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TC Council Packet 07-28-2015 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JULY 28, 2015 SPECIAL MEETING STUDY SESSION BEGINS AT 3:00 PM AT THE AVON PUBLIC LIBRARY MEETING ROOM AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:30 PM REGULAR MEETING BEGINS AT 5:35 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICERS MAYOR JENNIE FANCHER MAYOR PRO TEM JAKE WOLF COUNCILORS MEGAN BURCH, MATT GENNETT, SCOTT PRINCE, ALBERT “BUZ” REYNOLDS, SARAH SMITH HYMES SPECIAL MEETING STUDY SESSION BEGINS AT 3:00 PM – AVON PUBLIC LIBRARY MEETING ROOM 1. CALL TO ORDER & ROLL CALL 2. ALIGNED INFLUENCE MODEL INTRODUCTION (TAMI T ANOUE, CIRSA) 3. ADJOURNMENT AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:30 PM (SEE SEPARATE AGENDA PAGE 3 ) REGULAR MEETING BEGINS AT 5:35 PM 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA 4. CONSENT AGENDA 4.1. APPROVAL OF ADD-ON PIF C OLLECTION SERVICE AGREEMENT (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 4.2. APPROVAL OF RESOLUTION NO. 15-12, PEG FEE GRANT R EQUEST (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 4.3. APPROVAL OF A NOTICE OF AWARD, BUCK CREEK ROAD BRIDGE REPAIR PROJECT (JUSTIN HILDRETH TOWN ENGINEER) 4.4. APPROVAL OF THE MINUTES FROM JULY 14, 2015 MEETING (TOWN CLERK DEBBIE HOPPE) 5. WORK SESSION 5.1. AVON RECREATIONAL TRAILS ADVISORY GROUP U PDATE (RICH CARROLL) 5.2. REVIEW AND DIRECTION FOR A POTENTIAL SMOKING BAN IN CERTAIN PUBLIC AREAS IN THE TOWN OF AVON (EXECUTIVE ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) 6. ACTION ITEMS 6.1. REVIEW AND ACTION TO SET A NINE-HOLE DISC GOLF COURSE IN NOTTINGHAM PARK (RECREATION DIRECTOR JOHN CURUTCHET) 6.2. PUBLIC HEARING RESOLUTION NO. 15 –13 A RESOLUTION TO AMEND THE 2015 TOWN OF AVON WATER FUND BUDGET TO APPROPRIATE $20,000 FROM THE MOUNTAIN STAR WATER TANK CONTRIBUTION FUND B ALANCE TO PARTICIPATE IN THE FUNDING OF THE SITE ENGINEERING (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 6.3. ACTION ON NOTICE OF AWARD FOR PUBLIC SAFETY FACILITY GENERAL CONTRACTOR PRE-CONSTRUCTION SERVICES (TOWN ENGINEER JUSTIN HILDRETH) _____________________________________________________________________________________ MEETING AGENDAS & PACKETS: HTTP://WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, RECREATION CENTER, & LIBRARY. Page 1 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JULY 28, 2015 SPECIAL MEETING STUDY SESSION BEGINS AT 3:00 PM AT THE AVON PUBLIC LIBRARY MEETING ROOM AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:30 PM REGULAR MEETING BEGINS AT 5:35 PM AVON TOWN HALL, ONE LAKE STREET 6.4. PUBLIC HEARING SECOND AND FINAL R EADING OF ORDINANCE NO. 15-05 AMENDING CHAPTER 2.30 TOWN CODE OF ETHICS OF THE AVON MUNICIPAL CODE (TOWN ATTORNEY ERIC HEIL) 6.5. FIRST READING OF ORDINANCE NO. 15-08 SETTING ADMINISTRATIVE DEPARTMENTS (TOWN ATTORNEY ERIC HEIL) 6.6. APPOINTMENT OF CML POLICY COMMITTEE REPRESENTATIVE AND ALTERNATE (MAYOR JENNIE FANCHER) 6.7. APPOINTMENT OF EAGLE COUNTY REGIONAL TRANSPORTATION COMMITTEE ALTERNATE (MAYOR JENNIE FANCHER) 6.8. APPOINTMENT OF TWO COUNCIL MEMBERS TO SERVE ON AUDITOR SOLICITATION AND SELECTION COMMITTEE (MAYOR JENNIE FANCHER) 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 8. MAYOR & COUNCIL COMMENTS 9. WRITTEN REPORTS 9.1. WYNDHAM REAL ESTATE TRANSFER TAXES UPDATE (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 9.2. GIFT REPORTING – (EXECUTIVE ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) 9.3. MONTHLY FINANCIALS (BUDGET ANALYST KELLY HUITT) 10. ADJOURNMENT _____________________________________________________________________________________ MEETING AGENDAS & PACKETS: HTTP://WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, RECREATION CENTER, & LIBRARY. Page 2 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JULY 28, 2015 SPECIAL MEETING STUDY SESSION BEGINS AT 3:00 PM AT THE AVON PUBLIC LIBRARY MEETING ROOM AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:30 PM REGULAR MEETING BEGINS AT 5:35 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICERS CHAIRMAN JENNIE FANCHER VICE CHAIRMAN JAKE WOLF BOARD MEMBERS MEGAN BURCH, MATT GENNETT, SCOTT PRINCE, ALBERT “BUZ” REYNOLDS, SARAH SMITH HYMES 1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. RENEWAL OF LIQUOR LICENSES 4.1. APPLICANT: CHINA GARDEN, INC. D/B/A CHINA GARDEN LOCATION: 100 W BEAVER CREEK BLVD. TYPE: HOTEL & RESTAURANT MANAGER: SHARON MOU 5. MINUTES FROM JULY 14, 2015 6. ADJOURNMENT _____________________________________________________________________________________ MEETING AGENDAS & PACKETS: HTTP://WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, RECREATION CENTER, & LIBRARY. Page 3 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Virginia C. Egger, Town Manager Date: July 22, 2015 Agenda Topic: Aligned Influence Model Introduction BACKGROUND Please welcome Tami Tanoue to Tuesday’s Study Session. Tami is CIRSA’s General Counsel/Claims Manager and brings a strong background in advising elected officials and staff on range of issues for maximizing excellence and effectiveness, while minimizing the risk of liability. She is the author of the Ethics, Liability & Best Practices Handbook for Elected Officials. Her presentation is attached, as well as three (3) short articles by Ken Schuetz, the author of the Aligned Influence Model. The study session will begin at 3:00 p.m. and will be held at the Avon Public Library Meeting Room. In addition to Council, Town Attorney Eric Heil, Assistant Town Manager Scott Wright and I will be joining the meeting. The meeting will end not later than 5:15 p.m., with Council returning to Council Chambers for your regular meeting schedule, which will begin at 5:30 p.m. CML POLICY COMMITTEE APPOINTMENTS July 28, 2015 Town Council Meeting Page 1 of 1 800.228.7136  www.cirsa.org Tami Tanoue, General Counsel/Claims Manager July 28, 2015 Aligned Influence – A Governance Model Framing the Issues A “separation of powers” concept exists in most municipalities that have a Manager framework in place Council: Governance Manager: Administration Council directs its Manager and its other direct reports; rest of staff is managed and supervised by and through the Manager “No interference” provisions are in place Council’s Powers and Role Council, as the body elected by the Avon citizens, has an essential role to adopt laws, adopt the budget, establish departments and functions, adopt Town policies, and approve contracts (unless delegated to Town Manager). Council also appoints Town Manager, Town Attorney and the Municipal Judge. Charter Section 4.9 POWERS OF COUNCIL “The Council shall constitute the legislative and governing body of the Town and shall have all legislative powers and functions of municipal government, except as otherwise provided in the Constitution of the State of Colorado, this Charter or by Statutes applicable to Home Rule Towns and/or cities and shall have the power and authority to adopt such laws, ordinances, resolutions and rules as it shall deem proper.” HRC Sec 6.3 Council acts by ordinance to create indebtedness, authorize borrowing, levy a tax, establish any rule or regulation that is subject to a penalty, and regulate private property HRC Sec 8.1 Council appoints Town Manager HRC Sec 8.8 Council establishes departments to perform administration functions by ordinance, with recommendation of Town Manager HRC Sec 10.1 Council appoints Town Attorney and special counsel HRC Sec 10.2 Council appoints Municipal Judge HRC Sec 12.7 Council adopts budget, but Town Manager is required to prepare a recommended budget HRC Secs 17.1 and 17.8 Council grants franchises and permits for use of Town right-of-ways and properties Other Powers of Council Chapter VIII – Municipal Administration HRC Sec 8.1 The Avon Charter establishes a “separation of powers” by requiring the appointment of a Town Manager who “shall be the chief executive and administrative officer of the Town.” HRC Sec 8.3 Powers and Duties enumerated, including “(g) exercise supervision and control over all executive and administrative departments . . .” HRC Sec 8.8 “All departments of the Town shall be under the supervision and control of the Town Manager.” Charter Section 8.5 Charter contains explicit “no interference” language of the type commonly found in charters that establish a Town Manager format: “Neither the Council, its members, the Mayor, nor any council committee shall dictate the appointment of any person to office by the Town Manager except as otherwise provided in this Charter or in any way interfere with the Town Manager or other Town officer exercising judgment in the appointment or employment of officers and employees in the administrative service.” “Except for the purpose of inquiry, the Council, its members, the Mayor and any Council committee shall deal with the administrative service solely through the Town Manager and neither the Council, its members, the Mayor, nor any Council committee thereof shall give orders to any of the subordinates of the Town Manager.” Charter Section 10.1 TOWN ATTORNEY Town Attorney serves a unique role: The Charter states, “The Town Attorney shall be the legal representative of the Town and shall advise the Council Town officials in matters relating to their official powers and duties and perform such other duties as Council may prescribe by ordinance or resolution.” Functionally, the Town Attorney advises Council, Boards and Commissions, the Town Manager and Town staff on practically all activities of significance to promote compliance with Town, state and federal laws and to minimize potential legal liability of the Town. Where are you focusing your efforts? Ownership | Governance | Management/Administration | Supervision | Front Line Employment When the “separation” can become problematic… Maintaining the “separation of powers” has become an area of confusion or contention in many municipalities, especially in personnel matters: One or more elected officials may wish to reach below the level of the Council’s “direct reports” One or more employees may wish to reach up past the level of their supervisors/Manager and pull one or more elected officials into employee matters There may be a sense of unease on the part of the Council with maintaining the separation Council may perceive an information vacuum about what is happening below the level of its direct reports Signs of possible unhappiness or unrest may be present – seemingly high turnover, etc. You may hear things through the “rumor mill” Actual reports – complaints -- may surface up to Council When the “separation” can become problematic… Breaching the “separation” will create its own concerns: Violation of the structure established by the Charter Potential for creating chaos in the chain of command Manager/Supervisors can become disempowered Council can be put in the position of dealing with “ground-level” issues that divert it from its own goals and priorities Liability concerns Venturing outside your respective “job descriptions” can lead to personal liability When the “separation” can become problematic… Despite those concerns, there may come a time when the Council cannot avoid dealing with high level decisions at some level The pivotal issue is how to become involved appropriately while maintaining the “separation of powers” and avoiding the negative consequences Strategies Identify whether any level of involvement is in fact appropriate Understand that there are relatively few scenarios where involvement is appropriate If your concern is “100 percent employee satisfaction,” that is an unachievable goal! If you are responding to the rumor mill, that may not be an accurate reflection of reality Actual complaints about your direct reports, especially those that could implicate legal or policy requirements, are a different matter But any involvement needs to be approached from the “governance” standpoint: what is our responsibility as the governing body? Otherwise, you may be taking over the job of management, and that is not your responsibility! So what IS your responsibility? Strategies Responsibilities could include: Establishing/reiterating organizational values that you expect to be followed at every level in the organization? Establishing “boundaries” of conduct that must not be crossed? Setting clear and measurable performance expectations for your direct reports? Conducting regular performance evaluations of your direct reports? Including in your performance evaluation of your direct reports components that measure whether/how those expectations have been met? Ensuring a process for “recourse/escalation” exists for individuals who believe that “values” and “boundaries” are not being respected? Establishing a monitoring function? Strategies Does the Council speak with one voice? “Deliberate in many voices, but speak with one” Recognize that, while there may be dissension or disagreement, the Manager must be accountable only for directions given by the Council as a whole Is the voice directed at the Manager, your primary direct report, rather than at other levels of the organization? See The Principle of One Voice by Mike Conduff (ICMA) Strategies The fact that the governing body is made up of individuals, each with different goals and priorities, can present organizational challenges How would you like to report to several different bosses? Sorting out and reconciling what several different people want is impossible Resolve to speak with ONE voice to your Manager and other direct reports This puts the burden on the governing body to sort out and reconcile the goals and priorities of several different elected officials, and to establish a singular set of goals, priorities, and directions for your direct reports Got Model? You’ve already started down a very constructive path with very capable players Could “Governance” models help? Let’s look at a couple… Governance Models John Carver’s work on “Policy Governance” is a well-recognized model for board governance Addresses many common and recognizable inefficiencies in board-staff relationships Carver, Boards That Make A Difference (2006) http://www.carvergovernance.com/model.htm More recently, Ken Schuetz has built on and added some dimensions to Carver’s work with the “Aligned Influence” model The “Aligned Influence” model doesn’t just carve out spheres of authority for board versus CEO, but recognizes that the two are aligned, and that the unique roles of each are carried out collaboratively http://www.alignedinfluence.com/ComparedAndContrasted.php http://www.alignedinfluence.com/index.php “Policy Governance” Key Carver concepts: Ends versus means: Council determines the “ends,” and Manager and staff determine and carry out the “means” – in other words, you set the goals and priorities, staff determines how to carry them out Executive limitations: Council sets forth the boundaries of ethics and prudence, in carrying out the means, beyond which the Manager and staff must not cross. As long as those boundaries are not crossed, you don’t question the “how” by which your goals and priorities are carried out Board-staff linkage: Council determines the manner in which it delegates authority to staff, how it will evaluate staff performance (in achieving the “ends” and meeting the executive limitations) Governance process: Council determines its own philosophy, the specifics of its own job, and its accountability Aligned Influence Basics Board’s Role: DIRECT identifying the product, service or value to be created or delivered by the organization PROTECT establishing appropriate operational boundaries ENABLE Advocating for and developing resources for the organization Maintaining discipline to their role (“role discipline”) Manager/Adminis- trator’s Role: LEAD Future-focused planning MANAGE Now-focused policy and procedural development ACCOMPLISH accomplishing the work defined by the Board “Policy Governance” v. “Aligned Influence” Policy Governance has its adherents and its critics One common critique is that it “disconnects” the Council from the heart of the organization or creates/maintains an artificial separation between the two key spheres of authority (Council and Manager) in the organization Another is that it is primarily a model for board development, not for Manager-staff development Aligned Influence model “yokes” together the Council and the Manager in a continuing engagement and develops both in an aligned effort to move the organization forward Attribution: Ken Schuetz, www.alignedinfluence.com Aligned Influence  “Aligned Influence” is a holistic model, and will take time and the expertise of its author working with Council to understand and implement Avon’s policies would be developed to reflect its own needs CIRSA example: 2-3 hour introduction at Board retreat; 6-8 hours to develop “Direct” and “Protect” policy drafts; additional staff time and Chairperson/Executive Director time expected Who Else Can Help? There may be issues of “style” that have substantive impacts on communication, leadership, relationships, motivation, etc. Training and coaching on these matters may be helpful Could potentially be extended to every level of the organization, from Council to Manager to management team to the rest of the employee group One-on-one coaching might be appropriate for some positions CIRSA Help with Aligned Influence Starting in 2016, CIRSA has budgeted funds to assist members interested in Aligned Influence Could possibly start earlier CIRSA will fund 50 percent of the cost, up to a cap Initial meeting with Tami and Ken Schuetz to introduce AI in greater detail 3-4 additional meetings with Council to create “direct, protect, and enable” policies, 1-2 meetings with Mayor and Manager to discuss Council agenda process Social Styles “Social Styles in the Workplace” is a useful workshop, especially for an organization’s leaders – Phil Bryson, www.ontheedge.com Divides social styles into “Driver,” “Expressive,” “Amiable,” and “Analytical” (primary and secondary styles), provides insights into each style, and suggestions for dealing with others’ styles DISCUSSION? Kenneth Schuetz ©, All Rights Reserved (Jul 11) Page 1 of 3 Roles of Boards and Staff Aligned InfluenceTM By, Kenneth Schuetz Founder, Aligned Influence, LLC The monthly board meeting is approaching. The Chairman of the Board and the Executive Director are stressed as they prepare for the meeting. Once again, the Chairman is trying to come up with an agenda that makes sense. The Executive Director is attempting to prepare the details of the organization’s work that should be discussed and maybe even defended. Neither of them is ever sure that they are doing the right thing in leading their board or staff respectively; and both of them wish there were clearer leadership guidelines for them to follow. Are they doing the right things? Is this confusion and lack of clarity just part of the job that they accepted? This leadership confusion is common for many organizations. Boards are tremendously important structures, but are often considered challenging by those who serve on boards and those who operate under the authority of the boards. Boards are such important structures that non-profits and public for- profits are mandated to have them, and other organizations often choose to institute them. Considering their importance, why does this leadership confusion continue to exist? It exists because we place very capable, talented and energetic people in positions without providing a foundational structure that supports the execution of their roles. This leads to well-meaning board members becoming overly involved in day-to-day operations, and well-meaning executive directors and staff members defining and redefining the boundaries of what the organization should be accomplishing. This confusion leads organizations to fall short of their full potential because a great deal of the board’s and staff’s time is spent dealing with the “overhead” of managing this relationship. It leads to missed opportunities for the organization because they cannot demonstrate the mature structure that funding entities are looking for. In addition, because their focus is on managing internal relationships, no one is outwardly focused enough to see what is going on with the people they serve, nor the community owners and donors to whom they are responsible. The answer to this dilemma is educating everyone about appropriate roles, and initiating an organizational transformation through the commitment of everyone involved. It requires a willingness of the board and the staff to admit that there might be a different way of looking at their work. Then they need to engage in the dialogue necessary to discover new information. And most importantly, commit to the discipline necessary to maintain their focus and limit their actions within the bounds of the newly defined roles. Board of Directors Role The role of the board of directors is to direct, protect and enable the organization. The board directs the organization by establishing and maintaining the strategic “what” of the organization. It defines the appropriate organizational target or outcome that, when accomplished, represents success for the organization. This may sound self-evident to many organizations, but experience shows that this is one of the two hardest points to clarify for a board of directors, as they create their governing documents. The board protects the organization by establishing boundaries that, when respected by the executive director and staff, results in safe operation of the organization and secures the long-term success of the organization. The boundaries are expressed as policies that start out broadly and can be narrowed with more detail to any level that the Board chooses. In the end, the Board’s boundary statements become monitoring tools for the Board to ensure the organization is remaining safe and successful. These boundary reviews provide some of the structure for board meetings throughout the year. Common boundary statements relate to treatment of clients, treatment of staff and volunteers, financial planning and management, risk management, compensation and benefits. Boundaries are created as appropriate to the organization and its work. The board enables the work of the organization through advocacy and resource development. Board members advocate for the organization through their own networks of professional, civic, and personal contacts. Every conversation they have is an opportunity to advocate for the needs and mission of the organization. They represent the organization to every person with Kenneth Schuetz ©, All Rights Reserved (Jul 11) Page 2 of 3 whom they interact. Because of the board members’ influence, the organization is made visible to everyone that they know or knows them. Obviously, this means that the board member must clearly understand the work of the organization. Each advocacy relationship is also a resource development opportunity. This does not mean that each conversation needs to end with an “ask”. But it does mean that the board member should always be listening for possible connections between the needs of the organization, and the talents and resources of their contacts. There will be times that an “ask” is appropriate, and it may or may not be the role of the Board member to make the request. In some cases, it may be more appropriate for the Board member to refer the contact to the Executive Director or someone on their staff to make the request. Boards should also remember the enabling impact of maintaining their role. As soon as the Board begins to veer from their directing, protecting and enabling role, it risks disabling or at least complicating the efforts of the staff. Board members are often tempted to wander into leading, managing and accomplishing roles. However, they will enable the staff more by staying out of those areas. Executive Director and Staff Roles The executive director’s role is to lead, manage, and accomplish the work of the organization. If the board defines the strategyic “what” of the organization, the executive director and their staff define the tactical “how” to accomplish the strategic “what”. This does not mean that the executive director is relegated to the mundane. Rather, he is empowered by the board to accomplish the work of the organization in any way they see fit within the boundaries established by the board. Leadership and management are often confused. Both are important, and often an executive director is stronger in one area than the other, but they must focus on both to be successful. Leadership is future- focused, and considers how the organization must change to accomplish the work of the organization, in the context of shifting challenges and opportunities. Management is focused on the present, and relates to how the work of the organization must be structured to ensure it is accomplished on time, on budget, and with excellence. The executive director must be clear about their strengths and weaknesses in each area, and surround themselves with staff and volunteers that help bolster their areas of weakness. The executive director uses the strategic direction and operational boundaries provided by the board to create tactical plans and operational policies, that ensure the organization will accomplish its work and maintain its integrity. The executive director’s role does not conflict with the board’s role, but rather complements it. The executive director’s role is not more or less important than the board’s role, but it is vital to accomplishing the work of the affiliate. Executive directors and staff operate the organization, accomplish the goals established by the board, and provide the Board with monitoring information. Executive Directors operate the organization within the context of the board’s governing policies by establishing operational policies, structuring resource development efforts, hiring and managing personnel, and establishing processes and procedures by which products or services are delivered consistently. They structure the organization internally so the day-to-day tasks of keeping the organization moving forward are established and well-managed. Some of these tasks may be done by internal staff and some may be done by outsourced services (for example, staff may hire an accounting firm for accounting tasks). Regardless of who does the work, these operational tasks are the executive director’s responsibility. Executive directors and their staff are responsible for accomplishing the work authorized by the board. For example, an educational foundation raises and distributes funds to the educational institution they are aligned with. A food bank raises funds, procures food donations, and then develops processes and procedures for distributing that food appropriately. An affordable housing organization’s work is building and remodeling housing that can be made available to families at an affordable cost. In all of these examples, the board defined the strategic “what” and the executive director and their staff define and accomplish the tactical “how,” focusing on doing the “programmatic” work of the organization. Executive directors are also responsible for providing the board with the information that they need to appropriately monitor the organization. Boards typically monitor each of their protective policies once a year. With ten to twenty policies, the board reviews at least one policy per month, and the executive director provides operational reports for this process. Boards Kenneth Schuetz ©, All Rights Reserved (Jul 11) Page 3 of 3 often perform external monitoring on some of the protected areas. In these cases, the staff will work with an external auditor to provide audit information. Successful organizations recognize the differing roles for boards of directors, executive directors, and staff. Neither role is more important than the other, but each will be sorely missed if not performed appropriately. It is crucial that the chairperson of the board and the executive director work together to coach the members of their respective “team” to stay within the boundaries of their role. Table 1 compares the differing roles in some common areas within an organization. Table 1: Differing Roles for Board and Staff Area Board Role Staff Role Leadership Outward focused leadership that sets direction and establishes boundaries for organization safety Management of the organization in support of accomplishing its work. Planning Strategic definition of “what” the organization should be accomplishing. Tactical definition of annual goals in support of the work defined by the board. Resource Development Advocacy and networking with civic, professional and personal contacts with the needs and challenges of the organization in mind. Establish and structure resource development goals and plans for achieving those goals. Policy Development Oversee the creation of by-laws which establish the organization and board governing policies by which the board monitors the organization. Create operating policies and procedures by which staff are directed how to accomplish their work. Each organization has a unique programmatic focus, and that is true for your organization as well. The professionals at Aligned Influence, LLC specialize in helping organizations establish clear roles for the Board and staff of organizations, and then provide the tools by which to operate within the roles so your organization can focus on its mission. If we can assist you further, please visit us at www.alignedinfluence.com or contact us at 303-257-1794. Kenneth Schuetz © (Jul 11) Page 1 of 2 Three Policy Sets Aligned InfluenceTM Kenneth Schuetz Founder, Aligned Influence, LLC Consider this scenario: An educational foundation’s board seems to never be in agreement about whether their fund balances are too large or too small. Some directors believe the board should develop “healthy” fund balances for future opportunities and others believe they should put their fund balances “to work” on behalf of the community they serve. The discussion is always full of drama; dividing the board. Who is right? Neither is right or wrong, but the debate brings to light the core issue – the board does not have a clear answer to their fund balance debate because they has not established clear boundaries or guidance policies to direct their decisions. Many organizations, particularly non-profits, begin with a small group of people trying to do the work of the organization while also providing oversight to the organization. As the organization matures, staff roles are separated and filled by new team members who accomplish the work of the organization and the board can begin to focus only on oversight. The same transition can be viewed in the maturation of organizational policy. When an organization is formed, the principles create bylaws which are used to establish the organization. Often, young organizations will be attempting to use those bylaws to operate the organization several years later, causing the organization to plateau in its growth. Maturing organizations have three policy sets to match their maturing understanding of the roles played by the board and the executive director. The first is bylaws which are used to establish the organization. The second is governing policies which are used by the board to protect, direct and enable the organization. The third is operating policies that are used by the staff to lead, manage, and accomplish the work of the organization. Bylaws Bylaws are created with the assistance of an attorney as part of the process of establishing an organization. They commonly stipulate the officer roles, minimum and/or maximum numbers of board members, and term limits for board members. They might describe how often the board must meet and what kinds of skills should be represented on the board. They most likely describe the number of votes necessary for a decision to be considered a valid action of the board and might designate some committees necessary to begin the initial work of the board. In short, the bylaws are intended to document key facts that establish the initial organizational structure and procedures of the organization. They inform and provide a foundation for governing policies, but were never intended to act as the sole governing policy document for the organization. Governing Policies Governing policies are established by and then used by the board of directors of an organization to 1. define the “strategic what” delivered by the organization 2. establish boundaries within which the organization should operate to ensure integrity, fiduciary soundness, and appropriate risk tolerances 3. establish guidance for the board regarding how they will enable the work of the organization The policies do not, and are not intended, to tell the staff how to accomplish their task. Rather they are intended to give the staff clear direction on what the organization is to accomplish, to establish protective limits in key operational areas, and to document the board roles and in enabling the work the organization. Direct, Protect, Enable. The directing portion of the governing policy defines who is to be served and what product, service, or value is to be delivered. The protecting portion of the governing policy establishes operational boundaries to be respected by the staff. The boundaries are customized to the organization but commonly include statements about risk, financial and human resource management. The enabling portion of the governing policies define to whom the organization is responsible, establishes procedures and guidelines to inform and unite the board in its work, and establishes procedures for monitoring the direct and protect portions of the governing policies. Governing policies are not intended to be operating policies, but do inform the creation of operating policies. Operating Policies Operating policies are created by and used by executive directors and the staff to guide the accomplishment of Kenneth Schuetz © (Jul 11) Page 2 of 2 the organizational work as defined by the board of directors. In contrast to the governing policies, operating policies direct the staff how to accomplish their work in such a way as to be aligned with the direction and within the limits created by the governing policies. Many of those random pre-existing policies in a young organization are operating policies that are inappropriately placed in the board’s governing policies, thereby tempting the Board to micromanage rather than encouraging members to maintain their role of directing, protecting, and enabling the organization. Operating policies focus on the details of accomplishing the work the organization. Table 1: Policy Breakdown Policy Set Created and Used By Purpose Bylaws or Articles of Incorporation Created by the organization’s attorney and used by the board of directors To establish the organization Governing Policies Created and used by the board of directors To direct, protect and enable the organization. Operating Policies Created by the executive director and used by the organization’s staff. To guide the leadership, management and accomplishment of the organization’s work. Conclusion Which of these policy sets does your organization have in place today? Each plays a critical role in a healthy organization and the absence of any one of them causes a “vacuum of influence” that invites boards to be involved in operational issues and staffs to become involved in oversight issues. All three fit together as a system of policies that inform and act as a foundation for the next nested policy set in an ordered fashion. As such, the creation of governance policies will require a review of the bylaws to ensure continuity and alignment. Governance policies will also indicate a review of operational policies for continuity, alignment and more importantly completeness. The existence of governance policies will often bring to light an area where important operating policies are missing. The professionals at Aligned Influence, LLC are uniquely qualified to assist your organization in evaluating its current status in the area of policy sets. Our consultants will educate, facilitate and help your organization take the next step in maturation. These steps are transformational and our goal is to walk through the transformation with you; being your guide and your encourager. If you would like to discuss our services further, please visit us at www.alignedinfluence.com or contact us at 303-257- 1794. Kenneth Schuetz © (Jul 11) Page 1 of 3    Habitat for Humanity Affiliates: Influencing  Excellence from the Top  Aligned InfluenceTM    Kenneth Schuetz   Founder, Aligned Influence, LLC      The executive director of a Habitat for Humanity  affiliate is working hard to meet the expectations of his  board and accomplish the work of the affiliate.  The  board is filled with well‐meaning, capable people who  have different beliefs about how the executive director  should solve a myriad of problems.  Although the  executive director is glad that he is surrounded by such  capable people, he cannot understand why he feels so  overwhelmed. In addition, he is tired of feeling like he  never fully meets the expectations of the board, much  less fully accomplishes the work of the affiliate.  The  board does not know it, but the executive director is  considering other opportunities.      This scenario is not unique to Habitat for Humanity  executive directors, and it is a common situation among  organizations across the country.  Habitat for Humanity  affiliates share several things in common.  First, they are  associated with Habitat for Humanity International.  As  such, the international organization provides much of  the branding and credentialing, and some of the  principals by which the local organization commits to  operate.  Second, every Habitat for Humanity affiliate  operates at least two “businesses,” construction and  lending, and sometimes a third, retail.  Last, every  Habitat for Humanity affiliate depends on volunteers to  accomplish the work of the affiliate.  The result is a  complicated operating environment!  No wonder the  executive director feels overwhelmed, and why many  boards struggle to help the organization succeed.    The solution for the organization is that the board and  staff must understand their organizational roles,  Implement policies that allow each to document and  structure their role and discipline themselves to  maintain those roles in the long term.    Board of Directors Role  The role of the board of directors is to direct, protect  and enable the affiliate.      The board directs the affiliate by establishing and  maintaining the “strategic what” of the organization.   The “strategic what” defines the appropriate target at  which the affiliate should aim or the desired outcome  that when accomplished, will represent success for the  affiliate.  This may sound self‐evident to many affiliates,  but experience shows that this is one of the hardest  points to clarify for a board of directors, as they create  their governing documents. Prior to determining the  “strategic what,” hours are spent in board meetings  discussing the merits of single family detached versus  single family attached, garages versus carports,  and  exterior finishes of the homes that the affiliate will  build.  The challenge is in determining which questions  are important enough that the board should provide  documented direction, and which decisions should be  made by the executive director and staff.     The board protects the organization by establishing  boundaries that will result in the safe operation of the  organization; providing monitoring tools for securing  long‐term success. At Habitat for Humanity, common  boundary statements relate to treatment of family  partners, treatment of staff and volunteers, financial  planning and management, risk management,  compensation and benefits, construction, and family  selection and support.      The board enables the work of the organization through  advocacy, resource development and role discipline.   Board members advocate for the affiliate through their  own networks of professional, civic, and personal  contacts.  They become a representative of Habitat for  Humanity to every person with which they interact.  Thus every conversation is an opportunity to advocate  for the needs and mission of the affiliate.  Because of  board members’ influence, the affiliate is made visible  to everyone that they know or knows them.  Obviously,  this means that the board member must clearly  understand the work of the organization.  They must  prepare themselves for the advocacy role by being  prepared to “tell the story” of Habitat for Humanity and  dispel myths about Habitat for Humanity.      Each advocacy relationship also becomes a resource  development opportunity.  This does not mean that  each conversation needs to end with an “ask,” but it  does mean that the board member should always be  listening for possible connections between the needs of  the affiliate, and the talents and resources of their  contacts.  There will be times that an “ask” is  appropriate, and it may or may not be the role of the  board member to make the request.  In some cases, it  may be more appropriate for the board member to  Kenneth Schuetz © (Jul 11) Page 2 of 3    refer the contact to the executive director or someone  on their staff to make the request.  Role discipline is crucial to enabling the work of the  affiliate.   As soon as a board member or the board as a  whole allow themselves to wander outside of their  directing, protecting, and enabling role, they actually  risk disabling the affiliate.  Occasionally, it may seem  necessary for the board to get involved in leading,  managing, or accomplishing the work of the affiliate;  however, boards and board members should evaluate  carefully why they feel the need to do so.  If the  evaluation surfaces an apparent problem with the way  the work of the affiliate is being accomplished, the  board should evaluate its current direction and  protection policies to better guide the work of the  affiliate.  If instead, it turns out to be a lack of  volunteers or resources, the board should focus on  advocacy and resource development efforts to better  enable the work of the affiliate.  If in the end, the lack of  volunteers requires a board member to get involved in  accomplishing the work of the affiliate, the board  member must be clear that their role in doing so is as a  volunteer and not as a board member, which maintains  the discipline of their role.    Executive Director and Staff Roles  The role of the Executive Director and Staff is to lead,  manage, and accomplish the work of the affiliate.    If the board defines the “strategic what” of the  organization, then the executive director and staff  define the “tactical how” needed to accomplish the  “strategic what”.  This does not mean that the executive  director is relegated to the mundane; rather they are  empowered to accomplish the work of the organization  in any way they see fit within the board’s boundaries.    Leadership and management are often confused.  Both  are important, and often an executive director is  stronger in one area than the other; however, they  must focus on both to be successful.  Leadership is  future‐focused, and considers the changes needed to  accomplish the work of the organization within shifting  challenges and opportunities.  Management is focused  on the present, and relates to how the work of the  organization must be structured to ensure it is  accomplished on time, on budget, and with excellence.   The executive director must be clear about their  strengths and weaknesses in each area, and surround  themselves with staff and volunteers that can help  bolster their areas of weakness.    The board provides strategic direction and operational  boundaries which the executive director uses to create  tactical plans and operational policies that ensure the  affiliate accomplishes its work and maintains integrity.  The executive director’s role does not conflict with the  board’s role, but complements it.      Executive directors and staff operate the affiliate,  accomplish the work established by the board, and  provide the board with monitoring information.   Executive directors operate the organization within the  context of the board’s governing policies by establishing  operational policies, structuring resource development  efforts, hiring and managing personnel, and establishing  processes and procedures by which products or services  will be delivered consistently.  They structure the  organization internally so the day‐to‐day tasks of  keeping the organization moving forward are  established and well‐managed.      Maturing Leadership of Affiliates  So how does an affiliate begin the work of maturing the  leadership of their organization?      It begins with the board and the executive director both  acknowledging room for improving the organization.   While the affiliate may be accomplishing a great deal of  work, most find it difficult to envision the affiliate’s  potential without inviting an outside perspective to help  them pinpoint opportunities.  This may be in the form  of a consultant, self‐study of external resources, or a  combination of both.  The board and the executive  director must cultivate a culture of constant  improvement.    Second, the affiliate needs to review and/or establish  policies that allow the board and executive director to  accomplish their work.  Bylaws are the first of these  documents and are created when the affiliate is  established. Governing documents are created by the  board to capture and communicate the “strategic what”  and operational boundaries they use to direct and  protect the organization. Operational policies are  created by the executive director and staff to ensure  the work of the affiliate is accomplished.   All three of  these documents have specific roles: to establish, to  govern, and to operate, respectively.    Third, the chairperson of the board and the executive  director must commit themselves to leading their board  and staff to operate in the context of the new structure.   This step is critical for a successful transformation.  The  Kenneth Schuetz © (Jul 11) Page 3 of 3    board must discipline itself to stay out of operational  issues.  When the board is tempted to get involved in  such issues, they should ask themselves whether  something is missing from their governing policies or if  the issue is an operational issue that the staff should  deal with.  Likewise, the staff must respect the board’s  directing and protecting statements.   If the staff is  consistently tempted to stray from the stated direction  or compromise one of the boundaries, a policy review  may be needed to determine if adjustments are  necessary.      Fourth, the board of directors should create a method  for reviewing their organization’s “strategic what”  statements within the governing policies.  Well‐ developed governing documents identify to whom the  board is responsible for governing.  This is a critical step  and, in my experience, the hardest question for most  affiliates.  Is the board governing the affiliate on behalf  of Habitat for Humanity International?  Is it on behalf of  the family partners it serves?  Is it on behalf of the  community in which it operates?  Whatever your  affiliate’s answer, it is important to clearly understand  to whom the board is responsible.  Without answering  that question, many boards give direction as though  they are responsible only to themselves which is  dangerous and limiting for the organization.    The final way in which an affiliate matures its leadership  is by creating a system that manages board  responsibilities.  The board should create a calendar  that schedules monitoring of each protective boundary  so that each is reviewed at least once per year.  Some  boundaries will only be monitored internally, while  others may be monitored by an external resource.  The  calendar should schedule other board responsibilities  such as reviewing and signing of  Habitat for Humanity  International affiliate agreements,  evaluating the  executive director,  creating or reviewing the “strategic  what” statements, reviewing annual tactical plans from  the executive director and the budget that supports  those plans, and reviewing progress‐to‐date on existing  tactical plans.  The calendar becomes the annual plan of  activities for the board and can be refined over time so  that the board knows in advance what its agenda will  include each time it meets.            The professionals at Aligned Influence, LLC are very  familiar with the work and challenges of Habitat for  Humanity affiliates.  We are passionate about the  mission and about helping you serve your constituents.   If you would like further information about our  consulting services, please visit us at  www.alignedinfluence.com or contact us at   303‐257‐1794.      TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, JULY 14, 2015 AVON TOWN HALL, ONE LAKE STREET LA 07-14-2015 Minutes Page 1 1. CALL TO ORDER AND ROLL CALL Chairman Fancher called the meeting to order at 5:02 p.m. A roll call was taken and Board members present were Sarah Smith Hymes, Scott Prince, Megan Burch, Jake Wolf, Buz Reynolds, and Jake Wolf. Board member Gennett is absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Executive Assistant Preston Neill and Town Clerk Debbie Hoppe. 2. APPROVAL OF AGENDA There were no changes to the agenda. 3. PUBLIC COMMENT – COMMENTS ARE WELCOME ON TOPICS NOT ON THE AGENDA No public comments made. 4. PUBLIC HEARING FOR NEW RESORT COMPLEX LICENSE 4.1. Applicant Name: WVO Licensing, Inc. d/b/a Wyndham Beaver Creek Resort Location: 75 Benchmark Road Type: Resort Complex License Manager: Patricia Janssens Action: Resolution No. 15-02, Series of 2015 The application was presented to the Board with manager Patricia Janssens present. The Board raised no concers regarding the renewal application. Vice Chairman Wolf moved to approve approve the Resort Complex Liquor License for WVO Licensing, Inc. d/b/a Wyndham Beaver Creek Resort; Board member Reynolds seconded the motion and it passed unanimously by those present. Board member Gennett was absent. 5. PUBLIC HEARING SPECIAL EVENTS PERMIT 5.1. Applicant Name: Eagle Valley Humane Society Event Name: Avon Community Concert Series Event Dates: August 5, 12 & 19, 2015; 4:00 p.m. until 10:00 p.m. Location: Nottingham Park Concert Pavilion Event Manager: Char Gonsenica Permit Type: Malt, Vinous & Spirituous Liquor Vice Chairman Wolf stepped down due to a conflict of interest. Board member Reynolds moved to approve the Avon Community Concert Series Special Event Permit with the addition of the August 26th date; Board member Prince seconded the motion and it passed unanimously by those present. Board member Gennett was absent. Vice Chairman Wolf recused himself. 6. MINUTES FROM JUNE 23, 2015 Board member Reynolds moved to approve the Minutes from June 23, 2015; Vice Chairman Wolf seconded the motion and it passed unanimously by those present. Board member Gennett was absent. TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, JULY 14, 2015 AVON TOWN HALL, ONE LAKE STREET LA 07-14-2015 Minutes Page 2 7. Adjournment There being no further business to come before the Board, the meeting adjourned at 5:09 p.m. RESPECTFULLY SUBMITTED: ____________________________________ Debbie Hoppe, Town Clerk APPROVED: Jennie Fancher ______________________________________ Jake Wolf ______________________________________ Matt Gennett ______________________________________ Megan Burch ______________________________________ Albert “Buz” Reynolds ______________________________________ Scott Prince ______________________________________ Sarah Smith Hymes ______________________________________ 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 Fancher and Town Council members FROM: Eric J. Heil, Town Attorney RE: Add-On PIF Collection Services Agreement DATE: July 23, 2015 SUMMARY: An amended Add-On PIF Collection Services Agreement is presented to Council to approve the replacement of Special District Management Services with Clifton Larson Allen. The Town of Avon entered into an Add-On PIF Collection Services Agreement (“Agreement”) as part of the overall settlement of litigation related to the Village (at Avon). The Agreement retains administrative services to perform the function of collecting and remitting the Add-On Public Improvement Fees (“Add-On PIF”) from the Village (at Avon) to various funds. The Add-On PIF is an additional Public Improvement Fee that is in addition to corresponding Town of Avon taxes. The Agreement was established to support the Town’s ability to enforce the .75% Add-On PIF on retail sales, which was a dedicated funding source for the Town’s benefit that was a significant term of the settlement for the Town. The Agreement is closely coordinated with the terms of the amended Annexation and Development Agreement. Special District Management Services served as the collection agent when the Agreement was approved. Special District Management Services announced late last year that it was resigning from serving the Village (at Avon). The Agreement contains provisions that set forth a process for retaining a new collection agent and which requires the Town of Avon to approve the amended Agreement. The Commercial Public Improvement Company and the Mixed-Use Public Improvement Company have selected Clifton Larson Allen LLP as the new collection agent. Amendments to the Agreement are limited to simply changing the name of the collection agent. I have reviewed the amended Agreement and the amendments are acceptable. The amended Agreement is presented to Council for approval on the consent agenda. ATTACHMENTS: A – Add-On PIF Collection Services Agreement Thank you, Eric M EMORANDUM & PLANNING, LLC ATTACHMENT A: ADD-ON PIF COLLECTION SERVICES AGREEMENT 1331304.2 ADD-ON PIF COLLECTION SERVICES AGREEMENT THIS ADD-ON PIF COLLECTION SERVICES AGREEMENT (this “Agreement”) dated effective as of the 1st day of January, 2015 (“Effective Date”), is entered into by and among CLIFTONLARSONALLEN LLP, a Minnesota limited liability partnership (“CLA”); THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Commercial PIC”); THE VILLAGE (AT AVON) MIXED- USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Mixed-Use PIC”); and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Town”). RECITALS This Agreement is made with reference to the following facts: A. Capitalized terms used in this Agreement have the meanings set forth in Exhibit A. Each of the Exhibits to this Agreement are incorporated into and made a part of this Agreement. B. Pursuant to the Commercial Declaration, Commercial Declarant has imposed, among other matters, within the Commercial Property an Add-On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Commercial Property. C. Pursuant to the Mixed-Use Declaration, Mixed-Use Declarant has imposed, among other matters, within the Mixed-Use Property an Add-On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Mixed-Use Property. D. The Commercial PIC, the Mixed-Use PIC, the Town and certain other Persons previously have entered into the Annexation and Development Agreement. E. The Town’s and the Commercial PIC’s receipt of and use of the Add-On PIF Revenues derived from the Commercial Property are subject to the terms and conditions of the Annexation and Development Agreement and the Commercial Declaration. F. The Town’s and the Mixed-Use PIC’s receipt of and use of the Add-On PIF Revenues derived from the Mixed-Use Property are subject to the terms and conditions of the Annexation and Development Agreement and the Mixed-Use Declaration. G. The PICs wish to appoint CLA, and CLA wishes to accept such appointment, as their agent to collect, receive, disburse and account for all Add-On PIF Revenues, if any, in accordance with the terms and conditions of, as applicable, the Commercial Declaration, the Mixed-Use Declaration and the Annexation and Development Agreement, as set forth in this Agreement, and the Town wishes to consent to such appointment. 2 1331304.2 AGREEMENT NOW, THEREFORE, for and in consideration of the mutual agreements, promises and covenants herein contained, the Parties mutually undertake, promise, and agree for themselves, their respective representatives, successors and assigns, as follows: SECTION 1 Add-On PIF Collection Agent Functions 1.1. Appointment of CLA as Agent of the PICs and the Town. (a) Appointment and Acceptance. The PICs hereby appoint CLA as their and the Town’s agent, the Town hereby consents to such appointment, and CLA hereby accepts such appointment, for purposes of (i) receiving, collecting, accounting for and administering all Add-On PIF Revenues paid by PIF Obligors, and (ii) remitting and disbursing all Add-On PIF Revenues to, as applicable, the Commercial PIC, the Mixed- Use PIC and the Town (and/or to the Asphalt Overlay Account on behalf of the Town), or as otherwise required pursuant to this Agreement, during the term of and subject to the terms and conditions of this Agreement. By the execution of this Agreement, CLA accepts the responsibility of receiving the Add-On PIF Revenues from PIF Obligors and depositing such Add-On PIF Revenues in the Asphalt Overlay Account, the Town Account and/or the PIC Account, as applicable, in accordance with the terms and conditions of this Agreement. (b) Agency Relationship. CLA is not the agent of any Person other than the PICs and the Town and will have only those responsibilities expressly set forth in this Agreement. (c) Ownership of Revenues. Notwithstanding the appointment of CLA as the PICs’ and the Town’s agent for the purposes and subject to the limitations set forth in this Agreement, (i) the Town is the lawful beneficiary and owner of the portion of the Add- On PIF Revenues comprising the Municipal Payments and derived from the Commercial Property in accordance with the terms of the Commercial Declaration and the Annexation and Development Agreement and derived from the Mixed-Use Property in accordance with the terms of the Mixed-Use Declaration and the Annexation and Development Agreement; (ii) the Commercial PIC is the lawful beneficiary and owner of the portion of the Add-On PIF Revenues not comprising the Municipal Payments and generated from the Commercial Property in accordance with the terms of the Commercial Declaration; and (iii) the Mixed-Use PIC is the lawful beneficiary and owner of the portion of the Add-On PIF Revenues not comprising the Municipal Payments and generated from the Mixed-Use Property in accordance with the terms of the Mixed-Use Declaration. CLA hereby acknowledges that, as more fully set forth in this Agreement, the Add-On PIF Revenues collected pursuant to this Agreement are the property of the PICs and the Town and CLA will distribute the Add-On PIF Revenues to the PICs and the Town (or as otherwise required pursuant to this Agreement) in accordance with the terms of this Agreement. 3 1331304.2 1.2. Notification to CLA of PIF Obligors. The Commercial PIC and the Mixed-Use PIC will employ commercially reasonable efforts to provide CLA with prior written notice of each new PIF Obligor engaging or intending to engage in Taxable Transactions, Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms of which the Commercial PIC and/or Mixed-Use PIC, as applicable, has knowledge, such notice to be delivered before the initial Fee Remittance Date applicable to such PIF Obligor. Additionally, CLA will coordinate with the Director of Finance to obtain notification from the Town of each new Sales Tax license or business license issued to a PIF Obligor within the Property. CLA will maintain (i) a written list of each active PIF Obligor engaging in Taxable Transactions within the Commercial Property; (ii) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property; (iii) a written list of each active PIF Obligor engaging in Taxable Transactions within the Mixed-Use Property; and (iv) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Mixed-Use Property (each, a “PIF Obligor List”). CLA will (A) include a current copy of the PIF Obligor Lists relating to Taxable Transactions with each Monthly Add-On PIF Report for Taxable Transactions; (C) include a current copy of the PIF Obligor Lists relating to the renting, letting or provision of Accommodations/Lodging Rooms with each Monthly Add-On PIF Report for the renting, letting or provision of Accommodations/Lodging Rooms; and (C) coordinate with the Director of Finance to ensure that the PIF Obligor Lists are updated to reflect each PIF Obligor which then holds a valid Sales Tax license or business license issued by the Town. In preparing and updating the PIF Obligor Lists, CLA will be entitled to rely exclusively on the information provided by the PICs and the Director of Finance with no independent obligation of CLA to investigate or verify the information. 1.3. Remittance of Add-On PIF Revenues to CLA. (a) General. In performing its obligations under this Agreement, CLA will be entitled to rely on all reports furnished pursuant to this Section 1.3 without any obligation to investigate or independently verify the information in such reports. (b) Taxable Transactions. For so long as the Add-On PIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Taxable Transaction conducted by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to CLA, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Mixed-Use Declaration, each PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on Taxable Transactions conducted by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and 4 1331304.2 (iii) remit such Add-On PIF Revenues to CLA, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (c) Lodging Activities. For so long as the Add-On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the renting, letting or provision of Accommodations/Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to CLA, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Mixed-Use Declaration, each PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the renting, letting or provision of Accommodations/Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to CLA, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (d) Real Estate Transfers. For so long as the Add-On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to CLA the applicable Add-On PIF Reporting Form covering such transaction and setting forth the amount of Add-On PIF Revenues due; and (iii) remit such Add-On PIF Revenues to CLA, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Mixed-Use Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to CLA the applicable Add-On PIF Reporting Form covering such transaction and setting forth the amount of Add-On PIF Revenues due; and (iii) remit such Add-On PIF Revenues to CLA, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. 1.4. Deposit of Add-On PIF Revenues by CLA. Not later than the first business day of the month following the month of receipt of any Add-On PIF Revenues from PIF Obligors, CLA will deposit such Add-On PIF Revenues as follows: 5 1331304.2 (a) Establishment of Accounts. 1. Asphalt Overlay Account. Initially, the Asphalt Overlay Account will be established with FirstBank, Avon branch, subject to the following: The Asphalt Overlay Account will be established by EMD Limited Liability Company, Traer Creek LLC, Traer Creek Metropolitan District and the Town in accordance with the terms and conditions of the Annexation and Development Agreement and the Asphalt Overlay Agreement. The only signatories to the Asphalt Overlay Account will be those parties expressly specified as signatories as set forth in the Asphalt Overlay Agreement, and CLA will not be a signatory on the Asphalt Overlay Agreement or have authority to transfer funds from or draw checks on the Asphalt Overlay Account. The Asphalt Overlay Account may be moved from FirstBank, Avon Branch, to another bank or another branch location of FirstBank in accordance with the terms and conditions of the Asphalt Overlay Agreement and only upon providing CLA with 30 days’ prior written notice thereof, together with written instructions for CLA’ deposit of funds therein. 2. Town Account. Initially, the Town Account is or will be established with FirstBank, Avon branch, subject to the following: The Town Account is or will be established by the Town upon such terms as it deems appropriate using the Town’s Federal Employer Identification Number. The Town’s authorized representative(s), or such designees as the Town in its discretion may authorize, will be the only signatories, and CLA will not be a signatory on the Town Account or have authority to transfer funds from or draw checks on the Town Account. The Town may move the Town Account from FirstBank to another bank or another branch location of FirstBank only upon providing CLA with 30 days’ prior written notice thereof, together with written instructions for CLA’ deposit of funds therein. The Town may designate its existing general fund account, also known as the cash concentration account, as the account which shall serve as the Town Account. 3. PIC Account. Initially, the PIC Account is or will be established with Wells Fargo, Lakewood branch, subject to the following: The PIC Account will be established by the PICs upon such terms as the PICs deem appropriate using the PICs’ Federal Employer Identification Numbers. Each of the PIC’s authorized representative(s), or such designees as each of the PICs in its discretion may authorize, will be the only signatories, and CLA will not be a signatory on the PIC Account or have authority to transfer funds from or draw checks on the PIC Account. The PICs may move the PIC Account from Wells Fargo to another bank or another branch location of Wells Fargo only upon providing CLA with 30 days’ prior written notice thereof, together with written instructions for CLA’ deposit of funds therein. (b) Deposit. CLA initially will deposit the Add-On PIF Revenues in a separate account from any other funds, including without limitation, any revenues collected by CLA and derived from the imposition of the Credit PIF. Thereafter, CLA will transfer the Add-On PIF Revenues from such segregated account and deposit the Add-On PIF Revenues as follows, and, upon depositing such funds, CLA will have no further obligation with respect to such Add-On PIF Revenues (except with respect to the 6 1331304.2 preparation, distribution and retention of relevant records, reports and audits as required by other provisions of this Agreement): 1. Asphalt Overlay Account. First, CLA will deposit all or a portion of the Municipal Payments into the Asphalt Overlay Account on a monthly basis on behalf of the Town as follows: (A) Initial Five Years. For calendar years 2015 through 2019, CLA will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Payments actually received by CLA. (B) Subsequent Years. Commencing in 2020 and continuing through and including the date on which the Funding Termination occurs, CLA will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually received by CLA. The PICs and the Town will deliver joint written notice to CLA (“Joint Notice”), which Joint Notice will specify the date of the Funding Termination. CLA will be entitled to rely on the accuracy of the date of the Funding Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add-On PIF Revenues will be made in the Asphalt Overlay Account from and after the day after the date of the occurrence of the Funding Termination. 2. Town Account. After deposit of the applicable portion of the Municipal Payments in the Asphalt Overlay Account, if any, in accordance with Subsection 1 above, CLA will deposit the remaining portion of the Municipal Payments, if any, actually received by CLA into the Town Account on a monthly basis continuing through and including the date on which the Tax Credit Termination occurs. The PICs and the Town will deliver a Joint Notice of the occurrence of the Tax Credit Termination, which Joint Notice will specify the date of the Tax Credit Termination. CLA will be entitled to rely on the accuracy of the date of the Tax Credit Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add-On PIF Revenues, including without limitation, the Municipal Payments, will be made in the Town Account from and after the day after the occurrence of the Tax Credit Termination, and the PICs (or their designees) will thereafter be entitled to receive all Add-On PIF Revenues. 3. PIC Account. CLA will deposit any portion of the Add-On PIF Revenues not comprising the Municipal Payments actually received by CLA into the PIC Account on a monthly basis. 1.5. Fidelity Bond. Upon receiving a written request therefor from the Commercial PIC and/or the Mixed-Use PIC, CLA will obtain and thereafter maintain in full force for so long and in such amount as set forth in such written request, a fidelity bond in a form and from an issuer approved by the PICs. The cost of the fidelity bond will be a reimbursable expense of CLA to be paid by the PICs. 7 1331304.2 SECTION 2 Preparation and Disbursement of Reports; Audits 2.1. Preparation and Delivery of Monthly Taxable Transactions Reports. For each calendar month or portion thereof within the term of this Agreement, CLA will prepare a Monthly Add-On PIF Report for Taxable Transactions containing all information required therein with respect to all Add-On PIF Revenues generated Taxable Transactions from the Commercial Property or the Mixed-Use Property and received within such month. CLA will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, CLA will deliver a copy of each such report to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town. 2.2. Preparation and Delivery of Monthly Lodging Activities Reports. For each calendar month or portion thereof within the term of this Agreement, CLA will prepare a Monthly Add-On PIF Report relating to the renting, letting or provision of Accommodations/Lodging Rooms containing all information required therein with respect to all Add-On PIF Revenues generated from the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property or the Mixed-use Property and received within such month. CLA will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, CLA will deliver a copy of each such report to the PICs. 2.3. Preparation and Delivery of Monthly Real Estate Transfers Report. For each calendar month or portion thereof within the term of this Agreement, CLA will prepare a Monthly Add-On PIF Report for Real Estate Transfers containing all information required therein with respect to all Add-On PIF Revenues generated from Real Estate Transfers within the Commercial Property or the Mixed-use Property and received within such month. CLA will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, CLA will deliver a copy of each such report to the PICs. 2.4. Reliance on PIF Obligors’ Reports. In preparing the Monthly Add-On PIF Reports, CLA will be entitled to rely on the accuracy of the information contained in the applicable Add-On PIF Reporting Forms received from PIF Obligors from time to time without obligation to investigate or independently verify the information contained therein. 2.5. Provision of Add-On PIF Information. Within 10 days after receipt of written notice from the Commercial PIC and/or the Mixed-Use PIC, and on or before January 1 of each calendar year, CLA will provide each PIF Obligor listed on the PIF Obligor Lists with (i) all then-current Information or policies and procedures adopted by the Commercial PIC or Mixed- Use PIC, as applicable, regarding the calculation, payment and reporting of Add-On PIF Revenues, and (ii) all then-current applicable Add-On PIF Reporting Form(s), procedures and other instructions concerning the collection and remittance of Add-On PIF Revenues to CLA, including all information required under the Commercial Declaration or the Mixed-Use Declaration, as applicable. In performing the foregoing obligation, CLA will be entitled to rely 8 1331304.2 on information supplied to it by the PICs and the Director of Finance, and will coordinate with the PICs and the Director of Finance to update all Information and relevant forms prior to distributing them to PIF Obligors. If the PICs change such reporting forms, procedures or other instructions, the PICs promptly will communicate such changes to CLA and the Town, and CLA will provide notice thereof to all PIF Obligors then listed on the PIF Obligor List. It is the intent of the Parties hereto that all forms, reports and instructions will be substantially similar in form to those used or required by the Town for remittance of Sales Taxes, Public Accommodations Taxes and Real Estate Transfer Taxes, as applicable. CLA will function as the primary contact for PIF Obligors with respect to Information and other forms, procedures and instructions pertinent to collection and remittance of Add-On PIF Revenues, and will coordinate with the PICs and the Town with respect thereto. 2.6. Delinquency Notices to PIF Obligors. (a) First Delinquency Notices. Not later than the 15th day following the applicable Fee Remittance Date, CLA will send a first delinquency notice by certified mail to any PIF Obligor that: (i) fails to remit Add-On PIF Revenues during the immediately preceding or any other prior Reporting Period; or (ii) CLA has reasonably determined based solely on information contained in the PIF Obligor’s Add-On PIF Reporting Form, without obligation to investigate or independently verify the accuracy of such information, to have remitted an incorrect amount for any prior Reporting Period. In making any such delinquency determination, CLA will coordinate with the Director of Finance as reasonably necessary. Such delinquency notice will state that Delinquency Costs (as defined in the Commercial Declaration or Mixed-Use Declaration, as applicable) apply. CLA will send copies of all first delinquency notices (together with a report listing the name of each PIF Obligor to whom a first delinquency notice was sent, the amount of such delinquency, and the period for which such PIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add-On PIF Revenues that comprise any portion of the Municipal Payments. (b) Second Delinquency Notices. Not later than the 15th day following CLA’ issuance of the first delinquency notice as required by Section 2.6(a), CLA will send a second delinquency notice by certified mail to any PIF Obligor that has not paid any delinquent amount of Add-On PIF Revenues as specified in the first delinquency notice. CLA will send copies of such second delinquency notices (together with a report listing the name of each PIF Obligor to whom a second delinquency notice was sent, the amount of such delinquency, and the period for which such PIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add-On PIF Revenues that comprise any portion of the Municipal Payments. CLA will not be obligated to distribute additional delinquency notices to any Add-On PIF Obligor after the second delinquency notice. (c) Other Actions. In addition to the first and second delinquency notices provided for in Sections 2.6(a) and 2.6(b), CLA will, upon receipt of a written request therefor by, as applicable, the Commercial PIC, the Mixed-Use PIC or the Town (only to the extent such Person was entitled to receive a copy of the delinquency notices described 9 1331304.2 in Sections 2.6(b) and 2.6(c)), send a written notice to any PIF Obligor whom the Commercial PIC, the Mixed-Use PIC or the Town, as applicable, believes has not fully complied with its obligations under the Commercial Declaration or Mixed-Use Declaration, as applicable, specifying the nature and extent of such PIF Obligor’s non-compliance and requesting that such PIF Obligor immediately remedy such non-compliance. The requesting Person will provide CLA with information sufficient to enable CLA to prepare and send such notice, and CLA will provide a copy of all such notices to the PICs and the Town. In sending the notice required by this Section 2.6(c), CLA may rely upon the information furnished by the Person requesting the notice without any obligation to investigate or independently verify such information. Other than the obligation to send the notices provided for in Sections 2.6(a) and 2.6(b) and this Section 2.6(c), CLA will have no obligation to undertake any enforcement action of any nature. 2.7. Confidentiality of Add-On PIF Reporting Forms. Except to the extent required to be included in any report or to be made available for review and audit as required or permitted under the terms of this Agreement, CLA will maintain in confidence all reports, information or data concerning Taxable Transactions; Real Estate Transfers; the renting, letting or provision of Accommodations/Lodging Rooms; or Add-On PIF Revenues received by CLA from PIF Obligors unless otherwise required to be made public by law. All such information will be used only for purposes of collecting the Add-On PIF Revenues, enforcing PIF Obligors’ obligations under the Commercial Declaration and Mixed-Use Declaration, as applicable, monitoring compliance with the provisions of the Commercial Declaration and Mixed-Use Declaration, complying with CLA’ reporting obligations under this Agreement to the PICs and the Town or as otherwise may be authorized under the Commercial Declaration or Mixed-Use Declaration. 2.8. Audits. Within 30 calendar days after the end of each calendar year, CLA will prepare and deliver to an auditor approved in writing by the PICs all materials necessary for preparation of an audit of CLA’ accounting of all Add-On PIF Revenues received and disbursed in the immediately preceding calendar year, which audit procedures are generally described in Exhibit D. CLA will exercise commercially reasonable efforts to cause the auditor to provide to CLA an annual audited report setting forth the Add-On PIF Revenues received and disbursed by CLA for the preceding calendar year for delivery, within 90 calendar days after the end of the preceding calendar year, to the PICs and the Town (until the occurrence of the Tax Credit Termination and with respect to only Add-On PIF Revenues comprising any portion of the Municipal Payments). In compiling the information to be provided for the audit, CLA may rely on information provided as required or permitted under this Agreement without any further obligation to investigate or independently verify the accuracy of such information. CLA’ reasonable costs and expenses incurred in performing and delivering the annual audit, which reimbursement amount is a Collection Expense, will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). At reasonable times during regular business hours, (i) the PICs are hereby authorized to audit, or cause audits to be conducted of, CLA’ books and records with respect to the collection and disbursement of Add-On PIF Revenues; and (ii) the Town is hereby authorized to audit, or cause audits to be conducted of, CLA’ books and records with respect to the collection and disbursement of Add-On PIF Revenues generated from Taxable Transactions. If an independent 10 1331304.2 audit uncovers any deficiency in CLA’ performance of its obligations under this Agreement, CLA will promptly cure such deficiency and, to the extent such deficiency consists of CLA’ failure to disburse Add-On PIF Revenues to the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, due to the negligence or misconduct of CLA, CLA will, within 10 days after notice from the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, deposit the full amount of such deficiency into the Asphalt Overlay Account, Town Account and/or PIC Account, as applicable, together with interest thereon at a rate equal to 2% above the prime rate published in the Wall Street Journal on the date of discovery of such deficiency and notice thereof to CLA. The Party(ies) performing any such audit will bear the full costs and expense of performing such audit. CLA’ reasonable costs and expenses incurred in connection therewith, which amount is a Collection Expense, will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A); provided, however, that CLA will be responsible for all costs and expenses of any audit which discloses a material deficiency in CLA’ performance of its obligations under this Agreement to the extent such deficiency is due to the negligence or misconduct of CLA. SECTION 3 General 3.1. Covenants of the Parties. (a) Representations and Warranties. Each Party hereby represents and warrants to and for the benefit of the other Parties: 1. That it has full power and legal authority to enter into this Agreement; 2. That it has taken or performed all acts or actions that may be required by statute or charter to confirm its authority to execute, deliver and perform each of its obligations under this Agreement; and 3. That neither the execution and delivery of this Agreement, nor compliance with any of the terms, covenants or conditions of this Agreement will result in a violation of or default under any other agreement or contract to which it is a party or by which it is bound. (b) Information. Each Party will provide such information reasonably requested by the other Parties from time to time to allow such Parties to fulfill their respective obligations under this Agreement, the Commercial Declaration and the Mixed- Use Declaration, as applicable. (c) Cooperation. The Parties will cooperate with each other and will undertake any reasonably necessary action that is required to support or assist in the collection, remittance and reporting of all Add-On PIF Revenues payable by PIF Obligors pursuant to the Commercial Declaration and the Mixed-Use Declaration. 3.2. Nature of Add-On PIF. The Parties acknowledge and understand that: (i) the Add-On PIF is a charge imposed pursuant to the Commercial Declaration and the Mixed-Use 11 1331304.2 Declaration for the benefit of the Commercial PIC and the Mixed-Use PIC, respectively, and other beneficiaries specified therein and not through the exercise of any power by the Town; (ii) the Add-On PIF Revenues are not tax revenues in any form; (iii) all Add-On PIF Revenues are the property of the PICs and/or the Town, as applicable, to be used for the purposes set forth in the Annexation and Development Agreement, the Commercial Declaration and the Mixed-Use Declaration; and (iv) CLA’ role in assisting the PICs to collect the Add-On PIF Revenues is derived through this Agreement and is limited by and will be exercised only in accordance with the terms of this Agreement. 3.3. Bankruptcy of Add-On RSF Obligors. If any Party receives actual notice in writing with respect to any action in the bankruptcy of any PIF Obligor, such Party will, as soon as practicable, give notice or convey copies of such notice which it received to the other Parties. 3.4. Limitation of CLA Duties. The duties and responsibilities of CLA are limited to those expressly and specifically stated in this Agreement. CLA will not be liable or responsible for any loss resulting from any investment or reinvestment made pursuant to this Agreement and made in compliance with the provisions hereof. CLA will not be personally liable or responsible for any act which it may do or omit to do hereunder, while acting with commercially reasonable care, except for duties expressly imposed upon CLA hereunder or as otherwise expressly provided herein. CLA will neither be under any obligation to inquire into or be in any way responsible for the performance or nonperformance by the Commercial PIC, the Mixed-Use PIC or the Town of any of their respective obligations under this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed-Use Declaration, nor will CLA be responsible in any manner for the recitals, statements or provisions contained in this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed-Use Declaration, or in any proceedings taken in connection therewith, such recitals, statements and provisions being made solely by the Commercial PIC, the Mixed-Use PIC and the Town, as applicable. Nothing in this Agreement creates any obligation or liability on the part of CLA to anyone other than the PICs, the Town and TCMD. 3.5. Compensation. In consideration of CLA’ performance of services under this Agreement, CLA will receive the Collection Expenses as determined by the Parties and described in Exhibit E and elsewhere in this Agreement. The rates described in Exhibit E will be subject to annual adjustment by the written mutual consent of the PICs and, until the occurrence of the Tax Credit Termination, the Town, which adjustment will not require an amendment to this Agreement. No new fee schedule will become effective until 30 days after CLA has given the PICs and, until the occurrence of the Tax Credit Termination, the Town, written notice thereof. Except with respect to specific matters expressly addressed in other provisions of this Agreement to the contrary, all Collection Expenses will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). No later than the 20th day of each calendar month, CLA will submit to the PICs and, until the occurrence of the Tax Credit Termination, the Town, a billing statement of the total Collection Expenses incurred by CLA during the prior calendar month (each, a “Monthly Fee Statement”), which will include a calculation of the portion of the Collection Expenses attributable to (i) the collection of the Add-On PIF Revenues comprising the Municipal Payments; and (ii) the portion of the Add-On PIF Revenues not comprising the Municipal Payments. Any general Collection Expenses that are not reasonably capable of being attributed to either clause (i) or clause 12 1331304.2 (ii) above (i.e., general collection and deposit of Add-On PIF Revenues, production and distribution of Monthly Add-On PIF Reports, etc.) will be attributed to clauses (i) and (ii) above prorata based on the amount of Add-On PIF Revenues comprising clause (i) and comprising clause (ii) as a percentage of the total amount of Add-On PIF Revenues collected. The PICs and, as applicable, the Town, will have 20 days from receipt of the applicable Monthly Fee Statement to approve, reject or approve in part and reject in part the Monthly Fee Statement in writing to CLA. If the PICs and, as applicable, the Town, both fail to provide such written notice to CLA on or before the expiration of such 20-day period, the Monthly Fee Statement will be deemed approved by both the PICs and, as applicable, the Town. If the PICs and, as applicable, the Town, approve the applicable Monthly Fee Statement, CLA may deduct, and is hereby expressly authorized to deduct from Add-On PIF Revenues the applicable Collection Expense as set forth in such approved Monthly Fee Statement. If the Commercial PIC, Mixed-Use PIC and/or the Town, as applicable, approve in whole or in part the applicable Monthly Fee Statement, CLA may deduct, and is hereby expressly authorized to deduct from Add-On PIF Revenues the portion of the Collection Expenses set forth in such Monthly Fee Statement approved by the PICs and, as applicable, the Town, if any. With respect to resolution of any Collection Expenses rejected in whole or in part by the Commercial PIC, Mixed-Use PIC and/or the Town, the applicable Parties will proceed pursuant to Section 3.20. Without limitation of the foregoing: (a) The Town will be solely responsible for payment of CLA’ Collection Expenses for administration of the portion of the Add-On PIF Revenues comprising the Municipal Payments pursuant to this Agreement. (b) The PICs will be solely responsible for payment of CLA’ Collection Expenses for administration of the portion of the Add-On PIF Revenues not comprising the Municipal Payments pursuant to this Agreement. (c) The PICs will be solely responsible for payment of CLA’ reasonable costs and expenses, including attorneys’ fees, incurred prior to execution of this Agreement for negotiation of this Agreement and for activities in furtherance of entering into this Agreement, such payment to be made within 30 days after receipt of CLA’ invoice therefor. 3.6. Resignation; Removal. (a) General. Notwithstanding any provision to the contrary in this Agreement, CLA’ obligation to remit to the PICs and the Town any and all Add-On PIF Revenues received by CLA pursuant to the terms and conditions of this Agreement will survive any resignation or removal of CLA pursuant to this Section 3.6 until all such Add-On PIF Revenues have been remitted to the PICs or the Town, as applicable, or control over such funds has been transferred to a successor Add-On PIF Collection Agent. No resignation or removal of CLA will take effect until a successor Add-On PIF Collection Agent has been appointed by the PICs, with the consent of the Town; provided, however, if no successor is appointed by the end of 90 days after delivery of written notice to CLA of such removal, CLA may petition a court of competent jurisdiction to appoint a successor. 13 1331304.2 (b) CLA Resignation. CLA may resign as the PICs’ and the Town’s agent under this Agreement by submitting a written notice of resignation to the PICs and the Town, given not less than 90 days before the date upon which such resignation is intended to take effect. CLA’ resignation will be effective on the resignation date set forth in such notice. Notwithstanding the foregoing, except in the event the Commercial PIC, Mixed-Use PIC and/or the Town have rejected Monthly Fee Statements in whole or in part pursuant to Section 3.5, if CLA’ Collection Expenses have not been paid for a period of two consecutive months, CLA may resign as the PICs’ and the Town’s agent under this agreement by submitting a written notice of resignation to the PICs and the Town, given not less than 30 days before the date upon which such resignation is intended to take effect and CLA’ resignation will be effective on the resignation date set forth in such notice; provided, however, if the Commercial PIC, Mixed-Use PIC and/or the Town cure such default within such 30-day period, CLA’ written notice of resignation will be deemed null and void and of no further force or effect. (c) CLA Removal. The PICs, with prior written consent of the Town prior to occurrence of the Tax Credit Termination, may remove CLA as the PICs’ and the Town’s agent for collection of the Add-On PIF Revenues at any time with or without cause. Any such removal action will be effective immediately upon delivery of written notice by the PICs of such removal to CLA unless the notice specifies a later removal date. 3.7. Assignment; Binding Effect. Except for the collateral assignment of this Agreement by the Commercial PIC and/or the Mixed-Use PIC to any secured lender of the Commercial PIC or the Mixed-Use PIC, as applicable, which assignment will not require the consent of any other Party, this Agreement will not be assigned by any Party for any reason other than to a successor by operation of law or with the prior written consent of the other Parties. This Agreement will inure to the benefit of and will be binding upon the Parties and their duly authorized successors and assigns. Whenever in this Agreement the Commercial PIC, the Mixed-Use PIC, the Town or CLA is named or is referred to, such provision is deemed to include any successor of the Commercial PIC, the Mixed-Use PIC, the Town or CLA, respectively, immediate or intermediate, whether so expressed or not. Any corporation or other legal entity into which a Party may be merged or converted or with which a Party may be consolidated or any corporation or other legal entity resulting from any merger, conversion, sale, consolidation or transfer to which that Party may be a party or any corporation or other legal entity to which a Party may sell or transfer all or substantially all of its assets will be the successor to such Party without the execution or filing of any document or any further act, anything herein to the contrary notwithstanding. All of the stipulations, obligations, and agreements by or on behalf of and other provisions for the benefit of the Commercial PIC, the Mixed-Use PIC, the Town or CLA contained in this Agreement (a) will bind and inure to the benefit of any such successor, and (b) will bind and inure to the benefit of any officer, board, council, agent, or instrumentality to whom or to which there will be transferred by or in accordance with law any relevant right, power, or duty of the Commercial PIC, the Mixed-Use PIC, the Town or CLA, or of their respective successors. 3.8. Third-Party Beneficiaries. Enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, will be strictly reserved to the Parties and their duly authorized successors and assigns, and nothing contained in this 14 1331304.2 Agreement will give or allow any such claim or right of action by any other Person with respect to this Agreement. 3.9. Amendment. This Agreement may only be amended, changed, modified or altered by an instrument in writing duly executed by each Party. 3.10. Computation of Time. In computing a period of days, the first day will be excluded and the last day will be included. If the last day of any period is not a business day or is a federal holiday, the period will be extended to include the next succeeding business day which is not a federal holiday. If a number of months is to be computed by counting the months from a particular day, the period will end on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period will end on the last day of that month. If the date for making any payment or the last day for performance of any act or the exercising of any right as provided in this Agreement falls on a federal holiday or on a Saturday or Sunday, such payment may be made, or such act performed, or such right may be exercised on the next succeeding business day which is not a federal holiday with the same force and effect as if done on the nominal date provided in this Agreement. 3.11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof and this Agreement will be reformed to most completely effectuate the intent of the Parties as reflected in the Agreement prior to such severance, including the intent of the severed provision to the extent such provision may be so reformed to cure the invalidity or unenforceability. 3.12. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which will be an original and all of which will constitute but one and the same instrument. 3.13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. 3.14. No Indemnification by CLA. CLA will have no obligation to indemnify, hold harmless or defend the PICs, the Town or any other Person for any purpose whatsoever. 3.15. Indemnification by PICs and the Town. The PICs, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold CLA, its officers, directors, stockholders, and employees harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature, which it may incur or with which it may be threatened under this Agreement arising from or out of any claim in connection with the performance of any of the obligations of CLA to be performed under this Agreement (for purposes of this Section 3.15, collectively, “Liabilities”) except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by CLA, its officers or employees. To the extent permitted by applicable law, the Town, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold CLA, its officers, 15 1331304.2 directors, stockholders, and employees harmless from any and all Liabilities except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by CLA, its officers or employees. 3.16. Relationship to Declarations and Annexation and Development Agreement. The Commercial PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement, that the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to CLA that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement. The Mixed-Use PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement, that the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to CLA that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement. The Town acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Declarations and the Annexation and Development Agreement, that the terms and conditions of the Declarations and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to CLA that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Declarations and the Annexation and Development Agreement. As such, CLA is authorized to presume that all actions taken by the PICs and the Town in connection with this Agreement comply with the terms and conditions of the Declarations and the Annexation and Development Agreement and to act accordingly in performing its obligations under this Agreement. 3.17. Captions. The captions or headings herein are for convenience only and in no way define, limit or describe the scope or intent of any provision or Section of this Agreement. 3.18. Time of the Essence. Time is of the essence in the performance of the obligations from time to time imposed upon CLA by this Agreement. 3.19. Notice. Any notice or other information to be given hereunder will be delivered personally or mailed postage prepaid, return receipt requested, to the following addresses: If to CLA: CliftonLarsonAllen LLP 8390 E. Crescent Parkway, Suite 600 Greenwood Village, Colorado 80111 Attn: Denise Denslow 16 1331304.2 If to Commercial PIC: The Village (at Avon) Commercial Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Kimberly Martin If to Mixed-Use PIC: The Village (at Avon) Mixed-Use Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Kimberly Martin If to Town: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager With required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney or such other address as a Party may, by written notice to the other Parties, hereafter specify. Any notice will be deemed to be given upon mailing. The Parties may also specify, in writing, a different method for conveying notices or information. 3.20. Dispute Resolution. Any dispute arising under this Agreement that is not resolved by the applicable Parties within 45 days or such other period as may be specifically set forth in this Agreement may be submitted by any of the Parties (including CLA) for binding arbitration to a single arbiter of the Judicial Arbiter Group, 1601 Blake Street, Suite 400 Denver, Colorado 80202, utilizing a trial to the court model under streamlined rules and procedures to be mutually agreed upon by the applicable Parties or, if such Persons are not able to agree, as directed by the arbiter. The arbiter’s decision will be final and non-appealable to the courts. 17 1331304.2 Except to the extent such fees and costs are caused by the negligence, willful misconduct or material breach of this Agreement by CLA, its officers or employees, all of CLA’ reasonable attorneys’ fees and costs arising from an arbitration, which is a Collection Expense, will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). [Signature Pages Follow This Page] 18 1331304.2 IN WITNESS WHEREOF, the Commercial PIC, the Mixed-Use PIC, the Town and CLA have caused this Agreement to be executed as of the day and year first above written. COMMERCIAL PIC: THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: 19 1331304.2 MIXED-USE PIC: THE VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: 20 1331304.2 TOWN: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney 21 1331304.2 CLA: CLIFTONLARSONALLEN LLP, a Minnesota limited liability partnership By: Name: Title: A-1 1331304.2 EXHIBIT A Definitions For purposes of the attached Add-On PIF Collection Services Agreement, the following terms have the following meanings, unless the context requires otherwise. Further, unless the context requires otherwise, the singular of any term includes the plural, and any reference to a Section or Exhibit is to a Section or Exhibit of the attached Add-On PIF Collection Services Agreement. 1. Add-On PIF Collection Agent. The entity engaged by the PICs and the Town as the collecting agent for disbursement and accounting of the Add-On PIF Revenues pursuant to this Agreement as in effect from time to time, and which is authorized to undertake the duties of the “Add-On RSF Collection Agent” as defined in the Annexation and Development Agreement. 2. Add-On PIF Reporting Form(s). A report of Add-On PIF Revenues payable by each PIF Obligor, in substantially the forms set forth in Exhibit B (or as otherwise required by the Information from time to time, a copy of which form is delivered to CLA by the PICs in advance of its effective date) which, together with remittance of the Add-On PIF Revenues payable and a copy of the corresponding Town Sales Tax report, Town Public Accommodations Tax report or Town Property Transfer Tax report, as applicable, is to be prepared by each PIF Obligor and delivered to CLA on or before each Fee Remittance Date for the immediately preceding Reporting Period. 3. Add-On PIF Revenues. As defined in the Commercial Declaration or the Mixed-Use Declaration, as applicable. 4. Agreement. As defined in the introductory paragraph, this Add-On PIF Collection Services Agreement between the Parties, as amended and supplemented from time to time. 5. Annexation and Development Agreement. The Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) having an “Execution Date” (as defined therein) of October 22, 2013 and entered into by and among the Town, Traer Creek Metropolitan District, Traer Creek LLC and, with respect to certain portions of the Property, EMD Limited Liability Company, all as parties, and Avon Urban Renewal Authority, the PICs and, with respect to certain portions of the Property, EMD Limited Liability Company, all as limited parties, and recorded in the Records on or about even date herewith, as amended from time to time. 6. Asphalt Overlay Account. The restricted escrow account established pursuant to the Asphalt Overlay Agreement into which certain funds are to be deposited for asphalt overlays of public roads in the Property in accordance with the terms and conditions set forth in the Annexation and Development Agreement and the Asphalt Overlay Agreement. 7. Asphalt Overlay Agreement. That certain Asphalt Overlay Escrow Account Agreement dated as of March 26, 2013 and entered into by and among the Town, Traer Creek Metropolitan District and FirstBank (Avon Branch), which establishes the terms and conditions A-2 1331304.2 upon which funds will be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account. 8. CLA. As defined in the introductory paragraph of this Agreement, CliftonLarsonAllen LLP, a Minnesota limited liability partnership, together with its successors and any of its assigns as permitted under the terms and conditions of this Agreement, which, pursuant to this Agreement, is the “Add-On RSF Collection Agent” as contemplated in the Annexation and Development Agreement. 9. Collection Expense. Any and all fees (including without limitation, Stand-By Fees), costs, expenses, compensation, reimbursements (including without limitation, dispute resolution costs and charges for out-of-pocket expenses such as postage, facsimiles, letterhead, envelopes, printing, etc. for which a receipt is submitted with the applicable Monthly Fee Statement) and other charges due and owing to CLA in connection with and pursuant to the terms of this Agreement. 10. Commercial Declarant. Traer Creek-RP, LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Commercial Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Commercial Declaration. 11. Commercial Declaration. That certain Declaration of Covenants for The Village (at Avon) Commercial Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795012, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on June 10, 2008 at Reception No.200812111, as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas made as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321543, and as amended by that certain Third Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on August 1, 2014 at Reception No. 201412757, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 12. Commercial PIC. As defined in the introductory paragraph of this Agreement. 13. Commercial Property. The property defined as the “Property” in the Commercial Declaration and legally described in Exhibit A to the Commercial Declaration, upon which the Commercial Declarant and its affiliates are developing and intend to further develop a phased, commercial and retail development. 14. Credit PIF. As defined in the Commercial Declaration or the Mixed-Use Declaration, as applicable. 15. Declarations. Collectively, the Commercial Declaration and the Mixed-Use Declaration. A-3 1331304.2 16. Director of Finance. The director of finance for the Town, provided that if there is no director of finance for the Town at any time for whatever reason, the “Director of Finance” for all purposes under this Agreement will refer to the Town Manager or the person designated by the Town Manager in writing to the PICs and CLA. 17. Effective Date. As defined in the introductory paragraph of this Agreement. 18. Exhibits. Individually, one of the following Exhibits to this Agreement and/or, collectively, all of the following Exhibits to this Agreement, as the context dictates, which Exhibits are incorporated into and made a part of this Agreement: Exhibit A: Definitions Exhibit B: Form of Add-On PIF Reporting Forms Exhibit C: Form of Monthly Add-On PIF Reports Exhibit D: Audit Procedures Exhibit E: CLA Fee Schedule 19. Fee Remittance Date. With respect to Add-On PIF Revenue payments to be made by PIF Obligors, the date on which the corresponding Sales Tax amount, Public Accommodations Tax amount or Property Transfer Tax amount, as applicable, is due and payable to the Town. 20. Funding Termination. The occurrence of the earlier of: (i) 80,000 square feet of additional development of “Commercial Uses” (as defined in the Amended and Restated PUD Guide for The Village (at Avon)) have been issued a temporary or permanent certificate of occupancy; or (ii) the total annual Taxable Transactions (as defined in the Annexation and Development Agreement) have increased by at least $20,000,000 over the actual total annual Taxable Transactions (as defined in the Annexation and Development Agreement) in the year 2011, all as more particularly set forth in Section 6.6(b) of the Annexation and Development Agreement. 21. Information. Any written information or guidelines, as amended and supplemented from time to time, prepared by the PICs and the Town, with the approval of the Commercial Declarant and the Mixed-Use Declarant, regarding the calculation, payment and reporting of the Add-On PIF. 22. Joint Notice. As defined in Section 1.4(b)1(B) of this Agreement. 23. Mixed-Use Declarant. Traer Creek LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Mixed-Use Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Mixed-Use Declaration. A-4 1331304.2 24. Mixed-Use Declaration. That certain Declaration of Covenants for The Village (at Avon) Mixed-Use Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795013, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Mixed-Use Areas dated as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321544, and as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Mixed-Use Areas recorded in the Records on August 1, 2014 at Reception No. 201412758, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 25. Mixed-Use PIC. As defined in the introductory paragraph of this Agreement. 26. Mixed-Use Property. The property defined as the “Property” in the Mixed-Use Declaration and legally described in Exhibit A to the Mixed-Use Declaration, upon which the Mixed-Use Declarant and its affiliates are developing and intend to further develop a phased, mixed-use development. 27. Monthly Add-On PIF Reports. The written reports that CLA is required under the terms of this Agreement to prepare for each calendar month during the term of this Agreement and distribute to the PICs and, as applicable, the Town, which reports will be substantially in the form and contain the information set forth in Exhibit C (or as otherwise mutually agreed upon in writing by the Parties, which will not require an amendment to this Agreement; provided, however, the Town’s approval will not be required for Monthly Add-On PIF Reports relating to the renting, letting or provision of Accommodations/Lodging Rooms or relating to Real Estate Transfers). 28. Monthly Fee Statement. As defined in Section 3.5 of this Agreement. 29. Municipal Payments. The portion of the Add-On PIF Revenues which the Town is entitled to receive and are actually collected by CLA as more particularly described in the Annexation and Development Agreement. The Municipal Payments are calculated as follows: As of the Effective Date, the rate of the Add-On PIF on Taxable Transactions is 0.75%. The net proceeds, after adjustment for (deduction of) the Collection Expenses related or attributable to such portion of the Add-On PIF Revenues and application of any other adjustments to such portion of the Add-On PIF Revenues as set forth in the Annexation and Development Agreement, of the Add-On PIF Revenues resulting from imposition of the 0.75% rate to Taxable Transactions occurring within the Property will constitute the Municipal Payments. If the Town increases the Sales Tax rate above 4.0% during any period for which Municipal Payments are to be remitted to the Town, the portion of the Add-On PIF Revenues which will be construed to be Municipal Payments will be reduced in the same degree as any Sales Tax rate increase above 4.0%. For example, if the Town increases its Sales Tax rate by 0.25% (from 4.0% to 4.25%), the portion of the Add-On PIF Revenues construed to be Municipal Payments will be that amount equivalent to a reduction of 0.25% in the rate of the Add-On PIF on Taxable Transactions (i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate of 0.75%). 30. Party(ies). Individually, a signatory to this Agreement and, collectively, all signatories to this Agreement. A-5 1331304.2 31. Person. Any individual, partnership, corporation, limited liability company, association, trust or other type of entity or organization. 32. PIC Account. The bank account established or to be established for the benefit of the PICs for the purpose of CLA depositing, in accordance with the requirements of Section 1.4, Add-On PIF Revenues received from PIF Obligors who have engaged in Taxable Transactions, in the renting, letting or provision of Accommodations/Lodging Rooms or in Real Property Transfers within the applicable Reporting Period. 33. PICs. Collectively, the Commercial PIC and the Mixed-Use PIC. 34. PIF Obligor List. As defined in Section 1.2. 35. PIF Obligor(s). Any Person(s) who, by virtue of being the seller in a Taxable Transaction; a renter, letter or provider of Accommodations/Lodging Rooms; or the transferee in a Real Estate Transfer, is obligated to collect, as applicable, and remit an Add-On PIF pursuant to the terms of the Commercial Declaration or Mixed-Use Declaration, as applicable. 36. Property. Collectively, the Commercial Property and the Mixed-Use Property. 37. Property Transfer Tax(es). The tax levied by the Town pursuant to Chapter 3.12 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 38. Public Accommodations Tax(es). The tax levied by the Town pursuant to Chapter 3.28 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 39. Records. The real property records of the Clerk and Recorder for Eagle County, Colorado. 40. Reporting Period. Pursuant to applicable Town regulations, the applicable period of time (which may be monthly, quarterly or such other frequency as the applicable regulations may require) with respect to which (i) a Sales Tax obligor is required to file a periodic report of Taxable Transactions and remit Sales Taxes thereon; (ii) a Public Accommodation Tax obligor is required to file a periodic report of renting, letting or provision of Accommodations/Lodging Rooms and remit Public Accommodations Taxes thereon; or (iii) a Property Transfer Tax obligor is required to file a report of a Real Estate Transfer and remit Property Transfer Taxes thereon. 41. Sales Tax(es). The tax levied by the Town pursuant to Chapter 3.08 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 42. Stand-By Fees. As defined in Exhibit E. 43. Taxable Transaction. As defined in the Commercial Declaration or the Mixed- Use Declaration, as applicable. A-6 1331304.2 44. Tax Credit Termination. The occurrence of the termination of the Town’s obligation to provide tax credits to offset, in whole or in part, the effect of the Sales Tax, the Public Accommodations Tax, as more particularly described in the Annexation and Development Agreement, which obligation is implemented by and codified in the Town Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). 45. Town. As defined in the introductory paragraph of this Agreement. 46. Town Account. The bank account established or to be established for the benefit of the Town for the purpose of CLA depositing, in accordance with the requirements of Section 1.4, Add-On PIF Revenues comprising all or a portion of the Municipal Payments received from PIF Obligors who have engaged in Taxable Transactions within the Property within the applicable Reporting Period. B-1 1331304.2 EXHIBIT B Form of Add-On PIF Reporting Forms B-2 1331304.2 As of the Effective Date, the PICs have not imposed the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms. If, after the Effective Date, the Commercial PIC and/or the Mixed-Use PIC impose the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms, the applicable PIC(s) will provide such Information and the applicable Add-On PIF Reporting Forms as contemplated in paragraph 2 of Exhibit A. C-1 1331304.2 EXHIBIT C Form of Monthly Add-On PIF Reports Monthly Add-On PIF Report for Taxable Transactions: C-2 1331304.2 As of the Effective Date, the PICs have not imposed the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms. If, after the Effective Date, the Commercial PIC and/or the Mixed-Use PIC impose the Add-On PIF on Real Estate Transfers and/or the renting, letting or provision of Accommodations/Lodging Rooms, Monthly Add- On PIF Reports will be produced for such transaction(s) as contemplated by paragraph 26 of Exhibit A. D-1 1305311.1 EXHIBIT D Audit Procedures • Obtain listing of all Sales Tax and business licenses obtained by businesses within the Property from the Director of Finance and obtain the PIF Obligor List for Taxable Transactions as of the end of the applicable calendar year required to be maintained by CLA and perform the following: ¤ Compare the businesses reflected on the listing provided by the Director of Finance to the businesses included on the PIF Obligor List for Taxable Transactions; and ¤ Compare the dates of the business licenses that were obtained for each business according to the Town’s records to those dates provided on the PIF Obligor List for Taxable Transactions. • Randomly select a sample of Add-On PIF Reporting Forms for Taxable Transactions from each applicable PIF Obligor submitted to CLA and perform the following: ¤ Determine if each Add-On PIF Reporting Form and related Add-On PIF Revenues were submitted on or before the Fee Remittance Date for the applicable Reporting Period; ¤ Determine, if the Add-On PIF Reporting Forms were not remitted on or before the Fee Remittance Date, CLA sent a first delinquency notice by certified mail to the PIF Obligor not later than the 15th day following the applicable Fee Remittance Date; ¤ Mathematically recalculate the Add-On PIF amounts due and payable based on the Taxable Transactions reported by each PIF Obligor for each Add-On PIF Reporting Form; ¤ Reconcile the Add-On PIF Revenues remitted by each PIF Obligor to bank deposit receipts prepared by CLA; and ¤ Review the bank deposit slips prepared by CLA for evidence that the Add- On PIF Revenues were correctly deposited in the Asphalt Overlay Account, the Town Account and the PIC Account, as applicable, not later than the first business day of the month following the month of receipt of any Add-On PIF Revenues from PIF Obligors. As of the Effective Date, the PICs have not imposed the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms. If, after the Effective Date, the Commercial PIC and/or the Mixed-Use PIC impose the Add-On PIF on Real Estate Transfers and/or the renting, letting or provision of Accommodations/Lodging Rooms, the applicable PIC(s) and CLA will work in good faith to produce mutually agreeable audit procedures for such transactions, which audit procedures will be approved in writing by such PIC(s) and CLA but will not require an amendment to this Agreement. E-1 1331304.2 EXHIBIT E CLA Fee Schedule For performance of services CLA fees are billed monthly. The current hourly rate as of the Effective Date is $130.00 per hour. For so long as CLA is performing collection services with respect to the Credit PIF pursuant to a separate agreement, CLA will not charge an hourly rate or other Collection Expense rates (excluding third-party invoices paid by CLA that are reimbursable as a Collection Expense) under this Agreement that exceeds such rates charged by CLA for its services under the agreement pertaining to collection of the Credit PIF Revenues. A minimum monthly charge of two hours will be billed as a stand-by fee (“Stand-By Fee”), provided that the Stand-by Fee will be waived to the extent of actual hours billed. The hourly rate will increase annually on the anniversary date of the Effective Date in accordance with the Denver/Boulder Consumer Price Index. TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Scott Wright, Asst. Town Manager Date: July 21, 2015 Topic: Resolution No. 15-12, Allocation of PEG Funds Summary: Attached to this memo is a PEG funding request from J.K Perry, General Manager of Public Access 5, for the allocation of funding of the PEG fees collected by the Town from 2015 and 2016 in the approximate amount of $16,000. The funds requested would be used to replace the current video production system used to produce Town Council meetings in partnership with the Town of Vail. The purchase of the system is planned for early 2016. Financial Implications: PEG fees in the amount of $10,000 are estimated to be collected in each of the 2015 and 2016 fiscal years and have been included in General Fund estimated revenues. If the request for the use of the PEG fees is granted, an appropriation will be included in the 2016 budget. A resolution approving the allocation of PEGS Funds has been prepared and included in the Consent Agenda. Attachments: A - Resolution No. 15-12 B - Letter of Request from Public Access 5 TOWN OF AVON, COLORADO RESOLUTION NO. 15-12 SERIES OF 2015 A RESOLUTION TO APPROVE A REQUEST FOR ALLOCATION OF PEG FUNDS WHEREAS, The Town Council of the Town of Avon anticipates collecting PEG fees from cable subscribers during the 2015 and 2016 budget years in the estimated amount of $10,000 for each year; and WHEREAS, a request has been made to the Town of Avon from the local public access television station, Public Access 5, for an allocation of such funds in the amount of $16,000 for video production equipment, which are appropriate purposes as set forth in the Town’s cable franchise agreement. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That the attached request for allocation of $16,000 of PEG funds is hereby approved. Section 2. That an appropriation in the amount of $16,000 will be included in the adoption of the 2016 Town of Avon proposed budget. ADOPTED this 28th day of July, 2015. AVON TOWN COUNCIL By:___________________________ Attest:________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk Vail Valley Community Television Corp. (DBA Public Access TV 5) 281 Metcalf Road, Unit 203 PO Box 5600 Avon, CO 81620 June 23, 2015 Town of Avon 1 Lake Street Avon, CO 81620 Dear Council and Staff, Public Access TV 5 asks the Avon Town Council to allocate Public, Educational and Governmental funds collected from Comcast on a yearly basis. These funds total approximately $10,000 and are set aside in the Comcast/Town of Avon franchise agreement for the local PEG access television station to use on capital equipment purchases. In recent years, we've done much to improve our services. Here is a list of how we've used PEG funds in recent years: • 2010 and 2011 - Split cost of Rushworks REMO Production System with Town of Vail, and Mac Pro Computer • 2012 - Microphones for council chambers, and portion of production switcher for Channel 5 studio • 2013 - Two (2) Canon high definition cameras, and portion of lighting system for Channel 5 studio • 2014 - Portion of Channel 5 master control system overhaul for broadcast on Comcast and internet As part of our long-term capital improvement plan, our proposal is to combine PEG funds in 2015 and 2016 to replace the video production system we use to produce town council meetings. The current system is standard definition and has reached the end of its lifespan. As we did in 2010 and 2011, we would use funds from Avon and Vail to split the cost of one portable video production unit and three cameras each for both town council chambers, as well as related items. The new production equipment will complete our system-wide upgrade of major components to high definition. (However, Comcast still broadcasts local television stations in standard definition.) This will improve the quality of video camera and computer presentation images. It will also provide increased reliability as it replaces a failing, aging system. As yet, we have not settled on a particular system, because the technology may evolve in the next year or two. We are seriously considering a unit from Broadcast Pix, a brand we trust and have experience with, and Sony, whose product we have demoed and feel confident in. Both systems cost in the 1 neighborhood of $32,000. Again, our proposal is to split the cost between Avon and Vail, which has already approved funding for the system. Purchase of the system would be made in early 2016. The following is a breakdown of costs: Broadcast Pix System (Information attached) • Broadcast Pix Roadie - $12,495 • Camera Control Option software - $995 • Camera Control hardware, one unit for both council chambers - $1,879 ea. x 2 = $3,758 • Hard carrying case -$350 • Sony EVI-H100S Robotic Pan Tilt Zoom cameras, three (3) each for both council chambers - $2,419.95 ea. x 6 = $14,519.70 -or- • Lumens VC-G50 Robotic Pan Tilt Zoom cameras, three (3) each for both council chambers - $2,290 ea. x 6 = $13,740 • Cabling - $500 • Shipping - $200 Total = $32,038 to $32,817.70 Sony Anycast System List (Information attached) • Sony Anycast Touch - $12,000 • Camera Control hardware, one unit for both council chambers - $1,879 ea. x 2 = $3,758 • Sony EVI-H100S Robotic Pan Tilt Zoom cameras, three (3) each for both council chambers $2,419.95 ea. x 6 = $14,519.70 • Hard carrying case - $500 • Cabling - $500 • Shipping - $200 Total = $31,477.70 Public Access TV 5 Background Public Access TV 5 is a grassroots, nonprofit community access television station carried on the Comcast cable system on Channel 5 in Vail, Avon, Beaver Creek, Minturn, Eagle Vail, Edwards, Wolcott and Cordillera. We cablecast 24 hours a day, 365 days a year. Most of our programming is also available online, on demand at www.publicaccess5.org. Our mission is to break down technical, physical and psychological barriers so Eagle County residents, students, nonprofits and governments can express their ideas to the community via television and the internet. Our goal is to accurately reflect, promote and strengthen the values of the community we serve. Channel 5 succeeds by providing video training, equipment, channel time and internet distribution to the community and for the community. 2 Vail Valley Community Television began cablecasting on Channel 5 in 1983 from a studio in the old Town of Vail public works shop. With a couple ¾-inch studio cameras, a field camera and some editing equipment, several residents hoped on board the electronic soapbox and public access television was born in Vail. The station offered the first opportunity for average citizens to produce their own television programs, while the cable channel ensured they could effectively communicate with the community. Our first program was News Vail, an hour-long, weekly show that offered insight into issues affecting the valley. The station provided video training for dozens of local residents, who pitched in to produce the program. Many of these community producers went on to careers in media. In 1985, Vail Valley Community Television was incorporated as a nonprofit organization. Over the years, Channel 5 has offered video production workshops, whose participants, along with staff, went on to create several local-centric programs, including Reading of the Vail Daily with Josh Hall, Altitude Sickness, Mountain Valley Magazine and The Community Project. In the 90's Vail Valley Community Television began its coverage of Vail Town Council meetings, an effort that has grown to include the Town of Avon and several other government entities. In 2008, we changed our name to Public Access TV 5 to more accurately reflect what we do. We currently offer free video production training to residents, nonprofits, students and government representatives so they might create their own programs to share with the community on Channel 5 and the web. The PATV5 board of directors determines each year how funds will be spent on operations and capital improvements based on recommendations from Channel 5 staff. The board and staff consider the needs of the town and the community, as well as technology trends to develop yearly and long-range capital improvement plans. A portion of these expenditures are funded with the PEG Grant. The remainder is paid for by Channel 5. Our board of directors meets the once a quarter. It is comprised of nine volunteers who live or work in Eagle County. Our bylaws stipulate that our major partners, Avon, Vail and Minturn each have a member on our board to represent the towns’ interests. The remaining board is nominated and voted on by our members. Our current board is as follows: Amy Phillips – President, 8 years on board (Real Estate Agent and former Avon Town Councilwoman) Annah Scully – Vice President, 12+ years on board (Director, Vail Performing Arts Academy) Char Quinn – Treasurer, 12+ years on board (Director, Eagle Valley Humane Society) Jake Wolf – Avon Representative, 3 years on board (Musician, Teacher, Avon Town Council Mayor Pro-Tem) 3 Ludwig Kurz – Vail Representative, 4 years on board (Ski and Resort Industries, Vail Town Council Mayor Pro-Tem) Jason Osborne – Minturn Representative, 1 year on board (Building Engineer, Minturn Town Council) Marci Colby – Community Representative, 2 years on board (Alpine Bank Avon Branch Manager) Kim Blackford - Community Representative, 1 year on board (Colorado Mountain College) Day-to-day operations are overseen by executive director J.K. Perry and production manager Holly Trickel. Sincerely, J.K. Perry Executive Director Public Access TV 5 4 Roadie Systems Include: • 4 multi-def video inputs + 2 Network inputs, 8 channels of clips and graphics, simultaneous outputs • Internal HD streaming, recording and audio mixing • Built-in 2 Clip, 2 Logo, 2 CG and 2 Still stores • 3 keyers each with DVEs and ClearKey chromakeyer • Full control of all live shows elements: cameras, clips, files, data, effects, cloud-based content, social media and external devices • Integrated Fluent Control Tools: PixButtons, Fluent Macros, Rapid CG, ClearKey, PixPlay, customizable multi-view, virtual sets, internal audio, camera control and other external devices • Control by built-in 17” touch-screen, iPad control app, control panel, virtual panel or keyboard • Light-weight with optional soft and hard carrying cases for easy travel Mobile Integrated Production Switchers Broadcast Pix Roadie Broadcast Pix Roadie is the only mobile integrated production switcher fortified with Fluent Control. This combination of innovative automation technology paired with powerful performance tools offers users complete control over all the elements of video production. Use Roadie’s built-in 17” touch-screen multi-view to view, access and switch all your production content. Confidently stream HD video live on location with built-in Internet access and lip sync protection. Experience limitless control over cameras, clips, files, effects, cloud content, social media and external devices. Roadie’s optimized workflows and rugged design will makes it easy for any operator to easily create exciting live video on location. 5 - Multiple Cameras: Mix HD SDI, SD SDI, HDMI and analog cameras and 1080i, 720p, and SD formats. Computer Files: Input full motion video from a laptop via HDMI inputs with cropping and scaling. Studio Files: Watch-folders can accept clips, animations and graphics, from studio sources, even during a live show. Cloud Content: Connect anywhere using watch-folders and Dropbox, Google Drive and Microsoft OneDrive. Twitter, RSS, Data: Flow directly to air or pre-screen. Graphics can be automatically updated and connected to Daktronics and OES scoreboards, as well as external databases using the Rapid CG option. Multi-Input Switcher: 4 multi-def SDI inputs, 1 input can be configured as analog. 8 channels of built-in clips and graphics. 3 keyers each with ClearKey chromakeyer, dual CGs, dual clip players, stream and record. Customizable Multi-View: Built-in 17” touch-screen display. Fully customizable to create your ideal layout, save and recall. View I/O in high resolution, each key layer, file library, clock, counter, safe area and every incoming file through Broadcast Pix watch-folders. Patented Device Controls: Rapid access to any file. Total control of built-in files stores, robotic cameras, keys, macros, etc. External Device Controls: Open API allows for seamless control of robotic cameras, video servers, decks, recorders and streamers. Simultaneously output up to 6 video formats: HD SDI, SD SDI, HDMI, analog component, Y/C and composite. Record: Internal program output recording, 1920x1080i motion JPEG .AVI file with audio. Lip Sync: No matter how hard you push Roadie our patented process will maintain lip-sync. Stream: .FLV with Adobe Media Live Encoder (up to 720p resolution) or .WMV with Windows Expression Encoder (at up to SD resolution). Video Formats: 1080i/59.94, 1080i/50, 720p/59.94, 720p/50, 480i/59.94, 576i/50, 1080p/30, 1080p/29.97, 1080p25, 1080i/60, 720p/60, 486p/29.97, 576p/25 Clips: 1920x1080i ProRes PX/LT/422/HQ/4444, H.264 .mov/.mp4, DNxHD .mov, QT Animations, Motion JPEG .AVI Graphics: .tga, .png, .jpg, .gif, .bmp, .scribe Internal Files: 8 channels, 2 clips, 2 graphics, 2 logo, 2 still stores Audio: 4 balanced analog inputs (1/4” TRS) and 2 channels AES/EBU. Control audio from any input or clip store on an intuitive audio interface. External Inputs: 3 SDI HD/HDMI and 1 SDI/HDMI/Analog Fluent Control Workflows Inputs External Outputs and Delivery Powerful Performance Tools Control Surfaces: Use built-in 17” touch-screen or add a Broadcast Pix control panel, virtual panel, iPad, smart phone or second monitor to extend your multi-view. Dual-channel Clip Server: Playout up to 60 hours of HD or SD clips and animations with audio. CG Application: Built-in broadcast quality CG for all 6 stores. ClearKey Chromakeyer: Exceptional one touch color keying. Fluent Macros: Unique to Broadcast Pix, Fluent Macros easily execute any combination of video, files, and device control moves for complex effects at the push of a button. Save up to a 1000 different macros. Virtual Sets: Integrated one touch virtual set studios. Show Transfer: Import/export entire shows, transfer between systems. Show Edit: Easy PixPad edit controls of macros, clips, graphics, etc www.broadcastpix.com © 2015 Broadcast Pix, Flint, Granite, Mica, Roadie, ReVue, FX3D and VOX are trademarks of Broadcast Pix, Inc. Patented. Specifications are subject to change. Made in USA. Internal Wi-Fi: Offers direct connection to an iPad or the Internet for live streaming. Roadie Specifications Durable aluminum alloy chassis with active cooling Video Processing: HD Size: 7 x 13.5 x 16.8 in / 17.78 x 34.29 x 42.67 cm Weight: 20 lbs / 9.07 kg Power: 500 Watts quiet 80 Roadie Options • Choice of soft or hard custom carrying cases for easy travel • ReVue: Slow Motion Sports Replay • Rapid LT: Action buttons + cloud data from Twitter, RSS feeds, weather,... • Rapid CG 3: LT plus dual-channel connection to cloud-content databases, news automation, and scoreboards • PixPlay slow motion control of HyperDeck or Ki Pro devices • Add Quicklink TX for Skype-based live broadcasting • Tally/GPI box with relay contact closures • Control robotic cameras: Panasonic, Hitachi, Telemetrics, Sony, Lumens • Control servers: 360 Systems, Harris, Omneon, AJA, Blackmagic,... • VOX and VOX Lite: voice-automation for radio, meetings and more • Extended warranty and software updates • Training and/or commissioning Powerful, Rugged and Ready for the Road! Integrated Mobile Production Roadie 6 7 8 9 10 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Justin Hildreth, Town Engineer Date: July 22, 2015 Agenda Topic: Authorization to Issue Notice of Award for the 2015 Street Improvements - Buck Creek Bridge #1 Approach Repair Project Summary: The Buck Creek Bridge #1 Approach Repair Project is one component of the overall 2015 Street Improvements Program. For 2015, the Street Improvements Program includes repair of the lower Buck Creek Road bridge approaches, asphalt overlay, extension of concrete sidewalk on East Beaver Creek Boulevard, slurry seal, and installation of pedestrian warning signs at the crosswalk adjacent to Avon Elementary School. Discussion: The Buck Creek Bridge #1 Approach Repair Project consists of replacement of east and west approach slabs, sleeper slabs, expansion joints, and approximately 50’ of asphalt beyond the approach slabs. Also included are stormdrain improvements, the addition of concrete curb and gutter, guardrail rehabilitation and striping. Staff advertised the 2015 Street Improvements – Buck Creek Bridge #1 Approach Repair Project for (3) weeks and the Bid Opening was held onJuly 16, 2015. Only one bid was received; Mueller Construction Services, Inc. with a bid of $188,881. The bid is within the $200,000 approved for this phase of the overall 2015 Street Improvements Program budget of $2,081,679 as presented to Council on February 24, 2015 and as approved in the Town of Avon 2015 Capital Projects Fund. The Buck Creek Bridge #1 Approach Repair Project will require an approximate six week closure of Buck Creek Road during construction during which time a detour around Metcalf Road and Wildwood Road will be in place. Outreach to citizens and emergency services will be coordinated by Staff and the Contractor. Construction Schedule: The Buck Creek Bridge #1 Approach Repair Project is scheduled to begin the week of August 10 and be completed in approximately six weeks. Staff Recommendation: The Contractor is one of a very limited number of firms qualified to perform this type of specialized work and is able to meet our construction schedule. The sole bid is within the Town Engineering Staff’s construction estimate of $200,000. Staff requests Council authorization to award the 2015 Street Improvements – Buck Creek Bridge #1 Approach Repair Project Contract to the sole bidder, Mueller Construction Services, Inc. in the amount of $188,881 with an additional $11,119 being approved as a contingency for staff appropriation, if needed. Recommended Motion: Motion to authorize issuance of Notice of Award for the 2015 Street Improvements – Buck Creek Bridge #1 Approach Repair Project Contract to the sole bidder, Mueller Construction Services, Inc. in the amount of $188,881. TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, JULY 14, 2015 AVON TOWN HALL, ONE LAKE STREET 1. CALL TO ORDER & ROLL CALL Mayor Fancher called the meeting to order at 5:10 p.m. A roll call was taken and Council members present were Jake Wolf, Buz Reynolds, Megan Burch, Scott Prince and Sarah Smith Hymes. Matt Gennett was absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Executive Assistant to the Town Manager Preston Neill and Town Clerk Debbie Hoppe. 2. APPROVAL OF AGENDA There were no changes to the agenda. 3. PUBLIC COMMENT – COMMENTS ARE WELCOME ON TOPICS NOT ON THE AGENDA There were no public comments. 4. ACTION ITEMS 4.1. PUBLIC HEARING AMPLIFIED SOUND PERMIT APPLICATION FOR WALKING MOUNTAINS SCIENCE CENTER (TOWN CLERK DEBBIE HOPPE) Mayor Fancher opened the Public Hearing, no comments were made. Mayor Pro Tem Wolf moved to approve Amplified Sound Permit Application for Walking Mountains Science Center with live music st0pping at 10:30 p.m., background music starting from 10:30 p.m. to 11:30 p.m. In addition, a stipulation was added where in the event of a complaint, the sound will be turned off at 10:30 p.m.; Councilor Smith Hymes seconded the motion and it passed unanimously by those present. Councilor Gennett was absent. 4.2. MINUTES FROM JUNE 23, 2015 MEETING (DEPUTY TOWN CLERK RICHELLE CURRAN) Councilor Burch moved to approve the Minutes from June 23, 2015 with the correction of final meeting ending time; Mayor Pro Tem Wolf seconded the motion and it passed unanimously by those present. Councilor Gennett was absent. 5. WORK SESSION 5.1. REVIEW AND FINALIZATION OF COMMUNITY SURVEY QUESTIONS (EXECUTIVE ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) Peter Buckley and David Strandjord commented. 6. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 6.1. CREATIVE ARTS DISTRICT UPDATE – MAYOR PRO TEM JAKE WOLF 6.2. AVON PERFORMANCE PAVILION UPDATE – M AYOR PRO TEM JAKE WOLF 7. MAYOR & COUNCIL COMMENTS 8. WRITTEN REPORTS 9. EXECUTIVE SESSION, IF NEEDED (THIS SESSION IS NOT OPEN TO THE PUBLIC) 9.1. CONFERENCE WITH THE TOWN ATTORNEY FOR THE PURPOSE OF RECEIVING LEGAL ADVICE UNDER C.R.S. §24-6- FINAL - Avon Council Meeting 7-14-2015 Minutes.doc Page 1 TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, JULY 14, 2015 AVON TOWN HALL, ONE LAKE STREET 402(2)(B) CONCERNING THE MOUNTAIN STAR WATER STORAGE TANK. 9.2. CONFERENCE WITH THE TOWN ATTORNEY FOR THE PURPOSE OF RECEIVING LEGAL ADVICE UNDER C.R.S. §24-6- 402(2)(B) AND FOR DISCUSSION OF A PERSONNEL MATTER UNDER C.R.S. §24-6-402(2)(F) CONCERNING THE TOWN MANAGER. Mayor Fancher moved to meet in Executive Session for the purpose of a Conference with the Town Attorney for the Purpose of Receiving Legal Advice Under C.R.S. §24-6-402(2)(b) concerning the Mountain Star Water Storage Tank as well as for the purpose of a conference with the Town Attorney for receiving legal advice under C.R.S. §24-6-402(2)(b) and for discussion of a personnel matter under C.R.S. §24-6- 402(2)(F) Concerning the Town Manager; Councilor Smith Hymes seconded the motion and it passed unanimously by those present. The time was 7:56 p.m. Mayor Fancher made a motion to end the Executive Session; Mayor Pro Tem Wolf seconded the motion and it passed unanimously by those present. Council reconvened into regular session at 10:33 p.m. 10. ADJOURNMENT There being no further business to come before the Council, the regular meeting adjourned at 10:33 p.m. RESPECTFULLY SUBMITTED: _________________________________ Debbie Hoppe, Town Clerk APPROVED: Jennie Fancher ________________________________ Jake Wolf ________________________________ Matt Gennett ________________________________ Megan Burch ________________________________ Albert “Buz” Reynolds ________________________________ Scott Prince ________________________________ Sarah Smith Hymes ________________________________ FINAL - Avon Council Meeting 7-14-2015 Minutes.doc Page 2 TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Matt Pielsticker, Planning Manager Date: July 28, 2015 Agenda Topic: 5.1. Avon Recreational Trails Advisory Group Update SUMMARY: During the work session on July 28th, 2015, members from the Avon Recreational Trails Advisory Group (ARTAG) will give a presentation highlighting their activities since appointment, with a look toward future planned work. Topics covered will include:  Work completed thus far.  Current state of Avon’s trails including maintenance work.  Future potential Trails - see attached draft map.  Estimated budget requests for continued maintenance and new construction. BACKGROUND: The Town Council appointed nine (9) members to the ARTAG group in April, and since that time they have been meeting regularly. They have compiled a list of all trail maintenance projects, including mapping of social trails that may need to be decommissioned. A restoration project was organized by the group on June 22nd, 2015 for a redundant trail section on the West Avon Preserve above Lee’s Way trail. Other work this spring included the planning for internal directional signage for the West Avon Preserve, which is slated for installation in early August. They plan to install picnic tables at the end of the Beaver Creek point trail per the management plan as soon as possible. Additional work yet to be completed this year is an educational outreach program informing trail users of seasonal closures. ATTACHMENT: Draft Trail Map !C !C !C !C !B !B !C !C !B !C !B !C !C !C !C Si n g l e t r e e Ar r o w h e a d Wi l d r i d g e Mo u n t a i n St a r EagleVail Be a v e r Cr e e k !B !B Mi l l e r Ra n c h 7 7 4 . 1 7 3 4 .1 7 1 7 . 1 7 8 0 . 1 7 7 9 . 1 7 7 8 . 1 7 1 7 . 1 A 717.1B 7 7 4 . 2 D 7 99 .1 £¤24 £¤6 20 0 ' C o n t o u r s I 0 2 , 5 0 0 5 , 0 0 0 1, 2 5 0 Fe e t §¨¦70 !B Pl a n n e d T r a i l h e a d !B Ex i s t i n g T r a i l h e a d Pl a n n e d T r a i l s Ex i s t i n g T o w n o r C o u n t y T r a i l s Na t i o n a l F o r e s t S y s t e m T r a i l s Pa v e d R e c P a t h Mo t o r i z e d T r a i l I m p r o v e m e n t s In t e r s t a t e H i g h w a y US H i g h w a y Na t i o n a l F o r e s t S y s t e m R o a d Ot h e r R o a d To w n o f A v o n L a n d US F S L a n d Ot h e r G o v e r n m e n t L a n d St a t e T r u s t L a n d DR A F T T r a i l s M a s t e r P l a n - 2 0 1 5 U p d a t e B E R R Y C R E E K M E S Q U I T E N O B H I L L J U N E C R E E K B U C K C R E E K N O TT I N GH A M R I D G E D A V O S W HISKEY C REEKSTONE C R EEK P A U L I E ' S P L UN GEEAGLE VAIL TR A IL EAST E RN H ILLS I D E PAUL IE 'S S I ST E R M I L L E R R A N C H O P E N S P A C E W I L D W E S T R I D G E W Y S E W A Y SADD L E RID GE AS C ASC L E E ' S W A Y D O W N C A R R O L L ' S B L TOBY PB&J TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Preston Neill, Executive Assistant to the Town Manager Date: July 28, 2015 Agenda Topic: Review and Direction for a Potential Smoking Ban in Certain Public Areas in the Town of Avon SUMMARY: At Town Council’s June 9, 2015 meeting, Ordinance No. 15-07 was passed on second reading, which added a limitation to the Municipal Code in Section 9.40.050 (20) to read that: Smoking is not permitted in the West Avon Preserve. Following the approval of Ordinance No. 15-07, Council directed Town staff to conduct further research on what other municipalities have enacted in terms of smoking prohibitions. In particular, Council directed staff to concentrate on identifying smoking bans in areas such as municipal parks, open spaces, sidewalks and municipal-owned parking lots. SMOKING PROHIBITIONS: Town staff examined the municipal codes of several cities and towns, including Aspen, Breckenridge, Dillon, Frisco, Telluride, Vail and Ketchum, ID. No applicable smoking restrictions for municipal parks, open spaces, sidewalks or municipal-owned parking lots were found in the municipal codes of the city of Aspen and the towns of Dillon, Frisco, Telluride, and Vail. Applicable restrictions were found in the municipal codes of the town of Breckenridge and the city of Ketchum, ID. Breckenridge, CO In 2015, the town of Breckenridge expanded its smoking ban to include more outdoor spaces. The ordinance reads: “5-9-3: GENERAL SMOKING RESTRICTIONS: ... B. In order to reduce the levels of exposure to environmental tobacco and marijuana smoke, smoking shall not be permitted and no person shall smoke in any of the following outdoor areas: 1. The entryways of all buildings and facilities listed in subsection A of this section; 2. Town owned parks and open space areas; 3. Town owned outdoor sporting and athletic fields and facilities; 4. The town of Breckenridge public golf course grounds and buildings, excluding the course of play; 5. The paved recreational pathway running generally northerly and southerly within the town commonly known as the “bike path”; and 6. Within a ten foot (10’) radius of a public transit facility waiting area. (Ord. 4, Series 2015)” Ketchum, ID In 2013, the town of Ketchum, Idaho passed a comprehensive local smoke-free ordinance. Known as the Ketchum Smoke Free Air Ordinance, the ordinance defines public property as: “Any and all lands owned by the city of Ketchum including all city parks and open spaces but not including city rights of way.” The ordinance goes on to state: “8.10.080: PROHIBITION OF SMOKING IN OUTDOOR AREAS: Smoking shall be prohibited in the following outdoor public places: A. On any “public property” as defined herein. B. Within twenty feet (20’) of all designated bus stops. C. On all school property, including public and private elementary, secondary, vocational, and trade schools or colleges. D. Within any designated “special event zone,” unless the “special event zone” has a designated and delineated smoking area identified in an approved Ketchum special event permit application. (Ord. 1105, 2013)” The national trend has been to expand smoking prohibitions to outdoor public areas. A 2009 study in the peer-reviewed journal, Nicotine & Tobacco Research, reported that “outdoor smoke- free areas have been adopted increasingly in North America” as well as other places (Source: http://ntr.oxfordjournals.org/). REQUESTED DIRECTION: Following review and discussion, Council direction is requested on a potential smoking ban in certain public areas in the Town of Avon. TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: John Curutchet, Director of Parks and Recreation Date: July 20, 2015 Re: Update on Disc Golf BACKGROUND The Nottingham Park Disc Golf Course was discussed during the June 9, 2015 Avon Town Council meeting. Several members of Town Council had played the course and offered feedback on the current design, layout and location. The concept of moving the course further towards the western end of the park and potentially utilizing the lower field was proposed. SUMMARY Staff walked the western end and lower field portion of the park and discussed alternatives to course layout. It was determined by staff that the lower field could easily accommodate six holes. Staff recognized the opportunity to add three holes to the northwestern end of the park and create what could be a challenging nine-hole course, (Attachment A). The proposed nine-hole course would begin and end at the Avon Elementary School parking lot thereby creating some relief from the overcrowding and congestion we are experiencing in the lot 16 parking lot. The expansion to a nine-hole course will also present the opportunity to draw more experienced players to the course and will give the Recreation Department a better chance of marketing disc golf programs to the community. Lastly, the move to the lower field and western end would spread out park activities to help decrease the interactions between golfers, other park users and residents. ACTION If Council is supportive of the nine-hole disc golf course layout, a motion to approve the course should be made. ATTACHMENT A. Map of proposed nine-hole disc golf course Attachment A-Proposed 9-Hole Disc Golf Course AVON URBAN RENEWAL AUTHORITY REPORT To: Honorable Chairperson Mayor Jennie Fancher and Avon Town Council From: Justin Hildreth, Town Engineer and Kelly Huitt, Budget Analyst Date: June 17, 2015 Agenda Topic: Resolution No. 15-13 Resolution to Amend the 2015 Town of Avon Budget to appropriate $20,000 in the Water Fund for Mountain Star Water Tank Soils Testing The Town received a request for funding soils work from the Upper Eagle Regional Water Authority (UERWA) in the amount of $20,000. The soil work is the next essential step towards fine tuning the cost estimates for the water tank construction in Mountain Star. The soils at the proposed tank location are poor and the soils study will assist the engineer’s in designing the tank foundation and estimating the foundation’s cost. The funds will be comprised of water tap fees collected from the construction of residences in the Mountain Star Subdivision and will be creditied towards the Town’s contribution to the water tank construction. Staff Recommendation Staff recommends approving Resolution No. 15-13. Recommended Motion “Move to approve Resolution No. 15-13 to Amend the 2015 Town of Avon Budget Exhibits and Attachments: Exhibit A – Resolution No. 15-13 TOWN OF AVON, COLORADO RESOLUTION NO. 15-13 SERIES OF 2015 A RESOLUTION TO AMEND THE 2015 TOWN OF AVON BUDGET A RESOLUTION SUMMARIZING EXPENDITURES AND REVENUES BY FUND AND AMENDING THE 2015 BUDGET FOR THE TOWN OF AVON, COLORADO, FOR THE CALENDAR YEAR BEGINNING ON THE FIRST DAY OF JANUARY, 2015 AND ENDING ON THE LAST DAY OF DECEMBER, 2015 WHEREAS, the Town Council of the Town of Avon has previously adopted the 2015 budget; and WHEREAS, the Town Council reviewed the revised estimated revenues and expenditures for all operating funds for 2015; and WHEREAS, the Town Council finds it necessary to amend the 2015 budget to more accurately reflect the revenues and expenditures for 2015; and WHEREAS, whatever increases may have been made in the expenditures, like increases were added to the revenues so that the budget remains in balance as required by law. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That estimated revenues and expenditures for the following funds are revised as follows for 2015: Original or Previously Amended 2015 Budget Current Proposed Amended 2015 Budget Water Fund Beginning Fund Balance Revenues and Other Sources Expenditures and Other Uses $ 916,230 170,000 185,286 $ 916,230 170,000 205,286 Ending Fund Balance $ 900,944 $ 880,944 Section 2. That the budget, as submitted, amended, and hereinabove summarized by fund, hereby is approved and adopted as the budget of the Town of Avon for the year stated above. Res. No. 15-13 July 28, 2015 Page 1 of 2 Section 3. That the budget hereby approved and adopted shall be signed by the Mayor and made part of the public record of the Town. ADOPTED this 28th day of July, 2015. AVON TOWN COUNCIL By:___________________________ Attest:________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk Res. No. 15-13 July 28, 2015 Page 2 of 2 Fund Summary Original or Prev. Amend.Amended Difference Actual Budget Budget Increase 2014 2015 2015 (Decrease) REVENUES Charges for Services: Water Surcharges 149,832$ 150,000$ 150,000$ -$ Tap Fees 285,948 20,000 20,000 - Tap Fees - Mountain Star 53,822 - - - Total Charges for Services 489,602 170,000 170,000 - Other Revenues Nonclassified Revenues - - - - TOTAL REVENUES 489,602$ 170,000$ 170,000$ -$ EXPENDITURES Water Utilities 170,166 185,286 205,286 20,000 Total Operating Expenditures 170,166 185,286 205,286 20,000 Other Uses Transfers Out - Capital Projects Fund 157,764 - - - TOTAL EXPENDITURES 327,930 185,286 205,286 20,000 NET SOURCE (USE) OF FUNDS 161,672 (15,286) (35,286) (20,000) FUND BALANCES, Beginning of Year 754,558 916,230 916,230 - FUND BALANCES, End of Year 916,230$ 900,944$ 880,944$ (20,000)$ FUND BALANCES: Restricted For: Water Projects 316,230$ 300,944$ 300,944$ -$ Assigned For: Mountain Star Water Tank Contribution 600,000 600,000 580,000 (20,000) TOTAL FUND BALANCES 916,230$ 900,944$ 880,944$ (20,000)$ Water Fund #24 Supplemental Amendment No. 2 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Justin Hildreth, Town Engineer Date: July 22, 2015 Agenda Topic: Notice of Award for Public Safety Facility to Evans Chaffee Construction Group Overview The Town Council has directed Town staff to work with the Eagle River Fire Protection District (ERFPD) to develop a Public Safety Facility (PSF) to be located at Lot 1B, Buck Creek Subdivision. A working group comprised of Mayor Jennie Fancher, Councilor Buz Reynolds, Town Engineer Justin Hildreth, Police Chief Robert Ticer, Planning Manager Matt Pielsticker, and Town Manager Virginia Egger oversees the project on behalf of the Town. The working group from the ERFPD includes Board Chair Jennifer Cartmell-Hays, Board Member Clark Shivley, Battalion Chief George Wilson, Fire Chief Karl Bauer and ERFPD owner representative Todd Goulding. In order to complete the project in the most efficient manner, a General Contractor with Guaranteed Maximum Price (GC-GMP) approach has been selected by the in-house working group. By selecting a contractor prior to full design, the project will benefit from the integral advice of the contractor to determine the most efficient construction methods, evaluate materials for value and availability, and develop a sequence to help assure the project is constructed within budget and on-time. The GC-GMP approach is common for structures that have complex design (i.e., multiple levels, outdoor usage, and need for rigorous attention to maintenance and cost of operation). Request for Proposal Process A Request for Qualifications (RFQ) was issued for general contractors (GC) on June 18, 2015, in the Vail Daily and posted on the Town’s website. The RFQ was to provide GC services for the joint PSF that will include a 33,000 SF building, parking, utilities and drainage infrastructure. A site tour was held on July 6th, with eight (8) General Contractors in attendance along with interested sub-contractors. Proposals were due on July 10th, with the following eight (8) firms responding: Evans Chaffee Construction Group (ECCG), R.A. Nelson, MW Golden, Adolfson & Peterson Construction, Hyder Construction, FCI Constructors, Inc., GE Johnson, and Shaw Construction. Each firm was required to submit a project plan, construction schedule, construction management fees, and responses to numerous questions including but not limited to current work and other major project work of the same nature. Four of the firms, Evans Chaffee, Hyder Construction, Adolfson & Peterson and FCI Constructors were determined to be the most qualified after review of the proposals and selected for interviews on July 20th. Interviews were conducted by the Town’s and ERFPD working groups and the lead architect, William Bussard with the Davis Partnership Group. ECCG was selected by the working groups as the preferred contractor based on qualifications, staff expertise and fees. The updated fees and schedules were reviewed by the in-house work group and William Bussard. Evans Chaffee’s fees were the lowest of the four finalists, a difference of $353,907 based on a $10,000,000 construction project. A major potential cost savings that ECCG has agreed to cap the construction services fee at $314,000 while the other contractors proposed a 3% to 3.75% construction services fee and agreed to a 0% change order mark-up fee compared to a 3% to 6% change order mark-up fee. All four finalists are qualified to the do the work, and the substantial fee difference was a deciding factor in the working group’s decision making to recommend the project be awarded to ECCG. Upon approval of the Notice of Award, staff working in collaboration with ERFPD representatives will negotiate a Preconstruction Services Contract using the American Institute of Architects standard documents with standard Town of Avon provisions. The contract will be reviewed and approved by Town Attorney Eric Heil and the ERFPD attorney prior to signing. Budget An existing Memorandum of Agreement with the ERFPD states the Town will pay 32.79% and ERFPD will pay 67.21% of the $30,000 pre-construction services fee. The remaining construction costs will be negotiated in October if the Town decides to proceed with the project and are not fully authorized at this time. Schedule The architect, Davis Partnership Group, is proceeding with the programming and schematic design of the PSF which will be completed on September 1st. ECCG will then price the proposed PSF and the construction cost will be presented to Town Council on October 13, 2015. Town Council can then evaluate the design and costs to determine whether or not to proceed with the joint PSF. The final design and construction cost will be presented in February for the May 2016 election. RECOMMENDED MOTION: Staff requests Town Council authorization to award the Public Safety Facility Preconstruction Agreement to Evans Chaffee Construction Group, with fees as proposed. The authorization allows the Town Manager or designee to sign the Preconstruction Agreement, subject to Town Attorney review.  Page 2 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 Fancher and Town Council members FROM: Eric J. Heil, Town Attorney RE: Ord. No. 15-05 Amending the Town Code of Ethics DATE: July 23, 2015 SUMMARY: The Town Council discussed the Avon Town Code of Ethics (“Ethics Code”) at its December 11, 2014 work session. The Town Council expressed a desire to re-visit the Ethics Code and provided some preliminary direction on revisions for consideration. Draft amendments to the Town Code of Ethics were presented to the Town Council at a work session on March 24, 2015 for discussion and direction. Based on the direction provided by the Town Council at that work session, Ordinance No. 15-05 was presented for first reading on April 21, 2015. At that meeting, Town Council expressed interest in considering additional standards to prohibit contemporaneous terms of Council members who have a marital relationship and to prohibit Council members who have an employer/employee relationship. Council considered additional standards related to marital relationships and to employer/employee relationships at its June 23, 2015 regular meeting and then adopted Ordinance No. 15-05 on first reading with the proposed Option 2 language and with direction to the Town Attorney to prepare a subsequent ordinance to adopt Council qualification restrictions on employer/employee relationships. BACKGROUND: The Avon Home Rule Charter requires the Avon Town Council to adopt an Ethics Code. The current Town Code of Ethics was adopted by Ord. No. 92-15. Revisions were adopted in early 2012 by Ord. No. 2012-01. As a home rule community, Avon has the authority to adopt its own Ethics Code as a matter of local concern. However, awareness of the State Standards of Conduct is informative and the revisions in 2012 incorporated language from the State Standards of Conduct where appropriate for convenience and efficiency. OBTAINING PRIVATE WORK RELATED TO OFFICIAL ACTS: A new sub-section (11) under 2.30.060 Conflict of Interest is presented which would prohibit any elected official from accepting compensation or work related to any “Official Act” on a specific project, application or contract during the term of the Town Council member and for a period of 6 months after the expiration of the term. This restriction is more strict than the State Standards of Conduct. PRESENCE OF TOWN COUNCIL OR PLANNING COMMISSION MEMBER WITH CONFLICT OF INTEREST: The revisions in 2012 added language whereby a Town Council member or Planning Commission member could remain in the room and participate in discussions when there was a conflict of interest if the majority of the remaining Council members provided consent. The amendments would delete this language and revert back to the prior strict rule that a Town Council member or Planning Commission member with a conflict of interest must leave the room during discussion and consideration of that business item. PUBLIC CONTRACTS: The Ethics Code adopts a general rule that no Town Officer shall have an interest in any contract made by the Town, but then contains several exceptions to allow the lowest bidder (or highest bidder for auctions) or when the Town Officer discloses the conflict and does not vote on the contract. The existing Ethics Code language in Section 2.30.120 Public Contracts tracks CRS §24-18- 201 et. seq. and contains similar exceptions. M EMORANDUM & PLANNING, LLC Avon Town Council Town Code of Ethics July 23, 2015 Page 2 of 2 Town Code of Ethics July 23, 2015 Page 2 of 2 The amended language establishes a very strict restriction and prohibition to disallow any contract for compensation or approval of vender permit to any Town Official. NOTE: Town Official includes spouses and minor children. The language attempts to distinguish contracts with organizations where a Town Official is an employee of an organization but is not an owner or controlling officer. The two exceptions that are retained which are: (1) investments or deposits in financial institutions which are in the business of loaning or receiving money [meaning that the mere deposit at a local bank that enters into a contract with the Town does not create a conflict]; and, (2) matters for which the Town Officer has voted in accordance with Section 2.30.100 [meaning such participation is necessary for quorum and action and such Town Officer has made disclosure to the Colorado Secretary of State in accordance with Section 2.30.110]. Section 2.30.100 was revised slightly to incorporate a finding that participation by a Council member or Planning Commission member with a conflict of interest will not be contrary to the public interest. This language parallels language in the Urban Renewal Authority statutes regarding participation by an Urban Renewal Authority director that has a property interest within an Urban Renewal Authority plan. PROPOSED MOTION: I move to adopt Ordinance No. 15-05 Amending the Town Code of Ethics on Second and Final Reading. ATTACHMENTS: A – Ordinance No. 15-05 Amending the Town Code of Ethics B – State Standards of Conduct Thank you, Eric ATTACHMENT A: ORDINANCE NO. 15-05 AN ORDINANCE AMENDING CHAPTER 2.30 TOWN CODE OF ETHICS OF THE AVON MUNICIPAL CODE Ord 15-05 Amending Town Code of Ethics July 28, 2015 - FINAL Page 1 of 3 TOWN OF AVON, COLORADO ORDINANCE NO. 15-05 SERIES OF 2015 AN ORDINANCE AMENDING CHAPTER 2.30 TOWN CODE OF ETHICS OF THE AVON MUNICIPAL CODE WHEREAS, the Town of Avon (“Town”) is a home rule authority municipal corporation and body politic organized under the laws of the State of Colorado and possessing the maximum powers, authority and privileges to which it is entitled under Colorado law; and WHEREAS, pursuant to Section 5.5(d) of the Avon Home Rule Charter states that, “Council shall adopt a Town Code of Ethics which shall set forth ethical standards and standards of conduct for elected and appointed officials of the Town;” and WHEREAS, Town Council believes that amendments to the Town Code of Ethics which are more stringent than the State Code of Ethics will promote the highest level of governmental integrity and public confidence in the proper conduct of governmental affairs of the Town of Avon and therefore will promote the general welfare of the Avon community; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with state law, the Avon Municipal Code and the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies 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. Chapter 2.30 of the Avon Municipal Code is hereby amended by repealing and deleting language shown in strike-out and adopting language depicted by underline as depicted in EXHIBIT A: AVON TOWN CODE OF ETHICS AMENDMENTS attached to and made a part of this Ordinance. Section 3. Codification Amendments. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Ord 15-05 Amending Town Code of Ethics July 28, 2015 - FINAL 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. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on June 23, 2015 and setting such public hearing for July 28, 2015 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk Ord 15-05 Amending Town Code of Ethics July 28, 2015 - FINAL Page 3 of 3 ADOPTED ON SECOND AND FINAL READING on July 28, 2015. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk APPROVED AS TO FORM: ____________________________ Eric J. Heil, Town Attorney EXHIBIT  A:  AMENDMENTS  TO  AVON  TOWN  CODE  OF  ETHICS     Page 1 of 7 July 28, 2015 - FINAL   Town Code of Ethics 2.30.010 Citation. This Chapter shall be known and may be cited as the "Avon Town Code of Ethics." 2.30.020 Declaration of policy. The proper operation of democratic government requires that public officers be independent, impartial and responsible to the people; that government decisions and policy be made within the proper channels of the governmental structure; that public office not be used for personal gain; and that the public have confidence in the integrity of its government. In recognition of these goals, a code of ethics for all Town oOfficers is adopted. The purpose of this code is to establish guidelines for ethical standards of conduct for all such oOfficers by setting forth those acts or actions that are incompatible with the best interest of the Town, and by directing disclosure by such oOfficers of private financial or other interests in matters affecting the Town. 2.30.030 Finding of local concern. The Town Council finds and determines that the matter of ethical municipal government is a matter of local concern upon which home rule municipalities in Colorado are fully empowered to legislate and to supersede conflicting state statutes. 2.30.040 Effect of common law. This Chapter shall supersede and override the common law as to the subject matter of this Chapter. 2.30.050 Definitions. As used in this Chapter, unless the context requires otherwise: Business means any corporation, limited liability corporation, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business operated for private profit. Confidential information means all information, whether transmitted orally, electronically or in writing, , which is intended to be confidential and which does not constitute a public record under the Colorado Open Records Act set forth in C.R.S. §24-72- 200.1 et. seq. including but not limited to attorney-client confidential and privileged communications and information received in an executive session. Council or Town Council means the Town Council of the Town of Avon. Council Member means any member of the Town Council. Officer means any person holding a position by election or appointment in the service of the municipality, whether paid or unpaid, including the members of the Town Council, any other Town board, committee or commission, any employee and any independent contractor. Official act or official action means any vote, decision, recommendation, approval, disapproval or other action, including inaction, which involves the use of discretionary authority. Substantial financial interest means an interest owned or held by an oOfficer which is: a. An ownership interest in a business; b. A creditor interest in a business; c. An ownership interest in real or personal property; d. A loan or any other debtor interest; e. A directorship or officership in a business. An officer shall be presumed to have a substantial financial interest in any of the EXHIBIT  A:  AMENDMENTS  TO  AVON  TOWN  CODE  OF  ETHICS     Page 2 of 7 July 28, 2015 - FINAL   abovementioned interests owned, held or controlled by such oOfficer's spouse or dependent children. 2.30.060 Conflict of interest. A Town Officer shall not: (1) Disclose or use confidential information acquired in the course of such Officer's duties (a) in order to further a business or other undertaking in which such Officer has a substantial financial interest or (b) for any use which would be detrimental to the Town; (2) Engage in a substantial financial transaction for his or her private business purposes with a person whom such oOfficer inspects or supervises in the course of his or her official duties; (3) Perform an official act which directly and substantially affects to its economic benefit a business or other undertaking in which such Officer has a substantial financial interest; (4) Perform an official act which directly and substantially affects a business or other undertaking by whom the oOfficer is employed, or by whom such Officer is engaged as counsel, consultant, representative or agent; (5) Acquire or hold an interest in any business or undertaking which such Officer has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by the agency over which he or she has substantive authority; (6) Perform an official act directly and substantially affecting to its economic detriment any business or other undertaking when such Officer has a substantial financial interest in a competing business or undertaking; (7) Solicit or accept a present or future gift, favor, loan, service or thing of value from a person under circumstances which would lead a reasonably prudent person to believe that such gift, favor, service or thing of value was made or given primarily for the purpose of influencing or attempting to influence such oOfficer in connection with an official act, or as a reward for official action he or she has previously taken. The provisions of this Subsection shall not apply to those circumstances described in Subsection 2.30.070(3);. (8) Perform any official act under circumstances which give rise to appearance of impropriety on the part of the Officer; (9) Make or accept any ex parte communication or contact concerning a matter which is to be determined after a public hearing without making the contents of such communication or contact a part of the record of such public hearing; (10) Appear on behalf of any private person, business or entity, other than himself or herself, his or her spouse, or minor children, before the Town Council, any Town Commission or the Municipal Court.; or, (11) For members of Town Council, seek or obtain employment or compensation concerning matters upon which he or she took an Official Act during his or her term of office for six (6) months following expiration or termination of office, if such Official Act occurred less than four years prior to such employment or compensation, provided that this provision may be waived by a majority of the disinterested Town Council members. 2.30.070 Exemptions. The provisions of Section 2.30.060 shall not prohibit an Officer from: (1) Accepting or receiving a benefit as an indirect consequence of the performance of an official act; EXHIBIT  A:  AMENDMENTS  TO  AVON  TOWN  CODE  OF  ETHICS     Page 3 of 7 July 28, 2015 - FINAL   (2) Taking official action when such Officer is similarly situated to other Town residents, such as adopting general land use regulations, owning property within a special or local improvement district, voting for taxes or bonds, adopting ordinances of general applicability or otherwise acting upon matters involving the common public interest, except that this exemption shall not apply to interests of Officers of the Avon Urban Renewal Authority in any project or in any property included or planned to be included in any project and the provisions of C.R.S. §31-25- 104(3) shall control; (3) Soliciting or accepting gifts or loans which are: a. Campaign contributions reported as required by law; b. An occasional nonpecuniary gift, insignificant in value; c. A nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; d. Payment of or reimbursement for actual and necessary expenditures for travel and subsistence or attendance at a convention or other meeting at which such Officer is scheduled to participate; e. Reimbursement for or acceptance of an opportunity to participate in a social function or meeting which is not extraordinary when viewed in light of the position held by such Officer; f. Items of perishable or nonpermanent value, including, but not limited to, meals, lodging, travel expenses or tickets to sporting, recreational, educational, or cultural events; g. Payment for speeches, debates, or other public events, reported as honorariums to the Town Manager; h. A loan at a rate of interest which is not substantially lower than the commercial rate then currently prevalent for similar loans within the Town. (4) Receiving such compensation for his or her services to the Town as may be fixed by ordinance, pay plan, budget or other similar official action. 2.30.080 Disclosure of conflict of interest in Town Council action. Any member of the Town Council who believes he or she has a conflict of interest as defined in Section 2.30.060 on any matter proposed or pending before the Town Council shall disclose such potential interest to the Town Council. Any member of the Council who believes that another member of the Council has a conflict of interest shall bring the matter to the attention of the Council prior to Council consideration of the issue involving the alleged conflict. The Council shall determine whether a conflict of interest exists. The Council member who has an alleged conflict of interest shall not vote on the determination of whether a conflict of interest exists; however, such Council member may participate in the discussion and may remain in the room with the consent of the majority of the remaining Council members. If the Council determines that an actual conflict of interest exists, the Council Member shall not attempt to influence other members of the Town Council in connection with such matter, and, except as provided in Section 2.30.100, the Council Member shall not vote upon such matter. The Council Member shall leave the room during Council's discussion and action on the subject, and shall return only when the council has taken up the next agenda item. EXHIBIT  A:  AMENDMENTS  TO  AVON  TOWN  CODE  OF  ETHICS     Page 4 of 7 July 28, 2015 - FINAL   2.30.090 Disclosure of conflict of interest in Planning Commission action. Any member of the Planning Commission who believes he or she has a conflict of interest as defined in Section 2.30.060 on any matter proposed or pending before the Planning Commission shall disclose such potential interest to the Planning Commission. Any member of the Planning Commission who believes that another member of the Planning Commission has a conflict of interest shall bring the matter to the attention of the Planning Commission prior to Planning Commission consideration of the issue involving the alleged conflict. The Planning Commission shall determine whether a conflict of interest exists. The Planning Commission member who has an alleged conflict of interest shall not vote on the determination of whether a conflict of interest exists; however, such Planning Commission member may participate in the discussion and may remain in the room with the consent of the majority of the remaining Planning Commission members. If the Planning Commission determines that an actual conflict of interest exists, the member of the Planning Commission shall not attempt to influence other members of the Planning Commission in connection with such matter, and, except as provided in Section 2.30.100, the member of the Planning Commission shall not vote upon such matter. The member of the Planning Commission shall leave the room during the Planning Commission's discussion and action on the subject, and shall return only when the Planning Commission has taken up the next agenda item. 2.30.100 When Council Member or member of the Planning Commission with conflict of interest may vote. Notwithstanding the provisions of Sections 2.30.080 and 2.30.090, a Council member or member of the Planning Commission may vote upon a matter as to which he or she has a conflict of interest if: (1) His or her participation is necessary to obtain a quorum or to otherwise enable the Council or Planning Commission to act, and (2) he or she complies with the disclosure provisions of Section 2.30.110, and (3) a majority of the Council members or Planning Commission members present at a meeting who do not have a conflict of interest find that the participation of such Council member or Planning Commission member will not be contrary to the public interest and vote to permit such Council member or Planning Commission member to vote despite the conflict of interest. 2.30.110 Voluntary Disclosure to Secretary of State. A Town oOfficer may, prior to acting in a manner which may impinge on his or her fiduciary duty and the public trust, disclose the nature of his or her private interest to the Colorado Secretary of State. Such Town oOfficer shall make the disclosure in writing to the Colorado Secretary of State, listing the amount of his or her financial interest, if any, the purpose and duration of his or her services rendered, if any, and the compensation received for the services or such other information as is necessary to describe his or her interest. If he or she then performs the official act involved, he or she shall state for the record the fact and summary nature of the interest disclosed at the time of performing the act. Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction under this Town EXHIBIT  A:  AMENDMENTS  TO  AVON  TOWN  CODE  OF  ETHICS     Page 5 of 7 July 28, 2015 - FINAL   Code of Ethics or any other local, state or other code of ethics or standards of conduct. 2.30.120 Public contracts. (a) The Town shall not enter into any contract with a Town Officer (including spouse or minor children of the Town Officer) to provide any compensation from the Town for the provision of goods or services and shall not approve any vendor permit or privilege to conduct commercial business on Town property during such Officer’s term, appointment or employment with the Town; provided that this restriction shall not apply to compensation provided to any Town Officer for performance of official duties for the Town. This section shall not operate to restrict the Town from entering into contracts or approving vendor permits and privileges to an organization which employees a Town Officer if such Town Officer is not an owner or controlling officer of such organization that receives such compensation, permits or privileges and such Town Officer declares a conflict of interest in accordance with Section 2.30.060(3) and does not participate in any Town decision related to such public contract. For the purposes of this section, ownership in an organization shall include any ownership interest that is greater than 1%. (b) The provisions of Subsection (a) of this Section shall not apply to: (1) Investments or deposits in financial institutions which are in the business of loaning or receiving money; or, (2) with respect to which the Town Officer has voted therein in accordance with Section 2.30.100. (c) It shall be a violation of this Code of Ethics for any Town Officer to enter into a contract with the Town or receive compensation or receive vendor permits or privileges from the Town in violation of this section. (d) Any contract approved by the Town or vendor permit or privilege granted by the Town in violation of this section shall be unenforceable against the Town. (a) Except as provided in Subsection (b) of this Section, no Officer shall have an interest in any contract made by the Town. (b) The provisions of Subsection (a) of this Section shall not apply to: (1) Contracts awarded to the lowest responsible bidder based on competitive bidding procedures; (2) Merchandise sold to the highest bidder at public auctions; (3) Investments or deposits in financial institutions which are in the business of loaning or receiving moneys; (4) A contract between the Town and an officer if, because of geographic restrictions, the Town could not otherwise reasonably afford itself of the subject of contract. It shall be presumed that the Town could not otherwise reasonably afford itself of the subject of a contract if the additional cost to the Town is greater than ten percent (10%) of a contract with an officer or if the contract is for services that must be performed within a limited time period and no other contractor can provide those services within that time period; (5) A contract with respect to which the officer has disclosed his or her personal or financial interest to the Town Council and has not voted thereon, or with respect to which the officer has voted therein in accordance with Section 2.30.100. EXHIBIT  A:  AMENDMENTS  TO  AVON  TOWN  CODE  OF  ETHICS     Page 6 of 7 July 28, 2015 - FINAL   (c) No Town officer shall be a purchaser or vendor in connection with any sale or purchase made by him or her in his or her official capacity. The provisions of this Subsection shall not apply to those contracts described in Subsection (b) of this Section. 2.30.130 Limitation on subsequent employment. A former Town oOfficer may not, within six (6) months following the termination of his or her office with the Town, contract with or become employed by an employer who contracts with the Town involving matters with which such oOfficer was directly involved during such Officer’s the term of office or with the Town. 2.30.140 Enforcement. (a) The Town Council shall have the primary responsibility for the enforcement of this Chapter. It shall have the power to investigate any complaint, to initiate any suit and to prosecute any criminal or civil action on behalf of the Town wherein it believes such action is appropriate. (b) The Town Council may direct the Town Attorney to investigate or prosecute any apparent violation of this Chapter or the Council may employ or appoint any qualified attorney to investigate or prosecute any violation or series of violations by one (1) or more persons of this Chapter. In the event the alleged conflict of interest involves a Council member (or multiple Council members), the Council member(s) who has an alleged conflict of interest shall not vote upon whether to investigate or prosecute the alleged conflict of interest. (c) Any person who believes that a violation of any portion of this Chapter has occurred may file a complaint with the Town Council, which shall promptly investigate such complaint and take such action thereon as the Council shall deem to be appropriate. (d) The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the general fund of the Avon Town government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such Town oOfficer. 2.30.150 Penalties and remedies. (a) It is unlawful for any person to violate any provision of, or to fail to comply with any of the requirements of this Chapter. Any person who violates any provisions of this Chapter shall be punished in accordance with the provisions of Section 1.08.010 of this Code. Additionally, upon conviction such person shall be liable to the Town for such damages as may have been suffered or incurred as a result of such violation. (b) Upon conviction for any violation of this Chapter such oOfficer shall immediately forfeit his or her office or position. Nothing in this Chapter shall be construed to prohibit such public oOfficer from being reelected, reappointed or otherwise rehired to any position forfeited under the provisions of this Chapter. (c) Any court of competent jurisdiction called upon to enforce the provisions of this Chapter may, with the consent of the Town Council, exempt from the provisions of this Chapter any conduct of a Town Officer upon the finding that the enforcement of this Chapter with respect to such Officer's conduct would not be in the public interest. 2.30.160 Distribution of code of ethics. The Town Clerk shall cause a copy of this code of ethicsthe Avon Town Code of Ethics EXHIBIT  A:  AMENDMENTS  TO  AVON  TOWN  CODE  OF  ETHICS     Page 7 of 7 July 28, 2015 - FINAL   to be distributed to every Officer of the Town within thirty (30) days after enactment of the ordinance adopting this Chapter. Each Town Officer elected, appointed, or engaged thereafter shall be furnished a copy before entering upon the duties of his or her office. 2.30.170 Gift Reporting. (a) In accordance with §7, Article XXIX of the Colorado Constitution, the requirements of Article XXIX of the Colorado Constitution shall not apply to the Town of Avon. It is the intention and purpose that this section 2.30.170, Chapter 2.30 Avon Town Code of Ethics of the Avon Municipal Code, and any other applicable Avon Home Rule Charter provision, ordinance or resolution adopted by the Town of Avon shall completely address all matters set forth in Article XXIX of the Colorado Constitution. (b) Any Town Officer who receives any present, or offer of future, individual gift, favor, loan, service or thing of value in excess of $50.00 and such gift is offered due to such person’s status as a Town Officer then such Officer shall report such gift and the estimated value to the Town Clerk. The Town Clerk shall promptly disclose gifts received, or offer of future gifts, to the Town Council. The failure of a Town Officer to report a gift to the Town Clerk shall constitute a violation of the Avon Town Code of Ethics. (c) Council shall determine if gifts received or offered in the future constitute a conflict of interest in accordance with the Avon Town Code of Ethics. Council members who are the recipient or intended recipient of a gift shall not vote on whether such gift constitutes a conflict of interest unless such gift is offered to Council as a whole or offered to Town generally. (d) Gifts which are given by an individual who is a relative or personal friend of the recipient on special occasions shall not be deemed a conflict of interest. Gifts which are given without the purpose or intent to influence a Town Officer in connection with an official act or as a reward for an official act performed and gifts which do not create the appearance of impropriety shall not be a conflict of interest. (e) Gifts which are received which are determined by Council to be a conflict of interest shall be returned. The receipt of a gift or the failure to return a gift or reimburse the equivalent value when Council determines such gift is a conflict of interest shall constitute a violation of the Avon Town Code of Ethics.     STATE  STANDARDS  OF  CONDUCT       Page  1  of  12       Title 24. GOVERNMENT - STATE ADMINISTRATION Article 18. Standards of Conduct Part 1. CODE OF ETHICS § 24-18-101. Legislative Declaration The general assembly recognizes the importance of the participation of the citizens of this state in all levels of government in the state. The general assembly further recognizes that, when citizens of this state obtain public office, conflicts may arise between the public duty of such a citizen and his or her private interest. The general assembly hereby declares that the prescription of some standards of conduct common to those citizens involved with government is beneficial to all residents of the state. The provisions of this part 1 recognize that some actions are conflicts per se between public duty and private interest while other actions may or may not pose such conflicts depending upon the surrounding circumstances. Law reviews: For article, "Conflicts of Interest in Government", see 18 Colo. Law. 595 (1989); for article, "Advising Quasi-Judges: Bias, Conflicts of Interest, Prejudgment, and Ex Parte Contacts", see 33 Colo. Law. 69 (March 2004). § 24-18-102. Definitions As used in this part 1, unless the context otherwise requires: (1) "Business" means any corporation, limited liability company, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business, whether or not operated for profit. (2) "Compensation" means any money, thing of value, or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another. (3) "Employee" means any temporary or permanent employee of a state agency or any local government, except a member of the general assembly and an employee under contract to the state. (4) "Financial interest" means a substantial interest held by an individual which is: (a) An ownership interest in a business; (b) A creditor interest in an insolvent business; (c) An employment or a prospective employment for which negotiations have begun; (d) An ownership interest in real or personal property; (e) A loan or any other debtor interest; or (f) A directorship or officership in a business. (5) "Local government" means the government of any county, city and county, city, town, special district, or school district. (6) "Local government official" means an elected or appointed official of a local government but does not include an employee of a local government. (7) "Official act" or "official action" means any vote, decision, recommendation, approval, disapproval, or other action, including inaction, which involves the use of discretionary authority. (8) "Public officer" means any elected officer, the head of a principal department of the executive branch, and any other state officer. "Public officer" does not include a member of the general assembly, a member of the judiciary, any local government official, or any member of a board, commission, council, or committee who receives no compensation ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  2  of  12       other than a per diem allowance or necessary and reasonable expenses. (9) "State agency" means the state; the general assembly and its committees; every executive department, board, commission, committee, bureau, and office; every state institution of higher education, whether established by the state constitution or by law, and every governing board thereof; and every independent commission and other political subdivision of the state government except the courts. § 24-18-103. Public Trust - Breach of Fiduciary Duty (1) The holding of public office or employment is a public trust, created by the confidence which the electorate reposes in the integrity of public officers, members of the general assembly, local government officials, and employees. A public officer, member of the general assembly, local government official, or employee shall carry out his duties for the benefit of the people of the state. (2) A public officer, member of the general assembly, local government official, or employee whose conduct departs from his fiduciary duty is liable to the people of the state as a trustee of property and shall suffer such other liabilities as a private fiduciary would suffer for abuse of his trust. The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the general fund of the state or local government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such public officer, member of the general assembly, local government official, or employee. § 24-18-104. Rules of Conduct for All Public Officers, Members of the General Assembly, Local Government Officials, and Employees (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. A public officer, a member of the general assembly, a local government official, or an employee shall not: (a) Disclose or use confidential information acquired in the course of his official duties in order to further substantially his personal financial interests; or (b) Accept a gift of substantial value or a substantial economic benefit tantamount to a gift of substantial value: (I) Which would tend improperly to influence a reasonable person in his position to depart from the faithful and impartial discharge of his public duties; or (II) Which he knows or which a reasonable person in his position should know under the circumstances is primarily for the purpose of rewarding him for official action he has taken. (2) An economic benefit tantamount to a gift of substantial value includes without limitation a loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of such services. (3) The following shall not be considered gifts of substantial value or gifts of substantial economic benefit tantamount to gifts of substantial value for purposes of this section: (a) Campaign contributions and contributions in kind reported as required by section ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  3  of  12       1-45-108, C.R.S.; (b) An occasional nonpecuniary gift, insignificant in value; (c) A nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; (d) Payment of or reimbursement for actual and necessary expenditures for travel and subsistence for attendance at a convention or other meeting at which such public officer, member of the general assembly, local government official, or employee is scheduled to participate; (e) Reimbursement for or acceptance of an opportunity to participate in a social function or meeting which is offered to such public officer, member of the general assembly, local government official, or employee which is not extraordinary when viewed in light of the position held by such public officer, member of the general assembly, local government official, or employee; (f) Items of perishable or nonpermanent value, including, but not limited to, meals, lodging, travel expenses, or tickets to sporting, recreational, educational, or cultural events; (g) Payment for speeches, appearances, or publications reported pursuant to section 24-6-203; (h) Payment of salary from employment, including other government employment, in addition to that earned from being a member of the general assembly or by reason of service in other public office. (4) The provisions of this section are distinct from and in addition to the reporting requirements of section 1-45-108, C.R.S., and section 24-6-203, and do not relieve an incumbent in or elected candidate to public office from reporting an item described in subsection (3) of this section, if such reporting provisions apply. § 24-18-105. Ethical Principles for Public Officers, Local Government Officials, and Employees (1) The principles in this section are intended as guides to conduct and do not constitute violations as such of the public trust of office or employment in state or local government. (2) A public officer, a local government official, or an employee should not acquire or hold an interest in any business or undertaking which he has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by an agency over which he has substantive authority. (3) A public officer, a local government official, or an employee should not, within six months following the termination of his office or employment, obtain employment in which he will take direct advantage, unavailable to others, of matters with which he was directly involved during his term of employment. These matters include rules, other than rules of general application, which he actively helped to formulate and applications, claims, or contested cases in the consideration of which he was an active participant. (4) A public officer, a local government official, or an employee should not perform an official act directly and substantially affecting a business or other undertaking to its economic detriment when he has a substantial financial interest in a competing firm or undertaking. § 24-18-106. Rules of Conduct for Members of the General Assembly (1) Proof beyond a reasonable doubt of commission of any act enumerated in this ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  4  of  12       section is proof that the member of the general assembly committing the act has breached his fiduciary duty and the public trust. A member of the general assembly shall not accept a fee, a contingent fee, or any other compensation, except his official compensation provided by statute, for promoting or opposing the passage of legislation. (2) It shall not be a breach of fiduciary duty and the public trust for a member of the general assembly to: (a) Use state facilities or equipment to communicate or correspond with a member's constituents, family members, or business associates; (b) Accept or receive a benefit as an indirect consequence of transacting state business; or (c) Accept the payment of or reimbursement for actual and necessary expenses for travel, board, and lodging from any organization declared to be a joint governmental agency of this state under section 2-3-211 (2), C.R.S., if: (I) (A) The expenses are related to the member's attendance at a convention or meeting of the joint governmental agency at which the member is scheduled to deliver a speech, make a presentation, participate on a panel, or represent the state of Colorado or for some other legitimate state purpose; (B) The travel, board, and lodging arrangements are appropriate for purposes of the member's attendance at the convention or meeting; (C) The duration of the member's stay is no longer than is reasonably necessary for the member to accomplish the purpose of his or her attendance at the convention or meeting; (D) The member is not currently and will not subsequent to the convention or meeting be in a position to take any official action that will benefit the joint governmental agency; and (E) The attendance at conventions or meetings of the joint governmental agency has been approved by the executive committee of the legislative council or by the leadership of the house of the general assembly to which the member belongs; or (II) The general assembly pays regular monthly, annual, or other periodic dues to the joint governmental agency that are invoiced expressly to cover travel, board, and lodging expenses for the attendance of members at conventions or meetings of the joint governmental agency. (3) Notwithstanding any other provision of law, no member of the general assembly shall lobby, solicit lobbying business or contracts, or otherwise establish a lobbying business or practice respecting issues before the general assembly prior to the expiration of his or her term. Where the member tenders his or her resignation prior to the expiration of his or her term, the requirements of this subsection (3) shall apply up through the date of the member's resignation from office. § 24-18-107. Ethical Principles for Members of the General Assembly (1) The principles in this section are intended only as guides to a member of the general assembly in determining whether or not his conduct is ethical. (2) A member of the general assembly who has a personal or private interest in any measure or bill proposed or pending before the general assembly shall disclose the fact to the house of which he is a member and shall not vote thereon. In deciding whether or not he has such an interest, a member shall consider, among other things, the following: (a) Whether the interest impedes his ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  5  of  12       independence of judgment; (b) The effect of his participation on public confidence in the integrity of the general assembly; and (c) Whether his participation is likely to have any significant effect on the disposition of the matter. (3) An interest situation does not arise from legislation affecting the entire membership of a class. (4) If a member of the general assembly elects to disclose the interest, he shall do so as provided in the rules of the house of representatives or the senate, but in no case shall failure to disclose constitute a breach of § 24-18-108. Rules of Conduct for Public Officers and State Employees (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty. (2) A public officer or a state employee shall not: (a) Engage in a substantial financial transaction for his private business purposes with a person whom he inspects, regulates, or supervises in the course of his official duties; (b) Assist any person for a fee or other compensation in obtaining any contract, claim, license, or other economic benefit from his agency; (c) Assist any person for a contingent fee in obtaining any contract, claim, license, or other economic benefit from any state agency; or (d) Perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent. (3) A head of a principal department or a member of a quasi-judicial or rule-making agency may perform an official act notwithstanding paragraph (d) of subsection (2) of this section if his participation is necessary to the administration of a statute and if he complies with the voluntary disclosure procedures under section 24-18-110. (4) Repealed. § 24-18-108.5. Rules of Conduct for Members of Boards and Commissions (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty. (2) A member of a board, commission, council, or committee who receives no compensation other than a per diem allowance or necessary and reasonable expenses shall not perform an official act which may have a direct economic benefit on a business or other undertaking in which such member has a direct or substantial financial interest. § 24-18-109. Rules of Conduct for Local Government Officials and Employees (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. (2) A local government official or local government employee shall not: (a) Engage in a substantial financial transaction for his private business purposes with a person whom he inspects or supervises in the course of his official duties; or (b) Perform an official act directly and substantially affecting to its economic benefit ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  6  of  12       a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent. (3) (a) A member of the governing body of a local government who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter. (b) A member of the governing body of a local government may vote notwithstanding paragraph (a) of this subsection (3) if his participation is necessary to obtain a quorum or otherwise enable the body to act and if he complies with the voluntary disclosure procedures under section 24-18-110. (4) It shall not be a breach of fiduciary duty and the public trust for a local government official or local government employee to: (a) Use local government facilities or equipment to communicate or correspond with a member's constituents, family members, or business associates; or (b) Accept or receive a benefit as an indirect consequence of transacting local government business. § 24-18-110. Voluntary Disclosure A member of a board, commission, council, or committee who receives no compensation other than a per diem allowance or necessary and reasonable expenses, a member of the general assembly, a public officer, a local government official, or an employee may, prior to acting in a manner which may impinge on his fiduciary duty and the public trust, disclose the nature of his private interest. Members of the general assembly shall make disclosure as provided in the rules of the house of representatives and the senate, and all others shall make the disclosure in writing to the secretary of state, listing the amount of his financial interest, if any, the purpose and duration of his services rendered, if any, and the compensation received for the services or such other information as is necessary to describe his interest. If he then performs the official act involved, he shall state for the record the fact and summary nature of the interest disclosed at the time of performing the act. Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction. § 24-18-111. [Repealed] § 24-18-112. Board of Ethics for the Executive Branch - Created - Duties (1) There is hereby created a board of ethics for the executive branch of state government in the office of the governor. The board shall consist of five members to be appointed by and serve at the pleasure of the governor. (2) The board of ethics for the executive branch shall: (a) Comment, when requested by the governor, on each proposed gubernatorial appointment, including the heads of the principal departments and the senior members of the governor's office based upon the provisions of this article; (b) Upon written request of the governor, review complaints of any violation of the provisions of this article by a member of the executive branch of state government; (c) Make written recommendations to the governor concerning his requests; and (d) Review appeals brought before the board of ethics pursuant to section 24-30-1003(4). ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  7  of  12       § 24-18-113. Board of Ethics for the General Assembly - Created - Duties (1) (a) There is hereby created a board of ethics for the general assembly. The board shall consist of four legislative members. One member shall be appointed by and serve at the pleasure of the majority leader of the house of representatives; one member shall be appointed by and serve at the pleasure of the majority leader of the senate; one member shall be appointed by and serve at the pleasure of the minority leader of the house of representatives; and one member shall be appointed by and serve at the pleasure of the minority leader of the senate. (b) The terms of the members appointed by the majority and minority leaders of the house of representatives and the senate and who are serving on March 22, 2007, shall be extended to and expire on or shall terminate on the convening date of the first regular session of the sixty-seventh general assembly. As soon as practicable after such convening date, the majority and minority leaders of the house of representatives and the senate shall each appoint or reappoint members in the same manner as provided in paragraph (a) of this subsection (1). Thereafter, the terms of members appointed or reappointed by the majority and minority leaders of the house of representatives and the senate shall expire on the convening date of the first regular session of each general assembly, and all subsequent appointments and reappointments by the majority and minority leaders of the house of representatives and the senate shall be made as soon as practicable after such convening date. The person making the original appointment or reappointment shall fill any vacancy by appointment for the remainder of an unexpired term. Members appointed or reappointed by the majority and minority leaders of the house of representatives and the senate shall continue in office until the member's successor is appointed. (2) The board of ethics for the general assembly shall, upon written request of a member of the general assembly, issue advisory opinions concerning issues relating to the requesting member's conduct and the provisions of this article. Part 2. PROSCRIBED ACTS RELATED TO CONTRACTS AND CLAIMS § 24-18-201. Interests in contracts (1) Members of the general assembly, public officers, local government officials, or employees shall not be interested in any contract made by them in their official capacity or by any body, agency, or board of which they are members or employees. A former employee may not, within six months following the termination of his employment, contract or be employed by an employer who contracts with a state agency or any local government involving matters with which he was directly involved during his employment. For purposes of this section, the term: (a) "Be interested in" does not include holding a minority interest in a corporation. (b) "Contract" does not include: (I) Contracts awarded to the lowest responsible bidder based on competitive bidding procedures; (II) Merchandise sold to the highest bidder at public auctions; (III) Investments or deposits in financial institutions which are in the business of loaning or receiving moneys; (IV) A contract with an interested party if, ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  8  of  12       because of geographic restrictions, a local government could not otherwise reasonably afford itself of the subject of the contract. It shall be presumed that a local government could not otherwise reasonably afford itself of the subject of a contract if the additional cost to the local government is greater than ten percent of a contract with an interested party or if the contract is for services that must be performed within a limited time period and no other contractor can provide those services within that time period. (V) A contract with respect to which any member of the general assembly, public officer, local government official, or employee has disclosed a personal interest and has not voted thereon or with respect to which any member of the governing body of a local government has voted thereon in accordance with section 24-18-109(3)(b) or 31-4-404(3), C.R.S. Any such disclosure shall be made: To the governing body, for local government officials and employees; in accordance with the rules of the house of representatives and the senate, for members of the general assembly; and to the secretary of state, for all others. ANNOTATION Local government officials should not be interested in any contract made by them in their official capacity and an official who has a private interest in any matter proposed or pending before the governing body should disclose the interest to the governing body and not vote on it; however, this section specifically exempts any contract awarded to the lowest responsible bidder based on competitive bidding procedures. Independent Ethics Commission Advisory Opinion 12-01. It would not pose a violation of this section for a retired community college accounting professor to enter into a contract with the college since he was not involved in the accounting procedures at the college when he was employed there and the proposed contract does not involve a matter in which he was directly involved as a professor. Independent Ethics Commission Advisory Opinion 10-08. It would not violate this section for a former employee of the department of health care policy and financing to enter into a contract with a consulting company to work on project management issues relating to a major health care provider, where the state agency indicated there is no conflict. Independent Ethics Commission Letter Ruling 10-02. Because employee's duties as area maintenance manager for the governor's office of information technology (OIT) have been reassigned and he no longer has responsibilities or duties over the site in question and the employee has made a full disclosure to his supervisors and there is no information that he took advantage of information unavailable to others not in government employment, the employee is not in violation of this section if he leases properties owned by a limited liability corporation controlled by his wife to the OIT. Independent Ethics Commission Advisory Opinion 13-05. A state agency is in the best position to determine whether a state employee's future employment outside of state government poses a conflict of interest given the agency's superior understanding of the duties performed by the state employee involved. Independent Ethics Commission Advisory Opinion 13-13. § 24-18-202. Interest in sales or purchases Public officers and local government officials shall not be purchasers at any sale or vendors ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  9  of  12       at any purchase made by them in their official capacity. § 24-18-203. Voidable contracts Every contract made in violation of any of the provisions of section 24-18-201 or 24-18-202 shall be voidable at the instance of any party to the contract except the officer interested therein. § 24-18-204. Dealings in warrants and other claims prohibited State officers, county officers, city and county officers, city officers, and town officers, as well as all other local government officials, and their deputies and clerks, are prohibited from purchasing or selling or in any manner receiving to their own use or benefit or to the use or benefit of any person or persons whatever any state, county, city and county, city, or town warrants, scrip, orders, demands, claims, or other evidences of indebtedness against the state or any county, city and county, city, or town thereof except evidences of indebtedness issued to or held by them for services rendered as such officer, deputy, or clerk, and evidences of the funded indebtedness of such state, county, city and county, city, or town. § 24-18-205. Settlements to be withheld on affidavit (1) Every officer charged with the disbursement of public moneys who is informed by affidavit establishing probable cause that any officer whose account is about to be settled, audited, or paid by him has violated any of the provisions of this part 2 shall suspend such settlement or payment and cause such officer to be prosecuted for such violation by the district attorney of the appropriate jurisdiction. (2) If there is judgment for the defendant upon such prosecution, the proper officer may proceed to settle, audit, or pay such account as if no such affidavit had been filed. § 24-18-206. Penalty A person who knowingly commits an act proscribed in this part 2 commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501 , C.R.S. In addition to the penalties provided in section 18-1.3-501 , C.R.S., the court may impose a fine of no more than twice the amount of the benefit the person obtained or was attempting to obtain in violating a provision of this part 2. Article 18.5. Independent Ethics Commission §24-18.5-101. Independent ethics commission - establishment - membership - subpoena power - definitions (1) As used in this article, unless the context otherwise requires: (a) "Article XXIX" means article XXIX of the state constitution approved by the voters at the 2006 general election. (b) "Commission" means the independent ethics commission created in section 5 (1) of article XXIX. (2)(a) The independent ethics commission, originally established in the office of administrative courts in the department of personnel created in section 24-30-1001 , is hereby transferred to and established in the judicial department as an independent agency, effective on June 10, 2010. The commission shall consist of five members. The appointing authorities for the commission members, the order of appointment of such members, and other requirements pertaining to commission membership shall be as specified in section 5 (2) of article XXIX. Subject to the requirements of paragraph (b) of this ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  10  of  12     subsection (2), the member appointed by the senate pursuant to section 5 (2) (a) (I) of article XXIX shall be appointed by the president of the senate with the approval of two-thirds of the members elected to the senate. Subject to the requirements of paragraph (b) of this subsection (2), the member appointed by the house of representatives pursuant to section 5 (2) (a) (II) of article XXIX shall be appointed by the speaker of the house of representatives with the approval of two-thirds of the members elected to the house of representatives. (b) In connection with the appointment of commission members, no more than two members appointed to the commission shall be affiliated with the same political party. (c) The commission members shall be appointed to four-year terms; except that the first member appointed by the senate and the first member appointed by the governor shall initially serve two-year terms. Appointments to the commission by the senate and the house of representatives shall be made no later than May 1, 2007, and the initial terms of commission members shall commence July 1, 2007. (3) Commission members shall serve without compensation; except that commission members shall be reimbursed for the actual and necessary expenses that they incur in carrying out their duties and responsibilities as commission members. (4) In accordance with the provisions of section 5 of article XXIX, the powers and duties of the commission shall be as follows: (a) To hear complaints, issue findings, and assess penalties on ethics issues arising under article XXIX and other standards of conduct and reporting requirements as provided by law; and (b)(I) To issue advisory opinions and letter rulings on ethics issues arising under article XXIX and other standards of conduct and reporting requirements as provided by law. (II) The commission shall prepare a response to a request for an advisory opinion from a public officer, member of the general assembly, local government official, or government employee as to whether particular action by such officer, member, official, or employee satisfies the requirements of article XXIX as soon as practicable after the request is made to the commission. (III) Any person who is not a public officer, member of the general assembly, local government official, or government employee may submit a request to the commission for a letter ruling concerning whether potential conduct of the person making the request satisfies the requirements of article XXIX. In such case, the commission shall issue a response to the request as soon as practicable. (IV) Each advisory opinion or letter ruling, as applicable, issued by the commission shall be a public document and shall be promptly posted on a web site that shall be maintained by the commission; except that, in the case of a letter ruling, the commission shall redact the name of the person requesting the ruling or other identifying information before it is posted on the web site. (5) (a) Subject to the provisions of paragraph (c) of this subsection (5), the commission shall dismiss as frivolous any complaint filed under article XXIX that fails to allege that a public officer, member of the general assembly, local government official, or government employee has accepted or received any gift or other thing of value for private gain or personal ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  11  of  12     financial gain. (b) For purposes of this subsection (5): (I) "Official act" shall have the same meaning as set forth in section 24-18-102(7) . (II) "Private gain" or "personal financial gain" means any money, forbearance, forgiveness of indebtedness, gift, or other thing of value given or offered by a person seeking to influence an official act that is performed in the course and scope of the public duties of a public officer, member of the general assembly, local government official, or government employee. (c) This subsection (5) is repealed if the Colorado supreme court holds, in response to one or more written questions submitted by the general assembly pursuant to section 3 of article VI of the state constitution, that the standard of accepting or receiving "any gift or other thing of value for private gain or personal financial gain" specified in paragraph (a) of this subsection (5) is unconstitutional in applying section 3 (1) or (2) of article XXIX. (6) Pursuant to the provisions of section 5 (1) of article XXIX, the commission shall adopt reasonable rules as may be necessary for the purpose of administering and enforcing the provisions of article XXIX and any other standards of conduct and reporting requirements as provided by law. Any rules shall be promulgated in accordance with the requirements of article 4 of this title. (7) Subject to available appropriations, the commission may employ such staff as it deems necessary to enable it to carry out its functions in accordance with the requirements of this article and article XXIX. (8) No subpoena requiring the attendance of a witness or the production of documents shall be issued by the commission unless a motion to issue any such subpoena has been made by one member of the commission and approved by no fewer than four members of the commission. (9) Any final action of the commission concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver. (10) Any state employee on the staff of the commission as of June 10, 2010, shall be transferred with the agency and shall become an employee of the agency. ANNOTATION Law reviews. For article, "The Practitioner's Guide to Amendment 41 and the Colorado Independent Ethics Commission", see 38 Colo. Law. 37 (October 2009). As personification of state, governor proper party defendant in suit contesting constitutionality of article XXIX (amendment 41) at time of its filing. The evaluation of whether a person or entity is a proper party in a lawsuit must be determined in light of relevant facts and circumstances. Here, there was no alternative entity for plaintiffs to sue in order to challenge article XXIX. Colorado has long recognized the practice of naming the governor, in his role as state's chief executive, as proper defendant in cases where a party seeks to "enjoin or mandate enforcement of a statute, regulation, ordinance, or policy". The only appropriate state agent for litigation purposes was the governor. Prior to creation of the independent ethics commission (commission), the governor was appropriate party defendant in a ATTACHMENT B: STATE STANDARDS OF CONDUCT     STATE  STANDARDS  OF  CONDUCT       Page  12  of  12     constitutional challenge. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). Considering both language of article XXIX and voters' intent in initiating it, article XXIX is self-executing in that it does not require any further action by the general assembly to be effective. A constitutional provision is self-executing when the provision appears to take immediate effect and no further action by the general assembly is required to implement the right given. Here, article XXIX can take effect without any further action by the general assembly. Its provisions do not merely lay out bare principles without any means of implementation; rather, the article has a built-in mechanism for operation. It provides for the creation of the commission that, once in existence, will be independent of the general assembly and will promulgate necessary rules to implement and enforce gift bans and other ethical standards. There is no indication that voters intended to require further legislative action with respect to article XXIX. To the contrary, voters used initiative process to avoid possibility that general assembly would prevent them from establishing commission that would enforce gift bans against general assembly's members as well as other government employees. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). Because preliminary injunction issued before commission came into existence and before it had opportunity to act in furtherance of this article, plaintiffs failed to present a ripe as-applied constitutional challenge. Relief plaintiffs seek is only available in a successful facial challenge, not in an as-applied challenge. In order for plaintiffs to obtain a declaration that article is unconstitutional as applied, there must be an actual application or at least a reasonable possibility of enforcement or threat of enforcement. As of the time of suit, the commission was not yet in existence, and it had not yet acted to enforce the gift bans. No enforcement or threat of enforcement of the gift bans had occurred. Therefore, concerns expressed by plaintiffs were merely speculative interpretations of what might occur once commission is operative. As such, district court did not have jurisdiction to grant preliminary injunction. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). ATTACHMENT B: STATE STANDARDS OF CONDUCT TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Virginia C. Egger, Town Manager Date: July 21, 2015 Agenda Topic: Ordinance 15-08 – Establishing Administrative Department BACKGROUND As set forth in Section 8.8 of the Avon Home Rule Charter, the Town Manager shall recommend to Council any proposal to establish, consolidate or abolish administrative departments. Upon recommendation, the Council will consider action through two readings of an ordinance. At this time, I am recommending the following changes to the Avon administrative departments. Respective Ordinance 15-08 is attached for your consideration. ADMINISTRATIVE DEPARTMENTS 1. Human Resources Department – My recommendation, through your support and leadership, is to establish a Human Resources Department. The Town’s HR services, since April of 2014, have been provided as a division of the Finance Department, with Assistant Town Manager serving as the HR director. In a thorough review of how best to provide a top notch and comprehensive HR program for our staff, and in discussions with Town Council, the benefit of a HR Department has clearly been identified. This director level program is warranted to meet all of the needs of the Town including development of HR policies, overseeing of the employment process, development and administration of employee compensation, personnel administration, professional development, and team-centered management support to build a strong culture within the Town’s workforce. 2. Recreation Department - On June 1, 2015, the parks program of the Town was merged with the road and bridge program under the Public Works Department. Parks no longer reports to, or is administered under, the former Parks and Recreation Department. This change reflects the stand alone Recreation services now in place. 3. General Government Department - Formerly Administrative Services, the new title provides consistency with the budget, and the staff and functions accounted for in this important document. 4. Fleet Department – Since February, 2013, Fleet and Transportation have functioned and have been recognized internally as department level services. Each service prior to that time was a division of Public Works. The recommendation to formally set a Fleet Department reflects the successful operation of this standalone department for the past two plus years. ACTION If Council is supportive of the recommendations, the requested action is to pass Ordinance 15-08 on first reading. If passed, a public hearing for second reading will be set for August 25, 2015. ATTACHMENT Ordinance 15-08 ORDINANCE 15-08 July 28, 2015 Town Council Meeting Page 1 of 1 TOWN OF AVON, COLORADO ORDINANCE NO. 15-08 SERIES OF 2015 AN ORDINANCE AMENDING SECTION 2.02.010 OF THE TOWN OF AVON MUNICIPAL CODE TO AMENDMENT AND ESTABLISH ADMINISTRATIVE DEPARTMENTS WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; WHEREAS, Section 8.8 of the Avon Home Rule Charter states that the Council shall approve the administrative departments by Ordinance upon recommendation of the Town Manager and Section 2.02.010 of the Avon Municipal Code establishes the administrative departments of the Town; WHEREAS, the Town Manager recommends the certain amendments to the administrative departments of the Town as set forth in this Ordinance; WHEREAS, the Town Council finds that the amendments to the administrative departments will provide for a more efficient provision of municipal services to the Avon community; WHEREAS, approval of this Ordinance on First Reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on First Reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance; NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Section 2.02.010 Amended. Section 2.02.010 of the Avon Municipal Code is hereby amended by repealing and re-enacting such section in its entirety to read as follows: “2.02.010 Departments Enumerated. The administrative departments of the Town shall be as follows: (a) Community Development (b) Engineering Ord 15-08 Amending Administrative Departments July 28, 2015 Page 1 of 3 (c) Finance (d) Fleet (e) General Government (f) Human Resources (g) Police (h) Public Works (i) Recreation (j) Transportation” Section 3. Section 2.02.030 Amended. Section 2.02.030 of the Avon Municipal Code is hereby amended by adding a sentence to read: “The functions of each department shall be set forth, defined and described in the annual budget adopted by Council each year.” Section 4. Codification Amendments. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 5. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 6. Effective Date. This Ordinance shall take effect thirty (30) days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 7. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Ord 15-08 Amending Administrative Departments July 28, 2015 Page 2 of 3 Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on July 28, 2015 and setting such public hearing for August 25, 2015 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk ADOPTED ON SECOND AND FINAL READING on August 25, 2015. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk APPROVED AS TO FORM: ____________________________ Eric J. Heil, Town Attorney Ord 15-08 Amending Administrative Departments July 28, 2015 Page 3 of 3 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Virginia C. Egger, Town Manager Date: July 22, 2015 Agenda Topic: CML Policy Committee Appointments BACKGROUND The Town of Avon was recently noticed by the Colorado Municipal League (CML) that it is time to select representatives from the Town to serve on the 2015–2016 CML Policy Committee. Each CML member municipality is entitled to a voting representative, and an alternate member, on the committee. Current appointees are Councilor Matt Gennett, representative; and, Mayor Pro Tem Jake Wolf, alternate. Please find attached the responsibilities of the appointees. The meeting schedule has been set, with all meetings taking place in Denver at 10:00 a.m.  Friday, October 16  Friday, December 4  Friday, February 12 ACTION REQUESTED Motion to appoint a representative and an alternate CML POLICY COMMITTEE APPOINTMENTS July 28, 2015 Town Council Meeting Page 1 of 1 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Virginia C. Egger, Town Manager Date: July 21, 2015 Agenda Topic: Alternate Member Appointment to the Eagle County Regional Transportation Authority BACKGROUND The Eagle County Regional Transportation Authority (“Authority”), as a regional transit service provider, has established a collaborative role for its municipal and private sector partners in the visioning and policy setting functions of the multi-modal transportation systems in Eagle County. In addition, the Authority makes recommendations to the Board of County Commissioners in regards to ECO Trails programs and uses of funds. The Authority’s updated draft Bylaws are attached. The Authority meets on a quarterly basis, with meetings generally held at 9:00 a.m., on the 3rd Wednesday, in the months of February, May, August and November, at the Eagle County Courthouse. ACTION REQUESTED The Authority’s Bylaws, current and proposed, set the membership of the organization, in Article II, as follows: Section 1. Members. The Authority shall have eight (8) members who serve at the pleasure of the Commissioners. The Commissioners shall approve one member to the Authority Board representing the Towns of Avon, Eagle, Gypsum, Minturn, Red Cliff and Vail; one member representing the entity of Eagle County and one member representing the entity Beaver Creek Resort Company. Appointment(s) to the Authority shall be for three (3) year terms, and shall expire at the end of the three year term. Section 2. Alternate Members. At the time of appointing Board Members the Commissioners shall also approve one Alternate member to represent each of the entities listed above. Alternate(s) will have the rights and duties of the regular Member(s) in the event the regular Member is absent or is otherwise unable to act in such capacity. Mayor Pro Tem Jake Wolf was appointed to the member position in November of 2014, but no one was appointed as the Alternate member. Action before Council is to nominate and vote for an Alternate member. ATTACHMENT ECRTA DRAFT BYLAWS ECRTA ALTERNATE APPOINTMENT July 28, 2015 Town Council Meeting Page 1 of 1 ATTACHMENT DRAFT BYLAWS of the EAGLE COUNTY REGIONAL TRANSPORTATION AUTHORITY PURPOSE The Eagle County Regional Transportation Authority (“Authority”) was created as a county transportation authority pursuant to C.R.S. §29-2-103.5. As such, the day-to-day oversight of operations and personnel is a county function. However, as a regional service provider, the Authority benefits from the collaboration of its municipal and private sector partners in the visioning and policy setting functions of the multi-modal transportation systems in Eagle County. These bylaws are intended to control the internal structure and operations of the Authority Board. ARTICLE I OFFICES Section 1. Principal Office. The principal office of the Authority (“the Authority”) shall be located in Eagle County, Colorado, as the Authority or the Eagle County Board of County Commissioners (the “Commissioners”) may require from time to time. Section 2. Registered Office. The Authority shall have and continuously maintain in the Eagle County, Colorado a registered office, and a registered agent whose office is identical with such registered office, as required by Colorado law. The registered office may be, but need not be, identical with the principal offices in the State of Colorado. The address registered office may be changed from time to time by the Commissioners. ARTICLE II MEMBERS Section 1. Members. The Authority shall have eight (8) members who serve at the pleasure of the Commissioners. The Commissioners shall approve one member to the Authority Board representing the Towns of Avon, Eagle, Gypsum, Minturn, Red Cliff and Vail; one member representing the entity of Eagle County and one member representing the entity Beaver Creek Resort Company. Appointment(s) to the Authority shall be for three (3) year terms, and shall expire at the end of the three year term. Section 2. Alternate Members. At the time of appointing Board Members the Commissioners shall also approve one Alternate member to represent each of the entities listed above. Alternate(s) will have the rights and duties of the regular Member(s) in the event the regular Member is absent or is otherwise unable to act in such capacity. Section 3. Member Participation. Only those appointed members and alternates may vote and participate in deliberations of the Authority. Non-appointed individuals and members of the general public may participate at those times designated for public input by the Authority Chair. Section 4. Vacancies. A Member’s or Alternate’s office shall become vacant whenever any member dies, becomes incapacitated, resigns from the Authority or is removed from the Authority by the Commissioners on its own initiative through discussion with entity represented or at the request of the represented entity. In the event a vacancy shall occur, the Authority shall request that the Town or Entity nominate and request that the Commissioners approve a person to fill such vacancy. If the Town or Entity fails to make a nomination within sixty (60) days of such request, the Commission may appoint a person, from the said entity, to fill such vacancy without such nomination. ARTICLE III MEETINGS Section 1. Open Meetings. All meetings of the Authority are public meetings and are subject to all open meetings laws, or any such amended or successor laws or resolutions with respect to notice of public meetings. Except as qualified by these bylaws, all procedural rules relating to the conduct of Authority meetings shall be adopted by the Authority or its Chair. Section 2. Place of Meetings. The Authority may designate any place, either within or without Eagle County, Colorado, as the place of meeting for any meeting of the Authority. If no designation is made, then the place of meeting shall be in the Eagle County Room at 500 Broadway, Eagle, Colorado. Section 3. Regular Meetings. The Authority shall meet quarterly on a schedule to be determined by the Authority. If meetings are to be rescheduled or cancelled, notice will be posted online at www.eaglecounty.us and members will be notified via email seven days prior to the scheduled meeting. When an emergency exists, as determined by the ECRTA Board Chairman, the seven day notice shall not be required. In addition to online posting, meetings notices and available agendas will be posted twenty-four hours prior at the location designated by the Board of County Commissioners for the posting of County meeting notices. Section 4. Special Meetings. Special meetings may be called at the request of the Chairman, or any two (2) members of the Authority, with notice as set forth above. When an emergency exists, such notice may be waived as provided by law. Section 5. Quorum. Except as otherwise provided in these Bylaws, the presence in person of members entitled to vote, with over fifty percent of the votes of the members shall constitute a quorum. If a quorum is present, unless otherwise provided by law, the affirmative vote of a majority of the Members at the meeting entitled to vote on the subject matter shall be the act of the Authority. ARTICLE IV POWERS AND DUTIES 1. To make recommendations to the Board of County Commissioners regarding regional transportation in regards to ECO Transit and ECO Trails in an advisory capacity. 2. To make recommendations to the Board of County Commissioners regarding long and short-term plans and strategies for the provision of regional mass transportation in Eagle County and surrounding counties as deemed appropriate using the revenues of the mass transportation sales tax and other revenue sources as may become available. Such plans may include, but are not limited to bus, bike paths, bikeways, rail, fixed guideways, rapid transit, and other means of conveyance, excluding air as provided for in the transportation sales tax ballot issue of 1995. 3. To make periodic and as needed recommendations to the Board of County Commissioners regarding any proposed revisions to the ECRTA mission, vision, and the ECRTA Board roles and responsibilities. 4. To make recommendations to the Board of County Commissioners regarding the modes of mass transportation services to be provided, methods of providing such services, and the appropriate procedure for implementing the mass transportation plan(s). 5. The Authority shall review proposed budgets and recommendations to the Board of County Commissioners in regards to the proposed budgets. 6. To make recommendations to the Board of County Commissioners regarding the seasonal operating plans within budget for the mass transportation system, for winter (November through March) and summer (April through October) seasons including discussions on service hours and schedule prioritization. 7. To provide community input both to the Authority and respective local boards and councils on regional transportation matters. 8. To approve all appointments to the citizen’s Eagle Valley Trails Committee. 9. To provide for such committees as in its judgment it deems appropriate, provided that any recommendation of a committee shall come before the Authority and receive its recommendation before it is made to Eagle County. 10. To do any and all things necessary to accomplish its duties as prescribed by the Board of County Commissioners. ARTICLE V OFFICERS Section 1. Chairperson. At the regular meeting in May of each year, the Authority shall elect a chairperson and vice-chair. The Chairperson shall preside at all meetings of the Authority, and shall exercise and perform such other powers and duties as may be assigned to him from time to time by the Board of County Commissioners, the Authority or these Bylaws. Section 2. Vice-Chair. The Vice-Chair shall, in the absence of the Chairman, preside at all meetings of the Authority and shall exercise and perform such other powers and duties as may be assigned to from time to time by the Board of County Commissioners, the Authority or these Bylaws. Section 3. Director. The Director of Transportation shall have general supervision, direction and control of the affairs and business of the Authority, subject to the powers and duties as may be assigned to him or her from time to time by the Board of County Commissioners or the County Manager. The Director shall be an ex-officio member of all standing committees of the Authority. Section 4. Secretary. The Secretary shall keep at the principal office of the Authority a book of minutes of all meetings of the Authority and be employed full-time by Eagle County. The Secretary shall also see that all notices are fully given in accordance with the provisions of these Bylaws or as required by law; be custodian of the Authority records and of the seal of the Authority and see that the seal of the Authority is affixed to all documents, the execution of which on behalf of the Authority under its seal is duly authorized in accordance with the provisions of these Bylaws; keep a register of the mailing address of each Member, which shall be furnished to the Secretary by such Director; and in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned by the Authority Board. ARTICLE VI COMMITTEES Section 1. Committees. Committees, may be appointed in such manner as may be designated by a resolution adopted by a majority of the Board present at a meeting at which a quorum is present. The qualifications of members, terms of office, and manner of acting of such committees shall be as specified in the resolution creating such committee, or, if not so specified, shall be in accordance with operating procedures recommended by the Committee and adopted by the Authority. Meetings of all committees shall be held in compliance with open meeting laws of the state of Colorado and notice shall be given as set forth herein. Section 2. Quorum. At any meetings of the Committees, a majority of the committee’s members then in office shall constitute a quorum for the transaction of business. Section 3. Minutes. The Committees shall keep regular minutes of their proceedings and report the same to the Authority. Section 4. Trails Committee. There shall be an Eagle Valley Trails Committee consisting of up to 18 Eagle County residents selected by the Authority. There shall be 4 Voting members from each commissioner district for a maximum of 12; and 1 Alternate member shall be appointed for each district for a maximum of 3; and 3 total At-Large members from any district. No members of the Eagle Valley Trails Committee shall reside in the Roaring Fork or Fryingpan Valleys (Precinct 7 & 8). Members of the Trails Committee shall be appointed for terms of two years and shall serve at the will of the Authority making recommendations to the Authority in an advisory capacity. The Eagle Valley Trails Committee primary function is to: 1. Consider requests for expenditures on trails projects and make funding recommendations to the Authority, who shall in turn make funding recommendations to the Commissioners as part of their budgeting process; and 2. Make other planning, construction, budget and annual work plan recommendations to the Authority, who shall in turn make recommendations to the Commissioners, as necessary to accomplish the regional transportation goals of the mass transportation tax ballot language. ARTICLE VII MISCELLANEOUS Section 1. Conflict of Interest. The Authority members are precluded from taking actions on matters within their local jurisdictions if currently serving as counsel, consultant, representative or agent of their local jurisdictions. For purposes of this section, Authority members shall be considered counsel, consultant, representative or agent if they are a council member, town manager, or serve in another leadership position with general oversight or decision-making authority of such local jurisdiction. If they hold such positions they shall abstain from voting on funding or other financial decisions related to the jurisdiction they directly serve. Other employment with such local jurisdictions shall not require abstention unless committee members feel their positions preclude them from making an objective and unbiased decision. Section 2. Execution of Documents. The Authority or any designated officer, may be authorized from time to time by the Board of County Commissioners, to execute a budgeted instrument in the name of and on behalf of the Authority, and such authority may be general or confined to specific instances; and, unless so authorized by the Board of County Commissioners, no officer, agent or other person shall have any power or authority to bind Eagle County or the Authority by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount. Section 3. Books and Records. The Secretary shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of its meetings and committees. Section 4. Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of construction, and definitions contained in the Colorado law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neutral, the singular number includes the plural and the plural number includes the singular, and the term “person” includes a corporation as well as a natural person. Section 5. Seal. The Authority shall provide a corporate seal, which shall be in the form of a circle and shall have inscribed thereon the name of the Authority, and the word “Seal”. TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Scott Wright, Asst. Town Manager Date: July 22, 2015 Topic: Appointment of 2 Town Council Members for Auditor Selection Committee In August, the Finance Department will be sending out RFPs to qualified CPA firms to solicit proposals for the Town’s audit. The Town has used McMahan and Associates for the past 6 years and it is normal to go through the RFP process at this time in order to compare costs and services offered. It is also not usual to select the incumbent firm due to their familiarity with the Town and its financial processes and procedures. That being said, it is common to have one or two Town Council members be involved in the review and selection committee. The time involvement is minimal – it will involve reviewing firm proposals and grading those proposals based on predetermined criteria. There may also be auditor presentations, if necessary. Please let me know of your decision. I will then put together a timeline and finalize the RFPs for distribution and placement on the Town’s website. Scott TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Preston Neill, Executive Assistant to the Town Manager Date: July 28, 2015 Agenda Topic: Town Code Requirement for Gift Reporting and Disclosure Report The Town Code of Ethics requires disclosure of any gifts received which exceed $50 in value. “Gifts” includes any present, or offer of future, individual gift, favor, loan, service or thing of value in excess of $50.00 and such gift is offered due to such person’s status as a Town Officer then such Officer shall report such gift and the estimated value to the Town Clerk. The Avon Municipal Code requires the Town Clerk to disclose through a report any gifts offered to any Town Officer per Section 2.30.170 of the Town Code of Ethics. Please find attached the Town Clerk Gift Reporting Disclosure Report for July 2015, which lists 1) 2015 Beaver Creek Rodeo Series VIP Tickets and Parking Passes, and 2) 2015 Flavors of Colorado Farm to Chef’s Table Dinner Tickets Town Council is not required to take any action; however, any Town Council member may request Council consideration of a report gift to determine whether such gift constitutes a conflict of interest. Town of Avon Town Clerk Disclosure Report In accordance with §7, Article XXIX of the Colorado Constitution and Section 2.30.170, Chapter 2.30 Avon Town Code of Ethics of the Avon Municipal Code, and any other applicable Avon Home Rule Charter provision, ordinance or resolution adopted by the Town of Avon, I, Debbie Hoppe, Town Clerk for Town of Avon, submit the following list of such gifts reported to be received by officers of the Town of Avon: 1. 2015 Beaver Creek Rodeo Series VIP Tickets and Parking Passes – Two (2) VIP tickets and a parking pass were received for each member of the Town Council and the Town Manager, for a total of sixteen (16) VIP tickets and eight (8) parking passes. In addition, the Town received an additional eight (8) VIP tickets and four (4) parking passes for use among Town staff. Each ticket is valued at $175.00. 2. 2015 Flavors of Colorado Farm to Chef’s Table Dinner Tickets – Each member of the Town Council received two (2) tickets to the Farm to Chef’s Table Dinner at the 2015 Flavors of Colorado event. In addition, the Town Manager and the Director of Festivals & Special Events each received one (1) ticket. Each ticket is valued at $100.00. Submitted to the Avon Town Council on July 28, 2015. _________________________________ Debbie Hoppe, Town Clerk FISCAL YEAR 2015 FINANCIAL REPORT July 28, 2015 ______________________________________________________________________________________ 1. Fiscal Year 2015 Financial Report Cover Memo 2. Sales and Accommodations Tax Reports - May 2015 3. Real Estate Transfer Tax Report and Monthly Detail - June 2015 4. General Fund Year-To-Date Expenditures - June 2015 5. Fleet Maintenance Fund Year-To Date Expenditures - June 2015 6. Transit Fund Year-To Date Expenditures - June 2015 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Kelly Huitt, Budget Analyst Date: July 15, 2015 Re: Fiscal Year 2015 Financial Report – May / June Revenues: SALES TAX • Sales tax revenue for the month of May is up $13,508 or 3.97% compared to May 2014, and up 4.43% compared to the budget. This increase includes $12,833 from new businesses, and after adjusting for new business growth, .20% is the gain in revenue from existing business for the month. Year-to-date sales tax from new businesses makes up 48.91% of total year over year growth. May 2015 sales tax revenue is the highest ever for the month of May. • May collections are up compared to 2014 for most industries. Service Related businesses are up 48.12%, Sporting Goods Rental/Retail is up 20.02%, and Accommodations increased 27.72%, while Home/Garden and Other businesses are down -9.84% and -17.51% respectively. The large year over year increase in Service Related business is due to the wide variance in tax returns submitted by interior and architectural design firms. The Other business category is largely influenced by mechanical and construction contractors. 2014/2015 Growth Growth Variance Existing Business New Business Home/Garden (3,924.50)-18.79%8.96% Grocery, Specialty, Health 6,091.33 5.63%0.79% Liquor Stores 103.39 0.32%0.33% Sporting Goods Retail/Rental 4,244.24 12.81%7.21% Miscellaneous Retail (1,551.19)-10.10%2.01% Accommodations 6,173.30 26.91%0.82% Restaurants/Bars 7,231.98 11.20%0.01% Other (9,310.56)-27.49%9.98% Service Related 4,449.84 36.79%11.32% Total $13,507.83 0.20%3.77% Category Sales Tax Monthly Totals ACCOMMODATIONS TAX • Accommodations tax revenue for May is up $6,041, or 27.50% compared to May 2014, and up 28.22% compared to the monthly budget. • May accommodations tax collections are up for all lodging types: Vacation rentals increased 93.04%, Hotels went up 28.31% and Timeshares are up 15.63% for the month. REAL ESTATE TRANSFER TAX • 2015 real estate transfer tax collections for June equal $294,434.84. This is a 33.83% increase from June 2014, and $83,849 over the estimated monthly budget. • Year-to-date real estate transfer tax collections through June total 25.11% of the total 2015 estimated revenue. Expenditures: • General Fund expenditures through June 2015 total 50.86% of the revised budget totals. These expenditures include the annual Cirsa insurance payment as well as payments for several of the community grants. • Fleet expenditures to date are at 53.22% of the total budget. These costs include stock parts and several blanket purchase orders, which encumber funds for the year for ongoing expenditures such as regularly purchased shop supplies and monthly copier charges. • Transit funds are 46.72% expended compared to the annual budget. This includes encumbered funds for the purchase of one of two buses scheduled for acquisition in 2015. TOWN OF AVON SALES TAX 2015 Actual vs. Budget Budget YTD Collections Budget % of change 2010 2011 2012 2013 2014 2015 2015 Variance from 2014 January 515,009.18$ 511,040.76$ 519,784.89$ 677,943.78$ 638,863.27$ 636,040$ 765,195.68$ 129,155.19$ 19.77% February 504,752.59 532,903.25 533,546.48 636,702.27 673,722.03 670,745 788,999.06 118,253.83 17.11% March 620,937.20 665,532.70 643,910.29 720,267.31 793,301.96 789,797 875,499.53 85,702.73 10.36% April 309,937.09 305,269.73 304,220.84 307,407.13 381,839.56 380,152 403,560.42 23,407.99 5.69% May 242,830.16 236,424.93 270,082.79 309,938.72 340,332.28 338,829 353,840.11 15,011.57 3.97% June 377,920.42 406,828.27 430,588.57 490,329.18 538,517.31 536,138 July 421,975.98 452,873.44 472,215.40 537,479.66 570,959.86 568,437 August 361,702.25 419,977.29 455,439.86 504,332.25 547,085.80 544,669 September 359,139.22 391,546.49 424,793.75 475,362.88 546,016.59 543,604 October 288,859.84 299,193.35 341,711.43 356,925.96 417,921.46 416,075 November 284,528.70 301,407.41 336,060.63 362,460.94 397,935.36 396,177 December 818,360.74 921,815.61 852,868.64 981,917.79 1,221,263.98 1,215,868 Total 5,105,953.37$ 5,444,813.23$ 5,585,223.57$ 6,361,067.87$ 7,067,759.46$ 7,036,531$ 3,187,094.80$ 371,531.31$ 12.70% Actual Collections $0 $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 2011 2012 2013 2014 2015 Year Sales Tax Collections for May TOWN OF AVON SALES TAX 2015 Actual vs. Budget $- $500,000 $1,000,000 $1,500,000 $2,000,000 $2,500,000 $3,000,000 $3,500,000 2011 2012 2013 2014 2015 YTD Sales Tax Collections $- $100,000 $200,000 $300,000 $400,000 $500,000 $600,000 $700,000 $800,000 $900,000 Sales Tax Monthly Comparison 2013-2015 2013 2014 2015 TOWN OF AVON ACCOMMODATIONS TAX 2015 Actual vs. Budget Actual Collections Budget YTD Collections Budget % of change 2010 2011 2012 2013 2014 2015 2015 Variance 2014 January 87,938.84$ 85,233.73$ 90,118.88$ 108,508.43$ 129,851.78$ 129,125$ 164,361.04$ 35,236.35$ 26.58% February 99,336.34 114,035.90 106,016.32 137,503.61 150,317.06 149,475 175,056.31 25,580.93 16.46% March 105,518.15 122,145.16 115,043.42 153,208.80 168,597.39 167,653 183,650.29 15,996.94 8.93% April 26,496.88 26,214.58 20,786.24 26,494.49 31,626.02 31,449 34,825.13 3,376.20 10.12% May 12,425.51 15,152.82 16,664.44 24,527.17 21,961.97 21,839 28,002.56 6,163.56 27.50% June 32,857.68 49,999.66 56,012.17 66,578.91 54,232.23 53,929 July 51,170.82 62,928.07 66,726.73 73,008.92 81,083.01 80,629 August 42,188.56 52,037.55 58,358.93 67,688.07 71,044.33 70,647 September 30,090.34 35,521.81 42,245.24 44,661.37 50,840.16 50,555 October 20,614.06 21,801.56 25,879.51 27,154.53 34,977.59 34,782 November 20,582.47 24,971.33 22,786.42 28,171.04 32,064.02 31,884 December 98,561.90 135,984.00 112,759.02 131,361.43 168,944.85 167,999 Total 627,781.55$ 746,026.17$ 733,397.32$ 888,866.77$ 995,540.41$ 989,966$ 585,895.33$ 86,353.98$ 16.63% - 5,000.00 10,000.00 15,000.00 20,000.00 25,000.00 30,000.00 2011 2012 2013 2014 2015 Accommodations Tax Collections for May Town of Avon Real Estate Transfer Tax 2015 Actual vs. Budget Budget YTD Collections $ change % of change 2010 2011 2012 2013 2014 2015 2015 2014 2014 January 237,133.00$ 57,540.00$ 50,204.00$ 22,535.00$ 85,126.74$ 160,101$ 48,640.40$ (36,486.34)$ -42.86% February 362,719.22 230,705.50 41,750.07 55,872.69 562,219.70 443,386 85,479.08 (476,740.62)-84.80% March 284,243.65 187,099.47 84,760.49 125,927.64 50,375.06 259,114 168,744.22 118,369.16 234.98% April 210,185.30 249,482.30 219,195.80 144,437.80 197,656.36 361,199 125,266.30 (72,390.06)-36.62% May 112,431.30 187,668.62 270,170.12 121,784.12 183,745.60 309,844 237,971.08 54,225.48 29.51% June 66,271.14 49,606.58 169,040.47 90,309.74 220,009.15 210,586 294,434.84 74,425.69 33.83% July 63,509.36 46,707.37 71,057.40 386,434.78 141,051.52 250,748 August 88,823.40 106,785.21 232,505.93 97,579.70 154,032.32 240,477 September 159,861.96 140,876.56 96,389.34 157,010.67 267,886.92 290,820 October 222,575.20 64,005.33 176,889.62 169,839.80 178,044.24 287,044 November 115,654.16 98,057.44 150,549.86 112,491.82 122,582.66 212,036 December 236,117.45 198,448.03 145,134.57 83,382.60 1,598,062.92 799,958 Total 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,567,606.36$ 3,760,793.19$ 3,825,312$ 960,535.92$ (338,596.69)$ -26.06% Budget 3,825,312.00 Variance, Favorable (Unfavorable)(2,864,776.08)$ Actual Collections $- $100,000.00 $200,000.00 $300,000.00 $400,000.00 $500,000.00 $600,000.00 $700,000.00 $800,000.00 $900,000.00 $1,000,000.00 $1,100,000.00 $1,200,000.00 $1,300,000.00 2011 2012 2013 2014 2015 YTD Real Estate Transfer Tax Collections Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget General Government: Legislative: 111 Mayor and Town Council 235,171$ -$ 98,163$ 137,008$ 41.74% 112 Boards and Commissions 15,299 - 6,169 9,130 40.32% 113 Town Attorney 155,000 80,448 76,495 (1,943) 101.25% 115 Town Clerk 124,747 12,406 55,545 56,796 54.47% Total Legislative 530,217 92,854 236,372 200,991 62.09% Judicial: 121 Municipal Court 100,234 11,163 44,714 44,357 55.75% Executive: 131 Town Manager 353,069 - 162,467 190,602 46.02% 133 Community Relations 125,360 - 47,717 77,643 38.06% Total Executive 478,429 - 210,184 268,245 43.93% Finance Department: 132 Human Resources 220,886 2,158 102,824 115,904 47.53% 141 Finance 774,084 20,109 338,370 415,605 46.31% 143 Information Systems 385,028 23,990 195,531 165,507 57.01% 149 Nondepartmental 389,293 25,157 278,261 85,875 77.94% Total Financial Administration 1,769,291 71,414 914,986 782,891 55.75% Total General Government 2,878,171 175,431 1,406,256 1,296,484 54.95% Community Development: 212 Planning 277,000 6,430 125,189 145,381 47.52% 213 Building Inspection 136,410 - 61,449 74,961 45.05% 214 Economic Development 215,144 1,913 66,740 146,491 31.91% 215 Town Produced Events 623,758 8,619 414,492 200,647 67.83% 216 Signature Event Seed Funding 5,000 - - 5,000 0.00% 217 Community Grants 197,850 - 125,822 72,028 63.59% Total Community Development 1,455,162 16,962 793,692 644,508 55.71% Police Department: 311 Administration 595,431 13,595 276,378 305,458 48.70% 312 Patrol 2,162,311 23,725 960,137 1,178,449 45.50% 313 Investigations 243,481 - 112,986 130,495 46.40% Total Police 3,001,223 37,320 1,349,501 1,614,402 46.21% Department Expenditure Summaries General Fund June 2015 Expenditures to Date Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget Department Expenditure Summaries General Fund June 2015 Expenditures to Date Public Works: 412 Engineering 488,935 658 103,163 385,114 21.23% 413 Roads and Bridges 1,515,799 89,072 696,883 729,844 51.85% 415 Parks 1,029,776 57,355 458,815 513,606 50.12% 418 Buildings & Facilities 1,121,795 179,239 498,516 444,040 60.42% Total Public Works 4,156,305 326,324 1,757,377 2,072,604 50.13% Parks and Recreation: 514 Administration 198,528 6,033 102,631 89,864 54.73% 515 Adult Programs 27,671 40 11,955 15,676 43.35% 516 Aquatics 436,309 6,101 202,952 227,256 47.91% 518 Fitness 138,344 89 94,069 44,186 68.06% 519 Guest Services 252,537 3,291 118,693 130,553 48.30% 521 Youth Programs 121,498 2,687 39,304 79,507 34.56% 522 Cabin 28,241 - 5,878 22,363 20.81% Total Parks and Recreation 1,203,128 18,241 575,482 609,405 49.35% TOTAL OPERATING EXPENDITURES 12,693,989$ 574,278$ 5,882,308$ 6,237,403 50.86% Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES Public Works: 434 Fleet Maintenance 1,698,851$ 54,162$ 849,985$ 794,704$ 53.22% Total Operating Expenditures 1,698,851 54,162 849,985 794,704 53.22% TOTAL EXPENDITURES 1,698,851$ 54,162$ 849,985$ 794,704$ 53.22% Expenditure Summary Fleet Maintenance Enterprise Fund June 2015 Expenditures to Date Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES 431 Transit Administration 244,086$ 2,797$ 117,782$ 123,507$ 49.40% 432 Transit Operations 1,563,787 157,072 611,126 795,589 49.12% 435 Wash Bay 221,246 1,417 57,874 161,955 26.80% Total Operating Expenditures 2,029,119 161,286 786,782 1,081,051 46.72% TOTAL EXPENDITURES 2,029,119$ 161,286$ 786,782$ 1,081,051$ 46.72% Expenditure Summary Transit Enterprise Fund June 2015 Expenditures to Date