevent the Town from imposing other conditions, to the
extent permitted by law.
(C) No rights shall pass to Comcast by implication. Without limiting the foregoing, by way
of example and not limitation, this Agreement shall not be a substitute for: any other permit or
authorization required for the privilege of transacting and carrying on a business within the Town
that is required by the Town; any permit, agreement or authorization required by the Town for
Public Way users in connection with operations on or in Public Ways or public property; or any permits or agreements for occupying any other property to which access is not specifically granted by this Agreement.
(D) This Agreement is an express authorization to provide Cable Service only. This
Agreement is not a bar to the imposition of any lawful conditions on Comcast with respect to
non-Cable Service, telecommunications services or information services, whether similar,
different or the same as the condition specified herein. This Agreement does not relieve Comcast
of any obligation it may have to obtain from the Town an authorization to provide non-Cable
Service, telecommunications services or information services or relieve Comcast of its obligation
to comply with any such authorization(s) that may be lawfully required.
(E) This Agreement shall have no effect on any obligation of Comcast in effect prior to the
effective date of this Agreement to indemnify or insure the Town against acts and omissions
occurring during the period that the prior franchise agreement was in effect, nor shall it have any
affect upon liability to pay Franchise Fees that were due and owed under a prior franchise.
2.2 USE OF PUBLIC WAYS
(A) Subject to the Avon Town Code, as amended, Comcast may erect, install, construct,
repair, replace, reconstruct, and retain in, on, over, under, upon, across, through, below and along
the Public Ways, such wires, cables, conductors, ducts, conduit, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment as are necessary and
appurtenant to the operation of the Cable System.
(B) Comcast shall install Cable System facilities in a manner that minimizes interference with
the use of the Public Ways by others. To protect public health, safety and welfare, the Town
may: require that Cable System facilities be installed at a particular time, at a specific place or in
a particular manner as a condition of access to a particular Public Ways; deny access if Comcast
is not willing to comply with Town's requirements; remove, or require removal of, any facility
that is not installed in compliance with the requirements established by Town, or that is installed without prior Town approval of the time, place or manner of installation and charge Comcast for all the costs associated with removal; and require Comcast to cooperate with others to minimize
adverse impacts on the Public Ways through joint trenching and other arrangements.
2.3 TERM
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 10 of 34
This Agreement shall have a term of eight (8) years, beginning on the Effective Date and shall expire on December 31, 2022, unless the term is reduced by the Town in accordance with
Section 14.5 below.
2.4 EFFECTIVE DATE The Effective Date of this Agreement shall be January 1, 2015.
2.5 COMPETITIVE EQUITY
(A) Comcast acknowledges and agrees that the Town reserves the right to grant additional
franchises to provide Cable Service in the Franchise Area; provided that if any such franchise is
granted by the Town which, in the reasonable opinion of Comcast, contains more favorable or
less burdensome Material Terms and Conditions than this Agreement, the Town agrees that,
within ninety (90) days of Comcast's request, the parties shall amend this Franchise to insure that
the regulatory and financial burdens on each entity are materially equivalent. "Material Terms and Conditions" includes without limitation: Franchise Fees; insurance coverage amounts; System build-out requirements; Public, Education and Government Access Channels and support; customer service standards; required reports and related record keeping; and notice and
opportunity to cure breaches. The parties agree that this Subsection does not require a word for
word identical franchise or authorization for a competitive entity if the regulatory and financial
burdens on each entity are materially equivalent.
(B) If an application for a new cable franchise is filed with the Town proposing to serve the
Franchise Area, in whole or in part, the Town shall make a good faith effort to provide notice of
such application upon Comcast prior to acting on the application.
(C) Notwithstanding any provisions to the contrary, at any time that a facilities-based Cable
Services provider, legally authorized by state or Federal law, makes Cable Services or multiple
Channels of Video Programming within the Franchise Area available for purchase by Customers
without a franchise or other similar lawful authorization granted by the Town, then Comcast may seek modification pursuant to subsection (A) hereof, or the term of this Franchise shall, upon ninety (90) days written notice from Comcast, be shortened so that the Franchise shall be deemed
to expire on a date six (6) months from the first day of the month following the date of Comcast's
notice; provided, however, that if the provision of Cable Services or Video Programming by the
other facilities-based Cable Services Provider within the Franchise Area is being legally
challenged by the Town, the term of this Franchise shall remain unaffected until such legal
challenge is concluded.
2.6 FAMILIARITY WITH AGREEMENT AND ACCEPTANCE
(A) Comcast acknowledges and warrants that it has carefully read and fully comprehends the
terms of this Agreement and that it has fully considered the requirements of this Agreement, and
finds that the same are commercially practicable at this time and consistent with all local, State
and federal laws and regulations currently in effect.
(B) By executing this Agreement, Comcast: (1) acknowledges and accepts the Town's legal right to issue and enforce the Agreement; (2) agrees that it will not oppose the Town's lawful
intervention in any legal or regulatory proceeding affecting the Cable System; (3) accepts and
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 11 of 34
agrees to comply with every provision of this Agreement; and (4) agrees that the Agreement was negotiated in compliance with applicable law, and that it will not raise any claim to the contrary.
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 FRANCHISE FEE
As compensation for the use of the Public Ways, Comcast shall pay as a Franchise Fee to Town,
for the duration of this Agreement, an amount equal to five percent (5%) of Comcast's Gross
Revenue.
3.2 PAYMENTS
(A) Franchise Fee payments to Town shall be computed quarterly for the preceding calendar
quarter ending March 31, June 30, September 30, and December 31. Each quarterly payment
shall be due and payable no later than forty-five (45) days after said dates. For untimely
payments, Comcast shall pay, in addition to the payment or sum due, interest from the due date at the rate of eight percent (8%) per annum until the date the Town receives the payment.
(B) No acceptance of payment shall be construed as an accord by Town that the amount paid
is the correct amount, nor shall an acceptance of payment be construed as a release of any claim
Town may have against Comcast. The period of limitation for recovery of Franchise Fees
payable hereunder shall be three (3) years from the date on which payment by Comcast was due
or such shorter period of time if so provided by law.
(C) A report prepared by a representative of Comcast showing the basis for the computation
of the Franchise Fees paid during that period shall either accompany the Franchise Fee payment
or be provided under separate cover within ten days of the report.
3.3 AUDITS
(A) On an annual basis, upon thirty (30) days' prior written notice, the Town may conduct an
independent audit of Comcast's financial records necessary to ensure compliance with this
Agreement. If Comcast cooperates in making all relevant records available upon request, the Town will in good faith attempt to complete each audit within six (6) months, and the audit period shall not be any greater than the previous three (3) years.
(B) Additional amounts due to the Town as a result of the audit shall be paid within sixty (60)
days following written notice to Comcast. If a Franchise Fee underpayment is discovered as the
result of an audit, Comcast shall pay, in addition to the amount due, interest at the maximum
allowed rate as provided under State law calculated from the date the underpayment was
originally due until the date the Town receives the payment.
(C) If the audit shows that Franchise Fees have been underpaid by five percent (5%) or more
in a calendar year, Comcast shall pay the actual cost of the audit in a total amount not to exceed
$10,000.
3.4 ADDITIONAL COMMITMENTS NOT FRANCHISE FEES
No term of this Agreement shall affect Comcast's obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 12 of 34
Agreement may total more than five percent (5%) of Gross Revenue in any twelve-month period, Comcast agrees that the additional commitments regarding PEG funding and Access Channels
are not Franchise Fees, nor are they to be offset or credited against Franchise Fee payments
unless specifically provided by applicable law.
3.5 PAYMENT ON TERMINATION
Within one hundred twenty (120) days of termination of this Agreement, Comcast shall file with
the Town a financial statement, certified by an independent certified public accountant, showing
the Gross Revenue received by Comcast since the end of the previous fiscal year. Within forty-
five (45) days of the filing of the certified statement with the Town, Comcast shall pay any
unpaid amounts as indicated. If Comcast fails to satisfy its remaining financial obligations as
required in this Agreement, the Town may do so by utilizing the funds available in a Letter of
Credit or other security provided by Comcast.
3.6 SERVICE PACKAGES
If Comcast offers bundled Cable Service and non-Cable Service to Customers, Comcast shall fairly and reasonably allocate revenue with regard to Cable Service.
3.7 TAX LIABILITY
The Franchise Fees shall be in addition to all taxes or other levies or assessments now or
hereafter required to be paid by businesses by any applicable law including without limitation
sales, use, utility and other taxes, and business license fees.
SECTION 4. ADMINISTRATION AND REGULATION
4.1 RATES AND CHARGES
(A) Comcast's rates and charges for Cable Service shall be subject to regulation by Town to
the full extent authorized by applicable federal, State and local laws. Customer billing shall be
itemized by service pursuant to FCC Regulation, 47 C.F.R. § 76.1619 or as amended.
(B) Comcast will use best efforts to maintain with the Town a current schedule of applicable rates charged for Cable Service provided under this Agreement. The Town recognizes that such rates change periodically, and if the Town clerk has reason to believe that the schedule of rates
on file is not up to date, then upon three (3) days advance request, Comcast shall provide the
Town with a current and complete schedule of applicable rates and charges for Cable Service
provided to Customers in the Town. Nothing in this Subsection shall be construed to require
Comcast to file rates and charges under temporary reductions or waivers of rates and charges in
conjunction with promotional campaigns.
4.2 NO RATE DISCRIMINATION
All Comcast rates and charges shall be published (in the form of a publicly-available rate card),
made available to the public, and shall be non-discriminatory as to all Persons of similar classes,
under similar circumstances. Nothing herein shall be construed to prohibit:
(1) The temporary reduction or waiving of rates or charges in conjunction with promotional campaigns;
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 13 of 34
(2) The offering of reasonable discounts to similarly situated Persons; or
(3) The offering of bulk discounts for multiple Dwelling Units.
4.3 TIME LIMITS STRICTLY CONSTRUED
When this Agreement sets forth a time for any act to be performed by Comcast, such time shall
be deemed to be of the essence, and any failure of Comcast to perform within the allotted time
may be considered a breach of this Agreement.
4.4 PERFORMANCE EVALUATIONS
Special evaluation sessions may be held at any time upon written request and upon not less than
thirty (30) days prior notice by the Town during the term of this Agreement. All such evaluation
sessions shall be open to the public. Topics that may be discussed at any evaluation session may
include those issues surrounding Comcast's failure to comply with the terms of the Agreement
provided that nothing in this Subsection shall be construed as requiring the renegotiation of this Agreement or any term or provision therein and further provided that this Subsection need not be followed before other legal or equitable remedies within this Agreement.
4.5 LATE FEES AND DISCONNECTION
Comcast's late fee and disconnection policies and practices shall be nondiscriminatory, and such
policies and practices, and any fees imposed pursuant to this Subsection, shall apply equally
throughout the Franchise Area without regard to the neighborhood or income level of the
Customers.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 INDEMNIFICATION
(A) Comcast, at its own expense, shall indemnify, defend and hold harmless the Town, its
officers, officials, boards, commissions, agents, representatives and employees, from any action
or claim for injury, damage, loss, liability, settlement, proceeding, judgment, or cost or expense,
including court and appeal costs and attorney fees and expenses, arising from any casualty or accident to Person or property, including, without limitation, copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation,
erection, operation, maintenance, repair or reconstruction, or any other act done under this
Agreement, by or for Comcast, its authorized agents, or by reason of any neglect or omission of
Comcast, its authorized agents or its employees. Comcast shall consult and cooperate with the
Town while conducting its defense of the Town.
(B) The provisions of this Section 5 shall survive the termination of this Agreement unless
superseded by indemnification provisions in a new franchise or in federal or state law.
(C) Subject to applicable law, Comcast shall indemnify the Town for any damages, including
but not limited to damages incurred as a result of delay, payable by the Town related to
Comcast's failure to properly install, remove, adjust or relocate any of its facilities in the Public
Ways in accordance with any lawful relocation required by the Town.
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(D) Comcast shall also indemnify, defend and hold the Town harmless for any claim for injury, damage, loss, liability, cost and expense, including court and appeal costs and attorney
fees and expenses in any way arising out of any failure by Comcast to secure consents from the
owners, authorized distributors or franchisees/licensors of programs to be delivered by the Cable
System, provided however, that Comcast will not be required to indemnify the Town for any
claims arising out of the use of Access Channels by the Town or its Designated Access Provider
or use by the Town of the emergency alert system.
5.2 INDEMNIFICATION PROCEDURES AND DEFENSE
(A) If a claim or action arises, the Town or any other indemnified party shall promptly tender
the defense of the claim or action to Comcast, which defense shall be at Comcast's expense. The
Town may participate in the defense of a claim and Comcast may not agree to any settlement of
claims without the Town's written approval, which shall not be unreasonably withheld.
(B) The fact that Comcast carries out any activities under this Agreement through independent contractors shall not constitute an avoidance of or defense to Comcast's duty of
defense and indemnification.
(C) If separate representation is necessary, such as a conflict of interest between the Town
and the counsel selected by Comcast to represent the Town, Comcast shall select other counsel.
5.3 INSURANCE
(A) Comcast shall maintain at all times in full force and effect at its own expense each of the
following policies of insurance:
(1) Commercial General Liability coverage for bodily injury, personal injury, and
property damage with limits of no less than one million dollars ($1,000,000) per
occurrence. The general aggregate limit shall be no less than two million dollars
($2,000,000).
(2) Commercial Automobile Liability Insurance with minimum combined single limits of at least one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) aggregate with respect to each of Comcast's owned, hired and non-owned,
or any other vehicles assigned to or used in any activities authorized under or used in
conjunction with this Agreement.
(3) Employer's Liability with limits of at least one million dollars ($1,000,000).
(4) Workers' Compensation insurance shall be maintained during the life of this
Agreement to comply with State law for all employees.
(B) Each policy shall provide that the insurance shall not be canceled or terminated so as to
be out of compliance with these requirements without forty-five (45) days' prior written notice,
and ten (10) days' notice for nonpayment of any premium. Comcast shall maintain continuous
uninterrupted insurance coverage, in at least the amounts required, until all work required to be
performed under the terms of this Agreement is satisfactorily completed and, in the case of Commercial General Liability Insurance, for at least one (1) year after termination of this Agreement. A failure of Comcast to comply with any claim reporting provisions or any breach
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of an insurance policy warranty shall not affect coverage afforded under the policy to protect the Town. However, if coverage is not afforded under these circumstances, Comcast shall indemnify
the Town for losses the Town otherwise would have been covered for as an additional insured.
(C) All insurance policies, except Workers' Compensation, shall contain a waiver of transfer
rights of recovery (subrogation) against the Town, its officers, officials, agents, and employees
for any claims arising out of Comcast's work or service. Comcast shall be responsible for
deductibles or self-insured retention.
(D) All policies shall contain, or shall be endorsed so that:
(1) The Town and its officers, officials, boards, commissions, agents, representatives,
and employees are to be covered as, and have the rights of, additional insureds with
respect to liability arising out of activities performed by, or on behalf of, Comcast under
this Agreement or applicable law, or in the construction, operation, upgrade, maintenance, repair, replacement or ownership of the Cable System;
(2) Comcast's insurance coverage shall be primary insurance with respect to the Town
and its officers, officials, boards, commissions, agents, volunteers and employees. Any
insurance or self insurance maintained by the Town or its officers, officials, boards,
commissions, agents, representatives, volunteers or employees shall be in excess of
Comcast's insurance and shall not contribute to it, provided the occurrence arises out of
Comcast's negligence; and
(3) Comcast's insurance shall apply separately to each insured against whom a claim
is made or lawsuit is brought, except with respect to the limits of the insurer's liability.
(E) Comcast shall furnish the Town with certificates of insurance and an endorsement
reflecting additional insured status. The certificates for each insurance policy are to be on
standard forms or such forms as are consistent with standard industry practices, and are to be
received and approved by the Town at the time of acceptance of this Agreement by Comcast with existing insurance coverage to be maintained by Comcast until that date. Comcast hereby warrants that its insurance policies satisfy the requirements of this Agreement.
(F) The insurance limits mandated for any insurance coverage required by this Agreement are
not intended to be an indication of exposure nor are they limitations on liability or
indemnification.
5.4 LETTER OF CREDIT
(A) At any time during the term of this Agreement, if there is a claim by the Town of an
uncured breach by Comcast of a provision of this Franchise, then the Town may require and
Comcast shall establish and provide, as quickly as possible, but no later than thirty (30) days after
a request from the Town, a letter of credit from a financial institution satisfactory to the Town in
the amount of fifty thousand dollars ($50,000).
(B) After completion of the procedures set forth in Section 12.1 or other applicable provisions of this Franchise, the letter of credit may be drawn upon by the Town for purposes that include, but are not limited to the following:
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(1) Failure of Comcast to pay the Town sums due under this Agreement;
(2) Reimbursement of costs borne by the Town to correct violations not corrected by
Comcast; and
(3) Liquidated damages assessed against Comcast as provided in this Agreement.
(C) The Town shall give Comcast written notice of any withdrawal under this Subsection
upon such withdrawal. Within ten (10) days following receipt of such notice, Comcast shall
restore the letter of credit to the amount required under this Agreement.
SECTION 6. CUSTOMER SERVICE
6.1 SERVICE AVAILABILITY
(A) Except as otherwise provided herein, Comcast shall provide a standard aerial installation
of Cable Service within seven (7) days of a request by any Person in the Franchise Area.
Standard Installations shall be done within seven (7) days of a request for service. Comcast shall provide such service:
(1) With no extension charge except as specifically authorized by this Agreement;
(2) At a non-discriminatory installation charge for a Standard Installation and with
additional charges for non-Standard Installations computed according to a non-
discriminatory methodology for such installations; and
(3) At non-discriminatory monthly rates for all Customers, excepting commercial
Customers, Multiple Dwelling Unit Bulk Customers and other lawful exceptions to
uniform pricing.
(B) No Person shall be refused service arbitrarily. However, for non-Standard Installations or
a density of less than twenty five (25) residences per 5280 aerial cable-bearing strand feet of
trunk or distribution cable, or sixty (60) residences per 5280 underground trench feet of trunk or
distribution cable, Cable Service may be made available on the basis of a capital contribution in
aid of construction, including cost of material, labor and easements. Comcast may require that the payment of the capital contribution in aid of construction be borne by such potential Customers and be paid in advance.
6.2 CUSTOMER SERVICE STANDARDS
(A) COMCAST SHALL COMPLY WITH THE CUSTOMER SERVICE STANDARDS (CSS), WHICH
ARE ATTACHED TO THIS FRANCHISE AS EXHIBIT A.
6.3 CUSTOMER PRIVACY
Comcast shall comply with privacy rights of Customers in accordance with applicable law.
6.4 CUSTOMER SERVICE AGREEMENT AND MANUAL
(A) Comcast shall provide to Customers an accurate, comprehensive service agreement and
customer installation packet for use in establishing Customer service. This material shall, at a
minimum, contain the following:
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(1) Comcast's procedure for investigation and resolution of Customer complaints;
(2) Services to be provided and rates for such services;
(3) Billing procedures;
(4) Service termination procedure;
(5) A complete statement of the Customer's right to privacy;
(6) Equipment policy; and,
(7) The name, address and phone number of the Customer service department that is
responsible for handling questions and complaints for Comcast.
(B) A copy of the current installation packet shall be available to each Customer: (1) at the
time of initial installation and at any time the packet is requested by the Customer.
SECTION 7. RECORDS
7.1 REQUIRED RECORDS (A) Comcast shall at all times maintain:
(1) Access to a full and complete set of plans, records and maps showing the location
of all Cable System facilities in Public Ways;
(2) A copy of all FCC filings on behalf of Comcast, its parent corporations or
Affiliates that relate to the operation of the Cable System in the Franchise Area;
(3) A list of Comcast's rates and Channel line-ups; and,
(4) Financial records as required by Section 3 hereof.
(B) The Town, upon reasonable prior written notice to Comcast, may review Comcast's
records regarding the operation of the Cable System and the provision of Cable Service in the
Franchise Area which are reasonably necessary to monitor and enforce Comcast's compliance
with this Agreement, including without limitation any records required to be kept in a public file
by Comcast pursuant to FCC rules and regulations. All such records shall be retained by
Comcast for at least three (3) years. Comcast shall not deny the Town access to any of Comcast's records on the basis that Comcast's records are under the control of any parent corporation, Affiliate or a third party. The Town may request in writing copies of such records that are
reasonably necessary, and Comcast shall provide such copies within thirty (30) days at Comcast's
sole expense. If the requested records are too voluminous, or for security reasons cannot be
copied or removed, then Comcast may request, in writing within ten (10) days of receipt of such
request, that the Town inspect them at Comcast's local offices or at one of Comcast's offices
more convenient to Town or its duly authorized agent. If any records of Comcast are not kept in
such office and not made available to the Town upon written request, and if the Town determines
that an examination of such records is necessary for the enforcement of this Agreement, then all
reasonable travel expenses incurred in making such examination shall be paid by Comcast.
(C) Comcast shall maintain at its business office, in a file available for public inspection
during regular business hours, those documents required pursuant to FCC rules and regulations.
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(D) Comcast shall keep an accurate and comprehensive compilation of any and all Customer complaints received and Comcast's actions in response to those complaints, in a manner
consistent with the privacy rights of Customers. Comcast shall provide an executive summary
report to the Town on an annual basis within one hundred twenty (120) days of the end of each
year that shall include the following information:
(1) Nature, date and type of Customer complaints escalated to Comcast by the Town
in writing and date complaints were resolved;
(2) Average response time for service calls;
(3) Phone activity report;
(4) A summary of the previous year's activities regarding the development of the
Cable System, including, beginning and ending plant miles constructed;
(5) An annual report of the company on Form 10-K that is filed with the U.S. Securities and Exchange Commission; and,
(6) A copy of all Comcast's rules and regulations applicable to Customers.
7.2 PROPRIETARY INFORMATION
If Comcast provides records to the Town, the Town agrees to keep confidential any proprietary
information to the extent permitted by law. Comcast shall be responsible for clearly and
conspicuously identifying the work proprietary, and shall provide a brief written explanation as
to why such information is confidential and how it may be treated as such under applicable law.
7.3 COPIES OF FEDERAL AND STATE REPORTS
Within thirty (30) days of the Town's written request, Comcast shall submit to the Town copies
of any pleading, application, notification, communication or document of any kind, submitted by
Comcast or an Affiliate to any federal, State or local court, regulatory agency or other
government body if such documents relate to the operations of the Cable System. Comcast shall
not claim confidential, privileged or proprietary rights to such documents, unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency. With respect to all other reports, documents
and notifications provided to any federal, State or local regulatory agency as a routine matter in
the due course of operating the Cable System, Comcast shall make such documents available to
the Town upon the Town's written request.
SECTION 8. PROGRAMMING
8.1 BROAD PROGRAMMING CATEGORIES
(A) Comcast shall provide at least the following initial broad categories of programming to
the extent such categories are reasonably available.
• Educational programming;
• News, weather and information;
• Sports;
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• General entertainment including movies;
• Foreign language programming;
• Children’s programming;
• Family oriented programming;
• Arts, culture, performing arts programming;
• Science and documentary programming;
• National/international news; and
• Local/regional news.
(B) Comcast shall not delete or so limit as to effectively delete any broad category of
programming within its control without prior written notice to the Town.
(C) In the event of a modification proceeding under federal law, the mix and quality of Cable Service provided by Comcast shall follow the guidelines of Federal law.
8.2 OBSCENITY
Comcast shall not transmit, or permit to be transmitted, over any Channel subject to its editorial
control any programming which is obscene under applicable federal, State or local laws.
8.3 SERVICES FOR THE DISABLED
In providing Cable Service to the disabled, Comcast shall comply with the Americans With
Disabilities Act, as amended.
8.4 PARENTAL CONTROL DEVICE
Upon request by any Customer, Comcast shall make available at no charge a parental control
device to enable a Customer to control access to both the audio and video portions of any
Channels. Comcast shall inform its Customers of the availability of the device at the time of
their initial subscription and upon request.
8.5 COMPLIMENTARY CABLE SERVICE Comcast, upon request, shall provide without charge, a Standard Installation and one outlet of Basic Service to those buildings now existing, acquired or hereafter constructed that are either
owned and occupied or leased and occupied by the Town, its designee or other governmental
entity, including without limitation fire stations, police stations, libraries, schools and the Access
studio, provided that they are already served or are within one hundred twenty-five (125) feet of
the Cable System. The Cable Service provided shall not be distributed beyond the originally
installed outlet without authorization from Comcast, which shall not be unreasonably withheld.
In the case of leased facilities, the recipient of service is responsible for securing approval for
appropriate right of entry suitable to Comcast in its reasonable discretion. The Cable Service
provided shall not extend to areas of Town buildings where the Comcast would normally enter
into a commercial contract to provide such Cable Service (e.g., golf courses, airport restaurants
and concourses, and recreation center work out facilities) or be used for commercial purposes. For new hookups, Comcast shall not provide an outlet to such buildings where a non-Standard
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Installation is required, unless the Town or building owner/occupant agrees to pay the cost of the non-Standard Installation.
SECTION 9. ACCESS
9.1 ACCESS CHANNELS
(A) Comcast shall provide, at no charge, two (2) Public, Educational or Governmental (PEG)
Access Channels.
(B) The Town may delegate management of the PEG Access Channels to a Designated
Access Provider.
(C) All PEG Access Channels provided for in this Agreement shall be carried system-wide in
the Franchise Area, and shall be provided on the Basic Service tier unless otherwise agreed to by
the parties.
(D) The technical quality of the PEG Access Channels shall not be lower than the quality of other Channels on the same tier of service, at the same technical quality that programming is provided to Comcast by the Town or its Designated Access Provider.
(E) The Town shall establish and enforce rules for use of the PEG Access Channels to assure
nondiscriminatory access to the Channels to similarly situated users; and to promote use and
viewership of the channels, consistent with applicable law. PEG Access Channels may not be
used for commercial purposes.
(F) Comcast may not exercise any editorial control over the content of programming on
the PEG Access Channels.
9.2 UNDERUTILIZED ACCESS CHANNELS
Comcast and the Town agree that it is their mutual goal to fully and efficiently use the Channel
capacity of the Cable System, which may include allowing Comcast to use underutilized Access
Channels. If Comcast believes that any Access Channel is underutilized, Comcast may file a
request with the Town to use that Access Channel. The Town shall in its sole discretion render a decision regarding the matter within six (6) months of receiving the request. Should the Town find that the Access Channel may be used by Comcast, then Comcast may begin using such
Channel thirty (30) days after receipt of the decision. In the event the Town determines, in
Town’s sole discretion, that Town needs to use an Access Channel or Channels that Town has
previously determined that Comcast may use as an underutilized Access Channel, Town may
rescind Town’s permission to allow Comcast to utilize an Access Channel or Channels which
rescission shall be effective ninety (90) days after tendering written notice Comcast.
9.3 ACCESS CHANNEL LOCATION
(A) Comcast shall use its best efforts to minimize the movement of Access Channel
assignments. Comcast shall provide to the Town a minimum of ninety (90) days prior written
notice, prior to any relocation of its Access Channels, unless the change is required by federal
law, in which case Comcast shall give the Town the maximum notice possible. Comcast shall pay the Town two thousand dollars ($2,000) per Access Channel, per move.
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(B) Comcast, at Comcast's expense, shall include notice of Access Channel changes in its regular monthly billing.
9.4 ACCESS CHANNEL PROMOTION Comcast shall provide the Town the opportunity to include promotional notices on paper and
electronic bills on not more than two occasions per year. Comcast shall be provided an
opportunity to review all such promotional notices. The Town shall be responsible for any costs
associated with the provision of such notices.
9.5 PEG FEE
(A) Comcast shall collect and provide to Town a monthly fee as capital support for PEG
access ("PEG Fee") in an amount determined by the Town. As of the Effective Date of this
Agreement the PEG FEE shall be fifty cents ($0.50) per subscriber per month for individual
residential and commercial subscribers, and twenty-five cents ($0.25) per subscriber per month subject to bulk-billing.
The PEG Fee shall be used solely for PEG access equipment and facilities. Comcast shall make
PEG Fee payments quarterly, no later than forty-five (45) days following the end of the quarter.
The Town has the right to reduce or increase to PEG Fee up to a maximum of seventy-five cents
($0.75) per Residential Subscriber, and forty cents ($0.40) per Bulk-Billing Subscriber. The
Town shall discuss with Comcast any proposed fee before posting and conducting a required
Town public hearing prior to taking action on any increase to the PEG Fee. Town shall provide
written notice to Comcast at least forty-five (45) days in advance of such public hearing which
notice shall state the proposed PEG Fee increase to be considered. Any PEG Fee increase shall
be approved by either ordinance or resolution.
(B) To the extent permitted by law, the PEG Fee may be itemized on Customer billing
statements and recovered from Customers over the term of this Agreement. Comcast shall not be
responsible for paying the PEG Fee with respect to gratis or Bad Debt accounts.
9.6 RETURN LINES
(A) Comcast shall continue to maintain the return lines from all existing Access broadcast
facilities to the Headend in order to enable the distribution of programming to Customers on the
Access Channels. Comcast shall continuously maintain these return lines throughout the term of
the Agreement, unless any of these locations are no longer used in the future to originate Access
programming.
(B) Within eighteen (18) months of written request by the Town, Comcast shall construct and
maintain additional return lines to other locations in the Franchise Area; provided however, that
Comcast's construction costs shall be paid by the Town or its Designated Access Provider.
(C) Return Lines shall be maintained by Comcast in the same manner as the rest of the Cable
System so that Access Channels may be viewed at the same quality that is provided by the Town
or its Designated Access Provider.
SECTION 10. USE OF PUBLIC WAYS
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10.1 CONSTRUCTION AND MAINTENANCE
(A) The Cable System shall be constructed and maintained so as not to interfere with sewers,
water pipes, or any other property of Town, or with any other pipes, wires, conduits, pedestals,
structures or other facilities installed in Public Ways.
(B) In its maintenance and construction of the Cable System, Comcast shall comply with the
Avon Town Code. All construction and maintenance of Comcast's facilities within Public Ways
shall, regardless of who performs the construction, be and remain Comcast's responsibility.
(C) Comcast's contractors and subcontractors shall be licensed and bonded in accordance
with the Town's ordinances, regulations and requirements. Work by contractors and
subcontractors is subject to the same restrictions, limitations and conditions as if the work were
performed by Comcast. Comcast shall be responsible for all work performed by its contractors
and subcontractors and others performing work on its behalf as if the work were performed by it, and shall ensure that all such work is performed in compliance with this Agreement and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Comcast's responsibility to ensure that contractors, subcontractors or other
Persons performing work on Comcast's behalf are familiar with the requirements of this
Agreement and other applicable laws governing the work performed by them.
(D) Comcast shall give reasonable notice to private property owners of construction work in
adjacent Public Ways.
(E) If Comcast disturbs, alters, or damages any public or private property, Comcast shall at its
own expense replace and restore any such Public Way or property to a condition equal to the
condition of the property existing immediately prior to the disturbance.
(F) The Town may inspect any of Comcast's facilities or construction upon at least twenty-
four (24) hours' notice, or, in case of emergency, without prior notice, and the Town may charge
Comcast generally applicable inspection fees therefor. If an unsafe condition is found, the Town, in addition to taking any other action permitted under applicable law, may order Comcast to make necessary repairs and alterations to correct the unsafe condition by a time the Town
establishes. The Town may correct, inspect, administer and repair the unsafe condition if
Comcast fails to do so, and to charge Comcast therefor.
(G) On notice from Town that any work is being conducted contrary to this Agreement, or in
violation of the terms of any applicable law or permit, the work may immediately be stopped by
Town. The stop work order shall: be in writing; be given to the Person doing the work or posted
on the work site; be sent to Comcast by mail; indicate the nature of the alleged violation or
unsafe condition; and establish conditions under which work may be resumed.
10.2 LOCATION AND MOVEMENT OF FACILITIES
(A) After the Town or any franchisee or permittee of the Town notifies Comcast of a
proposed Public Way excavation, or design of any project impacting facilities in the Public Way, Comcast shall, at Comcast's expense, mark on the surface all of its located underground facilities within the area of the proposed excavation in accordance with applicable law.
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(B) The Town may remove or disconnect Comcast's facilities and equipment located in the Public Way or on any other property of the Town in the case of an emergency. Except in an
emergency, the Town shall provide reasonable notice to Comcast prior to taking such action and
shall provide Comcast with the opportunity to perform such action. Following notice by the
Town, Comcast shall remove, replace, relocate, modify or disconnect any of its facilities in a
Public Way or on any other property of the Town, except that the Town shall provide at least
ninety (90) days written notice of any major capital improvement project that would require the
removal, relocation, replacement, modification or disconnection of Comcast's facilities or
equipment. If Comcast fails to complete this work within the time prescribed and to the Town's
satisfaction, the Town may cause such work to be done at Comcast's expense. Comcast shall
remit payment to Town within thirty (30) days of receipt of an itemized list of those costs.
(C) If the Town requires Comcast to relocate its facilities located in a Public Way, the Town shall make a reasonable effort to provide Comcast with an alternate location within the Public Way. If funds are generally made available to users of the Public Way for such relocation,
Comcast shall be entitled to its pro rata share of such funds.
(C) At the request of any Person holding a valid permit and upon reasonable advance notice,
Comcast shall temporarily raise, lower or remove its wires as necessary to permit the moving of a
building, vehicle, equipment or other item. The cost of such temporary change may be charged
by Comcast to the permit holder, and Comcast may require the estimated payment in advance.
Such payment is an exchange between Comcast and the permittee, and the Town will not be the
administrator of these transactions.
10.3 ACQUISITION OF FACILITIES
Upon Comcast's acquisition of Cable System related facilities in any Public Way, or upon the
addition or annexation to the Town of any area in which Comcast owns or operates any facility,
such facilities shall be subject to the terms of this Agreement. The Town acknowledges that inclusion of revenue from Customers affected by annexation to the Town will require ninety (90) days to make changes in the billing system affecting those Customers.
10.4 RESERVATION OF PUBLIC WAYS
Nothing in this Agreement shall prevent the Town from constructing any public improvement, or
from permitting other utilities the use of the Public Ways. If the Cable System interferes with the
construction, maintenance or repair of any Public Way or public improvement, the Cable System
shall be removed or relocated in the area the Town directs. If the Town requires Comcast to
relocate its facilities located within the Public Way, the Town shall make a reasonable effort to
provide Comcast with an alternate location within the Public Way. All such removal or
relocation shall be preceded by sixty (60) days written notice or such additional time as may be
provided by Town. Should Comcast fail to remove, adjust or relocate its facilities by the date
established by the Town, the Town may effect such removal, adjustment or relocation at Comcast's sole expense. If funds are generally made available to users of the Public Way for such relocation, Comcast shall be entitled to its pro rata share of such funds.
10.5 DISCONTINUED FACILITIES
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(A) When Comcast intends to discontinue using any facility within a Public Way, Comcast shall submit to Town a complete description of the facility and the date on which Comcast
intends to discontinue using the facility. Comcast may remove the facility or request that the
Town allow it to remain in place. Notwithstanding Comcast's request that any such facility
remain in place, the Town may require Comcast to remove the facility from the Public Way or
modify the facility to protect the public health, welfare, safety and convenience. The Town may
require Comcast to perform a combination of modification and removal of the facility.
(B) Comcast shall complete such removal or modification in accordance with a schedule set
by the Town. Until Comcast removes or modifies the facility as directed by the Town, or until
the rights to and responsibility for the facility are accepted by another Person having authority to
construct and maintain such facility, Comcast shall be responsible for the facility, as well as
maintenance of the Public Way, in the same manner and degree as if the facility were in active use, and Comcast shall retain all liability for such facility.
(C) If Comcast abandons any facilities, the Town may choose to use such facilities for any
purpose whatsoever.
10.6 USE OF CONDUIT OR DUCTS
(A) The Town may install or affix and maintain wires and equipment owned by the Town for
Town purposes in or upon any of Comcast's ducts or conduits in the Public Ways, without charge
to the Town, to the extent space therein or thereon is reasonably available, and pursuant to all
applicable ordinances and codes. For purposes of this Subsection, "Town purposes" includes,
but is not limited to, the use of the structures and installations for fire, police, traffic, water,
telephone, or signal systems, but not for Cable Service in competition with Comcast. Comcast
shall not deduct the value of such use of its facilities from its Franchise Fee payments or from
other fees payable to the Town.
(B) Comcast acknowledges that the Public Ways have a finite capacity for containing conduit and facilities. Therefore, Comcast agrees that when the Town determines it is impracticable to permit construction of an underground conduit system by any other Person which may at the time
have authority to construct or maintain conduits or ducts in the Public Ways, but excluding
Persons providing Cable Service in competition with Comcast, the Town may require Comcast to
afford to such Person the right to use Comcast's surplus ducts or conduits in common with
Comcast, pursuant to the terms and conditions of an agreement for use of surplus ducts or
conduits entered into by Comcast and the other Person. Nothing herein shall require Comcast to
enter into an agreement with such Person if, in Comcast's reasonable determination, such an
agreement will compromise the integrity of the Cable System.
10.7 UNDERGROUNDING
Where electric and telephone utility wiring is underground, all Cable System lines, wiring and
equipment shall also be placed underground with other wireline service at no expense to the Town. Related equipment, such as pedestals, shall be placed in accordance with applicable Town requirements. In areas where either electric or telephone utility wiring are aerial, Comcast may
install aerial cable, except when a property owner or resident requests underground installation
and agrees to bear the additional cost in excess of aerial installation.
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 25 of 34
10.8 TREE TRIMMING
Comcast may prune or cause to be pruned, using proper pruning practices, any tree in any Public
Way which interferes with the Cable System. Comcast shall comply with all Town requirements
regarding tree trimming. Except in emergencies, Comcast may not prune trees at a point below
thirty (30) feet above sidewalk grade without seven (7) days prior written notice to the owner or
occupant of the premises abutting the Public Way in or over which the tree is growing. The
owner or occupant of the abutting premises may prune such tree at his or her own expense during
this one (1) week period. If the owner or occupant fails to do so, Comcast may prune such tree at
its own expense. For purposes of this Subsection, emergencies exist when it is necessary to
prune to protect the public or Comcast's facilities from imminent danger only.
10.9 GIS MAPPING
Comcast shall provide the Town with records of Comcast's trunk and distribution facilities in the Franchise Area in a standard geographic information (GIS) format within thirty (30) days of receipt of written request or longer if agreed to by the parties.
SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS
11.1 TECHNICAL PERFORMANCE
The technical performance of the Cable System shall meet or exceed all applicable technical
standards authorized or required by law, including FCC technical standards as they may be
amended from time to time, regardless of the transmission technology utilized. The Town shall
have the authority provided by law to enforce compliance with these technical standards.
11.2 CABLE SYSTEM PERFORMANCE TESTING
(A) Comcast shall, at its expense, perform all tests on the Cable System required by the FCC
(including FCC required test points located in the Franchise Area) and shall maintain written
records of its test results in accordance with FCC requirements. Copies of such test results shall
be provided to the Town upon request.
(B) All required tests may be witnessed by representatives of the Town. Upon request, Comcast will notify the Town before any required technical proof-of-performance or other
testing occurs.
(C) Comcast shall promptly take all necessary measures to correct any performance
deficiencies and prevent their recurrence. Sites shall be re-tested within five (5) days following
correction until correction has been confirmed and satisfactory results are obtained.
11.3 STANDBY POWER
Comcast shall provide standby power generating capacity at the Cable System Headend capable
of providing at least twelve (12) hours of emergency operation. Comcast shall maintain standby
power supplies that will supply back-up power of at least two (2) hours duration throughout the
distribution networks, and four (4) hours duration at all nodes and hubs.
SECTION 12. VIOLATIONS AND REVOCATION
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 26 of 34
12.1 PROCEDURE FOR REMEDYING VIOLATIONS
(A) If the Town believes that Comcast has failed to perform any material obligation of this
Agreement, the Town shall notify Comcast in writing, stating with specificity, the nature of the
alleged violation. Comcast shall have thirty (30) days from the receipt of such notice to:
(1) Respond to the Town, contesting the Town's assertion that a violation has
occurred, or notifying the Town that violation cannot be cured within thirty (30) days
because of the nature of the alleged violation, and requesting a hearing in accordance with
Subsection (B), below; or
(2) Cure the violation.
(B) If Comcast does not cure the violation within thirty (30) days, or denies the violation and
requests a hearing, the Town shall set a public hearing on the violation. The Town shall provide
not less than seven (7) days prior written notice of the hearing. At the hearing, Comcast shall be provided an opportunity to be heard, to present and question witnesses, and to present evidence in its defense.
(C) If, after considering the evidence presented at the public hearing, the Town Council
determines that a violation exists, the Town may order Comcast to remedy the violation within
fourteen (14) days or within such other reasonable timeframe agreed to by the parties. If
Comcast does not remedy the violation within such time to the Town's reasonable satisfaction,
the Town may:
(1) Assess and collect monetary damages in accordance with this Agreement;
(2) Terminate this Agreement; and/or,
(3) Pursue any other legal or equitable remedy available under this Agreement or
applicable law.
12.2 ALTERNATIVE REMEDIES
(A) No provision of this Agreement shall bar the right of either party to seek or obtain judicial relief from a violation of any provision of the Agreement or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this
Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of either
party to recover monetary damages, as allowed under applicable law, or to seek and obtain
judicial enforcement of obligations by means of specific performance, injunctive relief or
mandate, or any other remedy at law or in equity.
(B) The Town does not waive any right, immunity, limitation or protection otherwise
available to the Town, its officers, officials, Boards, commissions, agents, or employees under
any law, including without limitation Section 635A of the Cable Act. Comcast shall not have
any monetary recourse against the Town, or its officers, officials, Board, commissions, agents or
employees for any loss, costs, expenses or damages arising out of any provision of this
Agreement or the enforcement thereof, subject to applicable law.
12.3 LIQUIDATED DAMAGES
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 27 of 34
(A) The Town and Comcast recognize the delays, expense and unique difficulties involved in proving in a legal proceeding the actual loss suffered by the Town as a result of a violation by
Comcast of this Agreement. Accordingly, instead of requiring such proof of actual loss, the
Town and Comcast agree that Comcast shall pay to the Town the sums set forth in this
Subsection. Such amounts are agreed by both parties to be a reasonable estimate of the actual
damages the Town would suffer in the event of Comcast's violation.
(B) In addition to any other remedy, the Town in its sole discretion may, after following the
procedures as provided in this Section 12.1, charge to and collect from Comcast the following
liquidated damages per day, for each day, or part thereof, the violation continues:
(1) For failure to provide data, documents, reports or information or to cooperate with
the Town during an application process or Cable System review or as otherwise provided
herein: one hundred fifty dollars ($150).
(2) For failure to make timely PEG Fee or Franchise Fee payments: two hundred fifty dollars ($250).
(3) For failure to comply with any other provision of this Agreement or Customer
Service Standards or the Avon Town Code: one hundred fifty dollars ($150).
(C) Each violation shall be considered a separate violation for which separate liquidated
damages can be imposed. In no event shall liquidated damages be imposed for a period greater
than 120 days.
(D) Comcast shall have thirty (30) days to pay the liquidated damages. If not so paid, the
Town may draw on any bond or Letter of Credit. The Town shall give Comcast written notice of
any such draw, and within seven (7) days of such notice, Comcast shall restore the bond or Letter
of Credit to the amount required under this Agreement.
12.4 REVOCATION
(A) The franchise provided by this Agreement may be revoked and all rights and privileges rescinded if a material breach of the Agreement is not cured, or in the event that:
(1) Comcast attempts to evade any material provision of this Agreement or to practice
any fraud or deceit upon the Town or Customers;
(2) Comcast makes a material misrepresentation of fact in the negotiation of this
Agreement;
(3) Comcast abandons the Cable System, or terminates the Cable System's operations;
(4) Comcast fails to restore service to the Cable System after three (3) consecutive
days of an outage or interruption in service; except in the case of an emergency or during
a force majeure occurrence, or when approval of such outage or interruption is obtained
from the Town; or
(5) Comcast becomes insolvent, unable or unwilling to pay its debts, or is adjudged
bankrupt, there is an assignment for the benefit of Comcast's creditors, or all or part of
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 28 of 34
Cable System is sold under an instrument to secure a debt and is not redeemed by Comcast within thirty (30) days from said sale.
(B) Additionally, the franchise granted in this Agreement may be revoked one hundred
twenty (120) days after the appointment of a receiver or trustee to conduct the business of
Comcast, at the option of the Town and subject to applicable law, whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless directed otherwise by a court of
competent jurisdiction.
(C) If there is a foreclosure or other involuntary sale of the whole or any part of the plant,
property and equipment of Comcast, the Town may serve notice of revocation on Comcast and to
the purchaser at the sale, and the rights and privileges of Comcast under this Agreement shall be
revoked thirty (30) days after service of such notice, unless:
(1) The Town has approved the transfer of the Agreement, in accordance with the procedures set forth in this Agreement and as provided by law; and
(2) The transferee has agreed to assume and be bound by all terms of this Agreement.
12.5 PURCHASE OF THE CABLE SYSTEM If at any time this Agreement lawfully terminates, the Town shall have the option to purchase the
Cable System; provided that nothing in this Agreement shall limit or expand the Town’s right of
eminent domain under State law.
SECTION 13. TRANSFER
13.1 TRANSFER OF OWNERSHIP OR CONTROL
(A) The Cable System and this Agreement shall not be sold, assigned, transferred, leased or
disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or
consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property
therein pass to or vest in any Person or entity without the prior written consent of the Town,
which consent shall be by the Town Council, acting by ordinance or resolution.
(B) Comcast shall promptly notify the Town of any actual or proposed change in control of Comcast. The word "control" as used herein is defined as an acquisition of 51% or greater
ownership interest in Comcast. Such change of control of Comcast shall make this Agreement
subject to cancellation unless and until the Town has consented in writing.
(C) The parties to the transfer shall make a written request to the Town for its approval of a
sale or transfer or change in control and shall furnish all information required by law.
(D) In seeking the Town's consent to any transfer, the proposed transferee or controlling entity
shall indicate whether it:
(1) Has ever been convicted or held liable for acts involving deceit including any
violation of federal, State or local law or regulations, or is currently under an indictment,
investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction;
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 29 of 34
(3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a Cable System or the provision of Cable Services;
(4) Is financially solvent, by submitting financial data including financial statements
that are audited by a certified public accountant who may also be an officer of the
transferee or controlling entity, along with any other data that is lawfully required; and
(5) Has the financial, legal and technical capability to enable it to maintain and
operate the Cable System for the remaining term of the Agreement.
(E) The proposed transferee shall provide complete information regarding any potential
impact of the transaction on Customer rates and service, as well as any other documentation
reasonably related to the proposed transaction and consistent with applicable law which, in the
reasonable discretion of the Town are necessary to understand the proposed transaction.
(F) The Town shall act on the request within one hundred twenty (120) days of receipt of the FCC Form 394 application and all information expressly required by this Agreement and applicable law, provided it has received a complete application. Subject to the foregoing, if the
Town fails to render a final decision on the request within one hundred twenty (120) days, such
request shall be deemed granted unless the requesting party and the Town agree to an extension
of time.
(G) Within thirty (30) days of any transfer, Comcast shall file with the Town a copy of the
deed, agreement, lease or other written instrument evidencing such transfer, certified correct by
Comcast and the transferee, and the transferee shall file its written acceptance agreeing to be
bound by all terms of this Agreement, subject to applicable law. In the event of a change in
control in which Comcast is not replaced by another entity, Comcast will continue to be bound
by all terms of the Agreement, subject to applicable law, and will not be required to file an
additional written acceptance. The approval of any transfer shall not waive any rights of Town to
subsequently enforce noncompliance issues relating to this Agreement. If a change of control involves an entity that was not an Affiliate prior to the contemplated transaction, the Town's consent shall be required for such change in control.
(H) In reviewing a transfer request, the Town may inquire into the legal, technical and
financial qualifications of the transferee, and Comcast shall assist the Town in so inquiring. The
Town may condition said transfer upon such terms as it deems reasonably appropriate, consistent
with applicable law and reasonably related to the qualifications of the prospective transferee to
comply with this Agreement or the resolution of outstanding and unresolved issues of
noncompliance with this Agreement by Comcast.
(I) Notwithstanding anything to the contrary in this Subsection, the prior approval of the
Town shall not be required for any sale, assignment or transfer of the Agreement or the Cable
System to an intra-company entity controlling, controlled by or under the same common control
as Comcast, provided that the proposed assignee or transferee shall show financial responsibility as may be determined necessary by the Town and shall agree in writing to comply with all provisions of the Agreement. Further, Comcast may pledge the assets of the Cable System for
the purpose of financing without the consent of the Town; provided that such pledge of assets
shall not mitigate Comcast's responsibilities to meet its obligations under this Agreement.
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 30 of 34
SECTION 14. MISCELLANEOUS
14.1 CUMULATIVE RIGHTS
Subject to applicable law, all rights and remedies given to the Town or retained by the Town in
this Agreement shall be in addition to and cumulative with any and all other rights and remedies,
existing or implied, now or hereafter available to the Town, at law or in equity, and such rights
and remedies shall not be exclusive, but every right and remedy given by this Agreement or
otherwise existing may be exercised as often and in such order as deemed expedient by the
Town, and the exercise of one right or remedy shall not be deemed a waiver of the right to
exercise at the same time or thereafter any other right or remedy.
14.2 COSTS TO BE BORNE BY COMCAST
Comcast shall pay for all costs of publication of this Agreement, and any and all notices prior to
any public meeting or hearing provided for pursuant to this Agreement in accordance with the Avon Town Code or Charter.
14.3 BINDING EFFECT
This Agreement shall be binding upon the parties hereto, their permitted successors, transferees
and assigns.
14.4 MODIFICATION
This Agreement may be modified only by written agreement between the parties.
14.5 REGULATORY CHANGES
In the event there is any change to the Cable Act during the term of this Agreement which has the
effect of expanding or reducing a municipality’s regulatory authority, with regard to: the
franchise fee or other fees, required minimum technology standards, minimum public access
channels, minimum service standards, or regulation of combined or expanded cable based
services, including but not limited to phone and internet, then the Town or Comcast may initiate
re-negotiation of this Agreement to incorporate such changes into this Agreement as may be mutually determined by the parties. Town or Comcast shall initiate re-negotiation by tendering written notice to the other party, which written notice shall describe the specific changes to be
incorporated into the Agreement. In the event that Town and Comcast do not successfully
conclude a renegotiation by the end of one (1) year after the date of the written notice to initiate
renegotiation, or such longer time for renegotiation as the parties may mutually agree, then the
Town or Comcast may elect to terminate this Agreement, provided that the Town or Comcast
shall provide at least one (1) additional year’s prior written notice to the other party of the early
termination of this Agreement in accordance with this Section 14.5.
14.6 GOVERNING LAW AND VENUE
This Agreement shall be governed, construed and enforced in accordance with the laws of the
State of Colorado, the Cable Act, as amended, any applicable rules, regulations and orders of the
FCC, as amended, and any other applicable local, State and federal laws, rules, and regulations. The venue for any dispute related to a violation of this Agreement shall be in an appropriate state court of competent jurisdiction in Eagle County, Colorado.
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 31 of 34
14.7 NO JOINT VENTURE
Nothing herein shall be deemed to create a joint venture or principal-agent relationship between
the parties, and neither party is authorized to, nor shall either party act toward third persons or the
public in any manner that would indicate any such relationship with the other.
14.8 WAIVER
The failure of either party at any time to require performance by the other of any provision hereof
shall in no way affect the right of the other party hereafter to enforce the same. Nor shall the
waiver by either party of any breach of any provision hereof be taken or held to be a waiver of
any succeeding breach of such provision, or as a waiver of the provision itself or any other
provision.
14.9 SEVERABILITY
If any provision of this Agreement is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other provision of this Agreement.
14.10 FORCE MAJEURE
Comcast shall not be held in violation of this Agreement for any act caused by circumstances
reasonably beyond the ability of Comcast to anticipate and control, including war, riots, civil
disturbances, floods, severe adverse weather conditions or other natural catastrophes, labor
stoppages or power outages exceeding back-up power supplies.
14.11 ENTIRE AGREEMENT
This Agreement represents the entire understanding and agreement between the parties hereto
with respect to the subject matter hereof and supersede all prior oral and written negotiations
between the parties.
14.12 NOTICES
Each party shall maintain and file with the other a local address for the service of notices by mail. All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing. On the Effective Date, the following are the addressed on file:
Comcast: With a copy to:
Comcast Comcast
8000 East Iliff Avenue 281 Metcalf Road, Suite 110 Denver, CO 80231 Avon, CO 81620 Attn: Government Affairs Attn: General Manager
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 32 of 34
Town: With a copy to:
Town of Avon Town of Avon
1 Lake Street 1 Lake Street
Avon, CO 81620 Avon, CO 81620
Attn: Town Manager Attn: Town Attorney
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
ORDINANCE NO. 14-15 Page 33 of 34
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above.
TOWN OF AVON, COLORADO
_______________________________
Mayor
ATTEST:
__________________________________
Town Clerk
APPROVED AS TO FORM:
__________________________________
Town Attorney
COMCAST OF COLORADO VII, LLC
__________________________________
By: _______________________________
Its: _______________________________
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TOWN OF AVON
CUSTOMER SERVICE STANDARDS
I. POLICY
The Cable Operator should resolve citizen complaints without delay and interference from the Franchising Authority.
Where a given complaint is not addressed by the Cable Operator to the citizen's satisfaction, the
Franchising Authority should intervene. In addition, where a pattern of unremedied complaints or noncompliance with the Standards is identified, the Franchising Authority should prescribe a cure and establish a reasonable deadline for implementation of the cure. If the noncompliance is not cured within
established deadlines, monetary sanctions should be imposed to encourage compliance and deter future
non-compliance.
These Standards are intended to be of general application, and are expected to be met under normal
operating conditions; however, the Cable Operator shall be relieved of any obligations hereunder if it is
unable to perform due to a region-wide natural emergency or in the event of force majeure affecting a
significant portion of the franchise area. The Cable Operator is free to exceed these Standards to the
benefit of its Customers and such shall be considered performance for the purposes of these Standards.
These Standards supercede any contradictory or inconsistent provision in federal, state or local law
(Source: 47 U.S.C. § 552(a)(1) and (d)), provided, however, that any provision in federal, state or local
law, or in any original franchise agreement or renewal agreement, that imposes a higher obligation or
requirement than is imposed by these Standards, shall not be considered contradictory or inconsistent with these Standards. In the event of a conflict between these Standards and a Franchise Agreement,
the Franchise Agreement shall control.
These Standards apply to the provision of any Cable Service, provided by a Cable Operator over a Cable System, within the Town of Avon.
II. DEFINITIONS
When used in these Customer Service Standards (the "Standards"), the following words, phrases, and terms shall have the meanings given below.
"Adoption" shall mean the process necessary to formally enact the Standards within the Franchising
Authority's jurisdiction under applicable ordinances and laws.
"Affiliate" shall mean any person or entity that is owned or controlled by, or under common ownership
or control with, a Cable Operator, and provides any Cable Service or Other Service.
“Applicable Law” means, with respect to these standards and any Cable Operator’s privacy policies, any
statute, ordinance, judicial decision, executive order or regulation having the force and effect of law, that determines the legal standing of a case or issue.
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"Cable Operator" shall mean any person or group of persons (A) who provides Cable Service over a
Cable System and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System. Source: 47 U.S.C. § 522(5).
“Cable Service” shall mean (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Source: 47 U.S.C. § 522(6). For
purposes of this definition, “video programming” is programming provided by, or generally considered
comparable to programming provided by a television broadcast station. Source: 47 U.S.C. § 522(20).
“Other programming service” is information that a Cable Operator makes available to all subscribers generally. Source: 47 U.S.C. § 522(14).
“Cable System” shall mean a facility, consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is designed to provide Cable Service which
includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the televisions signals of one or
more television broadcast stations, or (B) a facility that serves subscribers without using any public right
of way. Source: 47 U.S.C. § 522(7).
“Contractor” shall mean a person or entity that agrees by contract to furnish materials or perform services for another at a specified consideration.
"Customer" shall mean any person who receives any Cable Service from a Cable Operator.
"Customer Service Representative" (or "CSR") shall mean any person employed with or under contract or subcontract to a Cable Operator to assist, or provide service to, customers, whether by telephone,
writing service or installation orders, answering customers' questions in person, receiving and
processing payments, or performing any other customer service-related tasks.
“Escalated complaint” shall mean a complaint that is referred to a Cable Operator by the Franchising Authority.
"Franchising Authority" shall mean the Town of Avon.
"Necessary" shall mean required or indispensable.
"Non-cable-related purpose" shall mean any purpose that is not necessary to render or conduct a
legitimate business activity related to a Cable Service or Other Service provided by a Cable Operator to
a Customer. Market research, telemarketing, and other marketing of services or products that are not related to a Cable Service or Other Service provided by a Cable Operator to a Customer shall be
considered Non-cable-related purposes.
“Normal business hours” shall mean those hours during which most similar businesses in the community
are open to serve customers. In all cases, “normal business hours” must include at least some evening hours one night per week, and include some weekend hours. Source: 47 C.F.R. § 76.309.
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“Normal operating conditions” shall mean those service conditions which are within the control of a
Cable Operator. Conditions which are not within the control of a Cable Operator include, but are not necessarily limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Conditions which are ordinarily within the control of a Cable
Operator include, but are not necessarily limited to, special promotions, pay-per-view events, rate
increases, regular peak or seasonal demand periods and maintenance or upgrade to the Cable System. “Other Service(s)” shall mean any wire or radio communications service provided using any of the
facilities of a Cable Operator that are used in the provision of Cable Service.
"Personally Identifiable Information" shall mean specific information about an identified Customer, including, but not be limited to, a Customer's (a) login information for the use of Cable Service and management of a Customer’s Cable Service account, (b) extent of viewing of video programming or
Other Services, (c) shopping choices, (d) interests and opinions, (e) energy uses, (f) medical
information, (g) banking data or information, or (h) any other personal or private information.
"Personally Identifiable Information" shall not mean any aggregate information about Customers which does not identify particular persons, or information gathered by a Cable Operator necessary to install, repair or service equipment or Cable System facilities at a Customer’s premises.
“Service interruption” or “interruption” shall mean (i) the loss or substantial impairment of picture
and/or sound on one or more cable television channels. “Service outage” or “outage” shall mean a loss or substantial impairment in reception on all channels.
“Subcontractor” shall mean a person or entity that enters into a contract to perform part or all of the
obligations of another's contract.
"Town" shall mean the Town of Avon, Colorado.
“Writing” or “written” as the term applies to notification shall include electronic communications.
Any terms not specifically defined in these Standards shall be given their ordinary meaning, or where
otherwise defined in applicable federal law, such terms shall be interpreted consistent with those
definitions.
III. CUSTOMER SERVICE
A. Courtesy
Cable Operator employees, contractors and subcontractors shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with customers. B. Accessibility
1. A Cable Operator shall provide customer service centers/business offices (“Service Centers”) which are conveniently located, and which are open during Normal Business Hours. Service Centers shall be
fully staffed with Customer Service Representatives offering the following services to Customers who
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come to the Service Center: bill payment, equipment exchange, processing of change of service
requests, and response to Customer inquiries and request. Unless otherwise requested by the Town, a Cable Operator shall post a sign at each Service Center,
visible from the outside of the Service Center, advising Customers of its hours of operation and of the
telephone number at which to contact the Cable Operator if the Service Center is not open at the times
posted. The Cable Operator shall use commercially reasonable efforts to implement and promote “self-help”
tools and technology, in order to respond to the growing demand of Customers who wish to interact with
the Cable Operator on the Customer’s own terms and timeline and at their own convenience, without
having to travel to a Service Center. Without limitation, examples of self-help tools or technology may include self-installation kits to Customers upon request; pre-paid mailers for the return of equipment upon Customer request; an automated phone option for Customer bill payments; and equipment
exchanges at a Customer’s residence in the event of damaged equipment. A Cable Operator shall
provide free exchanges of faulty equipment at the customer's address if the equipment has not been
damaged in any manner due to the fault or negligence of the customer. 2. A Cable Operator shall maintain local telephone access lines that shall be available twenty-four (24)
hours a day, seven (7) days a week for service/repair requests and billing/service inquiries.
3. A Cable Operator shall have dispatchers and technicians on call twenty-four (24) hours a day, seven (7) days a week, including legal holidays.
4. If a customer service telephone call is answered with a recorded message providing the customer with
various menu options to address the customer’s concern, the recorded message must provide the customer the option to connect to and speak with a CSR within sixty (60) seconds of the commencement of the recording. During Normal Business Hours, a Cable Operator shall retain sufficient customer
service representatives and telephone line capacity to ensure that telephone calls to technical
service/repair and billing/service inquiry lines are answered by a customer service representative within
thirty (30) seconds or less from the time a customer chooses a menu option to speak directly with a CSR or chooses a menu option that pursuant to the automated voice message, leads to a direct connection
with a CSR. Under normal operating conditions, this thirty (30) second telephone answer time
requirement standard shall be met no less than ninety (90) percent of the time measured quarterly.
5. Under normal operating conditions, a customer shall not receive a busy signal more than three percent (3%) of the time. This standard shall be met ninety (90) percent or more of the time, measured
quarterly.
C. Responsiveness
1. Guaranteed Seven-Day Residential Installation
a. A Cable Operator shall complete all standard residential installations or modifications to
service requested by customers within seven (7) business days after the order is placed, unless a later date for installation is requested. "Standard" residential installations are those located up to one hundred twenty five (125) feet from the existing distribution system. If the customer requests a nonstandard
residential installation, or the Cable Operator determines that a nonstandard residential installation is
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required, the Cable Operator shall provide the customer in advance with a total installation cost estimate
and an estimated date of completion. b. All underground cable drops to the home shall be buried at a depth of no less than twelve
inches (12"), or such other depth as may be required by the Franchise Agreement or local code
provisions, or if there are no applicable Franchise or code requirements, at such other depths as may be agreed to by the parties if other construction concerns preclude the twelve inch requirement , and within no more than one calendar week from the initial installation, or at a time mutually agreed upon between
the Cable Operator and the customer.
2. Residential Installation and Service Appointments a. The “appointment window” alternatives for specific installations, service calls, and/or other
installation activities will be either a specific time, or at a maximum, a four (4) hour time block between
the hours of 8:00 a.m. and 6:00 p.m., six (6) days per week. A Cable Operator may schedule service
calls and other installation activities outside of the above days and hours for the express convenience of customers. For purposes of this subsection “appointment window” means the period of time in which
the representative of the Cable Operator must arrive at the customer’s location.
b. A Cable Operator may not cancel an appointment with a customer after the close of business
on the business day prior to the scheduled appointment, unless the customer’s issue has otherwise been resolved.
c. If a Cable Operator is running late for an appointment with a customer and will not be able to
keep the appointment as scheduled, the Cable Operator shall take reasonable efforts to contact the
customer promptly, but in no event later than the end of the appointment window. The appointment will be rescheduled, as necessary at a time that is convenient to the customer, within Normal Business Hours
or as may be otherwise agreed to between the customer and Cable Operator.
d. A Cable Operator shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives within the agreed upon time, and, if the customer is absent when the technician arrives, the technician leaves written notification of arrival and return time,
and a copy of that notification is kept by the Cable Operator. In such circumstances, the Cable Operator
shall contact the customer within forty-eight (48) hours.
3. Residential Service Interruptions
a. In the event of system outages resulting from Cable Operator equipment failure, the Cable
Operator shall correct such failure within 2 hours after the 3rd customer call is received.
b. All other service interruptions resulting from Cable Operator equipment failure shall be
corrected by the Cable Operator by the end of the next calendar day.
c. Records of Complaints.
i. A Cable Operator shall keep an accurate and comprehensive file of any
complaints regarding the cable system or its operation of the cable system, in a manner
consistent with the privacy rights of customers, and the Cable Operator's actions in response to
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those complaints. These files shall remain available for viewing by the Franchising Authority
during normal business hours at the Cable Operator’s business office, and shall be retained by the Cable Operator for a period of at least three (3) years.
ii. Upon written request a Cable Operator shall provide the Franchising Authority an
executive summary quarterly, which shall include information concerning customer complaints referred by the Franchising Authority to the Grantee and any other requirements of a Franchise Agreement but no personally identifiable information. These summaries shall be provided within
fifteen (15) days after the end of each quarter. Once a request is made, it need not be repeated
and quarterly executive summaries shall be provided by the Cable Operator until notified in
writing by the Franchising Authority that such summaries are no longer required. iii. Upon written request a summary of service requests, identifying the number and
nature of the requests and their disposition, shall also be completed by the Cable Operator for
each quarter and submitted to the Franchising Authority by the fifteenth (15th) day of the month
after each calendar quarter. Once a request is made, it need not be repeated and quarterly summary of service requests shall be provided by the Cable Operator until notified in writing by
the Franchising Authority that such summaries are no longer required. Complaints shall be
broken out by the nature of the complaint and the type of Cable service subject to the complaint.
d. Records of Service Interruptions and Outages. A Cable Operator shall maintain records of all outages and reported service interruptions. Such records shall indicate the type of cable service
interrupted, including the reasons for the interruptions. A log of all service interruptions shall be
maintained and provided to the Franchising Authority quarterly, upon written request, within fifteen (15)
days after the end of each quarter. Such records shall be submitted to the Franchising Authority with the
records identified in Section 3.c.ii above if so requested in writing, and shall be retained by the Cable Operator for a period of three (3) years.
e. All service outages and interruptions for any cause beyond the control of the Cable Operator
shall be corrected within thirty-six (36) hours, after the conditions beyond its control have been corrected.
4. TV Reception
a. A Cable Operator shall provide clear television reception that meets or exceeds technical standards established by the United States Federal Communications Commission (the "FCC"). A Cable Operator shall render efficient service, make repairs promptly, and interrupt service only for good cause
and for the shortest time possible. Scheduled interruptions shall be preceded by notice and shall occur
during periods of minimum use of the system, preferably between midnight and six a.m. (6:00 a.m.).
b. If a customer experiences poor video or audio reception attributable to a Cable Operator's
equipment, the Cable Operator shall:
i. Assess the problem within one (1) day of notification;
ii. Communicate with the customer regarding the nature of the problem and the
expected time for repair;
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iii. Complete the repair within two (2) days of assessing the problem unless
circumstances exist that reasonably require additional time. c. If an appointment is necessary to address any video or audio reception problem, the
customer may choose a block of time described in Section III.C.2.a. At the customer's request, the Cable
Operator shall repair the problem at a later time convenient to the customer, during Normal Business Hours or at such other time as may be agreed to by the customer and Cable Operator. A Cable Operator shall maintain periodic communications with a customer during the time period in which problem
ascertainment and repair are ongoing, so that the customer is advised of the status of the Cable
Operator’s efforts to address the problem.
5. Problem Resolution
A Cable Operator's customer service representatives shall have the authority to provide credit for
interrupted service, to waive fees, to schedule service appointments and to change billing cycles, where
appropriate. Any difficulties that cannot be resolved by the customer service representative shall be referred to the appropriate supervisor who shall contact the customer within four (4) hours and resolve
the problem within forty eight (48) hours or within such other time frame as is acceptable to the
customer and the Cable Operator.
6. Billing, Credits, and Refunds
a. In addition to other options for payment of a customer’s service bill, a Cable Operator shall
make available a telephone payment option where a customer without account irregularities can enter
payment information through an automated system, without the necessity of speaking to a CSR.
b. A Cable Operator shall allow at least thirty (30) days from the beginning date of the applicable
service period for payment of a customer's service bill for that period. If a customer's service bill is not
paid within that period of time the Cable Operator may apply an administrative fee to the customer's
account. The administrative fee must reflect the average costs incurred by the Cable Operator in attempting to collect the past due payment in accordance with applicable law. If the customer's service bill is not paid within forty-five (45) days of the beginning date of the applicable service period, the
Cable Operator may perform a "soft" disconnect of the customer's service. If a customer's service bill is
not paid within fifty-two (52) days of the beginning date of the applicable service period, the Cable
Operator may disconnect the customer's service, provided it has provided two (2) weeks notice to the customer that such disconnection may result.
c. The Cable Operator shall issue a credit or refund to a customer within 30 days after
determining the customer's entitlement to a credit or refund.
d. Whenever the Cable Operator offers any promotional or specially priced service(s) its
promotional materials shall clearly identify and explain the specific terms of the promotion, including
but not limited to manner in which any payment credit will be applied.
7. Treatment of Property
To the extent that a Franchise Agreement does not contain the following procedures for treatment of
property, Operator shall comply with the procedures set forth in this Section.
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a. A Cable Operator shall keep tree trimming to a minimum; trees and shrubs or other landscaping that are damaged by a Cable Operator, any employee or agent of a Cable Operator during installation or construction shall be restored to their prior condition or replaced within seven (7) days,
unless seasonal conditions require a longer time, in which case such restoration or replacement shall be
made within seven (7) days after conditions permit. Trees and shrubs on private property shall not be removed without the prior permission of the owner or legal tenant of the property on which they are located. This provision shall be in addition to, and shall not supersede, any requirement in any franchise
agreement.
b. A Cable Operator shall, at its own cost and expense, and in a manner approved by the property owner and the Franchising Authority, restore any private property to as good condition as before the work causing such disturbance was initiated. A Cable Operator shall repair, replace or compensate a
property owner for any damage resulting from the Cable Operator's installation, construction, service or
repair activities. If compensation is requested by the customer for damage caused by any Cable Operator
activity, the Cable Operator shall reimburse the property owner one hundred (100) percent of the actual cost of the damage.
c. Except in the case of an emergency involving public safety or service interruption to a large
number of customers, a Cable Operator shall give reasonable notice to property owners or legal tenants
prior to entering upon private premises, and the notice shall specify the work to be performed; provided that in the case of construction operations such notice shall be delivered or provided at least twenty-four
(24) hours prior to entry, unless such notice is waived by the customer. For purposes of this subsection,
“reasonable notice” shall be considered:
i. For pedestal installation or similar major construction, seven (7) days.
ii. For routine maintenance, such as adding or dropping service, tree trimming and
the like, reasonable notice given the circumstances. Unless a Franchise Agreement has a
different requirement, reasonable notice shall require, at a minimum, prior notice to a property owner or tenant, before entry is made onto that person’s property.
iii. For emergency work a Cable Operator shall attempt to contact the property owner
or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not
made. Door hangars must describe the issue and provide contact information where the property owner or tenant can receive more information about the emergency work.
Nothing herein shall be construed as authorizing access or entry to private property, or any other
property, where such right to access or entry is not otherwise provided by law.
d. Cable Operator personnel shall clean all areas surrounding any work site and ensure that all
cable materials have been disposed of properly.
D. Services for Customers with Disabilities
1. For any customer with a disability, a Cable Operator shall deliver and pick up equipment at
customers' homes at no charge unless the malfunction was caused by the actions of the customer. In the
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case of malfunctioning equipment, the technician shall provide replacement equipment, hook it up and
ensure that it is working properly, and shall return the defective equipment to the Cable Operator. 2. A Cable Operator shall provide either TTY, TDD, TYY, VRS service or other similar service that are
in compliance with the Americans With Disabilities Act and other applicable law, with trained operators
who can provide every type of assistance rendered by the Cable Operator's customer service representatives for any hearing-impaired customer at no charge.
3. A Cable Operator shall provide free use of a remote control unit to mobility-impaired (if disabled, in
accordance with Section III.D.4) customers.
4. Any customer with a disability may request the special services described above by providing a Cable Operator with a letter from the customer's physician stating the need, or by making the request to the
Cable Operator's installer or service technician, where the need for the special services can be visually
confirmed.
E. Cable Services Information
1. At any time a customer or prospective customer may request, a Cable Operator shall provide the
following information, in clear, concise written form, easily accessible and located on Cable Operator’s
website (and in Spanish, when requested by the customer):
a. Products and services offered by the Cable Operator, including its channel lineup;
b. The Cable Operator's complete range of service options and the prices for these services;
c. The Cable Operator's billing, collection and disconnection policies;
d. Privacy rights of customers;
e. All applicable complaint procedures, including complaint forms and the telephone numbers and mailing addresses of the Cable Operator, and the FCC;
f. Use and availability of parental control/lock out device;
g. Special services for customers with disabilities;
h. Days, times of operation, and locations of the service centers;
2. At a Customer’s request, a Cable Operator shall make available either a complete copy of these Standards and any other applicable customer service standards, or a summary of these Standards, in a
format to be approved by the Franchising Authority, which shall include at a minimum, the URL address
of a website containing these Standards in their entirety; provided however, that if the Franchising
Authority does not maintain a website with a complete copy of these Standards, a Cable Operator shall
be under no obligation to do so;
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If acceptable to a customer, Cable Operator may fulfill customer requests for any of the information
listed in this Section by making the requested information available electronically, such as on a website or by electronic mail.
3. Upon written request, a Cable Operator shall meet annually with the Franchising Authority to review
the format of the Cable Operator’s bills to customers. Whenever the Cable Operator makes substantial changes to its billing format, it will contact the Franchising Authority at least thirty (30) days prior to the time such changes are to be effective, in order to inform the Franchising Authority of such changes.
4. Copies of notices provided to the customer in accordance with subsection 5 below shall be filed (by
fax or email acceptable) concurrently with the Franchising Authority. 5. A Cable Operator shall provide customers with written notification of any change in rates for
nondiscretionary cable services, and for service tier changes that result in a deletion of programming
from a customer’s service tier, at least thirty (30) days before the effective date of change. For purposes
of this section, “nondiscretionary” means the subscribed tier and any other Cable Services that a customer has subscribed to, at the time the change in rates are announced by the Cable Operator.
6. All officers, agents, and employees of the Cable Operator or its contractors or subcontractors who are
in personal contact with customers and/or when working on public property, shall wear on their outer
clothing identification cards bearing their name and photograph and identifying them as representatives of the Cable Operator. The Cable Operator shall account for all identification cards at all times. Every
vehicle of the Cable Operator shall be clearly visually identified to the public as working for the Cable
Operator. Whenever a Cable Operator work crew is in personal contact with customers or public
employees, a supervisor must be able to communicate clearly with the customer or public employee.
Every vehicle of a subcontractor or contractor shall be labeled with the name of the contractor and further identified as contracting or subcontracting for the Cable Operator.
7. Each CSR, technician or employee of the Cable Operator in each contact with a customer shall state
the estimated cost of the service, repair, or installation orally prior to delivery of the service or before any work is performed, and shall provide the customer with an oral statement of the total charges before terminating the telephone call or before leaving the location at which the work was performed. A
written estimate of the charges shall be provided to the customer before the actual work is performed.
F. Customer Privacy 1. Cable Customer Privacy. In addition to complying with the requirements in this subsection, a Cable
Operator shall fully comply with all obligations under 47 U.S.C. Section 551.
2. Collection and Use of Personally Identifiable Information.
a. A Cable Operator shall not use the Cable System to collect, monitor or observe Personally
Identifiable Information without the prior affirmative written or electronic consent of the Customer
unless, and only to the extent that such information is: (i) used to detect unauthorized reception of cable
communications, or (ii) necessary to render a Cable Service or Other Service provided by the Cable Operator to the Customer and as otherwise authorized by applicable law.
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b. A Cable Operator shall take such actions as are necessary using then-current industry standard
practices to prevent any Affiliate from using the facilities of the Cable Operator in any manner, including, but not limited to, sending data or other signals through such facilities, to the extent such use will permit an Affiliate unauthorized access to Personally Identifiable Information on equipment of a
Customer (regardless of whether such equipment is owned or leased by the Customer or provided by a
Cable Operator) or on any of the facilities of the Cable Operator that are used in the provision of Cable
Service. This subsection F.2.b shall not be interpreted to prohibit an Affiliate from obtaining access to Personally Identifiable Information to the extent otherwise permitted by this subsection F.
c. A Cable Operator shall take such actions as are necessary using then-current industry standard
practices to prevent a person or entity (other than an Affiliate) from using the facilities of the Cable
Operator in any manner, including, but not limited to, sending data or other signals through such facilities, to the extent such use will permit such person or entity unauthorized access to Personally Identifiable Information on equipment of a Customer (regardless of whether such equipment is owned or
leased by the Customer or provided by a Cable Operator) or on any of the facilities of the Cable
Operator that are used in the provision of Cable Service.
3. Disclosure of Personally Identifiable Information. A Cable Operator shall not disclose Personally
Identifiable Information without the prior affirmative written or electronic consent of the Customer,
unless otherwise authorized by applicable law.
a. A minimum of thirty (30) days prior to making any disclosure of Personally Identifiable Information of any Customer for any Non-Cable related purpose as provided in this subsection F.3.a,
where such Customer has not previously been provided the notice and choice provided for in subsection
III.F.9, the Cable Operator shall notify each Customer (that the Cable Operator intends to disclose
information about) of the Customer's right to prohibit the disclosure of such information for Non-cable
related purposes. The notice to Customers may reference the Customer to his or her options to state a preference for disclosure or non-disclosure of certain information, as provided in subsection III.F.10.
b. A Cable Operator may disclose Personally Identifiable Information only to the extent that it is
necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service
provided by the Cable Operator to the Customer.
c. To the extent authorized by applicable law, a Cable Operator may disclose Personally
Identifiable Information pursuant to a subpoena, court order, warrant or other valid legal process
authorizing such disclosure.
4. Access to Information. Any Personally Identifiable Information collected and maintained by a Cable
Operator shall be made available for Customer examination within thirty (30) days of receiving a
request by a Customer to examine such information about himself or herself at the local offices of the
Cable Operator or other convenient place within the Town designated by the Cable Operator, or
electronically, such as over a website. Upon a reasonable showing by the Customer that such Personally Identifiable Information is inaccurate, a Cable Operator shall correct such information.
5. Privacy Notice to Customers
a. A Cable Operator shall annually mail or provide a separate, written or electronic copy of the privacy statement to Customers consistent with 47 U.S.C. Section 551(a)(1), and shall provide a
12
Customer a copy of such statement at the time the Cable Operator enters into an agreement with the
Customer to provide Cable Service. The written notice shall be in a clear and conspicuous format, which at a minimum, shall be in a comparable font size to other general information provided to Customers about their account as it appears on either paper or electronic Customer communications.
b. In or accompanying the statement required by subsection F.5.a, a Cable Operator shall state
substantially the following message regarding the disclosure of Customer information: "Unless a Customer affirmatively consents electronically or in writing to the disclosure of personally identifiable information, any disclosure of personally identifiable information for purposes other than to the extent
necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other
Service, is limited to:
i. Disclosure pursuant to valid legal process authorized by applicable law.
ii. Disclosure of the name and address of a Customer subscribing to any general
programming tiers of service and other categories of Cable Services provided by the Cable
Operator that do not directly or indirectly disclose: (A) A Customer's extent of viewing of a Cable Service or Other Service provided by the Cable Operator; (B) The extent of any other use by a Customer of a Cable Service; (C) The nature of any transactions made by a Customer over
the Cable System; or (D) The nature of programming or websites that a Customer subscribes to
or views (i.e., a Cable Operator may only disclose the fact that a person subscribes to a general
tier of service, or a package of channels with the same type of programming), provided that with respect to the nature of websites subscribed to or viewed, these are limited to websites accessed by a Customer in connection with programming available from their account for Cable
Services.”
The notice shall also inform the Customers of their right to prohibit the disclosure of their names and addresses in accordance with subsection F.3.a. If a Customer exercises his or her right to prohibit the disclosure of name and address as provided in subsection F.3.a or this subsection, such prohibition
against disclosure shall remain in effect, unless and until the Customer subsequently changes their
disclosure preferences as described in subsection F.9 below.
6. Privacy Reporting Requirements. The Cable Operator shall include in its regular periodic reports to
the Franchising Authority required by its Franchise Agreement information summarizing:
a. The type of Personally Identifiable Information that was actually collected or disclosed by
Cable Operator during the reporting period; b. For each type of Personally Identifiable Information collected or disclosed, a statement from
an authorized representative of the Cable Operator certifying that the Personally Identifiable Information
collected or disclosed was: (A) collected or disclosed to the extent Necessary to render, or conduct a
legitimate business activity related to, a Cable Service or Other Service provided by the Cable Operator; (B) used to the extent Necessary to detect unauthorized reception of cable communications: (C) disclosed pursuant to valid legal process authorized by applicable law; or (D) a disclosure of Personally
Identifiable Information of particular subscribers, but only to the extent affirmatively consented to by
such subscribers in writing or electronically, or as otherwise authorized by applicable law.
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c. The standard industrial classification (SIC) codes or comparable identifiers pertaining to any
entities to whom such Personally Identifiable Information was disclosed, except that a Cable Operator need not provide the name of any court or governmental entity to which such disclosure was made pursuant to valid legal process authorized by applicable law;
d. The general measures that have been taken to prevent the unauthorized access to Personally
Identifiable Information by a person other than the Customer or the Cable Operator. A Cable Operator shall meet with Franchising Authority if requested to discuss technology used to prohibit unauthorized access to Personally Identifiable Information by any means.
7. Nothing in this subsection III.F shall be construed to prevent the Franchising Authority from
obtaining Personally Identifiable Information to the extent not prohibited by Section 631 of the Communications Act, 47 U.S.C. Section 551 and applicable laws.
8. Destruction of Personally Identifiable Information. A Cable Operator shall destroy any Personally
Identifiable Information if the information is no longer necessary for the purpose for which it was
collected and there are no pending requests or orders for access to such information under subsection 4 of this subsection III.F, pursuant to a court order or other valid legal process, or pursuant to applicable law.
9. Notice and Choice for Customers. The Cable Operator shall at all times make available to Customers
one or more methods for Customers to use to prohibit or limit disclosures, or permit or release disclosures, as provided for in this subsection III.F. These methods may include, for example, online website “preference center” features, automated toll-free telephone systems, live toll-free telephone
interactions with customer service agents, in-person interactions with customer service personnel,
regular mail methods such as a postage paid, self-addressed post card, an insert included with the
Customer’s monthly bill for Cable Service, the privacy notice specified in subsection III.F.5, or such other comparable methods as may be provided by the Cable Operator. Website “preference center” features shall be easily identifiable and navigable by Customers, and shall be in a comparable size font
as other billing information provided to Customers on a Cable Operator’s website. A Customer who
provides the Cable Operator with permission to disclose Personally Identifiable Information through any
of the methods offered by a Cable Operator shall be provided follow-up notice, no less than annually, of the Customer’s right to prohibit these disclosures and the options for the Customer to express his or her preference regarding disclosures. Such notice shall, at a minimum, be provided by an insert in the Cable
Operator’s bill (or other direct mail piece) to the Customer or a notice or message printed on the Cable
Operator’s bill to the Customer, and on the Cable Operator’s website when a Customer logs in to view
his or her Cable Service account options. The form of such notice shall also be provided on an annual basis to the Franchising Authority. These methods of notification to Customers may also include other comparable methods as submitted by the Cable Operator and approved by the Franchising Authority in
its reasonable discretion.
G. Safety
A Cable Operator shall install and locate its facilities, cable system, and equipment in compliance with
all federal, state, local, and company safety standards, and in such manner as shall not unduly interfere
with or endanger persons or property. Whenever a Cable Operator receives notice that an unsafe condition exists with respect to its equipment, the Cable Operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition.
14
H. Cancellation of New Services In the event that a new customer requests installation of Cable Service and is unsatisfied with their
initial Cable Service, and provided that the customer so notifies the Cable Operator of their
dissatisfaction within 30 days of initial installation, then such customer can request disconnection of Cable Service within 30 days of initial installation, and the Cable Operator shall provide a credit to the customer’s account consistent with this Section. The customer will be required to return all equipment
in good working order; provided such equipment is returned in such order, then the Cable Operator shall
refund the monthly recurring fee for the new customer’s first 30 days of Cable Service and any charges
paid for installation. This provision does not apply to existing customers who request upgrades to their Cable Service, to discretionary Cable Service such as PPV or movies purchased and viewed On Demand, or to customer moves and/or transfers of Cable Service. The service credit shall be provided
in the next billing cycle.
IV. COMPLAINT PROCEDURE
A. Complaints to a Cable Operator
1. A Cable Operator shall establish written procedures for receiving, acting upon, and resolving
customer complaints, and crediting customer accounts and shall have such procedures printed and
disseminated at the Cable Operator's sole expense, consistent with Section III.E.1.e of these Standards.
2. Said written procedures shall prescribe a simple manner in which any customer may submit a complaint by telephone or in writing to a Cable Operator that it has violated any provision of these
Customer Service Standards, any terms or conditions of the customer's contract with the Cable Operator,
or reasonable business practices. If a representative of the Franchising Authority notifies the Cable
Operator of a customer complaint that has not previously been made by the customer to the Cable Operator, the complaint shall be deemed to have been made by the customer as of the date of the Franchising Authority’s notice to the Cable Operator.
3. At the conclusion of the Cable Operator's investigation of a customer complaint, but in no more than
ten (10) calendar days after receiving the complaint, the Cable Operator shall notify the customer of the results of its investigation and its proposed action or credit.
4. A Cable Operator shall also notify the customer of the customer's right to file a complaint with the
Franchising Authority in the event the customer is dissatisfied with the Cable Operator's decision, and
shall thoroughly explain the necessary procedures for filing such complaint with the Franchising Authority.
5. A Cable Operator shall immediately report all customer Escalated complaints that it does not find
valid to the Franchising Authority.
6. A Cable Operator's complaint procedures shall be filed with the Franchising Authority prior to
implementation.
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B. Complaints to the Franchising Authority
1. Any customer who is dissatisfied with any proposed decision of the Cable Operator or who has not received a decision within the time period set forth below shall be entitled to have the complaint
reviewed by the Franchising Authority.
2. The customer may initiate the review either by calling the Franchising Authority or by filing a written complaint together with the Cable Operator's written decision, if any, with the Franchising Authority.
3. The customer shall make such filing and notification within twenty (20) days of receipt of the Cable
Operator's decision or, if no decision has been provided, within thirty (30) days after filing the original complaint with the Cable Operator.
4. If the Franchising Authority decides that further evidence is warranted, the Franchising Authority
shall require the Cable Operator and the customer to submit, within ten (10) days of notice thereof, a
written statement of the facts and arguments in support of their respective positions.
5. The Cable Operator and the customer shall produce any additional evidence, including any reports
from the Cable Operator, which the Franchising Authority may deem necessary to an understanding and
determination of the complaint.
6. The Franchising Authority shall issue a determination within fifteen (15) days of receiving the
customer complaint, or after examining the materials submitted, setting forth its basis for the
determination.
7. The Franchising Authority may extend these time limits for reasonable cause and may intercede and attempt to negotiate an informal resolution.
C. Security Fund or Letter of Credit
A Cable operator shall comply with any Franchise Agreement regarding Letters of Credit. If a Franchise Agreement is silent on Letter of Credit the following shall apply:
1. Within thirty (30) days of the written notification to a Cable Operator by the Franchising Authority
that an alleged Franchise violation exists, a Cable Operator shall deposit with an escrow agent approved by the Franchising Authority fifty thousand dollars ($50,000) or, in the sole discretion of the Franchising Authority, such lesser amount as the Franchising Authority deems reasonable to protect subscribers
within its jurisdiction. Alternatively, at the Cable Operator’s discretion, it may provide to the
Franchising Authority an irrevocable letter of credit in the same amount.
The escrowed funds or letter of credit shall constitute the "Security Fund" for ensuring compliance with these Standards for the benefit of the Franchising Authority. The escrowed funds or
letter of credit shall be maintained by a Cable Operator at the amount initially required, even if amounts
are withdrawn pursuant to any provision of these Standards, until any claims related to the alleged
Franchise violation(s) are paid in full.
2. The Franchising Authority may require the Cable Operator to increase the amount of the Security
Fund, if it finds that new risk factors exist which necessitate such an increase.
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3. The Security Fund shall serve as security for the payment of any penalties, fees, charges or credits as
provided for herein and for the performance by a Cable Operator of all its obligations under these Customer Service Standards.
4. The rights reserved to the Franchising Authority with respect to the Security Fund are in addition to
all other rights of the Franchising Authority, whether reserved by any applicable franchise agreement or authorized by law, and no action, proceeding or exercise of a right with respect to same shall in any way affect, or diminish, any other right the Franchising Authority may otherwise have.
D. Verification of Compliance A Cable Operator shall establish its compliance with any or all of the standards required through annual
reports that demonstrate said compliance, or as requested by the Franchising Authority.
E. Procedure for Remedying Violations
1. If the Franchising Authority has reason to believe that a Cable Operator has failed to comply with any
of these Standards, or has failed to perform in a timely manner, the Franchising Authority may pursue
the procedures in its Franchise Agreement to address violations of these Standards in a like manner as
other franchise violations are considered.
2. Following the procedures set forth in any Franchise Agreement governing the manner to address
alleged Franchise violations, if the Franchising Authority determines in its sole discretion that the
noncompliance has been substantiated, in addition to any remedies that may be provided in the
Franchise Agreement, the Franchising Authority may:
a. Impose assessments of up to one thousand dollars ($1,000.00) per day, to be withdrawn from
the Security Fund in addition to any franchise fee until the non-compliance is remedied; and/or
b. Order such rebates and credits to affected customers as in its sole discretion it deems reasonable and appropriate for degraded or unsatisfactory services that constituted noncompliance with
these Standards; and/or
c. Reverse any decision of the Cable Operator in the matter and/or d. Grant a specific solution as determined by the Franchising Authority; and/or
e. Except for in emergency situations, withhold licenses and permits for work by the Cable
Operator or its subcontractors in accordance with applicable law.
V. MISCELLANEOUS
A. Severability
Should any section, subsection, paragraph, term, or provision of these Standards be determined
to be illegal, invalid, or unconstitutional by any court or agency of competent jurisdiction with regard
thereto, such determination shall have no effect on the validity of any other section, subsection,
17
paragraph, term, or provision of these Standards, each of the latter of which shall remain in full force
and effect. B. Non-Waiver
Failure to enforce any provision of these Standards shall not operate as a waiver of the obligations or responsibilities of a Cable Operator under said provision, or any other provision of these Standards. Revised 6/18/13.
From: "Krueger, Karl" <Kruegerarchitect@comcast.net> To: "Carroll, Rich" <richcarroll4@comcast.net>
Cc: vailchan5@comcast.net Sent: Monday, October 6, 2014 9:26:52 AM
Subject: Local access TV and Comcast
Hi Mayor Rich,
Though I live in Eagle-Vail rather than in neighboring Avon, your constituency, I wanted to mention how
important Channel 5 and other local channels are to me.
I listen to these channels while I work as an architect and at home, for professional and personal
understanding of what is happening in the entire valley. As I listen today 10-6-14 I cannot agree more
with Mr. Cacciopo (crazy as that sounds) that the most frustrating aspect of these channels as they
appear on my TV are the audio problems that reappear often and intermittently. I have tried changing
modum boxes but this fails to correct the problem.
The problems are buzzing on Eco 13, occasional lip syncing problems on Channel 5 as well as
intermittent audio on Channel 5. The intermittent audio on channel 5 lets you hear only 3 out of 5 words
any one says and renders town council meetings completely unintelligible.
I hope you and the Avon town council can put appropriate pressure on Comcast to solve these problems
before you vote on continuing service with them.
Regards,
Karl Krueger
PAGE 1 OF 1
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Virginia Egger, Town Manager
Date: October 28, 2014
Agenda Topic: 2014 Capital Projects Construction Update
Town staff will present a PowerPoint at Tuesday’s meeting updating Council on the major capital projects
completed, under construction this year or planned in 2015. The projects include:
AVON ROAD
TOTAL COST: 1,447,760
FUNDING SOURCE: CAPITAL PROJECTS FUND
ROAD OVERALY: $763,760
STREETLIGHTS: $200,000
2014 STREETSCAPE IMP.: $184,000
2015 LANDSCAPE IMP.: $300,000
POST BLVD
TOTAL COST: $446,000
FUNDING SOURCE: CAPITAL PROJECTS FUND
LANDSCAPE, FLAGS, SCULPTURE; $368,000
STREETLIGHTS UPGRADE: $78,000
EAGLE VALLEY TRAIL
AVON ROAD TO BEAVER CREEK
TOTAL COST: $1,133,000
FUNDING SOURCES:
GOCO Grant: $498,000
ECO Trails: $522,000
Town Match: $113,000
WEST AVON PRESERVE
HIKING/MOUNTAIN BIKING TRAILS
CONSTRUCTION & SIGNAGE
TOTAL COST: $97,950
FUNDING SOURCES:
Singletree Property
Owners Association: $11,000
Berry Creek
Metropolitan District: $11,000
Eagle County: $15,450
Mr. John Shipp: $ 5,000
CAPITAL PROJECTS FUND: $55,000
ROAD & STREET IMPROVEMENTS
TOTAL COST: $3,800,000
FUNDING SOURCE: CAPITAL PROJECTS FUND - COP
AVERAGE ANNUAL DEBT SERVICE: $304,000
PEDESTRIAN MALL
TOTAL COST: $1,970,000
FUNDING SOURCES:
URBAN RENEWAL AUTHORITY: $700,000
COMMUNITY ENHANCEMENT FUND: $608,000
CAPITAL PROJECT FUND: $662,000
NOTTINGHAM PARK PAVILION
TOTAL BUDGET: $3,700,000
CURRENT ESTIMATE: $3,400,000
CONTINGENCY: $300,000
FUNDING SOURCE: CAPITAL PROJECTS FUND
THE SKIER BUILDING – NEW TOWN HALL
TOTAL COST: BUILDING PURCHASE: $3,200,000
CONSTRUCTION FINISH & FFE: $2,500,000
FUNDING SOURCE: CAPITAL PROJECTS FUND - COP
AVERAGE ANNUAL DEBT SERVICE: $395,000
TOWN COUNCIL REPORT
To: Town Council
From: Mayor Rich Carroll Date: October 28, 2014 Agenda Topic: Skier Building – Interior Finishes Process
As stated by Virginia Egger in the October 14 meeting, Avon Town staff has successfully
managed numerous and varied construction projects to a successful conclusion; on time and on
budget.
The new Town Hall or Skier Building is high profile and an important project to the continued revitalization and vibrancy of Avon. Combined with the lessons learned from the Pavilion, the following outline is presented for discussion and review by Council. The outcome of the
discussion may be varied such as: - A recommendation to the new Council on a method/process to build out the Skier Building
- How much Council participation in the process is desired to achieve a successful project
Step 1: Rough Programming and Design - general thinking and ideas can be provided by a combination of:
- Town Staff
- Council - Public
Conceptual ideas on are given for what is on Ground Floor, Second Floor, Third Floor. Work
Sessions could be conducted with Council to review concepts and give input. Does it make sense to identify the full range of desired functionality, then hire designer to begin with
comprehensive direction of desired functionality? Topics such as meeting rooms, bathrooms, public bathrooms the Main St. Mall, kitchen facilities, public spaces, security, etc. will be reviewed.
Step 2: Develop an RFP for Architect/Interior Designer/Contractor/Price estimator services. Is an architect really needed? It is crucial that the RFP accurately describe the skill set(s) needed
and provide a method for evaluation. Skills such as: - References and a track record of bringing projects in on budget and on time. - The proper level of collaborative performance
- Skill in listening then designing to fit the requirements and budget - Price estimation so the designs stay within budget
- Experience with successful government projects
- Other Council to provide input, review and approve the RFP.
Step 3: Conduct RFP - Council to interview and select Designer/Price Estimator.
Step 4: Complete Designs along with interior furnishing specifications - Council to review and approve.
Step 5: Solicit bids: Council to review and approve bids. Council to award contract and approve contract with a Guaranteed Maximum Price. The interior finish will be within budget.
Step 6: Construction of Interior Finish: Any Change Orders require Council approval [Few if any Change Orders should be required].
The level of Council involvement described above is outside the norm. While more Council
involvement may make for a project that is paced differently, i.e. slower; is there value given the
high profile nature of the new Town Hall? I believe there is significant value for both Council, staff and the public.
2015 Proposed Budget Work Session
Page 1 of 2
Town Council Report
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Kelly Huitt, Budget Analyst
Date: October 23, 2014
Re: 2015 Proposed Budget Work Session – All Funds
PURPOSE OF THE BUDGET WORK SESSION
The 2015 Proposed Budget has been prepared in accordance with the Town Charter and all applicable Town
ordinances. In addition to the 2015 Budget, Town staff has prepared projections for a Five Year Capital
Improvements Plan for investment planning in the Capital Projects Fund. Staff has also developed 2016 budget
forecasts for all remaining funds to provide for future planning and to measure the sustainability of 2015 budget
decisions.
Council asked at the October 14th meeting to have a question and answer session, which has been provided for in
the October 28th budget work session.
SUMMARY OF CHANGES SINCE PREVIOUS BUDGET WORK SESSION:
GENERAL FUND
General Fund Budget: 2014 2015 2016
Budget Book Net Source (Use) of Funds ($ 1,428,237) $ 1,420,354 $ 284,482
Total Changes ($ 109,975) ($ 106,713) ($8,584)
New Net Source (Use) of Funds ($1,538,212) $1,313,641 $275,898
2014 Changes
- $12,000 for Flavors of Colorado Contingency
- $87,700 appropriated for Apres Avon out of 2015 AWSC reserved fund balance
- $9,000 to replace fleet shop lights in 2014 instead of 2015
2015 Changes
- $25,000 appropriated for Apres Avon out of 2015 AWSC reserved fund balance
- $9,000 increase in trail maintenance
- $15,000 for Eagle County Trails Group
- $50,000 increase to Town Attorney fees
- $16,713 in miscellaneous payroll adjustments
- ($9,000) to replace fleet shop lights in 2014 instead of 2015
2016 Changes
- $8,584 in miscellaneous payroll adjustments
2015-16 Budget Work Session
ALL TOWN FUNDS
Page 2 of 2
CAPITAL PROJECTS FUND
CIP Budget: 2014 2015 2016
Budget Book Net Source (Use) of Funds $2,970,638 ($3,615,713) ($1,069,707)
Total Changes ($ 47,953) $40,000 ($35)
New Net Source (Use) of Funds $2,922,685 ($3,575,713) ($1,069,742)
- Addition of $22,703 in expense and $14,750 in related revenue for the mural on the Season’s
Building
- Move $40,000 from 2015 to 2014 for the Recreation Center remodel
Catastrophe Fund
Staff will be researching the possibilities of establishing a catastrophe fund for unforeseen emergencies
and will report back to council after the 2015 budget adoption.
Section III, Page 1
Fund Summary
Original or Final
Prev. Amend.Revised Proposed Proposed
Actual Budget Budget Budget Budget
2013 2014 2014 2015 2016
REVENUES
Taxes 9,590,230$ 10,138,185$ 10,416,007$ 10,820,041$ 11,293,368$
Licenses and Permits 336,548 172,500 153,500 153,500 153,400
Intergovernmental 905,213 964,199 964,699 948,956 993,400
Charges for Services 1,321,078 1,326,446 1,302,220 1,276,195 1,304,357
Fines and Forfeitures 104,736 110,275 128,173 101,900 101,900
Investment Earnings 5,413 15,000 15,000 15,000 25,000
Other Revenue 309,085 308,569 331,991 309,119 364,900
Total Operating Revenues 12,572,303 13,035,174 13,311,590 13,624,711 14,236,325
Other Sources
Capital Lease Proceeds 26,367 - - - -
Sales of Capital Assets 1,151 - - - -
Transfer-In From Capital Projects Fund 201,006 207,121 207,121 1,538,335 219,735
Total Other Sources 228,524 207,121 207,121 1,538,335 219,735
TOTAL REVENUES 12,800,827$ 13,242,295$ 13,518,711$ 15,163,046$ 14,456,060$
EXPENDITURES
General Government 2,593,954$ 3,006,824$ 3,005,264$ 2,826,912$ 2,881,225$
Community Development 536,483 484,448 487,786 1,060,377 1,144,356
Public Safety 2,539,475 2,739,674 2,756,957 2,992,877 3,158,799
Public Works 1,571,764 1,597,224 1,530,300 3,005,561 2,996,443
Parks and Recreation 3,328,177 3,919,856 4,040,116 2,191,678 2,274,339
Total Operating Expenditures 10,569,853 11,748,026 11,820,423 12,077,405 12,455,162
Contingency - 62,500 6,500 100,000 100,000
Other Uses
Transfers-Out to Town Center West Fund 15,000 45,000 45,000 150,000 200,000
Transfers-Out to Capital Projects Fund - 700,000 2,025,000 120,000 120,000
Transfers-Out to Transit 776,000 825,000 860,000 1,102,000 1,030,000
Transfers-Out to Fleet Maintenance 150,000 150,000 300,000 300,000 275,000
Total Other Uses 941,000 1,720,000 3,230,000 1,672,000 1,625,000
TOTAL EXPENDITURES 11,510,853 13,530,526 15,056,923 13,849,405 14,180,162
NET SOURCE (USE) OF FUNDS 1,289,974 (288,231) (1,538,212) 1,313,641 275,898
FUND BALANCES, Beginning of Year 3,563,274 4,853,248 4,853,248 3,315,036 4,628,677
FUND BALANCES, End of Year 4,853,248$ 4,565,017$ 3,315,036$ 4,628,677$ 4,904,575$
FUND BALANCES:
Nonspendable 7,442$ -$ -$ -$ -$
Restricted For:
3% TABOR Emergency Reserve 476,619 476,619 476,619 476,619 476,619
Assigned For:
Special Events - 44,114 300,000 300,000 300,000
2015 World Alpine Ski Championships - 87,700 25,000 - -
Unassigned:
25% Minimum Reserve Balance 2,877,713 3,382,632 3,764,231 3,462,351 3,545,041
Stabilitzation Balance 1,491,474 573,953 (1,250,814) 389,707 582,916
TOTAL FUND BALANCES 4,853,248$ 4,565,017$ 3,315,036$ 4,628,677$ 4,904,575$
MUNICIPAL SERVICES General Fund #10
Section IV, Page 1
Fund Summary
Original or FinalPrev. Amend.Revised Proposed Proposed
Actual Budget Budget Budget Budget
2013 2014 2014 2015 2016REVENUES
Taxes 1,574,502$ 1,600,000$ 2,100,000$ 3,825,312$ 3,318,080$
Intergovernmental 7,419,767 1,210,344 1,180,344 30,000 1,605,000 Investment Earnings 11,595 9,003 9,003 3,741 13,372
Other Revenue 528 1,500 68,943 - -
Total Operating Revenues 9,006,392 2,820,847 3,358,290 3,859,053 4,936,452
Other Sources: Bond Proceeds - - 9,829,000 - -
Operating Transfers-In 1,150,488 2,574,786 3,899,786 120,000 320,000
Total Other Sources 1,150,488 2,574,786 13,728,786 120,000 320,000
TOTAL REVENUES 10,156,880 5,395,633 17,087,076 3,979,053 5,256,452
EXPENDITURES
Capital Improvements:
Facilities 8,885,980 1,583,290 7,468,290 2,705,000 80,000
Land and Land Improvements 1,043,943 140,000 120,000 - 500,000
Roads and Streets 633,623 4,775,760 4,987,089 2,381,679 4,343,378
Utilities - - - - - Water Fund Projects 1,150,488 239,535 139,535 - 100,000
Communications and Technology 85,581 135,000 135,000 - -
Strategic Planning 3,500 5,000 5,000 - - Debt Service:
Bond Issuance Costs - - 216,975 - -
Capital Leases - 153,006 153,006 121,265 121,265
Total Capital Improvements 11,803,115 7,031,591 13,224,895 5,207,944 5,144,643
Other Uses
Operating Transfer-Out - General Fund 201,006 207,121 207,121 1,538,335 219,735
Operating Transfer-Out - Debt Service Fund 714,666 712,829 732,375 808,487 961,817 - -
Total Other Uses 915,672 919,950 939,496 2,346,822 1,181,552
TOTAL EXPENDITURES 12,718,787 7,951,541 14,164,391 7,554,766 6,326,195
NET SOURCE (USE) OF FUNDS (2,561,907) (2,555,908) 2,922,685 (3,575,713) (1,069,742)
FUND BALANCE, Beginning of Year 6,186,560 3,624,653 3,624,653 6,547,338 2,971,625
FUND BALANCE, End of Year 3,624,653$ 1,068,745$ 6,547,338$ 2,971,625$ 1,901,883$
Fund Balances
Restricted For:
Capitalized Interest -$ -$ 245,162$ -$ -$
Town Hall Tenant Finish - - 2,520,000 - -
Street Improvements - - 3,706,200 1,624,521 626,143
Asphalt Overlay - - - 120,000 240,000
Unassigned:
Unreserved 3,624,653 1,068,745 75,976 1,227,104 1,035,740
Total Fund Balances 3,624,653$ 1,068,745$ 6,547,338$ 2,971,625$ 1,901,883$
MUNICIPAL SERVICES Capital Projects Fund #41
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Preston Neill, Executive Assistant to the Town Manager
Date: October 28, 2014
Agenda Topic: Town of Avon Procurement Policy Update
BACKGROUND:
Based on discussion and direction regarding the Town’s current Procurement Policy at the July 22,
2014, Town Council meeting, staff has researched the procurement/purchasing policies of several
comparable Colorado municipalities. The purpose is to identify what other municipality’s standards of
conduct/restrictions for public employees and elected officials are in procuring work. The policies of
the following Colorado cities and towns were analyzed: Aspen, Durango, Steamboat Springs, Telluride
and Vail.
TOWN OF AVON PROCUREMENT POLICY:
Attached are the applicable sections from the Town of Avon Procurement Policy, which state the
standards of conduct for public employees and Town Council members in procuring work for the
Town.
OTHER PROCUREMENT POLICIES – STANDARDS OF CONDUCT:
City of Aspen, Colorado: Municipal Code: Title 4 – Procurement Code
The City of Aspen’s Procurement Code defines “employee” as the following: “Employee means an
individual drawing a salary from a government body.” The code includes a section regarding “Conflict
of Interest” where it explains “unless a specific exemption is obtained…it shall be a breach of ethical
standards for any employee to participate directly or indirectly in drafting or preparing specifications,
obtaining or processing approvals, participating in source selection or contract formation or granting
approval for any procurement” when the employee is aware that the employee, any member of the
employee’s immediate family or a business or organization in which the employee or any member of
the employee’s immediate family has a financial interest pertaining to the procurement.
In the event a conflict exists, the code indicates “an employee shall promptly file a written statement
of disqualification and shall withdraw from further participation in the transaction involved. The
employee may, at the same time, apply to the City Attorney…for an advisory opinion as to what
further participation, if any, the employee may have in the transaction.”
City of Durango, Colorado: Purchasing Policy
The City of Durango’s Purchasing Policy emphasizes the unethicality for any employee or public official
“who is participating directly or indirectly in the purchasing process to become or to be, while such a
City employee or officer, the employee of any person contracting with the City.” This policy includes a
provision regarding waivers where a waiver from the conflict of interest may be granted by the City
Manager upon determining that “the contemporaneous employment or financial interest of the City
employee or officer has been publicly disclosed; the City employee or officer will be able to perform
the purchasing functions without actual or apparent bias or favoritism; and the award will be in the
best interests of the City.”
City of Steamboat Springs, Colorado: Personnel and Administrative Regulations Manual: Title III –
Procurement Regulations
Unlike the Town of Avon Procurement Policy, the City of Steamboat Springs’ Procurement Regulations
does not include a definition for “employee” to clarify who falls within the meaning. It does include a
section regarding “Conflict of Interest” that prohibits an employee from participating in or attempting
to influence a decision when a conflict of interest exists. Additionally, a conflict is described as “any
procurement of goods or services over $1,000, and/or any contract over $1,000, from an employee,
employee spouse or immediate family member.”
In the event a conflict exists, it does not necessarily mean the City of Steamboat Springs may not do
business with the individual or company identified with a conflict. Their policy requires that
“disclosure be made to the City Manager with a recommendation that proceeding with the
procurement where a conflict of interest exists, is in the ‘best interests’ of the city.”
Town of Telluride, Colorado: Municipal Code: Chapter 4, Article 6 – Procurement Code
The Town of Telluride’s Procurement Code only references the sale of town-owned property to
employees.
Town of Vail, Colorado: Policy: Town of Vail Purchasing (P-1)
Nowhere in the Town of Vail Purchasing Policy does it reference how employees/elected officials may
or may not participate in projects or work funded by the Town or anything related to Conflict of
Interest.
CONCLUSION:
The current Town of Avon Procurement Policy is very clear in identifying who falls within the definition
of “employee”: “Employee means an individual drawing a salary from the governmental body,
whether elected or not and any non-compensated individual performing a personal service for any
governmental body, including but not limited to members of the Town Council, members of volunteer
and/or advisory boards.”
The Town’s current Procurement Policy does not prohibit members of the Town Council from
submitting bids to procure work from the Town. It simply prohibits a Town Council from participating
in any part of the procurement process when such Town Council member is seeking to procure the
work.
This is similar to the policies of the City of Aspen, City of Durango and the City of Steamboat Springs.
The policies of the Town of Telluride and Town of Vail are less rigid.
COUNCIL ACTION:
Town staff requests direction from the Town Council should you desire changes to the current
Procurement Policy.
ATTACHMENT:
Standards of Conduct from the Town of Avon Procurement Policy
RECREATIONAL TRAILS ADVISORY GROUP FORMATION – WORK SESSION
PAGE 1 OF 2
TOWN COUNCIL REPORT
To: Honorable Mayor and Avon Town Council
From: Matt Pielsticker, AICP, Planning Manager
Date: October 20, 2014
Agenda Topic: Trails Advisory Committee Work Session: Purpose, Duties and Process for Selection
Summary
During Open Houses held in May for trails planning on the West Avon Preserve, a formal trails advisory
committee was discussed. This trails advisory committee is found in the Town of Avon Recreational
Trails Master Plan (2009). The Town of Avon Recreational Trails Master Plan, or “Trails Plan,” is an
advisory document that is a sub-plan of the Avon Comprehensive Plan. It recommends the formation
of a Recreational Trails Advisory Group to “direct trail planning, design, construction, and
maintenance.” The Trails Plan goes on to recommend the make-up of the Advisory Group and their
general functions. An excerpt from the Trails Master Plan is attached hereto (Attachment A).
At the July 15th and October 14th meetings this topic was discussed and Council provided additional
feedback on the group’s composition. It was agreed to come back with more information on the
functional role of the committee and a more diverse range of members, including solicitation from:
Traer creek, residents with trail building experience, hiker representation, motorized users, mountain
biker representation, and possibly an International Mountain Bike Association (IMBA) specialist or
liaison. This Memorandum summarizes Town staff’s recommended process for solicitation and Council
appointment of a Recreational Trails Advisory Group.
Recommendations
1. Council reviews and affirms the need for the Recreational Trails Advisory Group, and duties
as described in the Trails Master Plan and sets November 11th as the date to take action on a
resolution establishing the Recreational Trails Advisory Group. Two-year staggered terms
are recommended.
2. Town Staff solicits through the Vail Daily newspaper, website, and social media a seven (7)
member, volunteer Recreational Trails Advisory Group composed of the following:
a. One (1) member to represent Beaver Creek Resort Company
b. One (1) full-time resident of Singletree Community
c. One (1) full-time resident of the Wildridge or Mountain Star Community
d. One (1) representative from Village (at Avon)
e. One (1) member representing the Vail Valley Mountain Bike Association (VVMBA)
f. One (1) member to represent hiking community
g. One (1) member to represent the motorized community (i.e. Rocky Mtn Sport Riders)
The advertisement (sample attached as Attachment B) will highlight the role of the
Committee and desire for community members who are avid hikers, and also those with
demonstrated experience working with the IMBA organization.
RECREATIONAL TRAILS ADVISORY GROUP FORMATION – WORK SESSION
PAGE 2 OF 2
3. Interested applicants should provide a detailed letter of interest and statement of
residency by not later than November 5th, 5:00 p.m.
4. Town Council interviews applicants at its November 11th meeting; appointing the top four
applicants to two-year terms; and two applicants to one-year terms. Thereafter, all
Recreational Trails Advisory Group members will be appointed to a two-year term.
5. Recreational Trails Advisory Group, assisted by Community Development staff, begin
meeting and develop work plan to carry out duties in early 2015.
Attachments
A – Trails Plan excerpt
B – Draft Advertisement
Avon Recreational Trails Master Plan
Page 2
Vision Statement
The vision guiding the Town of Avon’s Recreational Trails Master Plan was developed from input
provided through public consultations held in August 2006 and August 2008. At a general level, the
vision expresses what people agree needs to be protected or retained and what may be accomplished. The vision for the Town of Avon is fundamentally one of sustainability – of respecting natural systems and
managing uses of the trails in ways that enhance the resident and guest experiences and protect the ability
of future generations to enjoy this wonderful endowment.
By adopting an approach that protects the local ecology while providing recreational, social and health
benefits, the local trail system can become a model of sustainable recreational trails management. At the heart of achieving this vision is a commitment to balancing environmental protection with recreational
uses and activity. This commitment will be shared by all who are responsible for this asset – individuals
using the area, partnering government agencies, surrounding private land owners, and other stakeholders. Common, sustainable strategies should emphasize awareness, education, safety and stewardship.
Management approaches will be shaped by a desire to minimize negative impacts on the environment and
local residents, while maximizing opportunities for positive outcomes such as community partnerships, education, habitat protection, or other opportunities.
The Town has a collaborative and systematic vision for implementing this new Recreational Trails Program. An Avon Recreational Trails Advisory Group should be formed to direct trail planning, design,
construction, and maintenance. This Group should consist of five members, with at least one full-time resident from Wildridge and one from Mountain Star participating. Participants who are not on Town staff should be nominated or self-volunteered and be confirmed by the Planning and Zoning Commission
or the Town Council. The Trails Advisory Group will have the key responsibility to develop and manage a volunteer program for trail construction and maintenance. The Trails Advisory Group will also be
responsible for updating this Recreational Trails Master Plan periodically (e.g. every 2-3 years) and
presenting the update to Town leadership for formal adoption. Town staff will lead project implementation activities (including development of mapping and design details, review of deliverables
from consultants, annual budget planning, bidding and assignment of trail construction contracts), public
relations, and communications with outside stakeholders (e.g. USDA Forest Service, Singletree HOA, Eagle County).
Statement of Principles
The principles listed below were developed in conjunction with the vision statement, with input provided from Town of Avon staff and through the public consultation process. The principles express the range of
basic concepts which are crucial to the development of a successful recreational trails management
program and the realization of the vision.
1. Sustainable Planning Framework
The mountain environment is important asset requiring careful management to preserve and sustain it for future generations. This requires a framework that supports a harmonious balance between long-term
social, economic, and environmental values. Balancing the biophysical and physical capacity of the area
to accommodate recreational use is a key consideration.
2. Public Health, Safety and Risk Management
To enhance the healthy outdoor lifestyles found on the western slope, users require a challenging, yet safe and maintained outdoor mountain recreational trail system within a risk management framework that
includes standards and regulations for trail use. Risks of use should be clearly communicated to trail
RECREATIONAL TRAILS ADVISORY GROUP FORMATION – WORK SESSION
PAGE 1 OF 1
DRAFT - Trail Advisory Group Advertisement
What is it?
The Trail Advisory Group will be a committee of engaged citizens to help direct recreational trail planning
including the design, construction and maintenance of existing and new trails. Participants are volunteers with a
strong interest in supporting and enhancing the recreational trails program.
Trail Advisory Group Goals
• Protect local ecology while providing recreational, social, and health benefits
• Balancing environmental protection with recreational uses and activity
• Become a model of sustainable recreational trails management
• Foster positive working relationships with outside stakeholders (i.e. Vail Valley Mountain Bike
Association, BLM, United States Forest Service, Beaver Creek Resort Co.)
Who We’re Looking For:
• Our ideal Group Composition looks like…
o One (1) member to represent Beaver Creek Resort Company
o One (1) full-time resident of Singletree Community
o One (1) full-time resident of the Wildridge or Mountain Star Community
o One (1) representative from Village (at Avon)
o One (1) member representing the Vail Valley Mountain Bike Association (VVMBA)
o One (1) member to represent hiking community
o One (1) member to represent the motorized community (i.e. Rocky Mtn Sport Riders)
Applicants with the following experience will receive preference:
* Working knowledge of International Mountain Biking Association (IMBA).
* Grant writing experience.
* Sustainable trail-building experience
What is Expected?
• Update the Trails Plan (2009) periodically (e.g. ~2-3 years), beginning in 2015 with major update
• Develop and manage a volunteer program for trail construction and maintenance
• Work with Town Staff toward implementation activities
• Represent the Trail Advisory Group at Planning Commission, Town Council, and other regional trails
planning (i.e. IMBA Ride Center committee) meetings
Frequency of Meetings
• The Trails Advisory Group will be tasked to determine an appropriate meeting frequency
• Frequency may change depending on current projects and needs
• Initial frequency is anticipated to be every 1-2 months
How do I Get Involved?
• Volunteers need to submit a detailed letter of interest not later than November 5th, 2014, 5pm.
• Selection will be made by Town Council on November 11th, 2014
ORDINANCE 14-19, TITLE 6, ANIMALS, AMC – LEASH LAWS ON WEST AVON PRESERVE
PAGE 1 OF 2
TOWN COUNCIL REPORT
To: Honorable Mayor and Avon Town Council
From: Matt Pielsticker, AICP, Planning Manager
Date: October 20, 2014
Agenda Topic: 1st Reading of Ordinance 14-19, an Ordinance Amending Title 6, Animals, AMC
Regulations affecting Leash Laws on the West Avon Preserve
Summary
Attached to this report is Ordinance 14-19, an Ordinance amending Title 6, Animals, Avon Municipal
Code (“AMC”). First and foremost, this Ordinance provides added flexibility to pet owners who use
the West Avon Preserve (“the Preserve”) who wish to walk pets off leash. Currently, all animals in the
Town of Avon must be leashed at all times. This code change stems from the recent acquisition of the
Preserve and the enforcement duties assigned to the Town through a Conservation Easement and
Town Code. Through the process of public open houses for new trail discussion, and discussing the
content of signage for the Preserve with residents and trail users, the topic of walking dogs came to
light. Council will consider 1st Reading of Ordinance 14-19 at the October 28th, 2014 meeting. Details of
the Ordinance are summarized herein.
Context
The Preserve is a 478 acre property that was acquired in May, 2013, with significant conservation
values. The Preserve serves as wildlife habitat and scenic open space, with recently renowned
recreational values that are realized by significant trail construction in 2014. Residents have
historically used the Preserve for the casual enjoyment of walking pets to “Beaver Creek Point”
and some of the other social trails. Since the Preserve was acquired in 2013 and technically subject
to all aspects of the AMC, including Title 6, Animals, no changes to the enforcement of pets off
leash has resulted. Ordinance 14-19 would allow pets off leash, under voice control. Additionally,
authority would be granted to the Town Manager to provide additional management discretion
(i.e. seasonal closures) to help protect the conservation values.
Ordinance Highlights
• Pets would be allowed off-leash on entire 478-acre Preserve, including adjacent open space
tracts part of the WIldridge Subdivision. This includes Tract P, a parcel that connect the
O’Neal Spur pocket park to the Preserve.
• Pets must be under voice control, as defined, and owners must carry leashes.
• Town Manager receives discretionary authority to further manage and modify rules.
o Initially from Dec 15 – Apr 15 annually all trails on Preserve closed, except for PB&J,
Our Backyard, and Beaver Creek Point.
• Leash law remains in effect in all other areas of Town.
Recommendation
ORDINANCE 14-19, TITLE 6, ANIMALS, AMC – LEASH LAWS ON WEST AVON PRESERVE
PAGE 2 OF 2
Attachments
A – Draft Ordinance 14-19
B – Strikethrough of Title 6, Animals, AMC
C – West Avon
Page 1 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code
TOWN OF AVON, COLORADO
ORDINANCE 14-19
SERIES of 2014 AN ORDINANCE AMENDING TITLE 6, ANIMALS, AVON MUNICIPAL CODE, ADDING NEW REGULATIONS REGARDING LEASH LAWS ON THE WEST
AVON PRESERVE PROPERTY
RECITALS WHEREAS, the Town of Avon acquired the West Avon Preserve property for open space
and recreational purposes in 2013; and,
WHEREAS, the Town Council of the Town of Avon finds that the West Avon Preserve property has historically been utilized by dog owners without leashes; and,
WHEREAS, the Town Council of the Town of Avon finds that seasonal wildlife closures
and other restrictions can be properly managed by the Town Manager with consultation from
outside agencies and land managers; and,
WHEREAS, the Town Council of the Town of Avon finds that amendments to Title 6, Animals, Avon Municipal Code, will promote the health safety and welfare of the Avon community; and,
WHEREAS, the Town Council of the Town of Avon conducted a public hearing on
November 11, 2014 in accordance with Section 6.5 of the Avon Home Rule Charter; and,
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with state law, the Avon Municipal Code and Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present
testimony and evidence and that approval of this Ordinance on first reading does not constitute a
representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies the proposed amendment to the Avon Municipal Code.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Amendment to Title 6, Animals. Title 7, Animals, Avon Municipal Code, is amended as follows:
Section 6.04.020, Definitions, with the following additions:
Page 2 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code
Leash control means firmly attached to a secured tether or leash which is being held by a
person who is thereby in fact able to prevent the dog from charging, chasing or otherwise
disturbing or interfering with any person, domestic animal or wildlife, irrespective of the
presence of any distraction or provocation.
Preserve is the Town-owned 478-acre parcel of property located between Wildridge and
Interstate 70 also known as the “West Avon Preserve” and includes property designated
as “open space” and/or “park” and/or “planned unit development open space” as
established by the Avon zoning districts.
Voice control means immediate and reliable obedience to any voice or sound command given by the owner or handler who is thereby in fact able to prevent the
dog from charging, chasing or otherwise disturbing or interfering with any person,
domestic animal or wildlife, irrespective of the distance involved or the presence of
any distraction or provocation.
Section 6.04.060, Control, is renamed “Leash Control” and amended as follows:
(a) With the exception of the Preserve property as herein defined, it is the duty of
any owner or keeper of a dog or cat to keep such dog or cat under leash control, as
herein defined, so as to prevent the dog or cat from:
(1) Running at large;
(2) Becoming a danger to persons or property;
(3) Trespassing on the property of another;
(4) Being a public nuisance as defined in Section 6.04.230;
(5) Chasing or threatening wildlife.
Section 6.04.060, Control, is amended with the following regulation:
(l) Any dog on the Preserve property shall be under voice control as defined in section 6.04.020 herein and furthermore the owner or keeper of a dog shall have in their possession
at all times a leash. A dog is presumed to be running at large if injury, damage or trespass has
occurred even if said dog is under voice control.
Section 6.04.290, Town Manager Authority, is added as follows:
The Town Manager retains the authority to further manage and modify rules for the Preserve including but not limited to wildlife closures:
Between December 15 and April 15 annually, all portions of the West Avon Preserve
shall be closed to all uses to protect the Town’s investment in sensitive wildlife species,
Page 3 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code
except that PB&J, Our Backyard, and Beaver Creek Point trails will be open year round.
Closures may be adjusted by the Town Manager in writing as required to protect the
conservation values of the property. Additional posted closures may be pursued by the Town
Manager at any time for good cause.
Section 3. Correction of Errors. The codifier of the Town’s Municipal Code, Colorado
Code Publishing, is hereby authorized to make such numerical and formatting changes as may be
necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The
Town Clerk is authorized to correct, or approve the correction by the codifier, of any
topographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such
corrections may include spelling, reference, citation, enumeration, and grammatical errors.
Section 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect thirty (30) days after final
adoption in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by
posting notice of adoption of this Ordinance on final reading by title at the Avon Town Hall,
Avon Recreation Center and Avon Public Library, which notice shall contain a statement that a
copy of the ordinance in full is available for public inspection in the office of the Town Clerk
during normal business hours. The Town Clerk is further ordered to publish a notice stating a vested property right has been created in accordance with Section. 7.16.140(d)(2) of the Avon Municipal Code.
[EXECUTION PAGE FOLLOWS]
Page 4 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code
INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED on October 28, 2014 and a public hearing on this ordinance shall be held at the regular
meeting of the Town Council on November 11, 2014, at 5:30 P.M. in the Council Chambers,
Avon Municipal Building, One Lake Street, Avon, Colorado.
____________________________
Rich Carroll, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Debbie Hoppe, Town Clerk Eric Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on the 11th day of November, 2014.
____________________________ Rich Carroll, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST:
__________________________ Debbie Hoppe, Town Clerk
TITLE 6
Animals
Chapter 6.04 Animal Control 6.04.010 Title 6.04.020 Definitions 6.04.030 Annual cat vaccination required 6.04.040 Attachment of cat tag to collar or harness
6.04.045 Dog license required 6.04.050 Kennel regulations 6.04.060 Control 6.04.070 Impounding of dogs and cats 6.04.080 Dangerous and potentially dangerous dogs
6.04.090 Quarantine of dogs and cats 6.04.100 Disposition of unclaimed, diseased or dead animals 6.04.110 Quarantine and destruction of rabid domestic animals 6.04.120 Affirmative defense 6.04.130 Interference with Community Service Officer 6.04.140 Threatening of wildlife and livestock
6.04.150 Dog or cat bite 6.04.160 Violations and penalty assessments 6.04.170 Charges and fees 6.04.180 Destruction of dangerous dogs 6.04.190 Failure to appear
6.04.200 Failure to redeem, comply or pay fines or fees 6.04.210 Muzzling and confinement 6.04.220 Liability for accident or subsequent disease from impoundment 6.04.230 Public nuisance 6.04.235 Habitual offender 6.04.240 Unlawful taking or release
6.04.250 Abandonment, cruelty to animals or neglected dogs 6.04.260 Enforcement 6.04.270 Hot pursuit 6.04.280 Community Service Officer 6.04.290 Town Manager Authority 6.04.290300 Captions
Chapter 6.04
Animal Control
6.04.010 Title.
This Chapter shall be known as the "Town Animal Control Ordinance of 1994." (Ord. 94-17 §1(part))
6.04.020 Definitions.
For the purpose of this Chapter, the following definitions shall apply:
Abandon(ed) means to deposit, leave, drop off or otherwise dispose of any living domestic animal without providing immediate humane care on any public or private property.
Animal means any living vertebrate creature, domestic or wild, including cats and dogs, but excluding estray animals as defined in Section 35-44-101, C.R.S.
Animal Control means the Community Service Officer of the Town or his or her designated representative.
Bite means to seize with the teeth or jaws so that a person or animal has been nipped, gripped,
wounded or the skin pierced.
Cat shall refer to any animal of the feline species, regardless of sex.
Construction site means any lot, parcel or tract of land on which, according to this Code, work is being performed by persons required to register as a contractor with the Town.
Control means physical restraint or influence over a cat or dog by means of a leash, cord or chain no longer than ten (10) feet in length.
Conviction means a finding of guilt by a court or acknowledgement of guilt by payment of a fine
pursuant to the penalty assessment procedure.
Council is the Town Council.
County means the county of Eagle, state of Colorado.
Cruelty occurs when a person knowingly or with criminal negligence overdrives, overloads,
overworks, tortures, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, needlessly mutilates, needlessly kills, carries in or upon any vehicles in a cruel manner, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or, having the charge or custody of any animal, fails to provide it with proper food, drink, socialization or protection from the weather or abandons it.
Damage means loss or harm resulting from injury to person or property.
Dangerous dog means any dog that according to the records of the appropriate authority:
a. Has inflicted serious bodily injury upon a human being, without provocation, while on public or private property;
b. Has killed a domestic animal without provocation while off the owner's property;
c. Whose owner has been convicted of a violation of Section 6.04.140, or the equivalent in
another jurisdiction;
d. Has been previously found to be potentially dangerous, the owner having received notice of such, and the dog again bites, attacks or endangers the safety of humans or domestic animals;
provided, however, that dogs shall not be deemed dangerous if the threat, injury or damage was
sustained by a person who, at the time, was committing a willful trespass or other tort upon the
premises occupied by the owner of the dog, or was abusing or assaulting the dog or was committing or attempting to commit a crime; or
e. Has engaged in or been trained for animal fighting as described and prohibited in Section 18-
9-204, C.R.S.
Dog refers to any animal of the canine species, regardless of sex, including dogs of wolf extraction, and a dog that is of any hereditary part related to wild canines, such as but not limited to the wolf family (canis lupus) and the coyote family (canis latrans).
a. Female dog means a dog of the female gender on which no alternative surgery (e.g. ovariectomy or ovariohysterectomy) has been performed. (Intact)
b. Spayed female dog means a female dog on which an ovariectomy or hysterectomy has been performed by a licensed veterinarian.
c. Male dog means a dog of the male gender which has not been castrated. (Intact)
d. Neutered male dog is a male dog which has been castrated.
Dog or cat owner means a person, or any parent, guardian or legal custodian of any unemancipated child under eighteen (18) years of age who owns, co-owns, possesses, controls, maintains, keeps or harbors a dog or cat or knowingly permits, or intends to permit, a dog or cat to remain for seven (7) consecutive days on or about property or premises owned, controlled or occupied by him or her; a kennel is not a dog or cat owner within the purview of this definition.
Dog or cat tag means a metal tag stating vaccination against rabies, serial numbered and bearing the year of issuance.
Habitual offender means any pet animal owner/keeper whose pet has been found, by the court, to have been kept in violation of this Title of this Code three (3) times within any twelve-month period.
Harbor or keep means to feed and care for any dog or cat upon the premises or to permit any dog or cat to be fed and cared for on the premises. The occupant of any premises to which a dog or cat is kept or to which the animal customarily returns daily for food, shelter and/or care is presumed to be harboring said animal within the meaning of this Chapter, and said person shall be subject to the applicable provisions of this Chapter. No person is deemed to harbor or keep any animal that has been
reported to the Community Service Officer and is actively assisting in efforts to impound or confine said animal.
Keeper means any person who keeps or harbors a dog or cat for less than seven (7) days.
Kennel means a person, entity or operation which is required to be licensed or permitted by the State
and/or Eagle County, pursuant to applicable laws and regulations, and which keeps and maintains dogs or cats for sale, resale, boarding, breeding, show, hunting or other commercial or recreational purposes.
Leash control means firmly attached to a secured tether or leash which is being held by a person who
is thereby in fact able to prevent the dog from charging, chasing or otherwise disturbing or interfering
with any person, domestic animal or wildlife, irrespective of the presence of any distraction or
provocation.
Mistreatment includes every act or omission which causes or unreasonably permits the continuation of, unnecessary or unjustifiable pain or suffering.
Neglect means failure to provide food, water, protection from the elements, opportunity for exercise, socialization or other care normal, usual and proper for an animal's health and well-being.
Potentially dangerous dog means any dog that when unprovoked:
a. Inflicts a bites on a human or a domestic animal either on public or private property;
b. Chases or approaches a person upon the streets, sidewalks or any public grounds in a menacing fashion or apparent attitude of attack; or
c. Chases or approaches a person upon private property other than the owner's in a menacing fashion or apparent attitude of attack.
Premises means property owned, leased or expressly permitted to be used by an owner; or, any confined area or locality like a residence, business, room, shop, building or motor vehicle in which the animal's presence is authorized by the owner of the premises. The term premises includes the open space bed of a truck.
Proper enclosure of a dangerous dog means while on the owner's property, a dangerous dog shall be securely confined indoors or in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children and designed to prevent the animal from escaping. Such pen or structure shall have secure sides and a secure top, a locked gate and shall also provide protection from the elements. There shall be posted signs, which are legible to passersby, warning of the dangerous dog's presence.
Proper restraint of a potentially dangerous dog means:
a. While on the owner's property, a potentially dangerous dog shall be restrained by chain, leash
or other confinement suitable to prevent the animal from leaving the owner's property; or
b. While off the owner's property, a potentially dangerous dog shall be under physical restraint of the owner or other responsible person.
Formatted: Font: Italic
Preserve is the Town- owned 478- acre parcel of property located between Wildridge and Interstate 70 also known as the “West Avon Preserve” and includes property designated as “open space” and/or “park” and/or “planned unit development open space” as established by the Avon zoning districts.
Provocation means harassment, teasing, threatening, striking or attacking an animal or its owner in the animal's presence, by either a person or another animal.
Public nuisance means an animal infected with rabies, or stray cat, or a barking dog which disturbs the peace of humans, or a dangerous or potentially dangerous dog, an unconfined dog in estrus or a dog or cat that deposits excrement in public or private property that is not subsequently and promptly removed by the responsible party.
Rabies means a communicable disease of both wild and domestic animals transmittable to humans, as defined by the United States Department of Agriculture.
Running at large means when a dog or cat enters the property of another person without
authorization of that person, or when it enters public property, and is not under the control of the dog or
cat owner, other responsible person or an employee or agent of the owner, either by leash, cable or chain not more than ten (10) feet in length.
Secure animal enclosure means a structure which is suitable to humanely keep and to prevent the
escape of an animal, and has a top, bottom and all sides, which shall not be construed to mean the open
bed of a truck.
Severe injury means any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery.
Town means the Town of Avon, State of Colorado.
Voice control means immediate and reliable obedience to any voice or sound command given by the owner or handler who is thereby in fact able to prevent the dog from charging, chasing or otherwise disturbing or interfering with any person, domestic animal or wildlife, irrespective of the distance involved or the presence of any distraction or provocation.
Vaccination, inoculation or vaccination for rabies means the inoculation of a dog with an anti-rabies vaccine approved by the Colorado State Department of Public Health and Environment and administered by a licensed veterinarian for use in the prevention of rabies, which is deemed current by reference to the expiration date noted on the vaccination certificate or published duration as indicated by the manufacturer. (Ord. 98-3 §I; Ord. 96-14 §1; Ord. 94-17 §1(part))
6.04.030 Annual cat vaccination required.
(a) It is unlawful for a cat owner to fail to have currently vaccinated or inoculated against rabies each
cat which he or she maintains, keeps or harbors within the Town for more than thirty (30) consecutive days.
(b) A license is not required for cats; however, every cat so maintained, kept or harbored within the Town for more than thirty (30) consecutive days must be currently vaccinated against rabies, and a certificate as to the date administered and expiration, identifying the type of vaccine, administering
veterinarian and business address, must be presented for inspection upon the request of any duly authorized
Formatted: Font: Not Italic, Font color: Red
person. (Ord. 07-02 §1; Ord. 94-17 §1(part))
6.04.040 Attachment of cat tag to collar or harness.
No cat owner shall fail to place upon his or her cat a collar or harness to which a cat tag is attached.
Said collar or harness must be worn by the cat at all times, except when the cat is securely confined within
any enclosure on the property of the owner, possessor or keeper of such an animal. (Ord. 07-02 §2; Ord. 94-17 §1(part))
6.04.045 Dog license required.
(a) It shall be unlawful for any owner of a dog harbored, kept or maintained in the Town to fail to have the dog currently licensed.
(b) All dogs over the age of three (3) months shall have a valid Eagle County Pet Animal license after the dog has been kept, maintained or harbored in the Town for any consecutive thirty-day period or immediately upon citation for any violation of this Code.
(c) A valid dog license tag shall be attached to a collar or harness and shall be worn by the dog at all times. It shall be a defense to prosecution under this Subsection that the owner or responsible party can produce a certification by a veterinarian that the dog cannot wear a collar or harness because of a permanent medical condition or that the dog was working in a capacity that made the wearing of a collar or harness hazardous to the dog. (Ord. 07-02 §3)
6.04.050 Kennel regulations.
Dogs or cats kept or maintained by a licensed kennel shall be required to be inoculated against rabies
pursuant to the provisions of this Chapter while they are within the confines of the kennel premises; however, current rabies vaccinations and applicable certificates for each dog or cat over four (4) months of age shall be presented for inspection upon request of an authorized officer. (Ord. 94-17 §1(part))
6.04.060 Leash Control.
(a) With the exception of the Preserve property as herein defined, iIt is the duty of any owner or keeper of a dog or cat to keep such dog or cat under leash control, as herein defined, so as to prevent the dog or cat from:
(1) Running at large;
(2) Becoming a danger to persons or property;
(3) Trespassing on the property of another;
(4) Being a public nuisance as defined in Section 6.04.230; .
(5) Chasing or threatening wildlife.
(b) Animal Control has the authority to and shall deem any animal that displays any characteristics of
a dangerous or potentially dangerous dog, and shall notify the owner through posted notices.
(c) It is unlawful for:
(1) A dog or cat to not be under control at all times.
(2) A dog to not be under control in instances which shall include, but not be limited to, when said
dog bites or damages a person or property of anyone other than the owner. Animal Control has the
authority to and shall deem any dog that bites a human or domestic animal as potentially dangerous and shall notify the owner through posted notice.
(3) A dog to not be under control in instances which shall include, but not be limited to, when said
dog inflicts severe bodily injury or damage to the person or property of anyone other than the owner.
Animal Control shall deem any dog that inflicts severe bodily injury to a human or domestic animal as a
dangerous dog and shall notify the owner through posted notice.
(d) No dog owner shall fail to confine any female dog in the state of estrus (heat). The dog shall be confined during estrus in a house, building or secure enclosure constructed so that no other dog may gain
access to the confined animal. Owners who do not comply with this Subsection may be ordered to remove
the dog to a boarding kennel, veterinary hospital or the county Animal Control center. All expenses incurred as a result of such confinement shall be paid by the owner. Failure to comply with the removal order of the Animal Control officer shall be a violation of this Chapter, and any unspayed female dog in estrus may be summarily impounded in the event of noncompliance with such removal order.
(e) It is unlawful for a dog owner to leave within the open portion of a vehicle parked on public property a dog which is creating a danger to persons or property, or both, in the immediate vicinity thereto.
(f) It is unlawful to leave any domestic companion animal confined within a vehicle so as to place
said animal in undue stress or danger of extremes in temperatures. Any authorized officer finding such to
be existent may take whatever reasonable means necessary to remove said animal from the vehicle and place said animal into "protective custody."
(g) It is unlawful for a person to abandon or leave unattended an animal owned by him or her or
which has been under his or her control or in his or her possession. An animal which has been left
unattended for more than twenty-four (24) hours after posted notice of abandonment by Animal Control
shall be considered abandoned and may be impounded by Animal Control, exercising whatever reasonable means necessary to accomplish such impoundment.
(h) Procedure for notice of abandoned animals. Animal Control shall post a warning notice in a
conspicuous place such as the entry area to the property, door or near the animal. It shall state: animal
type; sex and color; time and date of posting; Animal Control's phone number; and the deadline for
notifying Animal Control. Time shall begin to elapse at the time Animal Control posts notice. Animal Control may provide food and water for said animals.
(i) Dogs in common and public areas. No dog or cat owner shall fail to prevent his or her dog or cat
from running at large in the yard of any multiple occupancy building which is occupied by other persons;
or in the common areas of mobile home complexes, apartments or condominium developments; or in open space areas of subdivisions; or in public or Town parks or fairgrounds, unless permission is posted by the Town or public authorities allowing dogs or cats at large on said property.
(j) Any animal obtained by Animal Control through a request from a governmental agency shall be
deemed not under control and may be impounded and subject to disposition as provided by Section 6.04.070.
(k) It is unlawful for a dog owner or keeper to allow his or her dog to enter or remain on a construction site unless it is restrained by a leash, chain or cable of no more than ten (10) feet in length, or it is contained in a secure animal enclosure. (Ord. 96-14 §2; Ord. 94-17 §1(part))
(l) Any dog on the Preserve property shall be under voice control as defined in section 6.04.020 herein and furthermore the owner or keeper of a dog shall have in their possession at all times a leash. A dog is presumed to be running at large if injury, damage or trespass or threatening of wildlife has occurred even if said dog is under voice control.
6.04.070 Impounding of dogs and cats.
(a) It shall be the duty of Animal Control to apprehend any dog or cat running at large or not under control as defined in the provisions of Section 6.04.020 hereof, or not duly vaccinated, and upon receiving
any dog or cat, to make a complete registry entering breed, sex and color of such dog or cat, and whether it is licensed. If licensed, he or she shall enter the name and address of the owner and the date and number of the dog or cat tag.
(b) When any dog or cat has been impounded, Animal Control shall as soon as feasible give notice in
person, by letter sent to the owner's last known address, telephone or service of a summons upon the owner, of the dog's or cat's impoundment and dispositional alternatives. If the dog or cat owner's identity or whereabouts are unknown at the time of impoundment, Animal Control shall take all reasonable steps to identify the owner and provide such notification. If the dog or cat owner's identity or whereabouts still cannot be established, Animal Control may proceed with any disposition authorized by this Chapter. Animal Control shall maintain records of the time, dates and manner of any such notification, and such records shall constitute prima facie evidence of notification or attempted notification. The owner of said impounded dog or cat may reclaim said dog or cat upon payment of all costs and charges incurred by the Town for impounding and maintenance of said dog or cat and upon presentation of a copy of the Town summons alleging the Animal Control violation. The charges and fees as listed in Section 6.04.170 shall be
paid to Animal Control for impounding any dog or cat.
(c) All impoundments will be kept on record for a period of twenty-four (24) months from the date of the first impoundment. (Ord. 94-17 §1(part))
6.04.080 Dangerous and potentially dangerous dogs.
(a) Impoundment and court appearance; locked premises.
(1) Any dangerous dog that has been found running at large may be impounded, and the owner is subject to a mandatory court appearance. If the dangerous dog injures a human or other domestic animal more than once, Animal Control has the authority to impound the dog at the owner's expense,
until the owner appears on a mandatory court appearance (protective custody). The court may order the dog to be destroyed.
(2) It is unlawful for any owner of a dangerous dog to keep the same unless it is confined in a locked premises and does not interfere with the public thoroughfares, including sidewalks, bike paths
and public easements. The premises must be sufficiently constructed to contain said dog and must post
at each entrance and exit of the enclosure, "Beware of Dog," or similar advisement.
(b) Any potentially dangerous dog that has caused no human injury or domestic animal injury and has been found running at large shall be impounded.
(c) It shall be the duty of any police officer or the Community Service Officer to impound any such
animal that is in violation of this Section, which shall constitute a separate offense in addition to a violation of Section 6.04.060. A violation of this Section shall require a mandatory court appearance.
(d) Any dog that has been previously deemed dangerous by appropriate notification and while in
violation of this Section is found to have caused bodily injury to a person or animal, or threatened or
endangered wildlife or livestock, or both, and repeats such incident or commits another violation of this
Chapter, shall automatically constitute a directive for impoundment and protective custody and a petition for a court order for the destruction of said dog under the supervision of the Community Service Officer.
(e) It shall be the duty of any police officer or the Community Service Officer to seize and impound
any dangerous or potentially dangerous dog. After making every reasonable attempt to seize and impound
such animal, including the solicitation of assistance from the owner if said owner is known and available, if the officer determines that said animal cannot be seized without exposing the officer or other persons to danger or personal injury and if the officer or other person is in apparent immediate danger, it shall be lawful for the officer to destroy said animal without notice to the animal's owner, keeper or possessor. (Ord. 94-17 §1(part))
6.04.090 Quarantine of dogs and cats.
(a) A dog or cat that does not have a current rabies vaccination and is known to have bitten or injured
any person so as to cause a puncture or abrasion of the skin shall be quarantined for no less than ten (10)
days from the date of the bite at the expense of the owner. The place of confinement of said animal shall be the county shelter or a licensed veterinarian hospital at the expense of the owner.
(b) A dog or cat that is currently vaccinated and is known to have bitten or injured any person so as to
cause a puncture or abrasion of the skin shall be quarantined for no less than ten (10) days from the date of
the bite at the expense of the owner. The place of confinement shall be the county animal shelter or a
licensed veterinarian hospital, or, if the owner has an enclosure on the owner's property that would adequately contain the animal at all times of the required quarantine period, the Community Service Officer, at his or her discretion, may place said animal under quarantine on the owner's property; provided that the owner keeps said animal confined without exposure to any other animals and the Community Service Officer shall from time to time check the animal's health and behavior; and if, at any time, the owner of said animal does not comply with the provisions of the confinement of said animal, the Community Service Officer shall move the animal to the Town animal shelter for the remainder of the quarantine period at the owner's expense.
(c) If at any time during the quarantine of a vaccinated or an unvaccinated animal, said animal becomes ill or displays symptoms of rabies, said animal shall immediately be examined by a licensed veterinarian and may be destroyed and a medical test conducted to determine if the animal was rabid, having thus exposed the bite victim to rabies. If said animal dies while under quarantine, a medical test shall be conducted to determine whether the subject animal was suffering from rabies at the time of death.
All tests are conducted at the expense of the animal's owner.
(d) If the owner of an animal referred to in Subsection (c) of this Section cannot be determined or located, then the Community Service Officer shall confine said animal at the county animal control shelter for a quarantine period of not less than ten (10) days from the date of bite. If the owner of said animal is not determined or located, or if the animal is unclaimed by the end of the quarantine period, the
Community Service Officer may order said animal destroyed. If said animal is suspected by a licensed
veterinarian to be suffering from rabies, said animal shall immediately be destroyed. (Ord. 94-17 §1(part))
6.04.100 Disposition of unclaimed, diseased or dead animals.
(a) With respect to an animal which has been impounded or quarantined pursuant to the provisions of Section 6.04.080 or 6.04.090 hereof and has not been claimed, released or disposed of in accordance with said sections, the Community Service Officer shall keep those animals in the county animal shelter or other suitable place for not less than five (5) days, and cats for not less than seventy-two (72) hours, after which said officer may have said animal destroyed, except as herein provided.
(b) Release; sterilization.
(1) After the required time period, in lieu of having said animals destroyed, the Community Service Officer may release any such animal, if unclaimed and not diseased, to a bona fide humane society; or with respect to a stray animal, to a person having no previous interest in said animal in accordance with the provisions of this Chapter. Upon release of said animal, the recipient shall pay all required fees.
(2) All animals adopted from the county animal shelter are required to be sterilized at the time of adoption. Transfer of absolute ownership of the dog or cat shall not be effected until sterilization has occurred, unless such surgery would be dangerous to the animal due to its age or physical condition, as determined by the selected veterinarian of record. In said circumstances the terms of the adoption contract shall specify a date by which sterilization is performed. Nothing hereinabove shall place responsibility or liability for the animal's actions upon the Town or County for any incident arising during that period of delay in transfer of absolute ownership. Failure of the person adopting a dog or cat to sterilize it is a violation of this Chapter.
(c) An impounded animal which is sick, injured, in pain or contagious to other animals, and which is not identifiable to an owner, is not subject to a minimal impoundment period and may immediately be euthanized. If a sick or injured animal which is in pain or contagious to other animals is identifiable to an owner, the Community Service Officer shall diligently attempt to contact the owner within twenty-four (24) hours after impoundment, after which time the animal may be euthanized if still unclaimed.
(d) No animals that become property of the Town shall be released for animal research or experimentation.
(e) When recovering or disposing of dead animals, Animal Control shall take whatever reasonable and appropriate action is required to protect the health, safety and welfare of the community, including but not limited to disposal of the dead animal without unnecessary delay. If the dead animal has a current license tag intact, the Community Service Officer shall make reasonable efforts to notify the owner before disposing of the animal. Reasonable fees for time and expenses may be charged to an owner of such deceased animal.
(f) Nothing in this Section shall be construed to prevent the Community Service Officer from taking whatever action is reasonably necessary to protect his or her person or members of the public from injury
by any animal. (Ord. 94-17 §1(part))
6.04.110 Quarantine and destruction of rabid domestic animals.
(a) Where, in the reasonable discretion of the Community Service Officer or any police officer, an
animal suspected of rabies is endangering the life or person of another, or inflicting death or injury to
livestock or wildlife, said animal may be immediately destroyed.
(b) Isolation; unvaccinated dog or cat bitten by rabid animal must be destroyed or quarantined.
(1) When bitten by a rabid animal or exposed to a rabid animal, an unvaccinated dog or cat shall be destroyed immediately, unless the owner objects, in which case the animal shall be placed in strict isolation for a period of six (6) months and vaccinated for rabies one (1) month before being released from isolation. The isolation shall be supervised by a veterinarian licensed in the State. All expenses of said quarantine are to be borne entirely by the animal's owner.
(2) It is unlawful for any dog or cat owner to fail to have any unvaccinated dog or cat, bitten by a rabid animal, so destroyed or quarantined. Each day said owner fails to comply with the provisions of this Section shall constitute a separate offense.
(c) Revaccination; confinement.
(1) In any case where a rabid animal bites a dog or cat with a current rabies vaccination, the owner
of the dog or cat shall obtain the immediate revaccination of said dog or cat by a licensed veterinarian and shall see that said animal is confined for a period of ninety (90) days.
(2) It is unlawful to fail to have a dog or cat, bitten by a rabid animal, revaccinated or to fail to
confine said dog or cat for ninety (90) days. Each day said owner fails to comply with the provisions of
this Section shall constitute a separate offense. (Ord. 94-17 §1(part))
6.04.120 Affirmative defense.
An affirmative defense to the violation of dangerous dog or potentially dangerous dog attacking shall be:
(1) That at the time of said attack by the dog which causes injury or death of a domestic animal, such domestic animal was at large and entered upon the property of the owner of subject dog where the attack began;
(2) That, at the time of said attack by the dog which causes injury or death of a domestic animal, said domestic animal was biting or otherwise attacking the dog or its owner or responsible companion and the dog was otherwise conforming to the requirements of law as pertains to control;
(3) If a dog is provoked into biting or inflicting bodily injury or damage to the person or property of
anyone other than the owner, such provocation shall constitute an affirmative defense that may be pled by an owner who is in violation of this Chapter on account of said biting;
(4) Any other conditions or defenses as outlined in Section 18-9-204, 5(3)(h), C.R.S., known as
"The Dangerous Dog Law." (Ord. 94-17 §1(part))
6.04.130 Interference with Community Service Officer.
It is unlawful for any person to interfere with, molest, hinder, prevent or obstruct the Community Service Officer in the discharge of his or her duties under this Chapter. Anyone so interfering, molesting or hindering is subject to arrest for obstructing a peace officer pursuant to Section 9.04.060 of this Code. (Ord. 94-17 §1(part))
6.04.140 Threatening of wildlife and livestock.
(a) It is unlawful to allow a dog to run after, chase, pursue, bite, snap at, worry, attack or otherwise
threaten wildlife or livestock, or both. In the event any dog is found to be threatening wildlife or livestock
or both as described, said dog may immediately be destroyed at the discretion of any police officer or the
Community Service Officer. In the event said dog cannot be immediately destroyed, it shall be the duty of any police officer or the Community Service Officer to impound such dog. A violation of this Section, whether or not said dog has been destroyed or claimed from impound, shall constitute a mandatory court appearance of the owner; and if convicted of a violation of this Section, the owner will be required to pay restitution for any animal or animals harmed by said dog, in addition to court fines and court costs. If the dog was not destroyed at the time of the incident, the court may order the dog destroyed under the supervision of the Community Service Officer. If the dog is not ordered destroyed, the court may deem said dog dangerous and the owner may thereby be permitted to keep the dog as provided in Section
6.04.080(a).
(b) Upon a second conviction of a violation of this Section the court may enter an order commanding the destruction of said dog under the supervision of the Community Service Officer. (Ord. 94-17 §1(part))
6.04.150 Dog or cat bite.
In the event any dog or cat is found to have caused bodily injury to any human, said dog or cat will be impounded as described in Section 6.04.070 and the owner will be in violation of this Chapter. The Community Service Officer may petition the Municipal Court for an order for destruction of the dog or cat and for an appropriate rabies examination at the dog or cat owner's expense. (Ord. 94-17 §1(part))
6.04.160 Violations and penalty assessments.
(a) Any person who violates any provisions of this Chapter, upon conviction thereof, shall be punished for such offense in accordance with the provisions of Section 1.08.010 of this Code, plus the customary court costs as applicable.
(b) The Municipal Court may establish a penalty assessment procedure and make provision for a schedule of penalty assessments.
(c) For purposes of determining the proper fine (penalty assessment) for violations of this Chapter which do not result in bodily injury to any person, only those convictions (admissions of guilt) occurring within twelve (12) months of the date of the offense for which the fine (penalty assessment) is now being imposed shall be considered. This twelve-month limitation shall not apply to what evidence may be introduced in aggravation of any sentencing for any violation of this Chapter which does result in bodily injury to any person nor shall any time limitation apply to the provisions of Section 6.04.140 of this Chapter. (Ord. 94-17 §1(part); Ord. 04-05 §1)
6.04.170 Charges and fees.
Charges and fees of seizure, impoundment, boarding, licensing, veterinarian care and adoption of an animal shall be cumulatively assessed to any animal owner based upon the actual amount of such fees incurred by the Town pursuant to contracts entered into by it. (Ord. 94-17 §1(part))
6.04.180 Destruction of dangerous dogs.
(a) In addition to any other penalty, if it is found by the court or a jury that any dog complained of is a dangerous dog, the court may, if it finds it is in the best interest of the public, order the dog destroyed at the
owner's expense. Such destruction shall not occur prior to the completion of observation of the dog for
rabies when necessary.
(b) In the event the dog owner is twice convicted of an offense relating to the same dog, the court may order the dog destroyed and require that the owner, as a condition of probation, refrain from owning or harboring any dog at any premise for a period of one (1) year. (Ord. 94-17 §1(part))
6.04.190 Failure to appear.
If a person upon whom a summons and complaint (penalty assessment notice) fails to appear in person or by counsel at the time and place specified therein and has not paid the specified fine in person or by mail at the place and within the time specified in the penalty assessment notice, the Municipal Court may issue a bench warrant for his or her arrest. (Ord. 94-17 §1(part))
6.04.200 Failure to redeem, comply or pay fines or fees.
(a) If a person "duly notified" fails to make arrangements for the redemption or surrender of any
animal under his or her care, custody or control, regardless of ownership, said person shall be charged with a violation of this Section and brought before the court which shall at such time assess the fine provided and recover all costs accumulated.
(b) Any violation under this Chapter that involves failure to comply, pay fines, meet stipulations of
contract, payment schedules or as otherwise outlined will constitute a violation under this Section. (Ord.
94-17 §1(part))
6.04.210 Muzzling and confinement.
Whenever it becomes necessary to safeguard the public from the dangers of rabies, the Town Council, if it deems necessary, shall issue a proclamation ordering every person owning or keeping a dog or cat to confine it securely on his or her property or premises, and any such dog shall have a muzzle of sufficient strength to prevent it from biting any person. Any dog or cat running at large during the time of proclamation shall be seized and impounded, and if displaying propensities which are an apparent
immediate danger to the Community Service Officer or any other person, shall be destroyed by the
Community Service Officer. Any dog or cat impounded during such proclamation is considered to have
been exposed to a rabid animal, and said impoundment and release shall fall under the provisions of Section 6.04.070. (Ord. 94-17 §1(part))
6.04.220 Liability for accident or subsequent disease from impoundment.
The Town, its employees or agents, or persons authorized herein to enforce the provisions of this Chapter shall not be held responsible for any accident or subsequent disease which may be suffered by a dog or cat as a result of the administration or implementation of this Chapter. (Ord. 94-17 §1(part))
6.04.230 Public nuisance.
(a) It is unlawful and declared to be a public nuisance for any dog or cat owner or other responsible person to allow his or her dog or cat to excrete body waste upon public or private property and when the
responsible person does not promptly remove same.
(b) It is unlawful and declared to be a public nuisance for any dog owner to fail to prevent his or her dog from disturbing the peace of any other person or neighborhood by loud, habitual, untimely and persistent barking, howling, yelping or whining, whether the dog is on or off the dog owner's premises. It shall be the duty of the Community Service Officer and his or her deputies to impound said dog if the
officer is unable to contact the owner, and determines that the barking is disturbing the peace of the
neighbors, and said officer has a signed complaint.
(c) Provocation of a dog whose noise is complained of is an affirmative defense to any charge for violation of this Section.
(d) Complainant rights and responsibilities. If a violation of this Section is charged, the complainant shall verify in writing the allegations of the complaint prior to its service upon the owner. (Ord. 94-17 §1(part))
6.04.235 Habitual offender.
Upon the conviction of an owner/keeper as a habitual offender, the court shall order the animal involved in the violations to be permanently removed from the Town. (Ord. 98-3 §II)
6.04.240 Unlawful taking or release.
(a) It is unlawful for any person to take any dog or cat from an enclosed lot, vehicle, premises or other building and deliver the dog or cat to the impoundment facility unless authorized to do so by the owner or the keeper of the dog or cat or as authorized by this Chapter.
(b) It is unlawful for any person to open or cause to be opened any closed vehicle, premises or building or release from a chain any dog or cat for the purpose of allowing said dog or cat to run at large.
(c) It is unlawful for any person to remove any animal from any Town vehicle, or from the custody of the Community Service Officer, without the consent of the Community Service Officer. Such action will be considered as an obstruction and charged accordingly. (Ord. 94-17 §1(part))
6.04.250 Abandonment, cruelty to animals or neglected dogs.
No person shall physically or cruelly mistreat or neglect to provide proper amounts of food and water, or neglect to provide proper shelter to any animal. (Ord. 94-17 §1(part))
6.04.260 Enforcement.
The provisions of this Chapter shall be enforced by the Police Department, the Community Service Officer or his or her authorized representative, or by both. (Ord. 94-17 §1(part))
6.04.270 Hot pursuit.
(a) The Community Service Officer or any police officer in hot pursuit of any dog or cat in apparent violation of this Chapter may enter onto private property for the purposes of enforcing this Chapter, including the impoundment of the dog or cat, removal of the dog or cat, ascertaining the identity of the dog
or cat, the currency or existence of dog or cat tags or issuing a citation.
(b) This Section does not grant the Community Service Officer or any police officer any additional authority to enter into any dwelling or other building designed for human occupancy other than that authority which may now exist under Colorado law. Any warrant requirements for entry into any dwelling or other building designed for human occupancy is observed. (Ord. 94-17 §1(part))
6.04.280 Community Service Officer.
Personnel engaged in animal control, however titled or administratively assigned, may issue citations or summonses and complaints enforcing this Chapter. Personnel so engaged shall be included in the definition of "peace officer or fireman" in Section 18-3-201 (2), C.R.S., and, to the extent such personnel are empowered to do so by the laws governing the state bureau of animal protection, are authorized to carry out the enforcement of the laws for the prevention of cruelty to animals pursuant to Sections 35-42-101, C.R.S., et seq. (Ord. 94-17 §1(part))
6.04.290 Town Manager Authority.
The Town Manager retains the authority to further manage and modify rules for the Preserve including but not limited to wildlife closures:
Between December 15 and April 15 annually, all portions of the West Avon Preserve shall be closed to
all uses to protect the Town’s investment in sensitive wildlife species, except that PB&J, Our Backyard,
and Beaver Creek Point trails will be open year round. Closures may be adjusted by the Town Manager in writing as required to protect the conservation values of the property. Additional posted closures may be pursued by the Town Manager at any time for good cause.
6.04.290300 Captions.
The captions and paragraph headings used throughout this Chapter are for the convenience of reference only, and the words contained therein shall in no way be held or deemed to define, limit, describe, explain, modify, amplify or add to the interpretation, construction or meaning of any provision to or the scope of
this Chapter. (Ord. 94-17 §1(part))
PAGE 1 OF 1
TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Matt Pielsticker, AICP, Planning Manager Date: October 28, 2014 Agenda Topic: CPW Grant Letters of Support Town staff is preparing two grants to the Colorado Parks and Wildlife (CPW) Department concerning the West Avon Preserve. As part of the grant, letters of support for the applications are required from the “decision makers” because of the legally binding nature of a grant contract if awarded. The first grant is for monies provided through CPW’s Trail Planning category. The Town will seek funding of a use study and analysis of the entire 478-acre parcel for purpose of creating a maintenance program and improving the existing trail network - or in some cases evaluating the closure of “social” trail(s) or annual seasonal closures. The second part of the Planning grant is to fund an inventory and mapping of the threatened Harrington’s Penstemon plant in June/July 2015 by a qualified biologist. A second grant is being prepared under the CPW’s Trail Construction and Maintenance category. With eight miles of new trails completed this past summer, while well-constructed, the development of soft trails are known to require a second year of work to address areas such as drainage improvements, remediation of slopes and cuts, and washboarding. The Construction
and Maintenance grant would pay for this second year of final construction on the new trails and also provide for the same environmental restoration and maintenance construction improvements on the remaining 3.5 miles of trails in the Preserve as well as assessing whether any trails should be closed. Funding is also being sought for interpretive signage related to the Harrington’s Penstemon (rare, threatened native plant species to the property) as well as additional informative closure signs. Goals: 1. Sustainably built trails. 2. Reduction in erosion caused from improperly created/designed social trails. 3. Increased awareness of threatened, unique plant species to better inform future trail reroutes or new trail routes. 4. Well designed, long lasting interpretive signage at key locations. 5. Long term plan for maintenance of trails including budget projections and upkeep schedule Town Council is asked to approve the attached two letters of support for submission with the grant applications.
October 28, 2014
Colorado Parks and Wildlife
State Trails Committee and Staff
13787 S. Hwy 85
Littleton, CO 80125
Re: West Avon Preserve Planning Grant
Dear Committee Members and Staff:
Attached you will find the Town of Avon’s application for the 2014-2015 Planning Grant program
through the Community Development Department. The Town of Avon is seeking this grant in order to
complete a use study and analysis of a recently acquired 478-accre parcel called the West Avon Preserve
(“the Property”). In addition to the use analysis, funding for the inventory and mapping of the
threatened Harrington’s Penstemon plant on the Property is being pursued.
Support:
This letter documents the full support of the Avon Town Council for the accompanying Trail Planning
grant application. The conservation easement on the Property was made possible through The Eagle
Valley Land Exchange, a global land swap project involving the full support of numerous agencies
including: the United States Forest Service, Colorado State Land Board, Eagle County, Upper Eagle
Regional Water Authority, Eagle River Water and Sanitation District, the Nottingham Family, and the
Eagle Valley Land Trust.
Ownership:
The West Avon Preserve is located on land owned by the Town of Avon. The Property is permanently
conserved as open space through a Deed of Conservation between the Town of Avon and the Eagle
Valley Land Trust.
We are very fortunate to have the Colorado State Recreational Trails Grant Program as a resource. A
grant from State Trails would enable us to leverage our local funds and continue the exceptional
recreational and open space values of the West Avon Preserve property for residents and visitors alike.
We appreciate your consideration of this application.
Sincerely,
Rich Carroll
Mayor
October 28, 2014
Colorado Parks and Wildlife
State Trails Committee and Staff
13787 S. Hwy 85
Littleton, CO 80125
Re: West Avon Preserve Construction and Maintenance Grant
Dear Committee Members and Staff:
Attached you will find the Town of Avon’s application for the 2014-2015 Construction and Maintenance
Grant program through the Community Development Department. The Town of Avon is seeking this
Non-Motorized Recreational Trails Construction and Maintenance grant in order to complete the
construction of maintenance improvements to approximately 11.5 miles of soft trails on the West Avon
Preserve property. Funding is necessary for “second year” work on approximately 8 miles of newly
constructed trails to address areas such as drainage improvements, remediation of slopes and cuts, and
wash-boarding. This grant is also being sought for interpretive signage related to the Harrington’s
Penstemon flower as well as information on trail closures for wildlife.
Support:
The Avon Town Council is in full support of the accompanying Trail Construction grant application. The
conservation easement on the Property was made possible through The Eagle Valley Land Exchange, a
global land swap project involving the full support of numerous agencies including: the United States
Forest Service, Colorado State Land Board, Eagle County, Upper Eagle Regional Water Authority, Eagle
River Water and Sanitation District, the Nottingham Family, and the Eagle Valley Land Trust.
Ownership:
The West Avon Preserve is located on land owned by the Town of Avon. The Property is permanently
conserved as open space through a Deed of Conservation between the Town of Avon and the Eagle
Valley Land Trust.
We are very fortunate to have the Colorado State Recreational Trails Grant Program as a resource. A
grant from State Trails would enable us to leverage our local funds and further support the exceptional
recreational and open space values of the West Avon Preserve property for residents and visitors alike.
We appreciate your consideration of the attached application and supporting documentation.
Sincerely,
Rich Carroll
Mayor
Heil Law & Planning, LLC Office: 303.975.6120
3445 S. Clermont St. 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: Ordinance No. 14-18 Approving Acquisition of Tract S
DATE: October 23, 2014
Summary: Ordinance No. 14-18 is presented to Council for consideration on first reading. Ordinance
No. 14-18 would authorize the acquisition of Tract S from the Twin Bears Townhomes Common Area.
During the construction of the recreational trails on the West Avon Preserve, the preferred alignment of one
trail encroached slightly on the Twin Bears Townhomes common area. Town has worked closely with the
Twin Bears Townhomes owners to address this trail encroachment. Tract S is .015 acres, or 652 square
feet. The consideration for the acquisition would be $8,000 ($12.2 per square foot), which Town staff
believes is a reasonable and market based price considering the circumstances.
Acquisition of a fee simple interest by the Town was determined to be preferred over a license agreement
or permanent easement because the Town’s liability and maintenance responsibility for the trail would be
more clear and would be consistent with Town property management as a Town property. A formal
purchase agreement has not been prepared due to the small amount of property involved and modest
amount of consideration proposed. Town staff has negotiated the acquisition price and agreed to pay the
costs of preparing a subdivision plat to create Tract S for conveyance. Approval of the subdivision plat to
create Tract S would be administrative and would be finalized only after Council approves Ordinance 14-18
on second and final reading. The form of the deed for conveyance is currently under discussion with the
Twin Bears Townhomes owners association and will be presented to Council for second and final reading.
Proposed Motion: “I move to approve Ordinance No. 14-18 Approving Acquisition of Tract S of the Twin
Bears Townhomes, Town of Avon, Colorado.”
Attachment A: Ordinance No. 14-18
Attachment B: Subdivision Depiction of Tract S
M EMORANDUM & PLANNING, LLC
Ord. No 14-18 Approving Acquisition of Tract S, Twin Bears Townhomes
October 23, 2014
Page 1 of 3
TOWN OF AVON
ORDINANCE 14-18
SERIES of 2014
AN ORDINANCE APPROVING THE ACQUISITION OF TRACT S OF
THE TWIN BEARS TOWNHOMES, TOWN OF AVON, COLORADO
WHEREAS, the Town of Avon and Twin Bears Townhome Owners Association, have mutually
agreed to the sale and conveyance to the Town of Avon of a portion of the Twin Bears
Townhome common area, described as Tract S of the AMENDED FINAL PLAT, A
RESUBDVISION OF TWIN BEARS TOWNHOMES, Lot 3, Block 2, Wildridge Subdivision,
Town of Avon, County of Eagle, Colorado (“Property”);
WHEREAS, Section 2.1 of the Avon Home Rule Charter provides that the Town Council may
acquire real property interests and Colorado Revised Statutes section 31-15-101(1)(d) provides
that municipalities may acquire and hold real property;
WHEREAS, the Town Council finds that acquisition of this Property supports Avon
Comprehensive Plan by adding recreational trails for use and enjoyment by the Avon community
and securing property that allows a better trail that minimizes excavation and disturbance of
native vegetation;
WHEREAS, the Town Council finds that acquisition of the Property shall promote the health,
safety, prosperity, convenience and general welfare of the Avon community by; and,
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with the requirements of the Avon Home Rule Charter by
setting a public hearing in order to provide the public an opportunity to provide public comment
on this Ordinance and that approval of this Ordinance on first reading does not constitute a
representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Acquisition Approved. The acquisition of the Property for $8,000.00 is hereby
approved. The form of the deed shall be subject to review and approval by the Town Attorney.
Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and
Town Clerk are authorized to execute and attest to documents related to acquisition of the
Property in accordance with this Ordinance and take such other actions as may be reasonably
necessary to implement the actions in this Ordinance.
ATTACHMENT A: ORD NO. 14-18
Ord. No 14-18 Approving Acquisition of Tract S, Twin Bears Townhomes
October 23, 2014
Page 2 of 3
Section 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect thirty days after the date of final
passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by
posting notice of adoption of this Ordinance on final reading by title only in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the Ordinance in full is available for public inspection in the office of
the Town Clerk during normal business hours.
[Signature page follows]
ATTACHMENT A: ORD NO. 14-18
Ord. No 14-18 Approving Acquisition of Tract S, Twin Bears Townhomes
October 23, 2014
Page 3 of 3
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for November 11,
2014 at the Council Chambers of the Avon Municipal Building, located at One Lake Street,
Avon, Colorado, on October 28, 2014.
____________________________
Rich Carroll, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least six days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on November 11, 2014.
____________________________
Rich Carroll, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST: APPROVED AS TO FORM:
_______________________________ ____________________________
Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney
ATTACHMENT A: ORD NO. 14-18
ATTACHMENT B: TRACT S DEPICTION
PAGE 1 OF 1
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Virginia Egger, Town Manager
Date: October 28, 2014
Agenda Topic: Letter of Engagement with Moses Wittemyer as Special Counsel
Action is scheduled on Tuesday’s agenda on a Revised Agreement for Legal Services to retain Moses,
Wittemyer, Harrison and Woodruff, P.C. (MWHW) as water counsel to the Town and the terms for these
services.
With Patricia DeChristopher leaving the firm, the Town has been represented by MWHW partner Richard
Mehren and Anne Bensard, with Jay Montgomery who is of-counsel to the firm. Mayor Pro Tem Jennie
Fancher joined Town Attorney Eric Heil and me on September 12th to interview all three of the attorneys for
continued water counsel services. From the interview and experience in working with these attorneys
since early 2014, the recommendation to Council is to continue with MWHW as special water counsel,
including Jay Montgomery.
Town Council may on its own motion or upon request of the Town Attorney employ special counsel
pursuant to Section 10.1 of Avon’s Charter.
Proposed Motion: I move to approve the Revised Agreement for Legal Services, Town of Avon, with
Moses, Wittemyer, Harrison and Woodruff, P.C., dated October 21, 2014.
Attachments:
Revised Agreement for Legal Services
Resumes
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES
1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES
TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011)
RICHARD J. MEHREN CHARLES N. WOODRUFF
CAROLYN R. STEFFL TELEPHONE: (303) 443-8782 (1941-1996)
_______ FAX: (303) 443-8796 INTERNET: www.mwhw.com COUNSEL
ANNE D. BENSARD JOHN WITTEMYER
JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON
ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY
ANDREA A. KEHRL BOULDER, COLORADO 80306-1440
00089096-3
October 2, 2014
BY EMAIL
Town of Avon
c/o Virginia Egger, Town Manager
P. O. Box 975
Avon, CO 81620
Re: Revised Agreement for Legal Services, Town of Avon
Dear Virginia:
The purpose of this letter is to outline the terms on which the Town of Avon (the
“Town”) agrees to continue retention of Moses, Wittemyer, Harrison and Woodruff, P.C. to provide water-related legal services and the terms on which the firm agrees to provide those services. The scope of the engagement is to provide legal services on an as-needed basis as
water counsel to the Town. We understand that the work will involve assisting you as Town
Manager and advising you and the Town Council on transactional matters that are water-related,
such as dealings with the Upper Eagle Regional Water Authority and other members of the Authority, contracts and negotiations with developers, acquisition of water rights, and related matters.
Specifically, we understand that this work will include negotiations with the
Upper Eagle Regional Water Authority regarding the unallocated water as well as creation of a “water bank” for allocation of water within the Town. In addition, we will continue to review the monthly resume of water court applications, advise you of any applications that may affect
the Town or its water rights, and represent the Town as needed in Water Court cases, including
pending Case No. 14CW3022 (Nottingham Reservoir) and Case No. 14CW3079 (RICD). Any
recommended Water Court activity would be coordinated with the Upper Eagle Regional Water Authority because the primary responsibility for Water Court work associated with the Town’s leased and otherwise allocated water rights lies with the Authority.
Our previous engagement letter dated January 9, 2014, identified work that we
have done for other clients that might have been considered by the Town to present the potential
of a conflict. We are aware of no additional conflicts or potential conflicts with work for other
clients of the firm that have arisen during the course of our representation of the Town. Sometimes conflicts arise that were not foreseen when we undertook the new representation. In
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Town of Avon
October 2, 2014 Page 2
00089096-3
that event, our firm’s policy is to cease representing the newer client and to continue representing
the older client to the extent that ethical considerations permit us to do so. Sometimes, based on ethical considerations, it may be necessary for our firm to cease representing both the newer and
the older client in a particular matter if a conflict of interest arises.
As we have discussed with you and with Town Attorney Eric Heil, the
responsible attorney for the Town’s water matters including, but not limited to, review of
monthly water court filings, participation in water court cases, if any, and assistance to the Town
with water rights and use matters will be Richard Mehren with support from Anne Bensard. Richard and Anne will also assist with the creation of the “water bank” with assistance where
appropriate from Jay Montgomery, who is of-counsel to the firm and has represented the Town
since 2007. Jay will continue at least through 2015 to be primarily responsible for matters
involving implementation of, changes to, or re-negotiation of, the various agreements with the Upper Eagle Authority and matters related to the Traer Creek settlement, such as the water rights for Nottingham Reservoir. Jay is also available to provide background information on any Town
matters, where appropriate. If, after consultation, with you and/or the Town Attorney, we
determine that all or part of a particular matter will be most efficiently handled by Jay, his time
will be billed to the Town at his current hourly billing rate. We will review Jay’s involvement annually.
Where appropriate and after consultation with the Town and with the Town’s
consent, we will delegate work to associate attorneys, paralegals and law clerks in order to keep
the costs as low as reasonably possible. Time spent by others at the firm on the Town’s water matters will be billed only to the extent their work on the matter is in addition to, and not duplicative of, any work performed by Richard or Jay. Additionally, as we discussed, we will
continue to coordinate all work among Richard, Anne and Jay to assure that there is no
unnecessary duplication of effort. When non-chargeable time is spent on a matter, the time will
be indicated as “No Charge” on the monthly itemized bill. Our hourly rates are listed on the fee schedule attached. We typically review and
adjust the hourly billing rates on an annual basis, and we will advise the Town in writing of any
changes in our billing rates before undertaking any work at rates different from those described
herein. Our monthly bills will indicate the hourly charges by attorney or other staff member, as well as any additional fees or out-of-pocket expenses incurred in connection with your legal services. Mileage is presently billed at 56¢ per mile, color photocopies are billed at 50¢,
photocopies are billed at 10¢ per page, and faxes are billed at 25¢ per page. Payment is due
within 30 days and it is our firm’s policy to charge interest at a rate of 1% per month on any
principal balance that is not paid within 30 days.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES
1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES
TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011)
RICHARD J. MEHREN CHARLES N. WOODRUFF
CAROLYN R. STEFFL TELEPHONE: (303) 443-8782 (1941-1996)
_______ FAX: (303) 443-8796 INTERNET: www.mwhw.com COUNSEL
ANNE D. BENSARD JOHN WITTEMYER
JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON
ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY
ANDREA A. KEHRL BOULDER, COLORADO 80306-1440
00058374-4
This is to advise that effective January 1, 2014 our hourly rates for professional services rendered
will be as follows:
David L. Harrison $275.00 per hour
James R. Montgomery $270.00 per hour
Timothy J. Beaton $260.00 per hour
Richard J. Mehren $235.00 per hour
Carolyn R. Steffl $210.00 per hour
Jennifer M. DiLalla $195.00 per hour
Andrea A. Kehrl $185.00 per hour
Alison D. Gorsevski $165.00 per hour
Anne D. Bensard $165.00 per hour
Paralegal $ 90.00 per hour
Senior Law Clerks $ 85.00 per hour
Interest at the rate of 1.0% per month accrues on amounts not paid within 30 days of billing.
The firm reserves the right to charge on other than an hourly rate basis, or to charge a fee in
addition to hourly rates, for work involving special risks, effort or time constraints including, without limitation, opinions relating to title, bonds and similar matters.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
LAW OFFICES
1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES
TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011)
RICHARD J. MEHREN CHARLES N. WOODRUFF
CAROLYN R. STEFFL TELEPHONE: (303) 443-8782 (1941-1996)
_______ FAX: (303) 443-8796
INTERNET: www.mwhw.com COUNSEL
ANNE D. BENSARD JOHN WITTEMYER
JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON
ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY
ANDREA A. KEHRL BOULDER, COLORADO 80306-1440
00031181-4
BIOGRAPHICAL INFORMATION AND AREAS OF PRACTICE
Moses, Wittemyer, Harrison and Woodruff, P.C.
Background of the Firm
Raphael J. Moses (1913-2011) actively practiced water law in the West for more
than 60 years. The law firm of Moses, Wittemyer, Harrison and Woodruff, P.C. was founded by
Raphael J. Moses, John Wittemyer and David Harrison in 1973. Charles N. Woodruff
(1941-1996) joined them as a partner in 1974. The firm was named a Tier 1 water law firm on
U.S. News & World Report’s “Best Law Firms” list for 2013.
Throughout its history the firm’s practice has emphasized water-related fields of
law, including water rights, water quality, environmental regulation, and local government and
special district law. The firm conducts both transactional work and litigation related to water
rights adjudication; water rights title and conveyancing; interstate apportionment of water;
changes of senior water rights to instream flow uses; water quality control and permitting;
compliance with state and federal water quality regulations, standards and effluent limitations;
design and construction of water collection, storage, treatment and distribution systems and
wastewater treatment systems; the development of water and water rights master plans; state and
federal permitting of natural resources and water development projects, and compliance with
federal environmental laws, including the federal Endangered Species Act, National
Environmental Policy Act and Clean Water Act. The firm also serves as general counsel for
water and sanitation districts.
The firm’s clients are diverse, including municipal water suppliers, special
districts, conservancy districts, irrigation districts, energy and land development entities, small
ditch companies, the State of Wyoming, and national land conservation organizations.
Additional information on the background and areas of practice of the individual
attorneys of the firm follows:
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
00031181-4 2
Members
TIMOTHY J. BEATON is a graduate of Colorado College and obtained his law degree from
the University of Colorado School of Law (1980). He began his practice as a lawyer with the
firm of Moses, Wittemyer, Harrison and Woodruff, P.C. in 1980, working on issues concerning
development fees, service charges and tap fees, general special district matters, (including
conflicts of interest), and water supply matters. Mr. Beaton has participated in litigation
concerning the authority of special districts in the Colorado state district courts, the Colorado
Court of Appeals, the Colorado Supreme Court, the United States District Court and the United
States Supreme Court. In 1989 he joined the firm of Collins & Cockrel as a partner, and returned
to the Moses, Wittemyer firm in 1994. He is a fourth-generation Coloradoan, with experience on
the family farm and ranch generating his interest in public water and sewer entities. Mr. Beaton
currently provides legal counsel to the South Adams County Water and Sanitation District,
Genesee Water & Sanitation District, Three Lakes Water and Sanitation District, Cottonwood
Water and Sanitation District, and Westlake Water and Sanitation District. He also acts as
special counsel to the cities of Gunnison and Walsenburg, and Pitkin County in Colorado. Mr.
Beaton’s representation includes counsel on fees charged by these local governments, public
financing and bond matters, conflicts of interest, intergovernmental agreements, general public
governmental matters, water supply and wastewater treatment matters. He has presented case
authority papers and speeches at a number of local government and legal education conferences.
RICHARD J. MEHREN joined the firm in 2000 with a Bachelor of Arts degree (1995) and a
law degree (2000) from the University of Colorado. Before joining the firm, Mr. Mehren
worked as a law clerk for the United States Department of Agriculture and the National Wildlife
Federation. Mr. Mehren has also worked for the Natural Resources Law Center at the University
of Colorado School of Law and for the State of Colorado Department of Public Health and
Environment. Mr. Mehren represents public and private clients in all manner of complex water
transactions and water court litigation, including adjudication of new surface and groundwater
rights, changes to water rights, augmentation plans, exchanges, groundwater regulation disputes,
and interstate compact issues. Mr. Mehren’s practice also focuses on special district law. Mr.
Mehren was a speaker at (1) Legislation and Litigation Update – Developments in Colorado,
New Mexico and Texas, CLE International, Law of the Rio Grande, March 2012; and (2)
Conejos Water Conservancy District Direct Flow Storage Program on the Conejos River, CLE in
Colorado, Inc., Water Resources, Issues and Administration of the San Luis Valley, September
2011. He has also been involved in complex water rights acquisition, adjudication and financing
for the Lower Arkansas Water Management Association, a well augmentation organization in the
Arkansas River basin. Mr. Mehren also serves as water counsel for the Conejos Water
Conservancy District, South Adams County Water and Sanitation District, Genesee Water &
Sanitation District, Inverness Water and Sanitation District and the Town of Creede.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
00031181-4 3
CAROLYN R. STEFFL earned a Bachelor of Science in International Relations: Managing the
Global Commons from the University of Wisconsin in 1999 and a law degree from the
University of Colorado in 2002, where she was inducted into the Order of the Coif. She joined
the firm in October 2009. Ms. Steffl acts as general counsel to a number of special districts,
including Cottonwood Water and Sanitation District and Colorado City Metropolitan District.
Her practice focuses on special district, water, municipal, local government and land use law.
After law school, Ms. Steffl served as a clerk for Justice Gregory J. Hobbs of the Colorado
Supreme Court. Then, she practiced law with the firm Icenogle, Norton, Smith, Gilida and
Pogue from 2003 through September 2009. She has represented several clients through the
process of organizing special districts and advised a city and a county on the formation of new
special districts. Ms. Steffl has also served as general counsel to multiple special districts,
advising them on issues including open records requests, public meetings law, bond financing,
elections, budgeting, inclusions, intergovernmental agreements, land purchase and sale,
acquisition of easements and the Taxpayer’s Bill of Rights (TABOR). Additionally, Ms. Steffl
has served as an assistant city attorney for three cities, a municipal prosecutor for the City of
Woodland Park, a prosecutor for the E-470 Public Highway Authority and the liquor prosecutor
for the City of Greenwood Village. Ms. Steffl has advised clients regarding zoning, subdivision
and other land use issues, urban renewal, downtown development authorities and project
financing. During law school, Ms. Steffl worked for the Natural Resources Law Center, the
National Wildlife Federation, Holland and Hart LLP and the Law Center for Women Prisoners.
She was a symposium editor for the Colorado Journal of International Environmental Studies
and a Morris K. Udall National Environmental Policy Foundation Scholar. She has authored
articles on a dispute over a mine in British Columbia, redevelopment of brownfields and reform
of the United States Forest Service.
Associates
JENNIFER M. DILALLA joined the firm in March 2011. She holds a Bachelor of Arts in
English from the University of Virginia, an M.A. and a Ph.D. in English and American Literature
from Johns Hopkins University, and a law degree from the University of Colorado School of
Law, where she graduated second in her class, was elected to Order of the Coif, and won a
number of awards for her writing and her work on the University of Colorado Law Review. Her
practice focuses on water rights, plans for augmentation, groundwater issues, and special district
and municipal water issues. Following law school, Ms. DiLalla clerked for the Honorable
David M. Ebel on the United States Court of Appeals for the Tenth Circuit. She then practiced
with the Denver office of Morrison and Foerster, where she gained valuable experience in
complex civil litigation. Before attending law school, Ms. DiLalla spent eleven years as a college
English professor. She is a former co-chair of the Denver Bar Association's Community Action
Network.
ALISON D. GORSEVSKI joined Moses, Wittemyer, Harrison and Woodruff, P.C. in April
2013. Her practice focuses on water rights and special district matters. In 2003, Ms. Gorsevski
earned a B.A. from Gustavus Adolphus College (St. Peter, Minnesota), where she graduated Phi
Beta Kappa, and, in 2008, a J.D. from the University of Colorado School of Law. Before law
school, Ms. Gorsevski was a Peace Corps volunteer in Skopje, Macedonia, where her work
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
00031181-4 4
focused on developing a local non-profit organization’s project management capacity and
teaching English to adult learners. In her free time, Ms. Gorsevski enjoys traveling, running,
learning new languages and chasing after her three sons.
ANNE D. BENSARD joined Moses, Wittemyer, Harrison and Woodruff, P.C. in 2012 as an
associate after working with the firm as a law clerk. Ms. Bensard holds a law degree from the
University of Colorado School of Law. During law school, Ms. Bensard was a research assistant
at the Natural Resources Law Center at the University of Colorado School of Law and a law
clerk for Denver Water. Prior to law school, Ms. Bensard worked at the Colorado State Capitol
as a legislative aide where she assisted with agriculture, oil and gas, and water-related
legislation. Ms. Bensard holds a Bachelor of Arts degree from the University of Colorado,
where she graduated summa cum laude and Phi Beta Kappa. Ms. Bensard’s practice focuses on
water transactions and litigation, special district law, and special district water and wastewater
issues.
ANDREA ASEFF KEHRL joined Moses, Wittemyer, Harrison and Woodruff, P.C. in May
2014. Her practice focuses on water rights and special district matters. After graduating from the
University of Colorado Law School in 2010, Ms. Kehrl represented American Indian tribes at the
law firm Fredericks, Peebles & Morgan, LLP, focusing on environmental and natural resources
matters. She then practiced Colorado water law and municipal law with the Denver firm Trout,
Raley, Montaño, Witwer & Freeman, P.C. Ms. Kehrl currently serves as co-chair of the Young
Lawyers Section of the Boulder County Bar Association and volunteers as a Water Speaker for
the Colorado Foundation for Water Education and a Restorative Justice facilitator for the City of
Boulder Community Mediation Service. During law school, Ms. Kehrl received the American
Bar Association Environment and Natural Resources Diversity Fellowship for her work at
KAHEA: The Hawaiian-Environmental Alliance. She also clerked with the U.S. Environmental
Protection Agency, Region 8, Office of Regional Counsel for a year and worked for the City of
Boulder Community Mediation Service, the National Wildlife Federation, and then-Associate
Dean for Research Sarah Krakoff. She holds a B.A. in Publication Management (Journalism and
Business) from the University of Georgia, where she graduated summa cum laude with Highest
Honors from the Honors program, and a J.D. from the University of Colorado Law School,
where she received awards for her commitment to public service in alternative dispute resolution.
Counsel
JOHN WITTEMYER holds a Bachelor of Science degree in civil engineering (1962), a
Bachelor of Science degree in finance (1962) and a law degree (1965), all from the University of
Colorado. After serving as district attorney in Juneau, Alaska, Mr. Wittemyer joined Mr. Moses
and Mr. Harrison to found the firm of Moses, Wittemyer and Harrison in 1973. He has practiced
extensively in the areas of water law and public utility law, including serving as both general
counsel and special water counsel for the Platte River Power Authority. Mr. Wittemyer
continues to serve in the capacity of counsel to the firm.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
00031181-4 5
DAVID L. HARRISON a founding member of the firm, received his Bachelor of Science
degree in civil engineering, hydraulics (1968) and his law degree (1971) from the University of
Colorado. Mr. Harrison has been deeply involved in the development of Colorado law
concerning complex water rights transfers and plans for augmentation. On behalf of individual
water users he was involved in the early development of rules and regulations for the conjunctive
administration of ground water and surface water in the South Platte River, Arkansas River and
Rio Grande River basins in Colorado. Mr. Harrison was a member of the Board of Governors of
the Nature Conservancy from 1980-1990 and continues to serve as a legal consultant to the
Nature Conservancy internationally. From 1990 through 1997, he was a member of the
Colorado Water Conservation Board, which is responsible for the State’s policy on interstate
water allocation, instream flows and water conservation. Mr. Harrison has authored several
professional articles on water resource matters focusing on ground water-surface water issues
and instream flows and ecosystem management matters.
JAMES R. MONTGOMERY joined the firm in 1980 with a Bachelor of Arts degree from the
Athenaeum of Ohio (1973) and a law degree from the University of Colorado (1980). His law
practice has emphasized municipal water supply planning and implementation, interstate water
apportionment, special district law, federal reserved water rights, and federal endangered species
and environmental protection. He served the State of Wyoming for more than 20 years as
Special Assistant Attorney General for interstate water matters. In that role he was instrumental
in preparing the State’s case for trial in Nebraska v. Wyoming (No. 108, Original, U.S. Supreme
Court) and in negotiating and implementing a settlement of that case involving an equitable
apportionment of the North Platte River among the States of Nebraska, Wyoming and Colorado.
On behalf of Union Oil Company of California, he negotiated the successful settlement of the
United States’ claims for federal reserved water rights for use on the Naval Oil Shale Reserves
and continues to advise that company and its successors with respect to extensive water rights
holdings in western Colorado. He serves as general counsel to water and sanitation districts in
Colorado and his clients also include municipal water suppliers, industrial water users, individual
agricultural water users, a nationwide land conservation organization and other public and
private entities. He has delivered presentations for continuing legal education seminars on basic
water rights and interstate water issues.
RICHARD JOHN MEHREN rmehren@msn.com
1602 Hallett Peak Drive ♦ Longmont, Colorado 80503 ♦ (303) 772-3651
EDUCATION University of Colorado School of Law, Boulder, Colorado Juris Doctor degree awarded May 2000
University of Colorado, Boulder, Colorado Bachelor of Arts in Political Science and minor in Philosophy awarded May 1995
• Dean’s List (cumulative GPA – 3.52)
• Member Golden Key National Honor Society
EXPERIENCE Moses, Wittemyer, Harrison and Woodruff, P.C. Boulder, CO Shareholder 2007 through Present
Associate Attorney October 2000 through 2006
Provide legal counsel to public and private clients in water related fields of law, including surface and ground water rights, transactional and litigation work related to water rights adjudication and
augmentation plans, water rights title and conveyancing, municipal water supply planning, water quality,
environmental regulation, special district, endangered species and natural resources law.
State of Colorado, Department of Public Health and Environment Denver, CO
Special Counsel September 2000 to October 2000 Drafted rules and regulations for state compliance with EPA regulations under the Safe Drinking Water
Act. Served as legal counsel to the Water and Wastewater Operators Certification Board and Water Quality Control Division staff regarding adoption of the above-stated regulations.
National Wildlife Federation Boulder, CO Legal Intern September 1999 to September 2000
Conducted legal and factual research and drafted a detailed legal memorandum for National Wildlife
Federation staff attorneys, the Eastern Shoshone Tribe and the Northern Arapahoe Tribe analyzing potential claims under Sections 402, 404 and 303 of the federal Clean Water Act and under federal Indian
law arising out of environmental damage to the Wind River.
Natural Resources Law Center, University of Colorado School of Law Boulder, CO
Research Assistant May 1999 to September 1999
Researched and assisted in the drafting of an academic report evaluating environmental and wildlife issues related to growth and development of rural areas of the interior western states.
United States Department of Agriculture, General Counsel Office Lakewood, CO Law Clerk October 1998 to May 1999
Conducted legal research, drafted legal memoranda and advised staff attorneys regarding easements for water conveyances and for public access for the United States Forest Service.
PERSONAL INTERESTS Fly-Fishing, Whitewater Rafting, Backpacking, Hiking, Telemark Skiing
00088783-1
Anne Dulany Bensard
Moses, Wittemyer, Harrison & Woodruff P.C.
EXPERIENCE Moses, Wittemyer, Harrison Woodruff, P.C., Boulder, CO, 2011-present
Associate Attorney, Law Clerk
o Recreational In-Channel Diversions: Assisted Western Slope county in obtaining
conditional RICD water right, successfully assisted with negotiations with 16 opposers, including the Colorado Water Conservation Board, to resolve concerns; currently assisting Town of Avon with application to make RICD absolute. o Municipal Water Supplies: Assist numerous municipalities in developing and protecting water supplies, including in water court litigation and water quality commission rulemaking; review water court resumes in Divisions 2, 4, and 5; successfully prosecuted applications for findings of reasonable diligence for direct flow
and storage water rights for municipalities in Divisions 2 and 4.
o Water Rights Purchases: Assisted homebuilder clients with securing, purchasing, and
conveying water rights to be dedicated for municipal water supplies; investigated title
to water rights associated with water rights purchases in Division 1 and water rights
exchanges in Division 2.
o Water Rights Development: Assisted private landowners in Divisions 1 and 6 with creating and implementing plan for development and accounting; worked with Division Engineers to resolve administrative concerns. o Water Court Experience: Assisted with representation of Western Slope county in trial in Division 2 regarding change of transmountain water rights by Front Range
municipality; assisting with appeal of case to Colorado Supreme Court.
SPEAKING Water Law 101, Anne Bensard, Andrea Kehrl, Alison Gorsevski, Boulder County Bar
Association, December 2014
Campaigning on the Clock and Other Special District Election No-Nos, Carolyn Steffl and Anne Bensard, Special District Association Conference, Keystone, CO, 2014. PUBLICATIONS The Colorado River and the Inevitability of Institutional Change, 32 Public Land & Resources Law Review 103, Douglas Kenney, Sarah Bates, Anne Bensard, and John Berggren, 2011. Stressors and Threats to the Water Budget of the Colorado River Basin, John Berggren, Douglas Kenney, Anne Bensard, Colorado River Governance Initiative White Paper, 2010.
.
VOLUNTEER Boulder County Bar Association, Free Legal Clinic
Attorney Volunteer
o Provide legal information; perform intake; organize attendees and attorneys
MEMBERSHIPS Colorado Bar Association, Water Law Section, Member Boulder County Bar Association, Member
EDUCATION University of Colorado Law School, Boulder, CO, May 2012
Juris Doctor
Honors: Top 15% of graduating class; Dean’s List; Recipient of Charles N. Woodruff Fellowship
University of Colorado, Boulder, CO, August 2008 B.A. in Economics with Public Policy Emphasis, International Affairs; Minor in French; Honors: summa cum laude, with distinction; Phi Beta Kappa; Norlin Scholars; Dean’s List
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 10-10-2014 Minutes Page 1
1. CALL TO ORDER & ROLL CALL
Mayor Carroll called the meeting to order at 5:25 pm. A roll call was taken and Council members present
were Jake Wolf, Buz Reynolds, Matt Gennett, Jennie Fancher, Chris Evans and Dave Dantas. Also present
were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant to the Town Manager Preston Neill
and Town Clerk Debbie Hoppe.
2. APPROVAL OF AGENDA
Mayor Carroll asked to add item 10.1 Executive Session. Eric Heil asked to add item 10.2 Executive
Session. Councilor Wolf asked to add Committee Meeting Updates. Council agreed to add items.
3. PUBLIC COMMENT
3.1. HONORING OF KURT KUPER (POLICE CHIEF BOB TICER)
Lynne Blake and Courtney Holm commented.
4. ACTION ITEMS
4.1. MOTION TO CONTINUE THE PUBLIC HEARING FOR SECOND READING OF ORDINANCE 14-15, SERIES OF 2014,
COMCAST FRANCHISE AGREEMENT TO OCTOBER 28, 2014 (TOWN MANAGER VIRGINIA EGGER)
Councilor Wolf moved to continue the Public Hearing for Second Reading of Ordinance 14-15, Series of
2014, COMCAST Franchise Agreement to October 28, 2014; Councilor Gennett seconded the motion and
it passed unanimously by those present.
4.2. ACTION TO APPROVE RESOLUTION 14-26 KAYAK BOND REFINANCING
(POLARSTAR PROPERTIES GERRY FLYNN)
Councilor Evans moved to approve Resolution 14-26 Kayak Bond refinancing; Councilor Reynolds
seconded the motion and it passed unanimously by those present.
4.3. PUBLIC HEARING SECOND READING OF ORDINANCE 14-16, SERIES 2014, APPROVING A PURCHASE AND
SALE AGREEMENT OF PHASE 1B OFFICE BUILDING, MOUNTAIN VISTA RESORT SUBDIVISION AND COMMONLY
REFERRED TO AS “THE SKIER BUILDING” FOR USE AS A TOWN HALL
Mayor Carroll opened the Public Hearing; comments were made by John Minervini, Jared Barnes, Peter
Buckley, Charles Sherwood and Phil Struve.
Mayor Pro Tem Fancher moved to approve Second Reading of Ordinance 14-16, Series 2014, Approving
a Purchase and Sale Agreement of Phase 1B Office Building, Mountain Vista Resort Subdivision and
commonly referred to as “The Skier Building” for use as a Town Hall; Councilor Dantas seconded the
motion and it passed on a 6 to 1 vote. Councilor Gennett voted no.
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 10-10-2014 Minutes Page 2
4.3. PUBLIC HEARING SECOND READING OF ORDINANCE 14-17, SERIES OF 2014, CERTIFICATE OF PARTICIPATION
– PURCHASE AND BUILDING FINISHES FOR “THE SKIER BUILDING”
(ASSISTANT TOWN MANAGER SCOTT WRIGHT)
Mayor Pro Tem Fancher moved to approve Second Reading of Ordinance 14-17, Series of 2014,
Certificate of Participation – Purchase and Building Finishes for “The Skier Building”; Councilor Wolf
seconded the motion and it passed on a 5 to 1 vote. Councilor Gennett voted no. Councilor Reynolds
recused himself.
4.5. PUBLIC HEARING SECOND READING ON ORDINANCE 14-14, SERIES OF 2014, CERTIFICATES OF
PARTICIPATION FOR STREET AND ROAD IMPROVEMENTS (ASSISTANT TOWN MANAGER SCOTT WRIGHT)
Councilor Dantas moved to approve Second Reading on Ordinance 14-14, Series of 2014, Certificates of
Participation for Street and Road Improvements; Mayor Pro Tem Fancher seconded the motion and it
passed on a 4 to 1 vote. Councilor Wolf voted no. Councilor Evans and Councilor Reynolds recused
themselves.
4.6. ACTION TO AUTHORIZE THE TOWN MANAGER TO EXECUTE AN INDEPENDENT CONTRACTOR AGREEMENT FOR
SPONSORSHIP OF APRÈS AVON (SPECIAL EVENTS COORDINATOR DANITA DEMPSEY)
Mayor Pro Tem Fancher moved authorize the Town Manager to execute an Independent Contractor
Agreement for Sponsorship of Après Avon; Councilor Evans seconded the motion and it passed
unanimously by those present. Councilor Wolf recused himself.
4.7. RESOLUTION NO. 14-25, PROPOSITION 105 (ASSISTANT TO THE TOWN MANAGER PRESTON NEILL)
Mayor Pro Tem Fancher moved to approve Resolution No. 14-25, Proposition 105; Councilor Evans
seconded the motion and it passed on a 6 to 1 vote. Councilor Reynolds voted no.
4.8. MINUTES FROM SEPTEMBER 23, 2014 MEETING (TOWN CLERK DEBBIE HOPPE)
Mayor Pro Tem Fancher moved to approve the Minutes from September 23, 2014; Councilor Wolf
seconded the motion and it passed unanimously by those present.
5. WORK SESSION
5.1. 2015-2016 BUDGET WORK SESSION - ALL FUNDS AND FIVE-YEAR CAPITAL IMPROVEMENTS PLAN
(ASSISTANT TOWN MANAGER SCOTT WRIGHT)
6. Work Session
6.1. TRAILS ADVISORY GROUP – PURPOSE, DUTIES AND PROCESS FOR SELECTION
(PLANNING MANAGER MATT PIELSTICKER)
6.2. DISCUSSION OF WEST AVON TRAIL NAMES (TOWN MANAGER VIRGINIA EGGER)
The Council concurred trails in the West Avon Preserve will be named as follows:
Saddle Ridge (formerly Saddleridge)
Lee's Way Down
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 10-10-2014 Minutes Page 3
Wyse Way (formerly Masher)
Our Backyard (Easy Loop)
PB & J (formerly Playground Way and stands for ‘Pumps’, ‘Berms’, and ‘Jumps’)
Carroll's Cutoff (formerly ASC X-Cut)
BLT (formerly Lower Flow and stands for ‘Bumps’, ‘Launches’, and ‘Table Tops’)
Wild West Ridge
Avon Singletree Connector
6.3. DETERMINATION OF THE MALL/MAIN STREET NAMES (TOWN MANAGER VIRGINIA EGGER)
The Council concurred on the following names:
Lettuce Shed Lane (no change)
Bronze sculpture – Possibility
Possibility Plaza
The Main Street Mall
7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
7.1. Stage updates (Councilor Wolf)
7.2. Avon Elementary GOCO grant
7.3. Speak out Reach Up (with Councilor Dantas)
7.4. Vail Honeywagon recycling update
7.5. Community Gardens at Buffalo Ridge
7.6. N.I.T.S.A accolade with Chief Ticer
7.7. Harmony Park Musical Playground
7.8. Creative Industries Tour
8. COUNCIL COMMENTS
9. MAYOR REPORT AND FUTURE AGENDA ITEMS
10. EXECUTIVE SESSION, IF CALLED (THIS MEETING IS NOT OPEN TO THE PUBLIC)
10.1. For a conference with the Town Attorney for the purpose of receiving legal advice under C.R.S.
§246402(2)(b) and for the purpose of determining 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) concerning economic development opportunities.
10.2. For a conference with the Town Attorney for the purpose of receiving legal advice under C.R.S. §24-
6-402(2) (b) regarding the Hoffmann Commercial Real Estate.
Mayor Carroll moved to meet in Executive Session at 10:22 p.m. For a conference with the Town
Attorney for the purpose of receiving legal advice under C.R.S. §246402(2)(b) and for the purpose
of determining 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) concerning economic development
TOWN OF AVON, COLORADO
AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 10-10-2014 Minutes Page 4
opportunities and for a conference with the Town Attorney for the purpose of receiving legal advice under
C.R.S. §24-6-402(2) (b) regarding the Hoffmann Commercial Real Estate ; Councilor Gennett seconded the
motion and it passed unanimously.
Councilor Evans moved to end Executive Session; Councilor Wolf seconded the motion and it passed
unanimously.
Executive Session adjourned at 11:05 p.m.
11. ADJOURNMENT
There being no further business to come before the Council, the regular meeting adjourned at 11:05 pm.
RESPECTFULLY SUBMITTED:
_________________________________
Debbie Hoppe, Town Clerk
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Jennie Fancher ________________________________
Albert “Buz” Reynolds ________________________________
Jake Wolf ________________________________
Matt Gennett ________________________________
FISCAL YEAR 2014
FINANCIAL REPORT
October 28, 2014
______________________________________________________________________________________
1. Fiscal Year 2014 Financial Report Cover Memo
2. Sales and Accommodations Tax Reports – August 2014
3. Real Estate Transfer Tax Report and Monthly Detail – September 2014
4. General Fund Year-To-Date Expenditures- September 2014
5. Fleet Maintenance Fund Year-To Date Expenditures- September 2014
6. Transit Fund Year-To Date Expenditures- September 2014
7. DestiMetrics Executive Summary- September 2014
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Kelly Huitt, Budget Analyst
Date: October 22, 2014
Re: Fiscal Year 2013 Financial Report – August/September 2014
Revenues:
SALES TAX
• Sales tax revenue for the month of August is up $42,753.55 or 8.48% compared to August 2013, and up 6.07% compared to the monthly budget. This increase includes $17,899 from new businesses, and after adjusting for new business growth, 4.93% is the actual gain in revenue for the month. Year-to-date sales tax from new
businesses makes up 43.80% of total growth. August 2014 sales tax revenue is the highest ever for the month
of August.
• August collections are up compared to 2013 for all industries except Miscellaneous Retail at ($13,780.57) or (33.87%) and Service related businesses at ($1,078.74) or (9.50%). The decrease in Miscellaneous Retail is largely due to a business closure in this industry and a business miscoded to Miscellaneous Retail that was
removed and placed in the correct category. Revenue from Home/Garden is up 40.32% or $15,278 for the
month, Restaurants/Bars are up 8.83% and Grocery, Specialty, and Health retailers are up almost $12,000 with
a 9.03% increase.
2013/2014 Growth Growth
Variance Existing Business New Business
Home/Garden $15,278.01 32.24%8.08%
Grocery, Specialty, Health 11,932.67 9.03%0.00%
Liquor Stores 338.96 1.31%0.00%
Sporting Goods Retail/Rental 7,040.82 20.93%3.75%
Miscellaneous Retail (13,780.57)-41.73%7.86%
Accommodations 3,314.89 4.60%0.14%
Restaurants/Bars 9,486.41 2.82%6.01%
Other 10,221.10 12.42%7.78%
Service Related (1,078.74)-10.16%0.66%
Total $42,753.55 4.93%3.55%
Category
Monthly Totals
ACCOMMODATIONS TAX
• Accommodations tax revenue for August is up $3,356.26, or 4.96% compared to August 2013, and up 4.96% compared to the monthly budget. Year-to-date accommodations tax is up 7.79% compared to 2013 and 4.68%
compared to the budget.
• August accommodations tax collections are up for Timeshares and Hotels at 7.48% and 6.24%, respectively while Vacation Rentals are down (16.20%).
REAL ESTATE TRANSFER TAX
• 2014 real estate transfer tax collections for September equal $267,886.92. This is a 70.62% increase from
September 2013, and 106.67% over the monthly budget. The large monthly increase is due to several large sales in Wildridge and Mountain Star. Year to date collections are at 116.38% of the total budgeted amount.
Expenditures:
• General Fund expenditures at the end of September are 72.70% of the budgeted amounts.
• Fleet expenditures to date are at 71.99% of the total budget.
• Transit funds are 64.27% spent compared to the annual appropriation.
DestiMetrics:
• Avon’s occupancy was at 45.0% for the month of September, which is a 31.4% increase over September 2013. The average daily rate was down -1.6% while RevPAR was up at 12.4% above 2013.
• October’s anticipated occupancy is 18.7%, a 32.5% increase compared to 2013. October’s anticipated
average daily rate is down (8.7%) while RevPAR is up 20.9%.
• Looking back at the past six months, occupancy was up 11.6%, while average daily rate was down (3.1%) and
revenue per average room night increased 8.2% over 2013.
• Projected occupancy for the upcoming six months on the books is 38.3% higher than 2013 at 17.3%. The outlook for average daily rate is down (6.5%).
• Rooms booked during September 2014 for arrival September – February has increased by 92.8% compared to
rooms booked during September 2013 for arrival in the following six months. Hopefully this means that the
“snow hangover” is now over and guests will book rooms ahead of the snowfall.
TOWN OF AVON
SALES TAX WORKSHEET
2014 Actual vs. Budget
Budget YTD Collections Budget % of change
2009 2010 2011 2012 2013 2014 2014 Variance from 2013
January 552,648.47$ 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 267,960.76 242,830.16 236,424.93 270,082.79 309,938.72 316,984 340,332.28 23,348.02 9.81%
June 396,066.29 377,920.42 406,828.27 430,588.57 490,329.18 501,475 538,517.31 37,041.94 9.83%
July 409,956.20 421,975.98 452,873.44 472,215.40 537,479.66 549,698 570,959.86 21,262.18 6.23%
August 374,965.99 361,702.25 419,977.29 455,439.86 504,332.25 515,797 547,085.80 31,289.04 8.48%
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$ 4,484,622.07$ 205,101.76$ 7.17%
Actual Collections
$0
$50,000
$100,000
$150,000
$200,000
$250,000
$300,000
$350,000
$400,000
$450,000
$500,000
$550,000
$600,000
2010 2011 2012 2013 2014
Year
Sales Tax Collections for August
TOWN OF AVON
SALES TAX WORKSHEET
2014 Actual vs. Budget
$1,200,000
$1,500,000
$1,800,000
$2,100,000
$2,400,000
$2,700,000
$3,000,000
$3,300,000
$3,600,000
$3,900,000
$4,200,000
$4,500,000
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 21,961.97 (3,294.01) -10.46%
June 34,439.33 32,857.68 49,999.66 56,012.17 66,578.91 68,557 54,232.23 (14,325.04) -18.54%
July 47,864.32 51,170.82 62,928.07 66,726.73 73,008.92 75,178 81,083.01 5,904.67 11.06%
August 39,155.19 42,188.56 52,037.55 58,358.93 67,688.07 69,699 71,044.33 1,344.94 4.96%
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$ 708,713.79$ 31,657.56$ 7.79%
Actual Collections
-
10,000.00
20,000.00
30,000.00
40,000.00
50,000.00
60,000.00
70,000.00
80,000.00
2010 2011 2012 2013 2014
Accommodations Tax Collections for August
Town of Avon
Real Estate Transfer Tax
September 2014 Collections Detail
Budget YTD Collections $ change % of change
2009 2010 2011 2012 2013 2014 2014 2013 2013
January 34,468.00$ 237,133.00$ 57,540.00$ 50,204.00$ 22,535.00$ 72,955$ 85,126.74$ 62,591.74$ 277.75%
February 95,703.38 362,719.22 230,705.50 41,750.07 55,872.69 142,823 562,219.70 506,347.01 906.25%
March 6,023.70 284,243.65 187,099.47 84,760.49 125,927.64 124,906 50,375.06 (75,552.58) -60.00%
April 92,238.95 210,185.30 249,482.30 219,195.80 144,437.80 166,202 197,656.36 53,218.56 36.85%
May 37,803.12 112,431.30 187,668.62 270,170.12 121,784.12 132,494 183,745.60 61,961.48 50.88%
June 365,324.28 66,271.14 49,606.58 169,040.47 90,309.74 134,436 220,009.15 129,699.41 143.62%
July 208,800.24 63,509.36 46,707.37 71,057.40 386,434.78 140,963 141,051.52 (245,383.26) -63.50%
August 87,827.30 88,823.40 106,785.21 232,505.93 97,579.70 111,375 154,032.32 56,452.62 57.85%
September 159,877.84 159,861.96 140,876.56 96,389.34 157,010.67 129,619 267,886.92 110,876.25 70.62%
October 205,537.52 222,575.20 64,005.33 176,889.62 169,839.80 152,280
November 131,944.57 115,654.16 98,057.44 150,549.86 112,491.82 110,500
December 336,431.50 236,117.45 198,448.03 145,134.57 83,382.60 181,447
Total 1,761,980.40$ 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,567,606.36$ 1,600,000$ 1,862,103.37$ 660,211.23$ 54.93%
Budget 1,600,000$
Variance, Favorable (Unfavorable)262,103.37
Actual Collections
$-
$200,000.00
$400,000.00
$600,000.00
$800,000.00
$1,000,000.00
$1,200,000.00
$1,400,000.00
$1,600,000.00
$1,800,000.00
$2,000,000.00
2010 2011 2012 2013 2014
YTD Real Estate Transfer Tax Collections
Town of Avon
Real Estate Transfer Tax
September 2014 Collections Detail
Purchaser Name Property Amount Received
Balance Forward 1,594,216.45$
Land Title - Shepherd Falcon Pointe #101, wk 23 70.00
Land Title - Hopkinds and Porter Sunridge #G-103 1,250.00
Stewart Title - Stephens Lodge at Brookside #309 16,500.00
Lant Title - Yager 2376 Fox Ln 29,700.00
Land Title - Negomir Metcalf Lofts #E-13 1,660.00
Land Title - Nelson Falcon Pointe #106, wk 19 63.80
Land Title - Jakubowski Sunridge #E-201 1,240.00
Land Title - Hanes 63 Rabbit Brush 42,000.00
Title Co of Rockies - Lawrence 2661 Beartrap #A 22,120.00
Title Co of Rockies Christie Lodge CL#48 3,149.90
Title Co of Rockies Mtn Vista #14-38 3,156.00
Chicago Title Westin Riverfront #14-38 670.00
Chicago Title Westin Riverfront #14-37 236.00
Stewart Title - Wyse 2852 Oneal Spur 8,000.00
Land Title - Kowalski 4550 Flat Point 22,660.00
Assured Title - Hassinger Chapel Square #BR-310 4,000.00
Stewart Title - Felton Avon Crossing #2202 6,999.98
Stewart Title - Greza LLC Sunridge #R-201 4,510.00
Stewart Title - Beaver Creek Landing A204 LLC Beaver Bench #B-2 4,680.00
Land Title - Zoller Avon Crossing #1302 3,100.00
Title Co of Rockies Mtn Vista #14-37 1,404.00
Title Co of Rockies Christie Lodge CL#47 2,414.00
Title Co of Rockies Christie Lodge CL#46 3,295.00
Land Title - Robb Falcon Pointe #105, wk 15 63.80
Stewart Title - Orr Revocable Trust 5380 Ferret Ln 22,800.00
Chicago Title Mtn Vista #14-32 154.21
Chicago Title Mtn Vista #14-28 19.71
Chicago Title Westin Riverfront #14-29 93.22
Chicago Title Westin Riverfront #14-36 736.00
Chicago Title Westin Riverfront #14-35 515.60
Chicago Title Westin Riverfront #14-34 369.80
Chicago Title Westin Riverfront #14-33 1,071.80
Title Co of Rockies Mtn Vista #14-36 797.10
Land Title - Ewing 2140 Saddle Ridge Lp #4 4,300.00
Land Title - Williams and Waechter Sunridge #O-202 1,170.00
Land Title - Burton Canyon Run #D-203 11,650.00
Land Title - Hunter Beaver Bench #A-15 3,800.00
Stewart Title - Colorado Cardoso Family Prop 2433 Draw Spur #B-1 9,300.00
Title Co of Rockies Christie Lodge #45 3,158.00
Title Co of Rockies Mtn Vista #14-35 2,058.00
Land Title - Mayeda Avon Commercial Center #220 1,671.00
Land Title - Plooster Real Estate Holdings LLC Canyon Run #B-204 14,700.00
Land Title - Thomas Chapel Square #BR-322 6,580.00
Total September Revenue 267,886.92
Total YTD Revenue 1,862,103.37
Total 2014 Budget 1,600,000.00
Variance, Favorable (Unfavorable)262,103.37$
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$ -$ 414,784$ 164,136$ 71.65%
112 Boards and Commissions 15,299 - 8,376 6,923 54.75%
113 Town Attorney 155,000 45,433 126,415 (16,848) 110.87%
115 Town Clerk 153,927 7,053 128,045 18,829 87.77%
Total Legislative 903,146 52,486 677,620 173,040 80.84%
Judicial:
121 Municipal Court 98,235 10,626 65,842 21,767 77.84%
Executive:
131 Town Manager 294,403 243 183,803 110,357 62.51%
132 Human Resources 229,806 1,042 160,847 67,917 70.45%
133 Community Relations 111,569 - 81,792 29,777 73.31%
Total Executive 635,778 1,285 426,442 208,051 67.28%
Finance Department:
141 Finance 741,372 7,369 526,159 207,844 71.96%
143 Information Systems 337,296 22,568 239,057 75,671 77.57%
149 Nondepartmental 290,998 12,922 235,289 42,787 85.30%
Total Financial Administration 1,369,666 42,859 1,000,505 326,302 76.18%
Total General Government 3,006,825 107,256 2,170,409 729,160 75.75%
Community Development:
212 Planning 245,489 4,253 168,411 72,825 70.33%
213 Building Inspection 127,353 - 92,293 35,060 72.47%
214 Economic Development 111,605 25 69,394 42,186 62.20%
Total Community Development 484,447 4,278 330,098 150,071 69.02%
Police Department:
311 Administration 553,701 12,281 384,780 156,640 71.71%
312 Patrol 1,964,620 18,994 1,514,501 431,125 78.06%
313 Investigations 221,354 251 165,605 55,498 74.93%
Total Police 2,739,675 31,526 2,064,886 643,263 76.52%
Public Works:
412 Engineering 219,703 555 156,627 62,521 71.54%
413 Roads and Bridges 1,377,518 44,155 926,126 407,237 70.44%
Total Public Works 1,597,221 44,710 1,082,753 469,758 70.59%
Department Expenditure Summaries
General Fund #10 September 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 September 2014 Expenditures to Date
Parks and Recreation:
513 Special Events 558,606 29,877 296,020 232,709 58.34%
514 Administration 223,113 2,622 161,434 59,057 73.53%
515 Adult Programs 28,657 177 18,409 10,071 64.86%
516 Aquatics 394,409 4,771 288,809 100,829 74.44%
517 Childcare 36,486 - 25,428 11,058 69.69%
518 Fitness 158,237 147 129,604 28,486 82.00%
519 Guest Services 235,050 4,805 154,709 75,536 67.86%
521 Youth Programs 118,979 252 85,093 33,634 71.73%
522 Cabin 43,643 - 28,069 15,574 64.32%
551 Parks & Grounds 1,069,325 45,608 703,390 320,327 70.04%
571 Buildings & Facilities 1,053,353 38,374 687,369 327,610 68.90%
Total Parks and Recreation 3,919,858 126,633 2,578,334 1,214,891 69.01%
TOTAL OPERATING
EXPENDITURES 11,748,026$ 314,403$ 8,226,480$ 3,207,143 72.70%
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$ 56,821$ 1,056,308$ 433,013$ 71.99%
Total Operating Expenditures 1,546,142 56,821 1,056,308 433,013 71.99%
TOTAL EXPENDITURES 1,546,142$ 56,821$ 1,056,308$ 433,013$ 71.99%
Expenditure Summary
Fleet Maintenance Enterprise Fund #61 September 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$ 2,114$ 142,026$ 75,057$ 65.76%
432 Transit Operations 997,403 2,025 674,480 320,898 67.83%
435 Wash Bay 189,479 13,860 69,123 106,496 43.80%
Total Operating Expenditures 1,406,079 17,999 885,629 502,451 64.27%
TOTAL EXPENDITURES 1,406,079$ 17,999$ 885,629$ 502,451$ 64.27%
Expenditure Summary
Transit Enterprise Fund #52 September 2014 Expenditures to Date
Destination: Avon Destination Period: Bookings as of September 30, 2014
a. Last Month Performance: Current YTD vs. Previous YTD 2014/152013/14
Year over Year
% Diff
45.0%34.2%31.4%
$116$130 -10.6%
$52$45 17.4%
b. Next Month Performance: Current YTD vs. Previous YTD
18.7%14.1%32.5%
$114$125 -8.7%
$21$18 20.9%
c. Historical 6 Month Actual Performance: Current YTD vs. Previous YTD
41.3%37.0%11.6%
$136$140 -3.1%
$56$52 8.2%
d. Future 6 Month On The Books Performance: Current YTD vs. Previous YTD
17.3%12.5%38.3%
$208$223 -6.5%
$36$28 29.3%
e. Incremental Pacing - % Change in Rooms Booked last Calendar Month: Sep. 30, 2014 vs. Previous Year
10.5%5.4%92.8%
Avon Destination Occupancy for the prior 6 months changed by (11.6%)Occupancy
Avon Destination RevPAR for last month (September) changed by (17.4%)RevPAR (September)
RESERVATIONS ACTIVITY REPORT
Avon Destination
Executive Summary
Avon Destination Occupancy for last month (September) changed by (31.4%)Occupancy (September)
Avon Destination Average Daily Rate for last month (September) changed by (-10.6%)
Avon Destination Occupancy for next month (October) changed by (32.5%)Occupancy (October)
Avon Destination Average Daily Rate for next month (October) changed by (-8.7%)ADR (October)
Avon Destination RevPAR for next month (October) changed by (20.9%)RevPAR (October)
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 (-3.1%)ADR
Avon Destination RevPAR for the prior 6 months changed by (8.2%)RevPAR
Avon Destination Average Daily Rate for the upcoming 6 months changed by (-6.5%)
Data based on a sample of up to 10 properties in the Avon Destination destination, representing up to 752 Units ('DestiMetrics Census'*)
ADR
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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 (29.3%)RevPAR
Rooms Booked during last month (September, 2014) compared to Rooms Booked during the
same period last year (September, 2013) for arrival September to February has changed by
(92.8%)
Booking Pace
(September)
ADR (September)
Avon Destination Occupancy for the upcoming 6 months changed by (38.3%)
10/7/2014
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Heil Law & Planning, LLC Office: 303.975.6120
3445 S. Clermont St. 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: Public Improvements Agreement – Village (at Avon)
DATE: October 23, 2014
Summary: This memorandum provides an update on the use and approval of Public Improvements
Agreements for the Village (at Avon). Traer Creek-RP LLC has requested approval to begin construction
and installation of water and sewer lines on Planning Area J. AMC 7.32.100 sets forth the minimum
requirements for a Public Improvements Agreement. Section 3.2 of the newly adopted Development
Agreement (effective August 1, 2014) states that the design, construction and financing of Public
Improvements as well as designation of specific entity responsible for such design, construction and
financing will be addressed in the applicable Public Improvements Agreement. Section 3.2(b) states that
the Applicant for any Development Application submitted after the Effective Date will provide an
improvement guarantee assuring the completion of the Public Improvements as required by the Avon
Municipal Code.
Public Improvements Agreements in the Village (at Avon). In the past (prior to 2010 Code and prior to
Village settlement) public improvements were constructed as part of subdivision approvals and were
addressed in a Subdivision Improvements Agreement that was reviewed and approved by the Council.
The new 2010 Avon Development Code and the new 2014 Development Agreement for the Village (at
Avon) references “Public Improvements Agreement” which permits the construction and installation of
public improvements without an accompanying subdivision application. The Village (at Avon) 2014
Development Agreement expands administrative subdivision approval.
The new PUD Guide for the Village (at Avon) establishes an administrative approval process for
subdivisions on Lot 1 (Planning Areas A, B, C, D, E and F) and Planning Area J in the Village. These areas
are referred to as the “Administrative Subdivision” areas in Section G. of the 2014 PUD Guide. The 2014
PUD Guide and the 2014 Development Agreement do not expressly state whether Public Improvements
Agreements are approved by Town staff or by the Council. AMC 7.32.100 does not expressly state
whether Public Improvements Agreements are approved by Town staff or by Council; however, Sec.
7.32.100(e) does state that the use of Deeds of Trust shall be subject to approval by Council and that the
form of guarantee (meaning for all methods of collateral) shall be subject to approval by the Town Attorney.
It is my opinion based on working on the Village (at Avon) documents and the establishment of the
Administrative Subdivision areas that Public Improvements Agreements for Lot 1 and Planning Area J in
the Village may be approved administratively. The Town has a form Public Improvements Agreement
which incorporates the minimum requirements from AMC Sec. 7.32.100 (see the attached form of Public
Improvements Agreement). With regard to Lot 1 and Planning Area J, the road alignments, connections
and minimum designs are specifically defined. Water and Sewer utilities are primarily reviewed by the
Eagle River Water and Sanitation District and the Upper Eagle River Water Authority. There is little
discretion in the review and approve of Public Improvements. If there is any proposed deviation from the
adopted standards then such proposal must come to the Town Council for review and approval.
Thank you, Eric
M EMORANDUM & PLANNING, LLC
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 1 of 12
[INSERT
NAME
OF
SUBDIVISION
OR
PROJECT]
PUBLIC
IMPROVEMENTS
AGREEMENT
THIS
AGREEMENT,
made
and
entered
into
this
________
day
of
_______,
201___,
is
by
and
among
___________________________________
(“Owner”
[“District”
shall
be
substituted
for
Owner
when
applicable]),
and
the
Town
of
Avon,
a
Colorado
home
rule
municipality,
by
and
through
its
Council
(“Town”).
RECITALS
WHEREAS,
the
Owner,
in
connection
with
the
approval
[describe
approval
by
Town]
for
the
_______________________,
consisting
of
_______
acres,
____________________,
Town
of
Avon,
Eagle
County,
Colorado
(“Project”),
desires
to
enter
into
a
Public
Improvements
Agreement
(“Agreement”)
with
the
Town;
and
WHEREAS,
pursuant
to
the
Municipal
Code,
the
Town
desires
to
make
reasonable
provisions
for
completion
of
certain
public
improvements
(“Public
Improvements”)
as
depicted
on
the
plans
approved
by
the
Town
for
the
_______________,
dated
________________,
(“Approved
Plans”)
and
as
set
forth
in
Exhibit
A:
Approved
Plans
attached
hereto
and
incorporated
herein
by
reference,
together
with
minor
changes
approved
by
the
Town
Engineer;
and
WHEREAS,
the
Owner
is
responsible
for
the
completion
of
the
Public
Improvements.
AGREEMENT
NOW
THEREFORE,
in
consideration
of
the
following
mutual
covenants,
conditions
and
promises,
the
parties
hereby
agree
as
follows:
1. Completion
of
Work.
(a) Performance.
Owner
agrees
to
furnish
all
equipment,
labor
and
material
necessary
to
perform
and
complete,
in
a
good
and
workmanlike
manner,
all
Public
Improvements
and
work
incidental
thereto
(“Work”)
as
depicted
on
the
Approved
Plans
and
as
set
forth
in
Exhibit
A:
Approved
Plans.
Owner
further
agrees
that
Owner
will
be
responsible
for
all
costs
of
Public
Improvements
as
assigned.
Said
Work
shall
be
performed
in
accordance
with
the
Approved
Plans.
(b) Time
for
Completion
of
Public
Improvements.
Owner
agrees
to
complete
Public
Improvements
within
two
(2)
years
of
the
date
of
this
Agreement.
Owner
agrees
to
commence
construction
of
Public
Improvements
prior
to
the
issuance
of
a
building
permit
for
any
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 2 of 12
improvements
in
the
subdivision
and
to
complete
the
Public
Improvements
prior
to
the
issuance
of
a
Certificate
of
Occupancy
for
any
building
on
any
lot
in
the
Subdivision
served
by
the
Public
Improvements.
Commencement
of
construction
of
Public
Improvements
shall
be
deemed
to
mean
the
award
and
execution
of
contracts
for
the
construction
of
the
Public
Improvements
as
depicted
on
Exhibit
A:
Approved
Plans.
(c) Inspection
Procedures.
All
Work
shall
be
done
under
the
inspection
procedures
and
standards
established
by
the
Town
and
Holy
Cross
Energy,
Eagle
River
Water
and
Sanitation
District,
Upper
Eagle
River
Water
Authority,
Excel
Energy,
Qwest
Communications,
Comcast
or
any
other
utility
(“Utilities”),
as
applicable
and
shall
be
subject
to
the
reasonable
satisfaction
of
the
Town
and
applicable
Utilities.
All
Work
shall
not
be
deemed
complete
until
the
reasonable
approval
and
acceptance
of
the
Public
Improvements
by
the
Town
and/or
the
Utilities.
Such
inspections
by
the
Town
and
Utilities
shall
not
relieve
the
Owner
or
Owner’s
agents
from
any
responsibility
or
obligation
to
assure
that
all
Work
is
completed
in
conformance
with
all
standards,
plans
and
specifications
as
submitted
to
and
previously
approved
by
the
Town
and
Utilities.
(d) Cost
of
Inspections.
The
cost,
if
any,
of
such
inspections,
by
Town
employees,
or
an
independent
third
party
inspector,
shall
be
paid
by
the
Owner
and
subject
to
the
limitations
set
forth
in
Paragraph
5
below.
(e) Notice
of
Non-‐Compliance.
In
the
event
that
the
Town
through
its
inspectors
reasonably
determines
that
the
Public
Improvements
are
not
in
compliance
with
the
Approved
Plans,
it
shall
give
written
notice
of
such
non-‐compliance
(“Notice
of
Non-‐Compliance”)
to
the
Owner.
The
Notice
of
Non-‐Compliance
shall
include
a
narrative
describing
the
unsatisfactory
construction
work
with
specific
reference
to
the
applicable
construction
plans
and
specifications.
The
Notice
of
Non-‐Compliance
must
be
provided
to
the
Owner
within
five
(5)
working
days
after
the
date
of
the
inspection.
2. Guarantee
for
Public
Improvements.
(a) Form
of
Guarantee.
The
Owner
shall
provide
financial
security
(“Guarantee”)
to
the
Town
to
secure
the
completion
of
the
Public
Improvements
in
this
Agreement
in
accordance
with
one
of
the
following
the
acceptable
methods
of
providing
a
guarantee:.
(i) Deposit
in
Escrow.
Owner
shall
deposit
a
cash
sum
equal
to
the
estimated
cost
of
all
Public
Improvements
plus
overrun
allowances,
either
with
the
Town
or
in
escrow
with
a
responsible
financial
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 3 of 12
institution
authorized
to
do
such
business
in
the
state.
In
the
case
of
an
escrow
account,
the
Owner
shall
file
with
the
Town
an
escrow
agreement
that
includes
the
following
terms:
1. Funds
of
the
escrow
account
shall
be
held
in
trust
until
released
by
the
Town
and
may
not
be
used
or
pledged
by
the
Owner
as
security
in
any
matter
during
that
period
other
than
payment
for
the
Public
Improvements.
The
funds
may
be
used
for
payment
of
improvements
as
made,
except
that
the
escrow
holder
shall
withhold
from
disbursement
so
much
of
the
funds
as
is
estimated
as
being
necessary
to
complete
the
construction
and
installation
of
such
improvements,
plus
an
overrun
allowance
as
provided
in
Paragraph
2(b)
below.
2. In
the
case
of
a
failure
on
the
part
of
Owner
to
complete
any
improvement
within
the
required
time
period,
the
financial
institution
shall
immediately
make
all
funds
in
such
account
available
to
the
Town
for
use
in
the
completion
of
those
improvements.
(ii) Letter
of
Credit.
The
Owner
may
propose
to
provide
from
a
bank
or
other
responsible
financial
institution
authorized
to
do
such
business
in
the
State
an
irrevocable
letter
of
credit.
Such
letter
shall
be
filed
with
the
Town
and
shall
certify
the
following:
1. That
the
creditor
irrevocably
guarantees
funds
in
an
amount
equal
to
the
estimated
cost
of
all
Public
Improvements
plus
overrun
allowances
as
provided
in
Paragraph
2(b),
below,
for
the
completion
of
all
such
improvements.
2. That,
in
the
case
of
failure
on
the
part
of
the
Owner
to
complete
any
specified
improvements
within
the
required
time
period,
the
creditor
shall
pay
to
the
Town
immediately
and
without
further
action
such
funds
as
are
necessary
to
finance
the
completion
of
those
improvements
up
to
the
limit
of
credit
stated
in
the
letter.
(iii) Deed
of
Trust.
The
Owner
may
propose
to
guarantee
the
completion
of
public
improvements
by
granting
the
Town
a
deed
of
trust
on
the
property
being
subdivided.
The
deed
of
trust
shall
secure
the
obligation
to
complete
required
Public
Improvements
by
securing
a
stated
amount
equal
to
the
estimated
cost
of
all
required
Public
Improvements
plus
overrun
allowances.
No
deed
of
trust
shall
be
accepted
unless
the
unencumbered
value
of
the
property
equals
or
exceeds
the
stated
amount
of
the
guarantee.
The
unencumbered
value
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 4 of 12
of
the
subdivision
property
shall
be
deemed
to
be
the
municipal
assessor's
estimate
of
the
value
of
all
lots
of
the
subdivision
less
the
amount
of
outstanding
recorded
lien
obligations.
The
applicant
shall
not
sell
or
otherwise
transfer
any
lot
secured
by
the
deed
of
trust
until
the
obligation
to
construct
Public
Improvements
is
satisfied
or
until
a
partial
release
is
obtained.
A
partial
release
may
be
granted
if
and
only
if:
1. In
conjunction
with
sale
or
transfer
of
any
lot,
the
seller
or
transferor
escrows
funds
as
provided
in
Paragraph
2(a)(i),
above,
sufficient
to
cover
the
pro
rata
cost
of
all
unaccepted
improvements
attributable
to
such
lot.
2. The
escrow
agreement
provides
that,
in
the
case
of
failure
on
the
part
of
the
applicant
to
complete
any
improvement
within
the
required
time
period,
the
institution
shall
make
all
funds
in
such
account
available
to
the
Town
for
use
in
the
completion
of
those
improvements.
The
minimum
amount
to
be
escrowed
shall
be
calculated
by
prorating
the
estimated
cost
of
all
required
public
improvements
that
have
not
been
finally
accepted
plus
overrun
allowances
against
each
lot
on
the
basis
of
area.
(iv) The
form
of
Guarantee
is
attached
hereto
as
Exhibit
C:
Form
of
Guarantee.
(b) Amount
of
Guarantee
for
Completion
of
Public
Improvements.
Owner
shall
deliver
to
the
Town
a
Guarantee
in
an
amount
equal
to
one
hundred
percent
(100%)
of
the
amount
of
the
cost
estimate
for
the
Public
Improvement
as
approved
by
the
Town
Engineer
plus
a
percentage
of
the
estimated
costs
as
an
overrun
allowance
as
follows:
Total Estimated Costs of
Improvements
Percent for Overrun
Allowance
$0.00—$500,000.00 20
$500,000.00—$1,000,000.00 15
$1,000,000.00 and over 10
(c) Partial
Release
of
Guarantee.
The
amount
of
Guarantee
may
be
reduced
periodically
upon
completion
of
itemized
Public
Improvements
for
which
cost
estimates
have
been
set
forth
in
Exhibit
B:
Cost
Estimates
and
upon
receipt
of
the
Certifications,
as
specified
in
Paragraph
9,
below,
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 5 of 12
verifying
that
itemized
portions
of
the
Public
Improvements
have
been
completed,
provided
that
Owner
is
not
in
default
under
this
Agreement
and
provided
that
the
remaining
amount
of
Guarantee
shall
be
at
least
one
hundred
and
ten
percent
(110%)
of
the
estimated
costs
of
completion
of
all
remaining
Public
Improvements.
The
Town
shall
release
the
remaining
Guarantee
amount
less
the
amount
described
in
Paragraph
3
below
for
security
during
the
warranty
period
within
five
(5)
business
days
of
(i)
completion
of
all
Work
related
to
the
Public
Improvements
and
(ii)
acceptance
by
the
Town
and
Utilities
of
the
Public
Improvements,
provided
that
the
Owner
is
not
in
default
under
this
Agreement.
(d) Default
by
Owner.
In
the
event
of
a
default
in
whole
or
in
part
by
Owner
in
the
performance
of
this
Agreement,
the
Town
shall
be
authorized
to
draw
on
the
Guarantee
for
the
purpose
of
undertaking
completion
or
remediation
work
on
the
Public
Improvements
or
otherwise
curing
Owner’s
default
hereunder
after
providing
thirty
(30)
days’
advance
written
notice
of
default
and
providing
an
opportunity
during
such
period
for
Owner
to
cure
the
default.
The
Town
shall
be
entitled
to
draw
on
the
Guarantee
after
adoption
of
a
resolution
of
the
Town
Council
stating
(i)
that
Owner
is
in
default
and
describing
the
nature
of
the
default,
and
(ii)
that
funds
are
required
to
complete
or
correct
the
Work
on
the
Public
Improvements
or
to
otherwise
cure
Owner’s
default.
3. Warranty
Period.
The
Public
Improvements
shall
be
warranted
to
be
free
from
defects
in
workmanship
or
quality
for
a
period
of
two
(2)
years
after
acceptance
of
all
the
Work
by
the
Town.
In
the
event
of
any
such
defect,
the
Town
may
require
Owner
to
correct
the
defect
in
material
or
workmanship.
The
Town
shall
retain
a
portion
of
the
Guarantee
as
a
financial
security
during
the
warranty
period.
(a) Amount
of
Guarantee
to
Secure
Warranty.
The
amount
of
the
Guarantee
during
the
warranty
period
shall
be
a
percentage
of
the
total
actual
cost
of
completion
of
Public
Improvements
in
the
amount
set
forth
below:
Total Construction Cost Percent to Secure
Warranty
$0.00 – $500,000.00 10
$500,000.00 – $1,000,000.00 7½
$1,000,000.00 and over 5
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 6 of 12
(b) In
the
event
any
corrective
work
is
performed
during
the
two
(2)
year
warranty
period
then
the
warranty
on
such
corrected
work
shall
be
extended
for
two
(2)
years
from
the
date
on
which
the
corrected
work
is
completed.
Guarantee
equal
to
one
hundred
and
ten
percent
(110%)
of
the
cost
of
any
corrected
work,
as
estimated
by
the
Town
Engineer,
shall
be
retained
by
the
Town
or
immediately
paid
to
the
Town
by
the
Owner,
if
sufficient
funds
are
not
held
by
the
Town,
in
accordance
with
Paragraph
3(a)
above,
for
a
period
of
two
(2)
years
from
the
date
of
completion
of
the
corrected
work.
4. Engineering
Certification.
Upon
completion
of
portions
of
the
Public
Improvements,
Owner
will
cause
Owner’s
engineers
(who
shall
have
been
actively
engaged
in
observing
the
construction
of
the
Public
Improvements
and
shall
be
registered
engineers
in
the
State
of
Colorado)
to
provide
a
written
opinion,
to
the
satisfaction
of
the
Town
Engineer,
that
based
upon
on-‐site
observation,
review
of
sufficient
construction-‐observation
reports,
field
test
reports
and
material
test
reports
and
certifications
by
qualified
personnel,
the
installation
of
the
Public
Improvements,
or
portions
thereof
as
may
be
completed
from
time
to
time,
have
been
completed,
to
the
best
of
their
knowledge
and
professional
judgment,
in
conformance
with
all
standards,
plans
and
specifications
as
submitted
to
and
previously
approved
by
the
Town,
or
the
pertinent
utility
supplier,
as
depicted
on
the
Approved
Plans.
Inspection
reports,
test
results,
as-‐constructed
plans
and
other
supporting
documentation
shall
be
submitted
with
the
certification.
The
as-‐constructed
plans
shall
be
submitted
on
paper
and
in
one
of
the
following
digital
formats:
AutoCad
DWG,
AutoCad
DXF,
or
ESRI
GIS
shapefile.
5. Inspection
Fees.
Fees
for
inspections,
if
any,
shall
be
paid
by
the
Owner
within
thirty
(30)
days
after
delivery
of
written
invoice
for
such
fees
to
cover
the
cost
of
inspections
by
the
Town.
The
fees,
if
any,
will
be
based
on
direct
(out-‐of-‐pocket)
costs
of
the
Town
plus
an
administrative
fee
in
the
amount
of
fifteen
(15%)
percent
of
the
direct
costs,
but
in
no
event
will
the
total
amount
of
such
inspection
fees
exceed
five
percent
(5%)
of
the
actual
aggregate
costs
for
such
Public
Improvements.
6. No
Obligation
of
Town
to
Complete
Improvements.
Owner
agrees
that
in
the
event
Owner
shall
fail
to
perform
its
obligations
as
set
forth
herein,
the
Town
shall
be
under
no
obligation
to
complete
any
of
the
said
Public
Improvements
or
to
issue
permits
for
development
served
by
the
Public
Improvements.
7. Non-‐Liability
of
Town;
Indemnification.
The
Town
shall
not,
nor
shall
any
officer,
agent,
or
employee
thereof,
be
liable
or
responsible
for
any
accident,
loss
or
damage
related
to
the
Work
specified
in
this
Agreement,
nor
shall
the
Town,
nor
any
officer,
agent
or
employee
thereof,
be
liable
for
any
persons
or
property
injured
by
reason
of
the
nature
of
said
Work.
To
the
extent
permitted
by
law,
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 7 of 12
Owner
hereby
agrees
to
indemnify
and
hold
harmless
the
Town,
and
any
of
its
officers,
agents
and
employees
against
any
losses,
claims,
damages
or
liabilities
to
which
the
Town
or
any
of
its
officers,
agents
or
employees
may
become
subject,
because
of
any
losses,
claims,
damages
or
liabilities
(or
actions
in
respect
thereof)
that
arise
out
of,
or
are
based
upon,
any
acts
or
omissions
in
the
performance
of
the
obligations
of
Owner,
as
hereinbefore
stated.
Furthermore,
the
Owner
shall
reimburse
the
Town
for
any
and
all
legal
or
other
expenses
reasonably
incurred
by
the
Town
in
connection
with
investigating
or
defending
any
such
loss
or
claim.
8. Rights
of
Town
in
Event
of
Default.
In
the
event
that
Owner
defaults
in
whole
or
in
part
in
the
performance
of
this
Agreement,
and
after
the
expiration
of
thirty
(30)
days
after
having
given
written
notice
to
Owner
of
such
default
during
which
period
of
time
the
Owner
fails
to
correct
said
default,
the
Town
may,
at
its
sole
discretion,
proceed
with
the
construction
or
completion
of
the
Public
Improvements
specified
on
Exhibit
A:
Approved
Plans.
All
costs
paid
by
the
Town
to
correct
or
complete
the
Public
Improvements,
including
cost
of
personnel,
equipment,
materials,
studies,
legal
and
other
amounts
expended
by
the
Town
to
perform
the
Public
Improvement
construction
responsibilities
of
Owner,
together
with
an
administrative
fee
in
the
amount
of
fifteen
percent
(15%)
of
the
total
costs
incurred
by
Town
shall
be
paid
by
Owner.
Any
such
costs
relating
to
the
Public
Improvements,
which
have
not
been
reimbursed
by
Owner,
shall
be
a
debt
of
Owner.
In
addition
to
other
remedies
stated
in
this
Agreement,
if
the
Owner
is
in
default
of
this
Agreement,
the
Town
may
withhold
the
acceptance
or
processing
of
development
applications
and
may
withhold
the
approval
of
development
permits
for
or
on
any
property
which
would
be
served
by
the
Public
Improvements
until
such
time
as
the
Public
Improvements
are
completed.
9. Letter
Certifying
Completion
and
Final
Acceptance
of
Improvements.
When
all
Public
Improvements
have
been
completed
and
accepted
by
the
Town,
or
the
pertinent
utility
supplier,
and
the
Warranty
Period
has
expired
and
provided
that
Owner
is
not
in
default
under
any
of
its
obligations
to
the
Town
under
this
Agreement,
the
Town
agrees
that
it
will
issue
a
letter,
after
consultation
with
the
pertinent
utility
supplier
if
necessary,
in
recordable
form,
certifying
that
all
obligations
of
Owner
under
this
Agreement
have
been
satisfied
(“Certification”).
10. Non-‐Liability
of
Town
for
Indirect
or
Consequential
Damages
or
Lost
Profits.
The
Parties
agree
that
the
Town
shall
not
be
liable
for
indirect
or
consequential
damages,
including
lost
profits,
which
result
or
arise
from
the
Town’s
declaration
that
Owner
is
in
default
of
the
Agreement,
so
long
as
the
Town
acts
in
good
faith.
11. Incorporation
of
Exhibits.
Unless
otherwise
stated
in
this
Agreement,
exhibits,
applications,
or
documents
referenced
in
this
Agreement
shall
be
incorporated
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 8 of 12
in
this
Agreement
for
all
purposes.
In
the
event
of
a
conflict
between
any
incorporated
exhibit
and
this
Agreement,
the
provisions
of
this
Agreement
shall
govern
and
control.
12. Assignment
and
Release.
All
or
part
of
the
rights,
duties,
obligations,
responsibilities,
or
benefits
set
forth
in
this
Agreement
shall
not
be
assigned
by
Owner
without
the
express
written
consent
of
the
Town
Council
of
the
Town.
Any
written
assignment
shall
expressly
refer
to
this
Agreement,
specify
the
particular
rights,
duties,
obligations,
responsibilities,
or
benefits
so
assigned,
and
shall
not
be
effective
unless
approved
by
resolution
or
motion
of
the
Town
Council
of
the
Town.
No
assignment
shall
release
the
Owner
from
performance
of
any
duty,
obligation,
or
responsibility
unless
such
release
is
clearly
expressed
in
such
written
document
of
assignment.
13. No
Third
Party
Beneficiaries.
Nothing
contained
in
this
Agreement
is
intended
to
or
shall
create
a
contractual
relation
with,
cause
of
action
in
favor
of,
or
claim
for
relief
for,
any
third
party,
including
any
agent,
sub-‐consultant
or
sub-‐
contractor
of
the
Owner.
Absolutely
no
third
party
beneficiaries
are
intended
by
this
Agreement.
Any
third-‐party
receiving
a
benefit
from
this
Agreement
is
an
incidental
and
unintended
beneficiary
only.
14. Amounts
Past
Due.
Any
amounts
due
to
the
Town
of
Avon
under
this
Agreement
which
are
past
due
shall
bear
interest
at
the
rate
of
one
and
one-half
percent (1½%) per month (eighteen percent [18%] per annum, compounded annually)..
15. Amendments.
This
Agreement
may
be
amended
from
time
to
time,
provided
that
such
amendment
is
in
writing
and
signed
by
all
parties
hereto.
16. Covenants
Running
with
the
Land.
This
Agreement
and
the
obligations
hereof
shall
be
deemed
to
be
covenants
running
with
the
land
and
shall
be
binding
on
the
successors
and
assigns
of
the
parties
hereto.
17. Venue.
Venue
for
any
litigation
arising
out
of
this
Agreement
shall
be
in
the
District
Court
for
Eagle
County,
Colorado.
[Signature
Page
Follows]
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 9 of 12
THE
PARTIES
HERETO
HAVE
EXECUTED
THIS
AGREEMENT
AS
OF
THE
DATE
FIRST
ABOVE
WRITTEN.
TOWN
OF
AVON
BY:_____________________________
ATTEST:____________________________
Mayor
Town
Clerk
APPROVED
AS
TO
FORM:
___________________________
Town
Attorney
OWNER
BY:__________________________
Owner
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 10 of 12
EXHIBIT A: APPROVED PLANS
APPROVED PLANS:
______________________________
Construction Drawings
__________________, Town of Avon, Colorado
_______________, 20__
Sheets 1 through __
Release Date: _______________, 20__
Prepared by:
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 11 of 12
EXHIBIT B: COST ESTIMATE
PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE
FORM OF PUBLIC IMPROVEMENTS AGREEMENT
DRAFT V3 – Oct.13, 2012 ejh
Page 12 of 12
EXHIBIT C: FORM OF GUARANTEE
[Insert Form of Guarantee]