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TC Packet 01-12-2016 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JANUARY 12, 2016 AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM REGULAR MEETING BEGINS AT 5:05 PM AVON TOWN HALL, ONE LAKE STREET _____________________________________________________________________________________ MEETING AGENDAS & PACKETS: HTTP://WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, RECREATION CENTER, & LIBRARY. Page 1 AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:00 PM (SEE SEPARATE AGENDA PAGE 2) REGULAR MEETING BEGINS AT 5:05 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. WORK SESSION 4.1. LEGAL OPINION ON AVON SALES TAX ON CONSTRUCTION MATERIALS AND TANGIBLE PERSONAL PROPERTY (TOWN ATTORNEY ERIC HEIL, ASSISTANT TOWN MANAGER SCOTT WRIGHT) 5. ACTION ITEMS 5.1. PUBLIC HEARING SECOND READING OF ORDINANCE NO. 15-12 APPROVING AN EXTENSION OF VESTED RIGHTS FOR THE RED HOUSE PLANNED UNIT DEVELOPMENT (PLANNING DIRECTOR MATT PIELSTICKER) 5.2. FIRST READING OF ORDINANCE NO. 16-01, AN ORDINANCE AMENDING CHAPTER 3.30 UNCLAIMED PROPERTY OF THE AVON MUNICIPAL CODE (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 6. CONSENT AGENDA 6.1. APPROVAL OF COMMUNITY GRANT FUNDING REQUEST FROM SALVATION ARMY (EXECUTIVE ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) 6.2. APPROVAL OF FULLCOURT AGREEMENT FOR ELECTRONIC COURT TICKET PROCESSING (TOWN CLERK DEBBIE HOPPE) 6.3. APPROVAL OF DECEMBER 8, 2015 REGULAR MEETING MINUTES (TOWN CLERK DEBBIE HOPPE) 7. WRITTEN REPORTS 7.1. FINANCIAL REPORT (BUDGET ANALYST KELLY HUITT) 8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 8.1. UPPER EAGLE REGIONAL WATER AUTHORITY (COUNCILOR SARAH SMITH HYMES) 8.2. ECO TRANSIT (MAYOR PRO TEM JAKE WOLF) 8.3.AFFORDABLE HOUSING BOARD (COUNCILOR MEGAN BURCH) 9. MAYOR & COUNCIL COMMENTS 10. ADJOURNMENT TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JANUARY 12, 2016 AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM REGULAR MEETING BEGINS AT 5:05 PM AVON TOWN HALL, ONE LAKE STREET _____________________________________________________________________________________ MEETING AGENDAS & PACKETS: HTTP://WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, RECREATION CENTER, & LIBRARY. Page 2 CALL TO ORDER AND ROLL CALL 1. APPROVAL OF AGENDA 2. PUBLIC COMMENT 3. REPORT OF CHANGES- CORPORATION MASTER FILE 3.1. APPLICANT: WAL-MART STORES, INC. D/B/A WAL-MART SUPERCENTER #1199 LOCATION: 171 YODER AVENUE MANAGER: SAMUEL POTHIER 4. PUBLIC HEARING FOR ART GALLERY PERMIT APPLICATION 4.1. APPLICANT: VAIL VALLEY ART GUILD D/B/A ART IN THE VALLEY GALLERY LOCATION: 240 CHAPEL PLACE # 119 TYPE: ART GALLERY PERMIT MANAGER: KIM FOOS 5. RENEWAL OF LIQUOR LICENSES 5.1. APPLICANT: HCCL, LLC D/B/A BOXCAR LOCATION: 182 AVON ROAD SUITE 208 TYPE: HOTEL AND RESTAURANT LICENSE MANAGER: CARA LUFF 5.2. APPLICANT: BOB’S PLACE, LLC D/B/A BOB’S PLACE LOCATION: 100 W. BEAVER CREEK BLVD TYPE: HOTEL AND RESTAURANT LICENSE MANAGER: ROBERT DOYLE 6. MINUTES FROM DECEMBER 8, 2015 7. ADJOURNMENT TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - LA Minutes 12-8-2015 Page 1 1. CALL TO ORDER AND ROLL CALL Chairman Fancher called the meeting to order at 5:03 p.m. A roll call was taken and Board members present were Sarah Smith Hymes, Scott Prince, Megan Burch, Matt Gennett, Buz Reynolds and Jake Wolf. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager Scott Wright, Police Chief Bob Ticer, 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 TRANSFER OF OWNERSHIP 4.1. Applicant: 3 Dragons LLC Current Owner: China Garden, Inc. Address: 100 W. Beaver Creek Blvd. New Owner: Lana Sweaney Type: Hotel and Restaurant License The application was presented to the Board with owners Lana Sweaney, David Sweaney and Daniel Goldberg present. Board member Reynolds moved to continue the Transfer of Ownership Liquor License for 3 Dragons, LLC d/b/a China Garden until the January 26th meeting; Vice Chairman Wolf seconded the motion and it passed unanimously by those present. 5. RENEWAL OF LIQUOR LICENSES 5.1. Applicant: Columbine Bakery, Inc. d/b/a Columbine Bakery Location: 51 Beaver Creek Place Type: Hotel and Restaurant License Manager: Daniel Niederhauser The application was presented to the Town Council; with owner Ronda Niederhauser present. The Board raised no concerns regarding the renewal application. Board member Prince moved to approve the Hotel and Restaurant Liquor License for Columbine Bakery, Inc. d/b/a Columbine Bakery; Board member Reynolds seconded the motion and it passed unanimously by those present. 5.2. Applicant: Nova entertainment, LLC d/b/a Loaded Joe’s Location: 82 E. Beaver Creek Blvd. #14 Type: Tavern License Manager: Kent Beidel Vice Chairman Wolf recused himself due to a conflict. The application was presented to the Liquor Authority with owner Kent Beidel present. The Board raised no concerns regarding the renewal application. Board member Prince moved to approve the Tavern License for Nova Entertainment, LLC d/b/a Loaded Joe’s; Board member Reynolds seconded the motion and it passed unanimously by those present. Vice Chairman TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - LA Minutes 12-8-2015 Page 2 Wolf abstained. 6. MINUTES FROM OCTOBER 17, 2015 Board member Reynolds moved to approve the Minutes from October 17, 2015; Board member Gennett seconded the motion and it passed unanimously by those present. 7. Adjournment There being no further business to come before the Board, the meeting adjourned at 5:30 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: 970.468.0635 1022 Summit Drive Fax: 720.836.3337 Dillon, CO 80435 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: Sales Tax on Building Projects DATE: January 7, 2016 SUMMARY: Avon Town Council asked that I provide a legal opinion on the Town’s authority to impose sales tax on construction and building materials and tangible personal property purchased from a vendor outside of the Town of Avon and delivered and installed in the Town of Avon. Due the importance of this question to the Avon community, I have as an independent attorney to review this matter and provide an independent legal opinion. Patrick Wilson, of the Denver based law firm of Hoffman, Parker, Wilson & Carberry, P.C. has provided an opinion which is included with this memorandum. The Town’s sales tax regulation is set forth in Chapter 3.08 of the Avon Municipal Code which may be obtained on the Town’s website. It is my opinion that Avon may impose its sales tax on the following categories of retail sales of construction and building materials and/or tangible personal property (“TPP”): 1. Delivery of Materials Into Avon: Delivery of construction materials or tangible personal property into Avon where the purchaser obtains title to, or possession of the TPP in Avon. However, if a municipal tax has been paid on the TPP in another jurisdiction, then the Town provides a credit for the amount of municipal tax previously paid, up to the amount of the Town’s tax.1 2. Retailer-Contractor: The retail sale and installation of materials by a “Retailer-Contractor”, including the installation of over-the-counter sale of completed units, on projects within the Town of Avon. 3. Time and Materials Contact: The Town tax may apply to the amount of mark-up of materials installed by a Contractor in a time and materials contract if a municipal tax was previously paid elsewhere on the original purchase, or on the entire amount if no municipal tax was previously paid. BACKGROUND AND LEGAL OVERVIEW: The focus of this memorandum is on the application of the Town’s sales tax to “construction materials” and “tangible personal property” purchased from a “vendor” located outside of the Town of Avon but then delivered to and/or installed on property located within the Town of Avon. Sales and Use Tax authority is set forth in Colorado Revised Statutes §39-26-101 et seq. for the State and §29-2-101 et seq. for counties and municipalities. The Statutes set forth definitions which are terms of art in the application of sales and use tax. As a home rule municipality, Avon derives its taxing authority directly from the State Constitution, and is not bound by State statutory law as to what the Town can and cannot tax. A “use tax” is nationally regarded a complimentary tax to a sales tax. The State of Colorado and a majority of municipalities have adopted both a sales tax and a use tax. Statutory municipalities and counties are bound by, generally must use, the State statutory definitions and interpretations for sales and use tax. Home rule municipalities have local discretion and are not required to follow the State statutory definitions. The Colorado Supreme Court has held that the power to levy and collect sales tax and the right to determine the base to which the tax applies is a matter of local                                                                                                                           1 AMC 3.08.320 2 Berman v. Denver, 400 P.2d 434 (Colo.1965); Security Life and Accident Company v. Temple, 492 P.2d 63 (Colo.1972); M EMORANDUM & PLANNING, LLC Avon Town Council Sales Tax on Building Projects January 7, 2015 Page 2 of 6 Sales Tax on Building Projects January 7, 2015 Page 2 of 6 concern that can be determined by a home rule community.2 Despite Avon’s home rule authority and discretion in interpretation of its sales tax, Colorado municipalities are constrained by federal constitutional issues. COLORADO DEPARTMENT OF REVENUE REGULATIONS: The Town may look to the Colorado Department of Revenue regulations for guidance in the interpretation of Town’s sales tax regulations, particularly since there is an express preference in the statutory sales tax regulations for uniformity throughout the State; however, State guidance has several limitations. First, the regulations concern the State’s sales tax regulations and not home rule municipal sales tax regulations. Second, the guidance may be applicable to the extent that the Town of Avon’s sales tax regulation language is the same or substantially similar to the State’s language. And third, case law has shown that the Colorado Department of Revenue has on occasion been challenged and lost in its interpretation and application of its regulations. That said, the State is far more active in enforcement of its sales tax regulation and has developed special regulations and other guidance that is relevant for consideration. FEDERAL CONSTITUTIONAL LAW: The imposition of local tax on TPP that is sold by retailers located outside of the Town can implicate the Due Process clause (14th Amendment) and the Commerce Clause of the U.S. Constitution. Due Process considerations apply to both “intrastate” and “interstate” sales while the Commerce Clause applies to only “interstate” sales (where the vendor and purchaser are in different states). The U.S. Supreme Court holdings and constitutional analysis has evolved over the last 40 years. The application of Federal Constitutional law is discussed in more detail with regard to deliveries of construction materials and tangible personal property for construction projects in Avon. LEGAL ANALYSIS: The Town of Avon has adopted a sales tax but has not adopted a use tax. The U.S. Supreme Court has recognized the interplay between the two taxes for many decades. “A sales tax and use tax in many instances may bring about the same result. But they are different in conception, are assessments upon different transactions, and in the interlacings of the two legislative authorities within our federation may have to justify themselves on different constitutional grounds. A sales tax is a tax on the freedom of purchase . . . . A use tax is a tax on the enjoyment of that which was purchased.” McLeod v. J.E. Dilworth Co. et al., 322 U.S. 327 (U.S. 1944). The initial inquiry is whether certain transaction by vendors located outside the Town of Avon constitute a retail sale or purchase of tangible personal property within the Town of Avon. The Town of Avon originally adopted a sales tax in 1978. The Avon sales tax was initially phased in to 4% sales tax over a four year timeframe. Originally, the Town deferred to the state statutes for the application of the sales tax and the definition of words related to the sales tax. The Town has amended the Sales Tax Chapter in the Avon Municipal Code several times since its first adoption. In 1991, the Town Council adopted Ordinance No. 1991-07, which codified many definitions, including definition of the phrase, “Engaged in Business in the City.” The definition of Engaged in Business in the City as adopted in Avon includes (but is not limited                                                                                                                           2 Berman v. Denver, 400 P.2d 434 (Colo.1965); Security Life and Accident Company v. Temple, 492 P.2d 63 (Colo.1972); Winslow Construction Company v. Denver, 960 P2d 685 (Colo. 1998). However, State statutory requirements do govern home rule municipalities with respect to the procedural aspects of tax protests and appeals. Avon Town Council Sales Tax on Building Projects January 7, 2015 Page 3 of 6 Sales Tax on Building Projects January 7, 2015 Page 3 of 6 to) any business that, “Makes more than one deliver into the taxing jurisdiction within a twelve month period.” Avon’s definition is slightly different from the State’s definition.3 The Avon Municipal Code provides that there shall be collected and paid as a tax the amounts stated in Section 3.08.030 upon the following: (1) On the purchase price paid or charged upon all retail sales and purchases of tangible personal property within the boundaries of the Town . . . .4 The Town’s 4% sales tax applies to all retail sales. AMC 3.08.030(a). “Retail sales,” “Wholesale sales” and “Purchase or sale” are defined as follows: “Retail sales” means all sales except wholesale sales.5 “Wholesale sales” means sales to licensed retailers, jobbers, dealers or wholesalers for resale. Sales by wholesalers to consumers are not wholesale sales. Sales by wholesalers to nonlicensed retailers are not wholesale sales.6 “Purchase or sale” means the acquisition for consideration by and person of tangible personal property . . . acquired by . . . a. Transfer, either conditionally or absolutely, of title or possession or both to tangible personal property;7 As applies to building and construction projects, the following categories of sales are discussed specifically: DELIVERY OF TANGIBLE PERSONAL PROPERTY IN AVON: The law has evolved considerably over the last 40 years (and continues to evolve) regarding the obligation to pay a tax to the local jurisdiction for goods purchased from a vendor outside of the local jurisdiction but delivered to a location within the local jurisdiction. In 1979, the Colorado Supreme Court ruled in the Associated Dry Goods case that delivery alone is an insufficient nexus for imposing local taxes.8 The Associated Dry Goods case involved a company that used its own employees and trucks to deliver goods into the City of Arvada while it did not have any physical stores located with the City of Arvada. The Colorado Supreme Court found that based on Federal Due Process and Commerce Clause considerations, the delivery of goods into the City of Arvada did not establish a substantial nexus to allow the City of Aurora to impose a tax on such goods. However, the law articulated in the Associated Dry Goods Corporation case was substantially altered by the 1992 U.S. Supreme Court Quill Corporation case.9 The Court in Quill issued three important rulings: (1) that a physical presence in a state is not necessary to establish the “minimum contacts” required to satisfy Due Process for the imposition of a state or local tax on delivered materials coming from outside of the state (or outside the local jurisdiction);                                                                                                                           3 The state defines “Doing business in the state” as requiring that a person BOTH (1) sell, lease, or deliver tangible personal property in this state, and (2) maintain, directly or indirectly, an office, sales room, warehouse, or similar place of business within the state. [emphasis added] 4 AMC 3.08.020 5 AMC 3.08.010 definitions. Same as State definition. 6 AMC 3.08.010 Definitions. 7 AMC 3.08.010 Definitions. 8 Associated Dry Goods Corporation v. City of Arvada, 593 P.2d 1375 (Colo. 1979) 9 Quill Corp. v. North Dakota, 504 U.S. 298 (US 1992) Avon Town Council Sales Tax on Building Projects January 7, 2015 Page 4 of 6 Sales Tax on Building Projects January 7, 2015 Page 4 of 6 (2) that a four part test announced in Complete Auto Transit, Inc. v Brady, 430 U.S. 274 (1977) to determine whether the required nexus exists to impose a local tax for purposes of the Commerce Clause and a state or local jurisdiction’s ability to tax interstate taxation; and, (3) that the “bright-line” holding National Bellas Hess, Inc. v. Department of Revenue in Ill, 386 U.S. 753 (US 1967) was re-affirmed such that vendors outside the taxing [State] jurisdiction are free from the imposition of sales tax under the dormant Commerce Clause where the “only connection with customers in the [taxing] State is by common carrier or the United States mail.” Modern courts have upheld the constitutional validity of imposing sales tax on delivered goods where the title or possession transfers within the local taxing jurisdiction. The Colorado Appellate Court recently ruled in the Leggett & Platt case that “[T]ransfer of physical possession of goods is a constitutionally permissible taxable event, regardless of technical considerations regarding the time and place of passage of title which might turn on the degree of control short of transfer of physical possession.”10 Because the Court found the sales to have taken place within the City of Thornton, the Colorado Appellate Court found that minimum contacts did exist for purposes of due process, and that the imposition of Thornton’s sales tax on the delivery of the goods did not violate the dormant Commerce Clause. Other states have similarly held that the location of transferring possession is the point of sale and is therefore subject to local sales tax. The Missouri Supreme Court held that the location of delivery of aviation fuel was the point of sale and therefore subject to local sales tax rejecting the objection by Shell Oil that Shell Oil did not maintain a physical place of business in the jurisdiction and that deliveries occurred by an agent transport company of Shell Oil.11 The Missouri Supreme Court also found in the Shell Oil case that imposition of a sales tax on delivery did not violate the dormant Commerce Clause. Retailer-Contractor: Contractors are also retail merchants of building supplies or construction materials which were purchased wholesale (tax free for resale). Such Contractors are referred to as Retailer- Contractors and must have a business and sales tax license for the jurisdictions in which they are selling such building supplies or construction materials. When a Retailer-Contractor installs such building supplies or construction materials, the point of sale is considered to be the location of the installation where possession of the materials are transferred to the property owner. The Colorado Department of Revenue has adopted special regulations in SR-10 Contractors, 1 CCR 201-5, Sales and Use Tax – Special Regulations for Specific Business. The Department of Revenue regulation 1 CCR 201-5 further defines “over-the-counter” sales of materials by a Contactor as follows: An over-the-counter sale of a complete unit not made to order, with an agreement for installation of the unit, is not a building contract. This rule includes sales of stoves, refrigerators, furnaces, air conditioners, washing machines, dryers, carpets, electrical fixtures, ready-made cabinets, storm doors, garage doors, storm windows, screens, sod and similar items. On such sales the sales tax must be collected from the purchaser by the retailer-contractor. If the installation charges are segregated in the bid proposal or sales invoices, these charges are not taxable. SR-10 Contractors, Department of Revenue: Sales and Use Tax – Special Regulations for Specific                                                                                                                           10 Leggett & Platt, Inc. v Ostrom, 251 P.3d 1135 (Colo.App. 2010); McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33 (U.S. 1940). 11 Shell Oil Company v. Director of Revenue, 732 S.W.2d 178 (Mo. 1987). Avon Town Council Sales Tax on Building Projects January 7, 2015 Page 5 of 6 Sales Tax on Building Projects January 7, 2015 Page 5 of 6 Businesses, 1 CCR 201-5. In contrast, the construction material used for “special order” or “custom” construction work may not constitute tangible personal property and may therefore not be subject to sales tax at the location of installation. In the Raynor Door case the Colorado Court of Appeals found that the materials used for custom made garage doors which were “made to order” did not constitute tangible personal property and did not fall within the Department of Revenue’s special regulation for contractors.12 Department of Revenue Regulation 26-102.15, 1-CCR 201.4 defines “tangible personal property” as: Regulation 26-102.15. "Tangible personal property " embraces all goods, wares, merchandise, products and commodities, and all tangible or corporeal things and substances which are dealt in, capable of being possessed and exchanged, except news papers excluded by the law. The term does not include real property, such as land and buildings, nor tangible personal property that loses its identity when it becomes an integral and inseparable part of the realty, and is removable only with substantial damage to the premises. Property severed from real estate becomes tangible personal property. The Town definition is: “Tangible personal property” means corporeal personal property. The term shall not, however, include newspapers as defined by Section 24-70-102, C.R.S., 1973. “Corporeal” means physical as opposed to non-physical, intangible property such as stocks or bonds. Time and Materials Contracts: Contracts for building, remodel and repair projects that itemize time and materials separately are interpreted by the State as selling the materials at retail to the property owner at the location of the property. The Colorado Department of Revenue publication FYI Sales 6 states the following: BILLING AND CONTRACTS The method of billing and type of contract can affect the way tax is imposed on or by a contractor. Time and material billing: The contractor who invoices separately for labor and materials must have a sales tax license and charge applicable taxes on the marked up billing price of all materials. The contractor is liable for use tax on the cost of all supplies not separately billed to the customer, as well as on tools and equipment. A time and materials agreement cannot be treated as a lump sum contract for sales/use tax purposes. Lump sum contract: A contractor cannot treat this type of contract as time and materials for sales tax purposes. All supplies and materials are taxable on the contractor’s cost, either through sales tax paid to the vendor or use tax paid by the contractor on the Consumer Use Tax Return (DR 0252). The contractor is liable for sales/use tax on the cost of all supplies and materials becoming part of the real property, supplies not becoming part of real property, as well as on all tools and equipment. Local taxes are paid in conjunction with building permits.                                                                                                                           12 Raynor Door, Inc. v. Charnes, 765 P.2d 650 (Colo.App. 1988) Avon Town Council Sales Tax on Building Projects January 7, 2015 Page 6 of 6 Sales Tax on Building Projects January 7, 2015 Page 6 of 6 TRANSACTIONS NOT SUBJECT TO SALES TAX: This section describes transactions that are not likely subject to Avon’s sales tax. This section provides general guidance only. Every transaction is dependent upon the specific facts. 1. The purchase of building supplies or construction materials outside of the Town of Avon when the Contractor or property owner takes title to and possession of such building supplies or materials outside of the Town of Avon and pays another jurisdiction’s applicable sales tax to the out of town vendor, even where the contractor uses or consumes such building supplies or construction materials inside the Town of Avon, except for Retailer-Contractors. 2. The purchase of equipment by a Contractor outside of the Town of Avon (where title and possession are obtained outside of the Town), which equipment is used and consumed in the Town of Avon on a construction project. 3. The sale of goods by a retail Vendor in Avon where the goods are delivered to a destination outside the Town of Avon and the title and possession to the goods transfers upon delivery outside of the Town. 4. Transaction which would otherwise be subject to the Town’s sales tax but receive a credit in the amount of sales or use tax paid in another municipality in accordance with AMC 3.08.320. PENDING STATE EFFORT TO PROMOTE UNIFORMITY: The Colorado General Assembly has recognized the authority of home rule municipalities to adopt, administer and interpret sales tax regulations in a manner which may differ from state regulations, which has resulted in a growing lack of uniformity in Colorado. In 2014, The General Assembly adopted Senate Resolution 14-038 CONCERNING UNIFORM SALES AND USE TAX DEFINITIONS FOR HOME RULE MUNICIPALITIES THAT LOCALLY COLLECT THEIR SALES AND USE TAX. Senate Resolution 14-038 calls upon home rule municipalities to work through the Colorado Municipal League to standardize definitions and further requests that municipalities considering adopting definitions and interpretations found in rules promulgated by the Department of Revenue. The Colorado Municipal League circulated to home rule communities an initial draft of standardized definitions last October. Town staff is currently reviewing the draft and anticipates presenting the adoption of standardized definitions in coordination with the Colorado Municipal League effort sometime in 2016. Any amendments to the Town Code cannot impose a tax policy change constituting a “new tax” without voter approval in compliance with Taxpayer Bill of Rights (“TABOR”). COMPARISON TO SIMILAR COMMUNITIES: The Town staff often looks to our peer communities in Eagle, Summit and Routt counties (and beyond) for examples and guidance of best practices. In particular, Town staff has looked to the Town of Breckenridge, which has a sales tax but not a use tax, for its interpretation and application of sales tax to construction materials and tangible personal property. The legal opinion in this memorandum is consistent with the interpretation of Breckenridge with regard to deliveries and retailer-contractors. Avon is utilizing a guidance letter to Contractors and spread-sheet for supplies and sub-contractors based on upon guidance documents used in Breckenridge. Thank you, Eric ATTACHMENTS: Legal Opinion from M. Patrick Wilson Senate Resolution 14-038 1/8/16 Q:\USERS\AVON\PW\SALES AND USE TAX OPINION\NOTES MEMOS RESEARCH\OPINION ON SALES TAX ON CBM 010716.DOT Corey Y. Hoffmann Kendra L. Carberry Jefferson H. Parker M. Patrick Wilson Of Counsel J. Matthew Mire Denver Office 511 16th Street, 610 Denver, CO 80202 (303) 825-6444 Vail Office P.O. Box 2616 Vail, CO 81658 (970) 390-4941 Ryan S. Malarky Elizabeth R. Cross Kathryn M. Sellars Ashley N. Pollock Jessica B. King MEMORANDUM TO: ERIC HEIL, ESQ. FROM: M. PATRICK WILSON DATE: JANUARY 8, 2016 RE: TOWN OF AVON – SALES TAX ASSESSMENT OF CONSTRUCTION AND BUILDING MATERIALS At your request, we have considered whether, and in what contexts, the Town of Avon (“Town”) may impose its sales tax on the retail sale of construction and building materials (“CBM”) that come from outside of the Town and are used in connection with real property located within the Town. We understand that the Town currently does not have authority to impose a use tax. Consideration was given to the Town’s Municipal Code, as found on its website, relevant statutory provisions, as well as state and federal case law. Given the short time frame between when this assignment was requested and when an answer was required, this analysis is not comprehensive or as complete as it might have been with more time. If you would like further analysis on this subject, please let us know. The primary considerations for this analysis are as follows: 1) does the language of the Town Code provide sufficient authority for the imposition of sales tax on various transactions involving CBM; and 2) are there any constitutional or statutory limitations on the imposition of the Town’s sales tax on these transactions? If there is only a sales tax involved (and no use tax), we see the analysis as follows: January 8, 2016 Page 2 1/8/16 Q:\USERS\AVON\PW\SALES AND USE TAX OPINION\NOTES MEMOS RESEARCH\OPINION ON SALES TAX ON CBM 010716.DOT  If title or possession of CMB is transferred from retailer/vendor to consumer/vendee at a location that is within the Town, the transaction is generally going to be subject to the Town’s sales tax, subject to applicable exemptions and credits. If title and possession transfer outside of the Town, the transaction is not subject to the Town’s sales tax. Code §3.08.010 (definition of “purchase” or “sale”). Without a use tax, transactions where title or possession to the CBM passes outside of the Town are not subject to assessment by the Town.  The exemptions in Code §3.08.040 (2) and (7) are not likely applicable for CBM that are brought into the Town. Subsection (2) appears to apply to Avon retailers who sell outside of the Town, and subsection (7) appears to apply only where the CBM is installed in jurisdictions with a use tax, which the Town does not have.  Also, under Code §3.08.320, the Town would have to recognize a credit for any transaction in which another municipality’s tax was lawfully imposed on the same transaction.  For due process considerations, an out of town retailer would need to have some “minimum contacts” with the Town in order to be required to collect the Town’s sales tax. If the retailer makes the delivery into the Town, that probably suffices for due process. With its definition of “engaged in business,” the Town’s Code places out of town retailers on notice that one delivery into the Town per year is sufficient to be considered to be doing business in the Town.1 It is not clear if a an out of town retailer uses a common carrier to make a delivery into the Town, whether that would satisfy “minimum contacts” for due process purposes. If a purchaser picks up CBM from an out of town retailer (or the purchaser arranges for it being picked up via a common carrier), “minimum contacts” likely do not exist so as to subject that retailer to the Town’s tax.  For Commerce Clause considerations, interstate commerce must be implicated to being with (an out of state retailer delivering into the Town). Then the test under the U.S. Supreme Court’s decision in Complete Auto Transit would apply.2 Under that test, a tax does not violate the Commerce Clause if 1) there is a substantial nexus between the taxing jurisdiction and the taxpayer; 2) the tax is fairly apportioned; 3) the tax does not discriminate between interstate and intrastate taxpayers; and 4) the tax is related to the services provided by the jurisdiction to the taxpayer. 1 Note, however that the “term engaged in business” is not otherwise used in the Code in connection with the imposition of tax. 2 430 U.S. 274 (1977). January 8, 2016 Page 3 1/8/16 Q:\USERS\AVON\PW\SALES AND USE TAX OPINION\NOTES MEMOS RESEARCH\OPINION ON SALES TAX ON CBM 010716.DOT  With some possible limited exceptions, this analysis should apply equally to all TPP (not just CBM), and with all types of retailers/consumers (not just building suppliers, contractors and property owners). Here are a few scenarios to consider:  Where a property owner/consumer purchases CBM from an out of town retailer (for use on a project in the Town) and the retailer delivers the CBM into the Town (so that title or possession passes in the Town), the Town’s sales tax should apply and it should be collected by the retailer and remitted to the Town. However, if the property owner picks up the CBM (or arranges for its pick up), then the transfer of title and possession is not deemed to transfer in the Town, and the retailer is not likely required to collect the Town sales tax. In this second scenario, a tax may be owed to the jurisdiction where the retailer has its place of business.  Where a contractor purchases CBM from an out of town retailer (for use on a project in the Town) and the retailer delivers it into the Town, the Town’s sales tax should apply and it should be collected by the retailer and remitted to the Town. Because the Town has no use tax, the contractor should not be able to avoid Town sales tax by claiming a use tax will be paid (or has been paid) in connection with a Town building permit. If the contractor picks up the CBM (or arranges for its pick up) from an out of town retailer, then the retailer is not likely required to collect the Town sales tax from a due process standpoint. However, in that scenario, the retailer may have to collect a sales tax for the jurisdiction in which it is located. This scenario would also likely require the Town to acknowledge a credit for any municipal tax that was paid.  If the contractor picks up the CBM (or arranges for its pick up) from an out of town retailer, and no such sales tax is collected for another municipality, the contractor may be deemed to be re-selling the CBM to the property owner (i.e., in a time and materials contract). Title and/or possession of the CBM would pass to the property owner in the Town and the transaction would be subject to the Town’s sales tax.  If a contractor purchases CBM from an out of town retailer (and pays another jurisdiction’s sales tax) and then “marks up” the CBM in a time and materials contractor, the CBM may be subject to the Town’s sales tax if the sale of the CBM to the property can be considered a separate transaction, but only to the extent of the mark-up or increased amount. January 8, 2016 Page 4 1/8/16 Q:\USERS\AVON\PW\SALES AND USE TAX OPINION\NOTES MEMOS RESEARCH\OPINION ON SALES TAX ON CBM 010716.DOT  A “retailer-contractor” should be licensed with the City and collecting and remitting Town sales tax if it is selling CBM in the City. In general: Colorado home rule municipalities, like Avon, are afforded broad latitude in which transactions, events, property and services to subject to sales tax. In other words, the substantive provisions of a home rule tax code (i.e., what to tax and how much) is left to the home rule municipality’s discretion, so long as constitutional limitations and requirements are adhered to. A home rule municipality’s substantive tax provisions cannot usually be curtailed or conditioned by the General Assembly. One such constitutional provision to be aware of is the 1992 Taxpayer Bill of Rights (“TABOR”). Any changes/amendments to the Town’s Code that would increase Town revenue or expand the tax base to persons, things or transactions that were not previously subject to tax, should be analyzed for compliance with TABOR. No new tax may be imposed without a vote of the citizens/electors. TABOR should be kept in mind as the Town considers the participating in the tax definition standardization effort being organized by the Colorado Municipal League in response to the General Assembly 2014 Senate Resolution 14-038. Note that the Colorado Supreme Court has also ruled that procedural matters relating to local sales and use tax protests, possibly including the applicable statute of limitations, are matters of statewide concern and State statutory provisions governing the procedural aspects of tax protests are applicable to home rule municipalities. Conflicting home rule procedural provisions relating to tax protests usually must yield to State law. 2014 SENATE JOINT RESOLUTION 14-038 BY SENATOR(S) Steadman and Harvey, Newell, Ulibarri; also REPRESENTATIVE(S) Kagan and Conti, Becker, Court, Fields, Gardner, Hamner, Holbert, Hullinghorst, Joshi, Labuda, May, McCann, Melton, Pettersen, Primavera, Ryden, Schafer, Singer, Tyler, Williams, Wright, Young, Ferrandino. CONCERNING UNIFORM SALES AND USE TAX DEFINITIONS FOR HOME RULE MUNICIPALITIES THAT LOCALLY COLLECT THEIR SALES AND USE TAXES. WHEREAS, Colorado's system of local collection of sales and use tax by home rule municipalities can be cumbersome and difficult for multijurisdictional merchants; and WHEREAS, The state, local governments, and businesses alike agree that standardization of definitions of the goods or services subject to sales or use tax and the goods or services exempted from sales or use tax (the "sales and use tax base") would improve Colorado's business environment; and WHEREAS, The use of different definitions including varying tax guidance regarding the different definitions among all taxing jurisdictions creates confusion for taxpayers and needless audit exposure for businesses; and WHEREAS, Standardization of definitions for the sales and use tax base was recommended in the report prepared by the department of revenue titled "Uniform Sales and Use Tax Base Throughout the State" dated December 15, 2013; and WHEREAS, Standardization of definitions is something that ought to be accomplished without causing a major revenue loss to taxing jurisdictions or a revenue increase that necessitates voter approval as required in section 20 of article X of the state constitution; and WHEREAS, In 1992, Colorado's home rule municipalities that locally collect their sales and use tax adopted a package of standardized definitions that the municipalities themselves had developed, under the aegis of the Colorado Municipal League, and in cooperation with the business community; and WHEREAS, The 1992 effort did not include a mechanism to maintain standardization of definitions over time, nor did that effort anticipate the practical effect of varying tax guidance among taxing jurisdictions on continued standardization of definitions; now, therefore, Be It Resolved by the Senate of the Sixty-ninth General Assembly of the State of Colorado, the House of Representatives concurring herein: (1) The standardization of definitions used by Colorado taxing jurisdictions to define their sales and use tax base is in the public interest and serves to improve Colorado's business environment; (2) The General Assembly urges Colorado's home rule municipalities that locally collect their sales taxes to work together once again, through the Colorado Municipal League, on a package of uniform definitions recommended for adoption by all home rule, locally collecting municipalities; (3) The General Assembly further urges that such definitions be developed so that they may be utilized by Colorado municipalities without either significant adverse fiscal impact or voter approval as required in section 20 of article X of the state constitution; (4) The General Assembly also requests the municipalities to develop among themselves a mechanism for maintaining standardization of the uniform definitions over time; (5) The General Assembly further requests the municipalities to develop among themselves a coordinated system for issuance of non-judicial guidance regarding the scope or interpretation of such definitions, in order to avoid disparate local tax guidance from interfering PAGE 2-SENATE JOINT RESOLUTION 14-038 with uniform application of tax definitions; (6) The General Assembly further requests that the municipalities consider adopting definitions existing in the state's sales and use tax statutes, including interpretations of those definitions found in rules promulgated by the Department of Revenue, where such state and municipality uniformity may be achieved consistent with the objective of revenue neutrality; (7) The General Assembly further requests that these important undertakings include opportunities for input and consultation with the business community, insofar as retail business is government's partner in collecting this critical tax; and (8) The General Assembly urges home rule municipalities that locally collect their sales taxes to begin adopting and utilizing a system of standardized definitions and guidance by August 2016. PAGE 3-SENATE JOINT RESOLUTION 14-038 Be It Further Resolved, That copies of this Joint Resolution be sent to the Colorado Municipal League; the Department of Revenue; the Colorado Association of Commerce and Industry; and the Colorado Retail Council. ____________________________ ____________________________ Morgan Carroll Mark Ferrandino PRESIDENT OF SPEAKER OF THE HOUSE THE SENATE OF REPRESENTATIVES ____________________________ ____________________________ Cindi Markwell Marilyn Eddins SECRETARY OF CHIEF CLERK OF THE HOUSE THE SENATE OF REPRESENTATIVES PAGE 4-SENATE JOINT RESOLUTION 14-038 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Matt Pielsticker, AICP, Planning Director Meeting Date: January 12, 2016 Agenda Topic: Public Hearing and Second Reading of Ordinance No. 15-12, Approving an Extension of Vested Rights for the Red House Planned Unit Development ACTION BEFORE COUNCIL Vote on Second Reading of Ordinance No. 15-12(Exhibit A), an Ordinance approving a five (5) year extension to the Vested Rights of the Red House Planned Unit Development (PUD). PROPOSED MOTION “I move to approve Ordinance No. 15-12, an Ordinance approving a five (5) year extension to the Vested Rights of the Red House Planned Unit Development (PUD).” Alternate motions available to Town Council: “I move to continue Ordinance No. 15-12, an Ordinance approving a five (5) year extension to the Vested Rights of the Red House Planned Unit Development (PUD).” “I move to deny Ordinance No. 15-12, an Ordinance approving a five (5) year extension to the Vested Rights of the Red House Planned Unit Development (PUD).” BACKGROUND At the November 17, 2015 Council meeting the first reading of Ordinance No. 15-12 was approved. Council directed Staff to work with the applicant to ensure public access from the future ECO trail down to the Eagle River through Lot 2, Riverside Subdivision (“Lot 2”). Since first reading on November 17, 2015, the applicant acquired ownership of Lot 2. After taking ownership of Lot 2, it was revealed that the property is a development parcel allowing for up to 8 condominium units, and not zoned for open space as indicated on the Town of Avon Zoning Map. Based on this new information and the desire to safeguard river access in the vicinity, action on Ordinance No. 15-12 was continued from December 8, 2015 to the January 12, 2016 meeting in order for more time to work with the applicant. Ordinance No. 15-12 has been amended based on discussions between Staff, the applicant and the Town Attorney. The future path connection and other desired amenities are not part of the Red House PUD and located within a separate parcel and zoned property (Riverside PUD); therefore a PUD Amendment application is necessary. The attached Ordinance No. 15-12 extends the vested rights for the Red House PUD, and documents the requirement to submit a subsequent PUD application to address river access and other desires of the developer. Changes to Ordinance No. 15-12 since first reading include: • Vested Rights extension for an additional five (5) years instead of three (3). • Conditional approval based on applicant submitting a PUD amendment to the Riverside PUD, including the following points: o Development rights associated with Lot 2, Riverside PUD are abandoned. o An easement of 1,728.5 sq. ft. will be provided on the eastern portion of Lot 2, Riverside for public use as a foot path to gain access to the Eagle River. o The remainder of Lot 2 will be considered for private amenity use, including the ability to construct a “recreation” for owners of condominiums in the adjacent Red House PUD. Note: This application would be subject to public review and processing by Planning and Zoning and Avon Town Council pursuant to the general procedures outlined Avon Municipal Code Section 7.16.020. • Minor PUD application will be processed subsequent to Ordinance No. 15-12. The applicant’s written requests (Exhibit B) are attached. For a complete background of the project as well as a review of the mandatory review criteria for this type of application please refer to Exhibit C. Lastly, the 2009 Annexation and Development Agreement is included in full. The Annexation and Development Agreement details all of the other public benefits approved with the Red House PUD project that will continue forward if this vested property rights extension is approved. EXHIBITS A – Ordinance 2015-12 B – Applicant’s Request Letters C – Project Background and Review Criteria D – 2009 Annexation and Development Agreement E – Vicinity Map TOWN OF AVON, COLORADO ORDINANCE 2015-12 AN ORDINANCE AMENDING THE ANNEXATION AND DEVELOPMENT AGREEMENT THEREBY EXTENDING THE EXISTING VESTED PROPERTY RIGHTS FOR THE RED HOUSE PUD PROPERTY LOCATED AT LOT 1, EAGLE RIVER AT AVON SUBDIVISION, TOWN OF AVON, STATE OF COLORADO 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, Dominic Mauriello, Mauriello Planning Group on behalf of Red House Avon, LLC (“Applicant” or “Owner”) has submitted a Vested Property Rights Application (“Application”) to amend the Annexation and Development Agreement approved by Council through Ordinance 09-07 (“Development Agreement”), thereby amending the term of the Development Agreement as defined in Section 3.1 of Article III; and WHEREAS, the Application amends Section 3.1 of Article III of the Development Agreement to extend the expiration date for an additional three (3) years to then expire July 28, 2019; and WHEREAS, pursuant to Section 7.16.140(f), Extension of Vested Property Rights, the Town Council finds the Application eligible for consideration since the Application was submitted at least six (6) months prior to the expiration of the vested property rights; and WHEREAS, pursuant to Section 7.16.140(e)(2), Avon Municipal Code, the Town Council has considered the applicable guidelines for the Application; and WHEREAS, the Town Council of the Town of Avon held public hearings on November 17, 2015 and January 12, 2016 after posting notice of such hearings in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking action; and WHEREAS, the Town Council makes the following specific findings as the basis for its decision as required by Section 7.16.020(f)(3) of the Avon Development Code: The Application meets the review criteria set forth in Section 7.16.140(e)(2), specifically: (ii) and (iii) Property values and the real estate market experienced a significant downturn for several years, commencing locally in early 2009 and continuing for several years during the Ordinance No. 2015-12 – Red House Vested Property Rights SECOND READING – January 12, 2016 Page 1 of 5 EXHIBIT A initial vested rights period and market conditions for the construction of new multi-family residential product have improved only recently; and, (iv) There have been no changes to the Avon Comprehensive Plan or other community planning documents that affect the project as originally approved in 2009; therefore, the project continues to comply with the Avon Comprehensive Plan and other community planning documents; and, (v) The project has provided a portion of the required public amenities through the dedication of land for recreation and preservation of the Eagle river and the terms of the Development Agreement require additional amenities including road way improvements, school land dedications, water rights dedications, landscaping improvements and employee housing mitigation; and, (vii) The extended duration of the vested property rights for an additional five (5) years is reasonable considering the local, state and national economic recovery and local market conditions for new construction of multi-family residential product and considering the conditions related to integration of Lot 2, Riverside PUD, adjoining the current property; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with state law, the Avon home rule charter and the Avon Development Code by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies the proposed zoning or other matters in this 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. Red House Annexation and Development Agreement Amendment. The Town Council gives conditional approval to the extension of the vested property rights as set forth in Section 3 below. The Red House Annexation and Development Agreement is hereby amended by replacing the language in Article III – Term, Section 3.1 in its entirety to read as follows: “3.1 Term. In recognition of the nature of the development contemplated under this Agreement, the investment and time required to complete the development of the Property, the potential for phased development of the Property, the possible impact of the recent economic downturn and other economic cycles, and poor market conditions at the time of approval, and in recognition of the current severity of the economic recession and uncertainty of economic recovery, the term of the Vested Property Rights shall Ordinance No. 2015-12 – Red House Vested Property Rights SECOND READING – January 12, 2016 Page 2 of 5 EXHIBIT A commence on the Effective Date and shall continue through and including the twelfth (12th) anniversary of the Effective Date (“Term”) and shall expire on July 28, 2021. Expiration or earlier termination of the Term shall not (a) affect any other obligations of the Parties contained in the Agreement, (b) affect any right arising from the issuance of a building permit (but limited to the building for which it is issued) or common law vested property rights obtained prior to the expiration of the Term, or (c) without additional action, result in the termination or rescission of any other legislative, quasi-judicial or administrative approvals occurring prior to the expiration of the Term.” Section 3. Conditions of Approval. The Town Council approval of the extension of the Vested Property Rights is subject to conditions as described in this section. In the event that the conditions are not satisfied on or prior to December 31, 2016, the Town Council may repeal this ordinance by ordinance and thereby revoke the extension of Vested Property Rights. The conditions of approval include the following: The Owner shall submit an application to amend the Riverside PUD, which application shall include the following: 1. The PUD amendment application shall be submitted no later than April 30, 2016. 2. The amended PUD Plat shall include the conveyance of a 1,748.5 sq.ft. easement across Lot 2, Riverside PUD, Avon, CO, as shown on the attached Exhibit A, for the purpose of public access as an unimproved or natural foot path to be maintained by the Town, which conveyance shall occur by an instrument acceptable to the Town. 3. Owner, as owner of Lot 2, Riverside PUD, shall abandon the existing development rights on as provided on Lot 2 of the Riverside PUD and apply for the right to use Lot 2, Riverside PUD for recreation cabin as a private amenity, built in the location of the remains of the current cabin structure, or in a similar location, and with a similar square footage, bulk, size and height, or such square footage, bulk, size and height as may be proposed by the Owner and for the right to use Lot 2, Riverside PUD private open space and private passive recreation uses. 4. The Town shall waive any application and associated fees provided that the application for a PUD amendment application is timely submitted and provided that such application meets the conditions stated herein. 5. Nothing contained herein shall restrict or infringe upon the discretion of the Avon Planning and Zoning Commission and Town Council to review and act upon an application to for an amendment to a planned unit development. Section 4. Correction of Errors. Town Staff is authorized to insert proper dates, references to recording information and make similar changes, and to correct any typographical, grammatical, cross-reference, or other errors which may be discovered in any documents Ordinance No. 2015-12 – Red House Vested Property Rights SECOND READING – January 12, 2016 Page 3 of 5 EXHIBIT A associated with this Ordinance and documents approved by this Ordinance provided that such corrections do not change the substantive terms and provisions of such documents. Section 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 days after final adoption in accordance with Section 6.4 of the Avon Home Rule Charter. Section 7. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [EXECUTION PAGE FOLLOWS] Ordinance No. 2015-12 – Red House Vested Property Rights SECOND READING – January 12, 2016 Page 4 of 5 EXHIBIT A INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED on November 17, 2015 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on January 12, 2016, at 5:00 P.M. in the Council Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk ADOPTED ON SECOND AND FINAL READING on January 12, 2016. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk APPROVED AS TO FORM: ____________________________ Eric J. Heil, Town Attorney Ordinance No. 2015-12 – Red House Vested Property Rights SECOND READING – January 12, 2016 Page 5 of 5 EXHIBIT A 1 Matt Pielsticker From:Dominic Mauriello <dominic@mpgvail.com> Sent:Friday, December 18, 2015 3:26 PM To:Matt Pielsticker; Eric Heil - Heil Law Mail Address Subject:Vested Rights Extension for Red House Attachments:Riverside-lot2-easement-exhibit-3.pdf Hi Matt and Eric: I am getting back to you with regard to the Town Council’s request that owner of Lot 2, a parcel of land adjacent to the Red House PUD, but completely unrelated to the PUD or the request for an extension of vested rights. After discussing some of our original thoughts and ideas with you, I believe we have come to an understanding. I have been working with the owner of this property since the request was made by the Town Council. As you are aware, the property is not zoned open space, which may have played into the thinking with regard to the original request (i.e., you can’t develop the lot anyway, so what’s the impact the of easement request). The property is zoned PUD and Lot 2 specifically allows development of 8 dwelling units. We’ve analyze the property and given setbacks and other development restrictions, the property supports the development of two dwelling units (condo units). After discussing what may be best for the Red House PUD, the owner is willing to abandon the idea of developing dwelling units on Lot 2 subject to agreement with the Town. I have attached a graphic prepared by Alpine Engineering which shows Lot 2, the existing TOA easement for the ECO Trail improvements, the Town’s Tract A (Riverside Subdivision), and a proposed easement of 1,748.5 sq. ft. A conceptual trail is shown that provides for a footpath from the proposed Eco Trail to the Town’s Tract A. You will note there is sufficient land on Tract A outside of the high water mark of the Eagle River to allow for public access. Here is the applicant’s revised proposal:  The owner will provide the 1,748.5 sq. ft. easement as shown for use of an unimproved/natural foot path only (i.e., no other rights or uses). The Town will be required to improve any pave developed;  The applicant will agree to abandon the development rights as provided for Lot 2 in the Riverside PUD;  The applicant with sign the application for a Minor or Major PUD amendment to the Riverside PUD, Lot 2. The application would remove the development rights on Lot 2 and replace it with allowing private amenity, recreation cabin built in its current or similar location, and allow private open space and recreation uses. The Town will process the application and will waive any associated fees;  The Town approves the vested rights extension for the Red House PUD of an additional 5 years (instead of the 3 years originally requested) on January 12, 2016;  The granting of the easement and processing of the PUD amendment shall occur subsequent to the extension of vested rights Thank you for your efforts to come to an equitable agreement. I assume that Eric with revise the ordinance for second reading and provide these terms in a more formal draft. EXHIBIT B 2   Dominic F. Mauriello, AICP  Mauriello Planning Group, LLC  PO Box 4777  2205 Eagle Ranch Road  Eagle, Colorado 81631  970‐376‐3318 cell  www.mpgvail.com    EXHIBIT B EX H I B I T B October 22, 2015 Brian Garner Town Planner Town of Avon One Lake Street Avon, Colorado 81620 Re: Red House - Vested Rights Extension Dear Brian: We are providing this letter to supplement our vested rights extension request submitted to the Town on October 20, 2015. Pursuant to section 7.16.140(f) of the Development Code, a landowner may seek extension of vested property rights by submitting a request for extension at least six month prior to the expiration of the existing vested rights expiration. The request was submitted on October 20, 2015, and therefore meets this requirement as the vested rights expire on July 28, 2016. Vested rights give a landowner the assurance that he or she can invest significant funds into the detailed building and construction plans required for development without the fear that the rules or the project might change and cause significant financial hardship to the owner. This owner is in the process of pursuing significant investment beyond the purchase of the property. The Town spent a significant amount of time working with the previous owner of the property to develop a plan that is consistent with the Town’s goals and plans. By extending the vesting period the Town is helping to realize the benefits of this project which include increased vitality of the Town Core, enhanced revenues from real estate transfer tax, sales tax, and lodging tax, other public improvements detailed below which might otherwise not occur without this assurance. Since the rules have not changed since the approval and because the project has already provided benefits to the Town (stream tract parcel dedication) there is really no significant reason not to extend the vesting period and give the owner this assurance. In granting the extension, the Town Council considers the guidelines contained in 7.16.140(e)(2). Below we have provided a response to each of these guidelines in support of our request: (i)The size and phasing of the development, specifically, but not limited to, whether the development can be reasonably completed within the vested rights period; Applicant Analysis: The proposed development plan includes the construction of fifteen townhouses in three separate buildings. Permits will be pulled for one building or more at a time. The project will likely be developed completely in PO Box 4777 Eagle, Colorado 81631 970.376.3318 www.mpgvail.com EXHIBIT B one continuous development phase or may include up to three phases. The applicant believes the project can be started and completed within the extended vesting period. (ii)Economic cycles and specifically but not limited to resort community economic cycles, regional and state economic cycles and national economic cycles; Applicant Analysis: Avon and the Colorado resort market are just now exiting the impacts of the great recession. With the transfer of ownership of the property having just occurred and the new ownership is evaluating the economics of the project related to financing and construction costs. The extension of the vested rights period is necessary to ensure the owners can develop when the economics of the project align over the next year or so. (iii)Market conditions and specifically but not limited to absorption rates for leasing and sales of similar development projects; Applicant Analysis: The applicant believes that market conditions are favorable for the sale of townhouse style residential units in this location and in the next couple of years. The economic downturn has created demand due to the lack of supply for residential product just as consumers are starting to spend again. Labor supply is low and construction costs are currently high due to downsizing in the area over the last 8 years but it is anticipated that labor in the construction market will align with market. (iv)Compliance with the Avon Comprehensive Plan and other community planning documents; Applicant Analysis: This development plan was found to be in compliance with the Plan when it was originally approved and that document remains unchanged. Therefore the project continues to comply with the Plan. (v)Proposed public amenities and benefits that enhance the project and the overall attractiveness of the Avon community, including the degree to which such public amenities and benefits are defined in terms of design, timeframe and phasing with development; Applicant Analysis: Several public benefits and amenities are included with the project. Some of those benefits have already been realized including the dedication to the Town of land for recreation and stream tract enhancement. Additional benefits include pedestrian access path development to the Eagle River, crosswalk on Highway 6 benefitting the community at large, and dedication of drainage easement across the subject property. The project is also providing roadway improvements, school land dedication fees, water rights to serve the project, landscape improvements, and employee housing in-lieu fees. The project design is providing a welcoming entry to the Town of Avon with quality architecture and substantial landscaping. The project will help to improve the vitality of the core of Avon with new residents and revenues. (vi)Projected public financial benefits or costs estimated to be caused by the development project, including the timeframe for realization by the Town or other public entities and potential costs for operation and maintenance of any new public amenities or infrastructure dedicated to the Town or other public entities; Applicant Analysis: The project requires very little public participation in the operation and maintenance of the project. All of the onsite improvements, include the access driveway, will be owned and maintained by the project itself. While no official estimate of potential revenues has been made, the project will provide ongoing annual revenues related to real estate transfer tax, property tax, sales tax from those living and spending within the community, and potential for lodging tax from those short term leasing their units. (vii)The breadth and scope of the requested vested property right, including but not limited to the extent to which such vested property right restricts the Town's ability to apply future legislatively adopted fees and regulations for the purpose of providing public infrastructure, public services and public facilities and for the purpose of meeting evolving community needs; Applicant Analysis: The annexation and development agreement does not preclude the Town from applying legislatively adopted fees and regulations which are general in nature, uniform in character and applicable to all property or class of properties similarly situated to the project pursuant to sections 2.4 and 2.5 of the agreement. (viii) The terms of any existing site specific development plans with development agreements for the applicant's property that specify the duration of vested property rights; Applicant Analysis: An annexation and development agreement was adopted for the Red House PUD. The agreement specifies the term of the vesting period which is requested to be extended and which will be done by amendment to this agreement pursuant to section 9.8 of the agreement. (ix)Any proposed modifications to previously approved vested property rights to address changed conditions within the Avon community, compliance with the Comprehensive Plan and other community planning documents or performance of previously approved site specific development plans; and Applicant Analysis: Modification of the period of vested rights is being requested due to the recent change in ownership of the property and the short period of time left in the vesting period. This is due to the lingering effects of the great recession as discussed herein. The extension will not affect the project’s continued compliance with the Avon Comprehensive Plan or any other planning documents of the Town. This extension will allow the owners to perform on the previously approved site specific development plan. (x)Any other factors deemed relevant by the Council when determining to grant a vested property right for a period greater than three (3) years. Applicant Analysis: No analysis required. We look forward to working with you on this great project. October 19, 2015 Matt Pielsticker, AICP Planning Manager Town of Avon One Lake Street Avon, Colorado 81620 Re: Red House - Vested Rights Extension Dear Matt: Mauriello Planning Group is assisting the new owners of the Red House property located at Lot 1, Eagle River at Avon, 38359 Highway 6, to extend the vested rights period another 3 years (the typical statutory period). The property was purchased in September of this year by Gregg & Co. Builders, a local building and development company that has been developing homes in the Vail Valley for the past 25 years. The Red House PUD, approved in 2009, provides for the development of 15 townhouse units in a beautiful setting along the Eagle River. The project provides for many benefits to the Town including the dedicating of land, easements, and pedestrian improvements along the Eagle River, provisions for workforce housing, roadway improvements, and dedication of water rights. PO Box 4777 Eagle, Colorado 81631 970.376.3318 www.mpgvail.com EXHIBIT B According to the Annexation and Development Agreement for this PUD, the period of vested rights for this PUD (a site specific development plan) will expire on July ??, 2016. The new owners of the property expect to move forward expeditiously with development of the project, but having just purchased the property and not having a firm understanding of construction costs, the need for plan refinements, and the generally economic conditions that may exist in the spring of 2016, they need the assurance of more time to make responsible decisions. I think the Town is acutely aware of the sudden escalation of construction costs which can be attributed to a variety of issues including loss of local labor pool during the economic downturn, development pressure in the Front Range of Colorado, and increases in materials costs. These conditions may prove to be short term and therefore an extension of the vested rights would allow the new owners some relief in making hasty decisions. Having the vested rights in place for an extended period gives the owners the assurance they need to feel comfortable planning the development of this project. We hope that you agree and can grant the extension requested. Sincerely, Dominic F. Mauriello, AICP Principal Exhibit C Background and Review Guidelines BACKGROUND As approved by Town Council through Ordinance 2009-06, the Red House Property was annexed to the Town of Avon in 2009. Subsequently, the Property was zoned PUD through Ordinance 2009-07 in conjunction with a site-specific development plan containing vested property rights for seven (7) years, expiring July 28, 2016. The site specific development plan includes fifteen (15) townhome units arranged along an access driveway. The townhome residences are designed as three separate buildings: a four- plex and a five-plex along the Eagle River and Beaver Creek frontage and a six-plex in the interior, according to the Red House Development Plan. The approved Development Plan is attachment to this staff report. As required by Article II, 2.1 of the Annexation and Development Agreement, the property was replatted through the Town’s subdivision process as the final plat of Eagle River at Avon, approved by Council through Resolution 09-29. VESTED PROPERTY RIGHTS Vested Property Right means the right to undertake and complete the development and use of property under the express terms and conditions of a site specific development plan. SITE SPECIFIC DEVELOPMENT PLAN Site specific development plan means a planned unit development plan or any amendment thereto, approved pursuant to Section 7.16.060, Planned Unit Developments, together with a development agreement approved pursuant to Section 7.16.140 hereof. ANNEXATION AND DEVELOPMENT AGREEMENT (EXHIBIT D) Article II - 2.2 Vesting of Property Rights. The PUD Development Plan and Development Standards constitute an approved “site-specific development plan” as defined in the Vested Property Rights Statute and Vested Property Rights Code and Owner shall have vested property rights, pursuant to the Vested Property Rights Statute and Vested Property Rights Code as implemented by this Agreement, to undertake and complete development and use of the Property under the terms and conditions of the PUD Development Plan and Development Standards during the Term. Pursuant to Section 17.14.050 of the Vested Property Rights Code and this Agreement, the PUD Development Plan and Development Standards constitute a site specific development plan for which a vested property right has been granted pursuant to Article 68 of Title 24, C.R.S., for the Term. SECTION 7.16.140(f) EXTENSION OF VESTED PROPERTY RIGHTS A landowner may request an extension of vested property rights by submitting an application for extension of vested property rights at least six (6) months prior to the expiration of the vested property rights. No application for extension of a vested property right shall be approved until after providing notice and conducting public hearings in compliance with Subsection 7.16.020(d). The guidelines in Paragraph 7.16.140(e)(2) shall be considered when determining whether to grant an extension to a vested property right. An extension of a vested property right shall be approved by ordinance. The notice of approval provisions in Paragraph 7.16.140(d)(1) above shall apply to any approval for extension of vested property rights. 1 SECTION 7.16.140(e)(2), APPROVAL GUIDELINES The Town Council shall use the following guidelines when determining whether to grant vested property rights for a period greater than three (3) years: (i) The size and phasing of the development, specifically, but not limited to, whether the development can be reasonably completed within the vested rights period; (ii) Economic cycles and specifically but not limited to resort community economic cycles, regional and state economic cycles and national economic cycles; (iii) Market conditions and specifically but not limited to absorption rates for leasing and sales of similar development projects; (iv) Compliance with the Avon Comprehensive Plan and other community planning documents; (v) Proposed public amenities and benefits that enhance the project and the overall attractiveness of the Avon community, including the degree to which such public amenities and benefits are defined in terms of design, timeframe and phasing with development; (vi) Projected public financial benefits or costs estimated to be caused by the development project, including the timeframe for realization by the Town or other public entities and potential costs for operation and maintenance of any new public amenities or infrastructure dedicated to the Town or other public entities; (vii) The breadth and scope of the requested vested property right, including but not limited to the extent to which such vested property right restricts the Town's ability to apply future legislatively adopted fees and regulations for the purpose of providing public infrastructure, public services and public facilities and for the purpose of meeting evolving community needs; (viii) The terms of any existing site specific development plans with development agreements for the applicant's property that specify the duration of vested property rights; (ix) Any proposed modifications to previously approved vested property rights to address changed conditions within the Avon community, compliance with the Comprehensive Plan and other community planning documents or performance of previously approved site specific development plans; and (x) Any other factors deemed relevant by the Council when determining to grant a vested property right for a period greater than three (3) years. RESPONSE TO REVIEW GUIDELINES The request to extend the vested property rights to maintain the current approval of the development plan is reasonable given the poor economic conditions for several years following the 2009 approval, and the recent transaction to the new owner. In particular, Guidelines ii and iii above address the economic reasons for granting the extension. It should be noted that there are no substantive changes to the Avon Development Code that would cause a change to the approved development plan if submitted today as a new submittal for review and approval. Since 2009 there have been no further changes to the Avon Comprehensive Plan; therefore this vested rights extension request remains in compliance with the Avon Comprehensive Plan (Guideline iv), as amended in 2009 concurrently with the PUD application. A number of public amenities (Guideline v) remain intact with this vested rights extension, including: • Tract A river access parcel dedicated to the Town with PUD and Subdivision Plat, and • Future Whitewater Park access path under the Avon Road Bridge, and • Employee Housing Mitigation • Right-of-way improvements including Highway 6 crosswalk safety improvements The five (5) year extension request provides the new property owner with greater surety that the development plan approval is locked-in so that construction documents can be prepared for development of the site. 2 E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D E X H I B I T D RE D H O U S E PA R C E L W W W W W W W W W W W W W W W W W W a a a a a a a a a a t t t t t t t t t t t e e e e e e e r r r W W W W W W W W W W W h h h h h h h e e e e e e e e e l l O O O l l l l d d d B B a a r r r r r r r n n n n n F F F F F F F F F u u t t u u u r e e e P P P P a a a a t t t h h h h C C C C C C C C C C o o o o o n n n n n n n n n n n n e e e e e e c c c c c t t t t i i i i i i i o o o o o o o n n n n F F u t u r e F o o t t p a t h C o o n n n n n n n e e e e e c c t t i i o n n E E E E E x x x x x i i i s s s s s t t t t i i i n n n g g g g g V V V V i i i e e e w w w w w w i i i i i n n n n n g g g g g a a a a a n n n n n d d d d d A A A A A c c c c c c c c c e e e e e e s s s s s s s s s s s P P P P P o o o o i i i i i n t t t t F F u u t t u u r r e e E E C C O O P P a a t t h hLOT 2 RIVERSIDE P P P a a a a a r r k k i i n n g g ((((o o o o u u u t t o f A A v v v v v o o o o n n ))))))) 1 1 5 5 5 5 5 M M M M M M M i i i i i i n n n u u u u t e e R R R R a f f t t t L L o o o a a a a a a d d d d d d i i i i i i n n g g g g g Z o o o n e e e e e a ce ss P Wh i t e w a t e r P a r k E E E C C C O O O P P P P a a a t t t h h h TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Scott Wright, Asst. Town Manager Robert Ticer, Police Chief Date: January 4, 2016 Topic: Ordinance No. 16-01 – Amendment to Unclaimed Property Code Summary The Town’s Unclaimed Property code was adopted in 1998 in order to prescribe procedures for disposing of certain items of unclaimed tangible and intangible personal property, primarily outstanding checks and personal effects and sports equipment. This amendment seeks to increase the dollar amount of the notification requirements for disposing of personal effects and sports equipment so that these items can be disposed of more expeditiously. Proposed Motion I move to adopt Ordinance No. 16-01 Amending the Town’s Unclaimed Property Code on First Reading with amendments to Chapter 3.30. Attachments: A - Ordinance No. 16-01 CHAPTER 3.30 - Unclaimed Property 3.30.010 - Purpose. The purpose of this Chapter is to provide for the administration and disposition of unclaimed property which is in the possession of or under the control of the Town. 3.30.020 - Definitions. Unless otherwise required by context or use, words and terms shall be defined as follows: Director shall mean the Finance Director or designee thereof. Owner means a person or entity, including a corporation, partnership, association, governmental entity other than this municipality, or a duly authorized legal representative or successor in interest of same, which owns unclaimed property held by the town. Town means the Town of Avon, Colorado. Unclaimed property means any tangible or intangible property, including any income or increment derived therefrom, less any lawful charges, that is held by or under the control of the Town and which has not been claimed by its owner for a period of more than one year after it became payable or distributable. Except that unclaimed property shall not include abandoned motor vehicles or confiscated weapons. 3.30.030 - Procedure for disposition of sums payable on a check. Notwithstanding any other provision of this Chapter to the contrary, any sum payable on a check on which the Town is liable, which has been outstanding for a period of at least one (1) year after it was payable or after its issuance if payable on demand, is deemed abandoned and without providing notice the Town may write off the amount of such check. 3.30.040 - Procedure for disposition of clothes and personal effects collected at Town facilities and having an estimated value of less than one thousand hundred dollars. Notwithstanding any other provision of this Chapter to the contrary, any single item of clothing or personal effects, including sports equipment, having an estimated value of less than one thousand hundred dollars ($1,000.00) which has been left for a period of thirty (30) days or more at a Town facility or on Town property or turned into Town personnel is deemed abandoned and shall become the sole property of the Town. Such property is subject to disposal in such way as the Director, at his or her discretion, deems to be in the best interests of the Town. 3.30.050 - Procedure for disposition of all other property. (a) Notice—value one thousand hundred dollars ($1,000.00) or more. Prior to disposition of any other unclaimed property having an estimated value of one thousand hundred dollars ($1,000.00) or more, the Director shall send a written notice by mail, to the last known address, if any, of any owner of unclaimed property. The last known address of the owner shall be the last address as shown by the records of the municipal department or agency holding the property. The notice shall include a description of the property, the amount or estimated value of the property, and when available, the purpose for which the property was EXHIBIT A deposited or otherwise held. The notice shall also state where the owner may make inquiry of or claim the property. The notice shall also state that if the owner fails to provide the Director with a written claim for the return of the property within thirty (30) days of the date of the notice, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited. (b) Notice—value less than one thousand hundred dollars ($1,000.00) or no last known address. Prior to disposition of any unclaimed property having an estimated value of less than one thousand hundred dollars ($1,000.00) or having no last known address of the owner, the Director shall cause a notice to be published in a newspaper of general circulation in the municipality. The notice shall include a description of the property, the owner of the property, the amount or estimated value of the property and, when available, the purpose for which the property was deposited or otherwise held. The notice shall state where the owner may make inquiry of or claim the property. The notice shall also state that if the owner fails to provide the Director with a written claim for the return of the property within thirty (30) days of the date of the publication of the notice, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited. (c) Forfeiture. If the Director receives no written claim within the above thirty-day claim period, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited. (d) Written claims. If the Director receives a written claim within the above thirty-day claim period, the Director shall evaluate the claim and file a written notice to the claimant within thirty (30) days thereof that the claim has been accepted or denied in whole or in part. The Director may investigate the validity of a claim and may request further supporting documentation from the claimant prior to disbursing or refusing to disburse the property. (e) Multiple claimants. In the event that there is more than one (1) claimant for the same property, the Director may, at his or her sole discretion, resolve any claims, or may resolve such claims by depositing the disputed property with the registry of the Eagle County district court in an interpleader action. (f) Denial of claims. In the event that all claims filed are denied, the property shall become the sole property of the Town and any claim of the owner of such property shall be deemed forfeited. (g) Appeal. Any legal action filed challenging a decision of the Director shall be filed pursuant to Rule 106 of the Colorado Rules of Civil Procedure within thirty (30) days of such decision or shall be forever barred. If any legal action is timely filed, the property shall be disbursed by the Director pursuant to the order of the court having jurisdiction over such claim. (h) Disposal at Town's discretion. Thirty (30) days after the Director's final decision determining the Town's sole ownership to any unclaimed property described in this Section, the Director, in his or her sole discretion, is hereby authorized to sell such property or otherwise dispose of it in the best interest of the Town. (i) Sale of unclaimed property—advertisement. If the Director determines that any unclaimed property should be sold, then at any time after thirty (30) days after the Director's final decision determining the Town's sole ownership to any unclaimed property described in this EXHIBIT A Section, the Director may prepare a notice, which notice shall be published in a newspaper legally qualified for Town publications pursuant to the Town Charter and posted at Town Hall, which notice shall be directed to the public and shall contain a statement that a list of all such property unclaimed is on file with the Town Clerk and available for public inspection. The notice shall further state the time and place where all such unclaimed property shall be sold by the Town; the time fixed in the notice for such sale shall be no greater than fifteen (15) days nor less than five (5) days from the date of posting. At the time and place mentioned in the notice, it shall be the duty of the Town to dispose of or sell all such unclaimed property for the highest and best price the same will bring in cash, and to receive from the purchaser of each and every article the amount paid by such purchaser for the same, and to deliver the article, together with a bill of sale for the same, to the purchaser. (j) Sale of perishable, bulky, etc., property. Notwithstanding any other provision in this Chapter, if any property taken possession of by the Town is of a perishable nature or so bulky or of such a nature as to make it dangerous or inadvisable to retain possession thereof for the length of time specified in this Article, the Director upon certifying such fact to the Town Manager, setting forth reasons why such property should not be retained for the fixed period before selling or disposing of the same, may cause such property to be advertised forthwith in a newspaper legally qualified for Town publications and sell or dispose of such property at public sale at any time after three (3) days shall have elapsed from the time the property comes under control of the Town. (k) Administrative procedures. The Director is authorized to establish and administer procedures for the administration and disposition of unclaimed property consistent with this Article, including compliance requirements for other Town officers and employees in the identification and disposition of such property. EXHIBIT A Ord. 16-01 Unclaimed Property January 12, 2016 - FIRST READING Page 1 of 4 TOWN OF AVON, COLORADO ORDINANCE 16-01 AMENDING CHAPTER 3.30 - UNCLAIMED PROPERTY OF THE AVON MUNICIPAL CODE RECITALS WHEREAS, the Town of Avon (“Town”) is a home rule municipal corporation and body politic organized under the laws of the State of Colorado and possessing the maximum powers, authority and privileges to which it is entitled under Colorado law; and WHEREAS, in 1998 Section 3.30.10 of Chapter 3.30 of Title 3 of the Municipal Code of the Town of Avon was added for the purpose of providing for the administration and disposition of unclaimed property which is in the possession of or under the control of the Town; and WHEREAS, the amendment and update of the Unclaimed Property Code will ease the administrative burden of the disposition of unclaimed property; and WHEREAS, the Avon Town Council finds that the health, safety and welfare of the Avon community will be enhanced and promoted by the adoption of this Ordinance; and WHEREAS, approval of this Ordinance on First Reading is intended only to confirm the Town Council desires to comply with the requirements of the Avon Home Rule Charter by setting a Public Hearing in order to provide the public an opportunity to present testimony and evidence regarding the application, and that approval of this Ordinance on First Reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this Ordinance; NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendment to Section 3.30.040. Section 3.30.040 of the Avon Municipal Code is repealed in its entirety and re-enacted to read as follows: “3.30.040 - Procedure for disposition of clothes and personal effects collected at Town facilities and having an estimated value of less than one thousand dollars. Notwithstanding any other provision of this Chapter to the contrary, any single item of clothing or personal effects, including sports equipment, having an estimated value of less than one thousand dollars ($1,000.00) which has been left for a period of thirty (30) days or more at a Town facility or on Town property or turned into Town personnel is deemed abandoned and shall become the sole Ord. 16-01 Unclaimed Property January 12, 2016 - FIRST READING Page 2 of 4 property of the Town. Such property is subject to disposal in such way as the Director, at his or her discretion, deems to be in the best interests of the Town.” Section 3. Amendment to Section 3.30.050. Sections 3.30.050(a) and (b) of the Avon Municipal Code are repealed in its entirety and re-enacted to read as follows: “3.30.050 - Procedure for disposition of all other property. (a) Notice—value one thousand dollars ($1,000.00) or more. Prior to disposition of any other unclaimed property having an estimated value of one thousand dollars ($1,000.00) or more, the Director shall send a written notice by mail, to the last known address, if any, of any owner of unclaimed property. The last known address of the owner shall be the last address as shown by the records of the municipal department or agency holding the property. The notice shall include a description of the property, the amount or estimated value of the property, and when available, the purpose for which the property was deposited or otherwise held. The notice shall also state where the owner may make inquiry of or claim the property. The notice shall also state that if the owner fails to provide the Director with a written claim for the return of the property within thirty (30) days of the date of the notice, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited. (b) Notice—value less than one thousand dollars ($1,000.00) or no last known address. Prior to disposition of any unclaimed property having an estimated value of less than one thousand dollars ($1,000.00) or having no last known address of the owner, the Director shall cause a notice to be published in a newspaper of general circulation in the municipality. The notice shall include a description of the property, the owner of the property, the amount or estimated value of the property and, when available, the purpose for which the property was deposited or otherwise held. The notice shall state where the owner may make inquiry of or claim the property. The notice shall also state that if the owner fails to provide the Director with a written claim for the return of the property within thirty (30) days of the date of the publication of the notice, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited.” 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 has passed this Ordinance and each Ord. 16-01 Unclaimed Property January 12, 2016 - FIRST READING Page 3 of 4 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 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 this Ordinance is necessary for the preservation of health and safety and for the protection of pubic convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [execution page follows] Ord. 16-01 Unclaimed Property January 12, 2016 - FIRST READING Page 4 of 4 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on January 12, 2016 and setting such public hearing for January 26, 2016 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 January 26, 2016. BY: ATTEST: ____________________________ ____________________________ Jennie Fancher, Mayor Debbie Hoppe, Town Clerk APPROVED AS TO FORM: ____________________________ Eric J. Heil, Town Attorney TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Preston Neill, Executive Assistant to the Town Manager Date: January 12, 2016 Agenda: Approval of Community Grant Funding Request from Vail Valley Salvation Army ACTION BEFORE COUNCIL: On December 1, 2015, the Town received a cover letter, attached as Exhibit 1, and a community grant funding application, attached as Exhibit 2, from Vail Valley Salvation Army requesting $5,000 to continue and expand the “Get Out and Grow Avon!” community garden event series. STAFF RECOMMENDATION: Staff recommends approval of Vail Valley Salvation Army’s request for funding in the amount of $5,000. FINANCIAL IMPLICATIONS: Seeing as 2016 community grant requests were reviewed by Council on September 22, 2015 and all 2016 community grant funding was approved by Council in the 2016 Town of Avon General Fund Budget on December 8, 2015, staff recommends funding come from Contingency. PROPOSED MOTION: “I move to approve the Vail Valley Salvation Army’s request for funding in the amount of $5,000 to be paid out of Contingency.” BACKGROUND: On July 24, 2015, the application materials for community grant requests, found in Exhibit 3, were advertised for a thirty-five (35) day period. The advertisement was posted on the Town’s website accompanied by a press release. Past recipients were also notified of the application process. Over the course of soliciting requests, the Town received twenty-nine (29) requests. Once all of the submittals were received, an “ad hoc review committee” met on September 9th to review the applications. The review focused on the Review Criteria and rating system included in the application materials. Points were weighted to organizations that provided the most public benefit to Avon residents and visitors, as well as programs that fell in line with the Program Overview and the Avon Brand Platform. The points were only one of the key indicators to determine the funding recommendation. Past funding levels, available funds, potential for on-going requests, filling a funding or service gap and general priorities for all applications were also considered in the funding level recommendation. Council met in a work session on September 22, 2015 to review and take action on all submitted funding applications. Subsequently, all 2016 community grant funding was approved by Council in the 2016 Town of Avon General Fund Budget on December 8, 2015. ATTACHMENTS: Exhibit 1: Vail Valley Salvation Army Cover Letter Exhibit 2: Vail Valley Salvation Army Funding Request Exhibit 3: 2016 Town of Avon Community Grants - Application Guidelines Vail Valley Salvation Army PO Box 2183 – Edwards, CO 81632 322 E. Beaver Creek Blvd – Avon, Colorado (970) 748-0704 – Office (970) 748-0705 – Fax info@salvationarmyvail.org www.salvationarmyvail.org December 1, 2015 Dear Town of Avon; Vail Valley Salvation Army thanks you for thefunding to complete our greenhouse from 2015. We realize this is a late request for the 2016 funding cycle, but wanted to first make sure that we were in compliance with last year’s grant before apying for more funding. We think that the operating funds we are requesting in this grant align with the grant from 2015, in operating “Get Out and Grow Avon”, and to allow us to promote more actively these programs, in partnership with Town of Avon’s Special Events Coordinator. We have established our community garden, which involves diverse groups of people and communities. Thanks to your funding in 2015, we are almost finished building our Greenhouse, to augment healthier food in our Food Pantry. We host several learning programs for the community, including Growing Gardeners for preschoolers, -Ongoing free workshops including but not limited to: Starting your garden, Winterizing your garden, Seed saving, Food preservation, Composting, Troubleshooting your garden, Container gardening, preparing local foods demo/ Q&A with local chefs. We also offered "Lunch at the Garden" summer lunch program, as well as a Farm to table free dinner at the garden featuring local chefs. This event will benefit local restaurants through visibility. We continue to look for ways to expand our services to our clients, such as nutrition classes, starting a commodities program, and showing cooking classes on a television in our lobby. We hope this is a good fit with your Grant funding. Many thanks for considering our request. Tsu Wolin-Brown Center Coordinator 2016 Town of Avon Funding Request Contact Information: The Salvation Army, a California Corporation, Vail Valley Salvation Army P.O. Box 2183, Edwards, CO 81632 0322 E. Beaver Creek Blvd, Avon, CO 81620 Tsu Wolin-Brown, Center Coordinator (970)748-0704 tsu@salvationarmyvail.org Description and Purpose of Organization: The Vail Valley Service Extension Unit of the Salvation Army provides emergency services and strives to meet human needs, in an effort to promote self-sufficiency. Emergency assistance: Self Sufficiency and Economic Supports: Vail Valley Salvation Army supports individuals in the work force and their families, allowing them to continue to work, and linking unemployed individuals with resources so that they are able to work and therefore be self-sufficient. This benefits Avon’s working residents as well as Avon Employers. Vail Valley Salvation Army partners with local public safety and law enforcement by feeding rescue workers and victims with our canteen, by managing shelters, and by assisting with stranded motorists and travelers’ aid. Avon Community Garden: Mountain Harvest Project OUR MISSION: The Mountain Harvest, a project of the Vail Valley Salvation Army, aims to foster healthy food access in Eagle County and the surrounding region. We grow community and confidence when we support sustainable food practice through education, outreach, and partnership. OUR VISION: The Mountain Harvest creates an environment of support and understanding within the community around issues of healthy food access. We network across sectors to involve and engage all demographics as we work together to build sustainable local food systems. We integrate culturally appropriate strategies, honor the wealth of our local agriculture, and listen to the needs local businesses and community leaders. OUR PARTNERSHIP: The Mountain Harvest is engaging non-profits, local government, community outreach organizations, local businesses, farmers and ranchers within the region, religious organizations, Colorado Mountain College, and Colorado State University Extension. We seek to partner with all organizations; understanding the common goal of creating a sustainable local food system doesn’t happen without teamwork. OUR OBJECTIVE: Build and maintain a community garden and greenhouse structure in Avon, Colorado. The Mountain Harvest Greenhouse project will provide a safe space to learn about, grow, and access whole healthy food. The project will reflect the stewardship of Avon’s natural resources while providing educational opportunities that build a vibrant community experience around local foods. Thinking of Local food systems as an essential part of the built environment allows the Town of Avon to honor and celebrate our rich farming heritage. The Avon Community Garden has been in place for three summers. Thanks to last year’s Town of Avon funding, the Greenhouse has now been enclosed, and is close to completion. We offer garden plots to Avon Residents for $50.00 and to local businesses for $200.00 a season. Foods by Marc, a local Avon restaurant, has a large garden plot used to grow fresh food for his business. Other restaurants would be welcome. We have included raised beds, with good organic soil, and a drip irrigation system. We also offer plots to our low-income clients at no charge. We grow food for the Salvation Army Food Pantry as well. We partner with SOS Outreach, Eagle River Youth Coalition, Bright Future Foundation, and the Town of Avon summer camp program offering education and community engagement opportunities, free of charge. Mountain Harvest Get Out and Grow Avon Project OUR EVENTS: The "Get out and Grow Avon!" community garden event series -Farm to table free dinner at the garden featuring local chefs. This event will benefit local restaurants through visibility. -"Lunch at the Garden" summer lunch program featuring local chefs. Grab a bite to eat, enjoy the sunshine, and learn about local food on your lunch break! This event will encourage employees to get outside, take a walk, and eat healthy during their work day. This will benefit businesses concerned with health & wellness in the workplace. -Ongoing free workshops including but not limited to: Starting your garden, Winterizing your garden, Seed saving, Food preservation, Composting, Troubleshooting your garden, Container gardening, preparing local foods demo/ Q&A with local chefs. -Growing Gardeners program offered to preschoolers. This event will be held at Avon Elementary during the winter months. These events took place at the Avon Community Garden in 2015. In 2015, we were able to host these events using only volunteers. It is now a large enough time commitment that we need to pay a coordinator to manage the programs. We also have determined after our inaugural summer that we need to have a person dedicated to promoting, marketing and documenting these programs. All events have been led by CSU ext. Master Gardeners. As with any community engagement project, we allow for adjustment based upon community voice and needs. The "Get out and Grow Avon!" event series will benefit the community and local economy by providing opportunities for health and wellness activities around local foods. These events encourage active lifestyles and healthy eating. When we work together to connect the community with nature and build healthy habits the entire community is elevated. We are requesting funding to continue and expand the Get Out and Grow Avon Project: Funding to support educators providing these programs at little to no charge to the community: $4,500.00 Funding to support materials and resources required to execute this program: $500.00 Total amount requested: $5,000.00 Should you require our operational budget, we can provide it. We do not yet have a line-item budget for the Get Out and Grow Project. Program development is in place. Classes have been offered this summer. Funding is needed to augment and execute “Get out and Grow Avon”. POST OFFICE BOX 975 ONE LAKE STREET AVON, CO 81620 July 24, 2015 RE: 2016 Town of Avon Community Grants Dear Potential Applicant: The Town of Avon welcomes applications from organizations who are seeking grants for programs, projects, special events and/or activities which preserve or enrich the social and economic welfare, and the education and health of the Avon community. This packet includes important information to help your organization meet the goals of Town funding, the application submission requirements, review criteria and schedule for application presentations to the Avon Town Council. AVAILABILITY OF FUNDS: The Town of Avon looks at every opportunity for advancing the partnerships with organizations in Avon. The demands on Town resources, however, must be understood. In Fiscal Year 2015, the Town Council approved $197,850 in funding for community grants. This funding level is anticipated to again be available. Funding, however, is not guaranteed and is in the complete discretion of the Avon Town Council. Monies to outside agencies are prioritized with all the other requests, services and facility needs of the Town of Avon and its revenue projections. Funding, if any, will be based upon the organization’s written application and, if requested, a presentation to Town Council. The Town Council is scheduled to review all applications at their September 22, 2015 regular meeting. The following materials include all information you should need to prepare a grant request:  GRANTS: MEETING ESTABLISHED TOWN GOALS (INCLUDING PROGRAM OVERVIEW, ELIGIBILITY CRITERIA, REVIEW CRITERIA AND REVIEW PROCESS)  APPLICATION REQUIREMENTS & SUBMITTAL GUIDELINES  AVON BRAND PLATFORM If you have any questions on materials to be submitted, please do not hesitate to contact Preston Neill at 970-748‐4404 or pneill@avon.org. Sincerely, Preston Neill Executive Assistant to the Town Manager 2016 Town of Avon Community Grants Page 2 of 6 GRANTS: MEETING ESTABLISHED TOWN GOALS Program Overview: The Town Council will evaluate the various proposals based upon direct benefit to the Avon community, including its residents, visitors and businesses. Community organizations may receive grants, if funds are available, or in‐kind support (including land, buildings, equipment, and services) which support, preserve, or enrich the social and economic welfare, and the education and health of the Avon community. The Town has presented the following overview in support of funding: The Town of Avon, surrounded by natural beauty, is today a strong community that will build on its strengths to become a nationally and internationally recognized year-round mountain resort community. Committed to providing a high level of municipal services for our citizens and visitors, and the stewardship of our natural resources, Avon will expand its cultural, recreational and educational offerings in partnership with our broader community and regional public and private sector agencies, thereby ensuring sustained economic vitality and a vibrant community experience. The importance of vibrancy and activity within the Town will be supported by attracting an array of new and diverse cultural and recreational events to Avon which are in concert with the values of our community and serve to nurture a cohesive sense of place and public. It is the Town of Avon’s elected officials and staff commitment to fiduciary responsibility, effectiveness and efficiency in providing government services and a practiced belief in open and transparent governance that will lead the successful implementation of this vision for the growth and development of Avon. Applicants are encouraged to review the Avon Brand Platform to ensure programs, activities and special events are in support of the document. Applicants should indicate any services or programming an organization or program can provide to the Town of Avon in support of the Avon Brand Platform. Eligibility Criteria: 1. Non‐profit applicants may apply as a 501(c)(3) or under the umbrella of a 501(c)(3) with a letter of agreement between the applicant and the umbrella 501(c)(3). 2. For‐profit business applications as a general practice are not accepted except for signature events. Applicants, who are interested in “seeding” a special event in Avon, are, however, eligible, when a non‐profit is included as a beneficiary of some or all of the proceeds of the proposal. At a minimum, the applicant must include a description of the corporate organizational structure and plan for determining total “seed” needs and terms. 3. Applications will be accepted from organizations and for events that provide educational, cultural, athletic and entertainment opportunities, which directly benefit the Town of Avon residents, businesses and visitors. 4. Special event and festival applicants must identify a specific calendar date which is compatible with other events in the Town of Avon, and when applicable, in the Vail Valley. 5. Funding will not be provided for capital improvements. 2016 Town of Avon Community Grants Page 3 of 6 Review Criteria: 1. Community and Citizen Benefit (Quality of Life): Points: 0‐10  How many people benefit this event/program/organization?  Does this event/program/organization have the potential to contribute to Avon’s sense of community? 2. Program Overview & Avon Brand Platform (Established Policies/Priorities): Points: 0‐20  Is the event/program/organization supported by the Program Overview and the Avon Brand Platform?  Is it associated with one or more of the following priorities: Economic Development; Special Events?  Does this event/program/organization have the potential to expand Avon’s cultural, recreational, and/or educational offerings? 3. Feasibility & Implementation Risk: Points: 0‐10  Are there significant obstacles or unknown factors that may prevent the event/program/organization from being completed?  What happens if the event/program/organization is delayed or denied? 4. Business Vitality: Points: 0‐10  Does this event/program/organization have the potential to benefit Avon’s restaurants, hotels, and retail establishments and does it promote visitors intent to return?  Does this event/program/organization reinforce the Town’s goal of sustained economic vitality? 5. Partnership with the Town of Avon (programs or organizations only): Points: 0‐10 Can or does the program/organization provide programming or other services to the Town of Avon? 6. Special Events Only: Points: 0‐20  Does this event have the potential to contribute to Avon’s long term sustainable special events strategy?  What is the growth potential for this event? Does it have the potential to be an annual event and grow within Avon?  How does this event contribute to a balanced annual calendar of events? (www.avon.org)  Does the producer of this event have the ability to produce an event compatible with the image of Avon as a cultural attraction? 2016 Town of Avon Community Grants Page 4 of 6 Review Process & Schedule: July 24th 2016 Town of Avon Community Grants Open for Application August 28th Deadline for Applications Week of September 14th Funding Recommendation by Community Grants Committee Distributed to Council & Applicants September 22nd Applicant Presentations to Council Avon Town Hall, 5:30 p.m. (subject to change) December 8th Notification of Awards 2016 Town of Avon Community Grants Page 5 of 6 APPLICATION REQUIREMENTS & SUBMITTAL GUIDELINES FOR COMMUNITY ORGANIZATIONS THE DEADLINE FOR RECEIPT OF THIS APPLICATION IS 5:00 P.M. ON FRIDAY, AUGUST 28, 2015 Application Requirements (Please Do Not Exceed Three Pages): 1. Contact Information: a. Name of organization b. Mailing address c. Contact person d. Telephone number e. Email address 2. If your organization received funding from the Town of Avon in 2015, it is mandatory that you provide a progress or final report on the funded activity, program and /or event. The report must include revenues and expenditures, including other outside revenue support. Please address all conditions stated in the Town of Avon Letter of Agreement you received, which announced your funding award. 3. Description and Purpose of the Organization/Mission Statement (If representing a tax exempt organization, please provide a copy of the determination letter from the Internal Revenue Service recognizing your tax‐exempt status under IRS 501(c)(3). If applying under the umbrella of a 501(c)(3), please provide letter of agreement.) 4. Detailed description of the event or program and its activities. Identify if this is a new program, organization or event. 5. Explanation of funding needs and amount of funds requested from the Town of Avon. Include when funds are needed for payment. 6. Amount of funds requested and/or provided from other agencies, organizations or companies (i.e. other funding committed). 7. Anticipated line item budget for the organization or event. 8. 2014 final actual profit and loss statement. 9. Explain how the event or organization benefits the Avon community. 10. If applicable, explain what marketing efforts will be made for this event or program and how it will benefit the Town. 11. Include a description of any "in‐kind" contributions and related costs that the Town of Avon provides to your organization, including but not limited to, land, buildings, and facilities and/or services. 12. Please note that no additional materials will be accepted. Do not send newspaper clippings, letters of support or promotional materials. Application Submittal Guidelines: 1. Submit, by email, a PDF of the full application to pneill@avon.org. 2. Number each item in the application to correspond to the Application Requirements stated above. 3. Only one application may be submitted per organization. 4. Incomplete or late applications will not be considered. 2016 Town of Avon Community Grants Page 6 of 6 Disclosures to all applicants: 1. Funds will not be available until after January 1, 2016, and may be dispersed in installments, if awarded. 2. Notification of awards will be sent after the Council approves the final budget currently scheduled for December 8, 2015. TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Debbie Hoppe, Town Clerk Meeting Date: January 12, 2016 Agenda Topic: FullCourt Enterprise Agreement – Avon Municipal Court Management System ACTION BEFORE COUNCIL The Town Clerk’s office is recommending approval of the attached license agreement between the Town of Avon, Colorado and FullCourt Enterprise. PROPOSED MOTION I move to approve the FullCourt Enterprise Agreement subject to the changes Town Attorney Eric Heil provided being accepted by FullCourt. BACKGROUND The FullCourt management system will interface with the Brozos electronic citation system, recently implemented by the Avon Police Department. FullCourt will eliminate the manual input of citations by the Police Department Administrative Service -Officers, and the current duplicate manual input of the same citations by the Court Clerk for the Municipal Court. The software is funded fully in the 2016 budget. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 1 of 32 FULLCOURT ENTERPRISE® AGREEMENT IN CONSIDERATION of the mutual promises and agreements provided herein, Justice Systems, Inc. (Justice Systems), and The Town of Avon (Customer), whose mailing address is PO Box 975, Avon, CO, 81620, agree that: Justice Systems will license to Customer rights to FullCourt Enterprise® software (SOFTWARE) on a nonexclusive basis for Customer’s use in the geographical jurisdiction described as Avon Municipal Court with site(s) located at One Lake Street, Avon, CO 81620. THIS AGREEMENT provides for (i) an end user LICENSE of the FullCourt Enterprise SOFTWARE (ii) an end user SUBLICENSE of the FullCourt Enterprise Application Server, (iii) specifications for the FullCourt Enterprise operating environment, (iv) the FullCourt Enterprise Data Dictionary, (v) SERVICES associated with the installation, setup, implementation and training in the use of the FullCourt Enterprise system and the SERVICES associated with any enhancements, modifications or customizations to the base SOFTWARE system and, (vi) the FullCourt Enterprise Maintenance and Support Agreement for continued maintenance and support of the system following expiration of the Warranty Period. DEFINITIONS: As used in this Agreement, the following words or terms shall have the meaning described as set forth below: “ALTERNATIVE DATABASE”- shall mean any database (other than the customarily provided Oracle database) which Justice Systems has approved for use in conjunction with the FullCourt Enterprise SOFTWARE. “CUSTOM SOFTWARE”- shall mean those deliverables, as well as documentation related thereto, which are made available by Justice Systems to Customer as part of a customization, modification, alteration, supplementation, addition or change to the STANDARD SOFTWARE and intended to be used as part of or in conjunction therewith. “CUSTOM SOFTWARE” includes all embedded components, subsystems, libraries and/or runtimes supplied by Justice Systems as part of the FullCourt Enterprise customization whether or not the same originated with Justice Systems. “DOCUMENTATION”- shall mean all written, printed, electronic or other format materials published or otherwise made available by Justice Systems that relate to the functional, operational and/or performance capabilities of the SOFTWARE. DOCUMENTATION shall not include SOURCE CODE. “LICENSE”- shall mean the worldwide, perpetual, personal, non-transferable, non-exclusive, license for Customer’s internal use only granted by Justice Systems to use the SOFTWARE and SOFTWARE PRODUCTS under this Agreement. “MIDDLEWARE”- shall mean the SOFTWARE layer that lies between the operating system and the application. Typically, this refers to Java Application Server and Web Server software. “OBJECT CODE”- shall mean the binary machine readable version of the SOFTWARE. “SERVICES”- shall mean the work done by Justice Systems in support of the SOFTWARE and SOFTWARE PRODUCTS but not limited to installation, training, consulting, on site and remote support, as well as such other SERVICES as may be mutually agreed upon by the parties. “SOFTWARE”- shall mean the aggregate of the STANDARD SOFTWARE and the CUSTOM SOFTWARE, including all physical components that are provided by Justice Systems, including but not limited to magnetic and digital media, job aids, templates and other similar devices, and exclusive of the SUBLICENSED systems and products not provided by Justice Systems. “SOFTWARE PRODUCTS”- Shall mean all physical components, other than SOFTWARE, that are offered by Justice Systems, including but not limited to documentation, magnetic and digital media, CD-ROMS, job aids, templates and other similar devises. “SOURCE CODE”- shall mean those statements in computer language, which when processed by a compiler, assembler or interpreter become executable by a computer. Unless otherwise specifically set forth in this or a separate written instrument, the use of SOURCE CODE is not authorized or granted hereunder. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 2 of 32 “STANDARD SOFTWARE”- means the standard FullCourt Enterprise application as indicated on the LICENSE which is attached to and made a part of this Agreement. “STANDARD SOFTWARE” includes all embedded components, subsystems, libraries and/or runtimes supplied by Justice Systems as part of the FullCourt Enterprise application whether or not the same originated with Justice Systems. “STANDARD SOFTWARE” does not include the SUBLICENSED systems or any Customer-supplied software or systems which may be used in conjunction with the FullCourt Enterprise, whether the same may or may not be necessary for the performance of that system. “SUBLICENSE”- shall mean the non-transferable, temporary, non-exclusive, license for Customer’s use only granted by Justice Systems to use the components of the STANDARD SOFTWARE licensed to Justice Systems by third parties under the terms and conditions of their respective license agreements. SUBLICENSED components are warranted and supported by Justice Systems as provided in the LICENSE and in the Maintenance and Support Agreement. The following schedules are attached hereto and made a part of this Agreement: FullCourt Enterprise Software License: Providing for the license provisions under which the SOFTWARE provided by Justice Systems may be used; FullCourt Enterprise Data Dictionary License Agreement. FullCourt Enterprise Operating Environment: Setting forth the operating environment intended to be used to support the SOFTWARE plus any additional software required for use by FullCourt Enterprise system. Also, providing for the responsibilities of Customer relating to the establishment of an operating environment compatible with the FullCourt Enterprise system; FullCourt Enterprise Application Server Sublicense Agreement: - Providing for the terms and provisions governing the application server. Services Agreement: Setting forth the SERVICES that shall be provided by Justice Systems; Maintenance & Support Agreement for FullCourt Enterprise: Setting forth the terms comprising the Agreement for maintenance and support SERVICES to be provided by Justice Systems after the initial warranty period has expired. CitePayUSA Services Agreement: Setting forth the terms and conditions under which ePayment services may be requested by Customer for use with FullCourt. 1. COST OF SOFTWARE LICENSE AND SERVICES TO BE PERFORMED: Customer shall pay to Justice Systems the sum of TWENTY-SEVEN-THOUSAND-THREE-HUNDRED- EIGHTY-SEVEN and 50/100 DOLLARS -as follows: a. Total License fees in the amount of $ 5,810.00 b. Services as set forth in Services Agreement $ 19,450.00 c. Annual Maintenance and Support fees FullCourt Enterprise $ 2,127.50 TOTAL $ 27,387.50 Payment is due upon receipt of invoice to be mailed or emailed to the Customer’s address above first set forth. 2. CONFIDENTIAL INFORMATION: Customer acknowledges that the SOFTWARE is a copyrighted work and that the same contains proprietary intellectual property rights. Customer agrees to keep the SOFTWARE, and any other products delivered by Justice Systems in confidence and to take all reasonable precautions to ensure that no unauthorized persons shall have access to the same and to protect against the making of any unauthorized copies. Breach of this provision shall be construed as a material breach of the terms of this Agreement. As a consequence, in the event of such any breach, Justice Systems, at its sole option, may immediately terminate this Agreement without further obligation. Customer shall not alter any proprietary markings in connection with the SOFTWARE including copyright, trademark, trade secret, and patent legends. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 3 of 32 Customer’s obligations under this section as they relate to the use of the SOFTWARE shall include, without limitation, giving notification to authorized users of the provisions of this section; to immediately halt and report to Justice Systems unauthorized copying, use, distribution, installation, or transfer of possession of the licensed products by any authorized user of which Customer has actual knowledge. It is understood that receipt of confidential information under this Agreement shall not create any obligations in any way limiting or restricting the assignment of Customer’s employees. Notwithstanding the foregoing, Confidential Information shall not include information which the recipient can demonstrate by competent written proof (a) is now, or hereafter becomes, through no act or failure to act on the part of the recipient, generally known or available or otherwise part of the public domain; (b) is rightfully known by the recipient without restriction on use prior to its first receipt of such information from the disclosing party as evidenced by its records; (c) is hereafter furnished to the recipient by a third party authorized by Justice Systems to furnish the information to the recipient, as a matter of right and without restriction on disclosure; or (d) is the subject of a written permission by the disclosing party to disclose. Notwithstanding the foregoing, disclosure of Confidential Information shall not be precluded if: (a) such disclosure is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof, including, but not limited to a Public Records disclosure request; provided, however, that the recipient of such Confidential Information shall first have given notice to the other party, who may make a reasonable effort to obtain a protective order requiring that the information to be disclosed be used only for the purposes for which the order was issued; (b) such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary for such purpose; or (c) the recipient of such confidential information received the prior written consent to such disclosure from Justice Systems, but only to the extent permitted in such consent. The obligations hereunder with respect to each item of Confidential Information shall survive the termination of this Agreement. 3. DATA CONVERSION: Conversion of Customer’s data files from Customer’s current or prior computer systems shall be the responsibility of Customer unless it is specifically agreed between Justice Systems and Customer in accordance with the terms of the “SERVICES Agreement” incorporated into this Agreement. 4. ACCEPTANCE: The SOFTWARE shall be deemed accepted when it has been installed and passes Justice Systems’ standard installation test procedures. 5. CUSTOMER’S OBLIGATION FOR DATA PROTECTION: Justice Systems shall not be responsible for data protection; and, Customer shall be responsible for performing regular back up of data on the computer system used in connection with the SOFTWARE to minimize likelihood of data loss. Customer shall be solely responsible for backup SOFTWARE, hardware procedures and operations. Customer shall provide the safe storage of all backup tapes and/or disks. Customer shall be responsible for keeping Customer computer systems free of computer viruses. 6. COPYRIGHT & PATENT ASSURANCE: Justice Systems has taken reasonable precautions against the infringement by the SOFTWARE of copyright, patent or trade secrets; and, to the best of its knowledge no portion of the SOFTWARE infringes upon the intellectual property rights of any other party. No other or additional warranties are made nor given with respect to intellectual property right infringement. Notwithstanding the above, Justice Systems shall have no duty under this Section with respect to any claim, action or proceeding arising from or related to infringements (i) by Third-Party Products, (ii) arising out of modifications to the SOFTWARE not made by or under the direction of Justice Systems, (iii) resulting from use of the SOFTWARE to practice any method or process which does not occur wholly within the SOFTWARE, or (iv) resulting from modifications to the SOFTWARE or prepared pursuant to specifications or other material furnished by or on behalf of Customer. This Section states the entire obligation of Justice Systems regarding infringement of intellectual property rights, and it will survive the termination of this Agreement. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 4 of 32 7. TERM AND TERMINATION: This Agreement and any supplement shall continue in force unless terminated as set forth herein. Either party may terminate this agreement upon thirty (30) days advance written notice to the other party of its intent to terminate, or immediately by Justice Systems if Customer is in breach of any confidentiality obligations or in violation of any obligations concerning use or protection of the intellectual property rights of Justice Systems. Any portion of this agreement and/or the schedules hereto may be independently terminated in the same manner without prejudice to the remaining portions of this agreement. Upon the termination of the LICENSE granted by this Agreement, Customer shall (i) immediately cease using all SOFTWARE and SOFTWARE PRODUCTS, (ii) notify Justice Systems in writing that it has ceased using all SOFTWARE and SOFTWARE PRODUCTS, (iii) immediately remove from its system and operating environment all SOFTWARE and SOFTWARE PRODUCTS, (iv) notify Justice Systems in writing that it has completely removed from its system and operating environment all SOFTWARE and SOFTWARE PRODUCTS, (v) return to Justice Systems all documents and materials relating to the SOFTWARE and SOFTWARE PRODUCTS (vi) maintain confidentiality and prevent disclosure of any information and documentation relating to the SOFTWARE and the SOFTWARE PRODUCTS or the systems and procedures of Justice Systems as to any and all third parties, and (vii) allow Justice Systems to conduct reasonable remote or onsite audits of Customer’s system and operating environment within business hours from time to time as may be requested by Justice Systems to ensure full compliance with these termination provisions for a period of two years. 8. MODIFICATIONS: The SOFTWARE may not be modified by anyone other than Justice Systems. Any modifications not made by Justice Systems shall nullify all warranties given and will terminate the SOFTWARE LICENSE. 9. SEVERABILITY: In the event that any provision of this agreement is held by a court of competent jurisdiction to be legally ineffective or unenforceable, the validity of the remaining provisions shall not be affected. 10. INTEGRATION: This agreement and any supplements hereto attached as schedules contain the full understanding of the parties with respect to the subject matter hereof and supersedes all prior communications, understandings and instruments relating thereto, whether orally given or made in writing. If an inconsistency arises in the interpretation of this Agreement and any of the attached schedules, supplements or any amendments thereto, that interpretation applied to the latter dated instrument shall control. No waiver, consent, modification, amendment or change of the terms of this Agreement and its supplements shall be binding unless in writing and signed by the authorized representatives of Customer and Justice Systems. 11. ARBITRATION: Any dispute arising out of this agreement other than claims for preliminary injunctive relief or other prejudgment remedies shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in Albuquerque, New Mexico under the rules and procedures of the American Arbitration Association (“AAA”). The arbitration shall be by a panel of three arbitrators and, if feasible, one of the three shall possess knowledge of computer SOFTWARE and its distribution. 12. NOTICE: Any notice required or permitted to be given in this agreement shall be in writing and shall be sent in a manner requiring a signed receipt, or if mailed, by registered or certified mail, return receipt requested. Notice is effective upon receipt. Unless otherwise set forth in writing. Customer designates the address set forth above as the location for delivery of any notifications. 13. NO WAIVER: The failure of either party to exercise any right, or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right nor be deemed a waiver of any subsequent breach of the same or any other term of the agreement. 14. FORCE MAJEURE: Neither party shall be deemed in default of this agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, shortages of materials or supplies, or any other cause beyond the control of such party. This provision requires that any party claiming relief under this provision give written notice within fifteen (15) days of discovery thereof. In no event shall the time for performance be extended beyond 90 days. 15. DUTIES OF CUSTOMER: In order to ensure adequate performance and operation of FullCourt Enterprise, and to avoid additional cost under this Agreement Justice Systems will not begin installation until the requisite ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 5 of 32 preparations have been completed. Should Justice Systems personnel arrive at Customer’s site and be delayed in installing FullCourt Enterprise SOFTWARE, conducting training, or performing other contracted SERVICES because Customer has not adequately performed any portion of the hardware, SOFTWARE or system infrastructure implementation, or other required elements to support FullCourt Enterprise SOFTWARE, Customer will be billed for any delays, extra travel or other expenses incurred and for the stand-by time for personnel. Such delays may necessitate re-scheduling of the installation, training, and/or other SERVICES to be performed by Justice Systems. Charges occasioned by Customer’s failure to otherwise comply with this sub-paragraph will be billed in accordance with Justice Systems’ Standard Professional SERVICES Fees rates, in addition to actual “out-of-pocket” expenses incurred for travel, lodging, etc., and payable upon receipt of an itemized statement therefor. 16. DATA DICTIONARY: Included among the products to be delivered as a part of this Agreement is a copy of the most current version of the FullCourt Enterprise Data Dictionary. The use of the FullCourt Enterprise Data Dictionary is controlled by the terms and conditions of its license. The Customer acknowledges receipt of the license and that it has read and understood the same. Updates to the FullCourt Enterprise Data Dictionary which are necessitated by the issuance of maintenance releases to the FullCourt Enterprise SOFTWARE shall be provided only when the Maintenance and Support Agreement, remains in effect. Customer further understands that support for the FullCourt Enterprise Data Dictionary may be obtained from Justice Systems through direct telephone technical support (and is not included as part of the maintenance and support provided for FullCourt Enterprise). Telephonic Technical Support is available for the FullCourt Enterprise Data Dictionary providing direct telephonic assistance from a Justice Systems, Inc. technician at the rate of $165.00/hr, minimum ½ hour increments (this amount being subject to change by Justice Systems at any time in the future). Customer agrees to pay all amounts incurred for any such support provided upon presentation of an invoice therefor. 17. LATE FEES, COSTS, ATTORNEYS’ FEES: Late payment charges and fees shall be allowed in the amount of 1.5% per month, compounded monthly, and shall apply to any payments in arrears for a period exceeding thirty (30) days. In any legal action or arbitration brought under this agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs of litigation arbitration, or injunctive relief proceedings necessary to carry out the provisions of this agreement. This provision shall not be construed as limiting the right of Justice Systems to demand timely payment; nor shall it require that Justice Systems extend time for payment under the provisions of this Agreement. 18. GOVERNING LAW: This agreement shall be governed by and interpreted, construed, and enforced in accordance with the laws of the State of Colorado. ACCEPTED BY: JUSTICE SYSTEMS, INC. x_____________________________________________ BY:____________________________________ (Authorized signature) Ernie L. Sego, President/CEO __________________________________________ _________________________________ (Type or print name) (Date) ______________________________________________ (Title) ______________________________________________ (Date) ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 6 of 32 FULLCOURT ENTERPRISE® SOFTWARE LICENSE Date of License: ______/_________________/2015 Justice Systems, Inc. (“Justice Systems”), a New Mexico corporation, grants to Customer a personal, non- transferable, nonexclusive, perpetual license to use FullCourt Enterprise SOFTWARE and DOCUMENTATION and to use other SOFTWARE modules developed and provided by Justice Systems in conjunction therewith as identified below. By use of the STANDARD SOFTWARE and CUSTOM SOFTWARE Customer agrees to abide by the terms of this SOFTWARE LICENSE. “Definitions” as set forth in the Agreement to which this SOFTWARE LICENSE has been made a part are not repeated herein, but are hereby incorporated by reference as though fully set forth herein for the purpose of this SOFTWARE LICENSE. Note: This SOFTWARE LICENSE is intended to cover the STANDARD SOFTWARE and CUSTOM SOFTWARE, as well as any modules that are used in conjunction therewith and as may be delivered by Justice Systems pursuant to the provisions of the underlying Agreement to which this SOFTWARE LICENSE has been made apart. Not all modules may be licensed hereunder, and the Customer should review the schedule below to determine those products for which this SOFTWARE LICENSE has been granted. The number of licensed users to the application may be different than those licensed for each module. This SOFTWARE LICENSE supersedes and replaces any and all other FullCourt Enterprise licenses granted to the Customer prior to the date set forth above, and does not grant the right to increase the number of concurrent users for any of the licensed products beyond the number identified herein. Acceptance of this SOFTWARE LICENSE and use of the products licensed hereunder supersedes and replaces all previously granted LICENSES only to the extent that they conflict with this SOFTWARE LICENSE. The SOFTWARE LICENSE granted herein authorizes the use of the SOFTWARE only in OBJECT CODE format (and does not grant any rights to SOURCE CODE) for the purposes of creating, updating, and/or deleting information or data of Customer by no more than ONE (1) concurrent users. A “concurrent user” is anyone authorized by Customer who is signed onto the application through a workstation as permitted by the application (any such user simultaneously signed on through more than one (1) workstation will only be counted as a single user). Customer shall assure compliance with the conditions of this license and will permit Justice Systems to perform reasonable audits and on-site inspections of the SOFTWARE, and its use. The SOFTWARE shall be used only within the geographical jurisdiction of Customer and at such sites as are identified in writing to Justice Systems. Customer shall not make copies of the SOFTWARE, nor shall Customer sell, assign, give or permit a security interest to be taken herein or otherwise convey or allow any other person or entity to use the SOFTWARE without prior written consent of Justice Systems. Customer shall not cause or permit reverse engineering, derivation of SOURCE CODE, disassembly, decompilation of the SOFTWARE nor disclose nor permit access to the SOFTWARE by any unauthorized third party without the written consent of Justice Systems. Customer shall not create derivative works from, adapt, translate or use any portion of the SOFTWARE except as otherwise specifically permitted in this SOFTWARE LICENSE. Customer shall not disclose results of benchmark tests of the SOFTWARE. Customer acknowledges that Customer obtains no ownership rights in the SOFTWARE and that the SOFTWARE is the proprietary product of Justice Systems and is protected by copyright and other intellectual property laws. Customer shall have the right to use the SOFTWARE in the operating environment identified by Customer to Justice Systems. No database relationships shall be modified, nor shall any writing of data into the database be performed by Customer, at Customer’s direction, or with Customer’s knowledge and consent. Once installed by Justice Systems, Customer may not copy onto or transfer the SOFTWARE to any other device(s) than that upon which originally installed, except in the case of one-to-one transfers to new hardware installations, in which case such hardware shall conform to any prerequisites of this SOFTWARE LICENSE or accompanying SUBLICENSES and that the use of the SOFTWARE installed on the pre-existing hardware will terminate immediately. Notwithstanding the terms of this subparagraph, Customer may temporarily transfer the SOFTWARE onto another device if the original device becomes inoperable or is malfunctioning. Additionally, Customer is authorized to use in conjunction with the SOFTWARE the following modules / features, which have been identified by the initials of an authorized representative of Justice Systems, for the number of concurrent users indicated next to the description of each module: ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 7 of 32 ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 8 of 32 Per User/Seat Licensed Modules: Initials: __N/A__ FullCourt Enterprise Jury Management Module Number of Licensed Users (_N/A_) Initials: __N/A__ FullCourt Enterprise Batch Scanning Module Number of Licensed Seats (_N/A_) Licensed Users Same As Number of Concurrent Users of SOFTWARE: Initials: __N/A__ FullCourt Enterprise Imaging Module Unlimited Public Access Users of SOFTWARE Initials: __N/A__ FullCourt Enterprise unlimited Public Access users; provided with CPU licenses for Oracle and FullCourt Enterprise Application Server JUSTICE SYSTEMS WARRANTS THAT IT OWNS ALL RIGHTS, TITLE, AND INTEREST IN AND TO THE SOFTWARE DESCRIBED AND IDENTIFIED IN THIS LICENSE. JUSTICE SYSTEMS WARRANTS THAT FOR 90 DAYS FROM THE DATE OF INSTALLATION THAT THE LICENSED AND SUBLICENSED SOFTWARE SHALL SUBSTANTIALLY CONFORM TO THE FUNCTIONAL SPECIFICATIONS DESCRIBED IN DOCUMENTATION PROVIDED BY JUSTICE SYSTEMS A.ND WHEN OPERATED IN THE DESIGNATED OPERATING ENVIRONMENT. JUSTICE SYSTEMS DOES NOT WARRANT THAT THE OPERATION OF THE LICENSED AND SUBLICENSED SOFTWARE OR OF THE APPLICATION WILL BE UNINTERRUPTED AND ERROR FREE. JUSTICE SYSTEMS DOES NOT WARRANT AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. IF CUSTOMER GIVES NOTICE OF AN ERROR OR INABILITY OF THE LICENSED AND SUBLICENSED SOFTWARE TO SUBSTANTIALLY PERFORM AS SET FORTH HEREIN JUSTICE SYSTEMS SHALL, AT ITS OPTION, RESOLVE THE ERROR OR INABILITY TO PERFORM BY CORRECTING OR REPLACING THE SOFTWARE, OR PROVIDE A REASONABLE WORK-AROUND FOR THE ERROR OR INABILITY, OR SHALL REFUND THE LICENSE FEES PAID UNDER THIS AGREEMENT AND TERMINATE THE LICENSE. WARRANTY OF LAW: JUSTICE SYSTEMS REPRESENTS AND WARRANTS THAT TO THE BEST OF ITS KNOWLEDGE: (I) THERE IS NO CLAIM, LITIGATION OR PROCEEDING PENDING OR THREATENED AGAINST JUSTICE SYSTEMS WITH RESPECT TO THE COMPUTER SOFTWARE PROVIDED TO CUSTOMER OR ANY COMPONENT THEREOF ALLEGING INFRINGEMENT OF ANY PATENT OR COPYRIGHT OR ANY TRADE SECRET OR ANY PROPRIETARY RIGHT OF ANY PERSON; (II) THE COMPUTER SOFTWARE PROVIDED TO CUSTOMER COMPLIES IN ALL MATERIAL RESPECTS WITH APPLICABLE LAWS, RULES AND REGULATIONS; (III) JUSTICE SYSTEMS HAS FULL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY; AND (IV) THIS AGREEMENT IS NOT PROHIBITED BY ANY OTHER AGREEMENT TO WHICH JUSTICE SYSTEMS IS A PARTY OR BY WHICH IT MAY BE BOUND. IN THE EVENT OF A BREACH OF THIS WARRANTY OF LAW, JUSTICE SYSTEMS SHALL INDEMNIFY AND HOLD HARMLESS THE CUSTOMER FROM AND AGAINST ANY AND ALL HARM, INJURY, DAMAGES, COSTS, LOSSES, LIABILITIES, SETTLEMENT AMOUNTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, INCURRED BY JUSTICE SYSTEMS ARISING OUT OF SAID BREACH. JUSTICE SYSTEMS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER DAMAGES FOR LOST REVENUE, LOST OPPORTUNITY, LOST DATA OR DATE USE INCURRED BY CUSTOMER OR ANY THIRD-PARTY AND IN ANY EVENT, ANY LIABILITY OF JUSTICE SYSTEMS SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SOFTWARE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 9 of 32 NOT APPLY TO JUSTICE SYSTEM'S INDEMNIFICATION OBLIGATIONS FOR WARRANTY OF LAW AS SET FORTH, ABOVE. EXCEPT AS SET FORTH IN THIS AGREEMENT, JUSTICE SYSTEMS MAKES NO IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER RECOGNIZES THAT PORTIONS OF THE SOFTWARE MAY INCLUDE OPEN SOURCE CODE DERIVED FROM OTHER SOURCES THAN JUSTICE SYSTEMS AND THAT WITH RESPECT TO THAT SOURCE CODE, JUSTICE SYSTEMS HAS TAKEN REASONABLE PRECAUTIONS AND TO THE EXTENT REASONABLY POSSIBLE USED DUE DILIGENCE IN ASSURING THAT THE SOFTWARE PROVIDED IS FREE OF THIRD-PARTY CLAIMS OF COPYRIGHT OR PATENT INFRINGEMENT. FULLCOURT ENTERPRISE MAY INCLUDE RUNTIME PRODUCTS OF THIRD-PARTY VENDORS IN ORDER TO PROVIDE ADDITIONAL FUNCTIONALITY FOR THE BENEFIT OF CUSTOMER. CUSTOMER AGREES NOT TO ALTER, DISASSEMBLE, DECOMPILE, TRANSLATE, ADAPT OR REVERSE-ENGINEER ANY SUCH RUNTIME PRODUCT OR THE PROPRIETARY PRODUCTS CREATED THEREWITH (E.G., WITH RESPECT TO REPORT GENERATION TOOLS THE .RPT REPORT FILE FORMAT); NOT TO DISTRIBUTE THE RUNTIME PRODUCTS TO ANY THIRD- .PARTY; NOT TO USE THE RUNTIME PRODUCTS TO CREATE FOR DISTRIBUTION A PRODUCT THAT IS GENERALLY COMPETITIVE WITH THOSE RUNTIME PRODUCT(S) PROVIDED BY JUSTICE SYSTEMS; AND, NOT TO USE THE RUNTIME PRODUCTS ON A RENTAL OR TIMESHARING BASIS OR TO OPERATE A SERVICE BUREAU FOR THE BENEFIT OF THIRD PARTIES. WITH· RESPECT TO THOSE RUNTIME PRODUCT(S) LICENSED BY BUSINESS OBJECTS, S.A, OR ANY OF ITS SUBSIDIARIES, CUSTOMER AGREES NOT TO USE THE RUNTIME PRODUCT(S) TO CREATE FOR DISTRIBUTION A PRODUCT THAT CONVERTS THE REPORT FILE (.RP1) FORMAT TO AN ALTERNATIVE REPORT FILE FORMAT USED BY ANY GENERAL PURPOSE REPORT WRITING, DATA ANALYSIS OR REPORT DELIVERY PRODUCT THAT IS NOT THE PROPERTY OF BUSINESS OBJECTS, S.A, OR ANY OF ITS SUBSIDIARIES. THIS WARRANTY EXTENDS ONLY TO THE CUSTOMER IDENTIFIED IN THE BODY OF THIS LICENSE AGREEMENT, OR THE UNDERLYING AGREEMENT TO WHICH IT HAS BEEN MADE AN ATTACHMENT. SUBSEQUENT TRANSFEREES MUST ACCEPT THE APPLICATION "AS IS" AND WITH NO WARRANTIES OF ANY KIND. ANY AND ALL WARRANTIES AND INDEMNIFICATIONS PROVIDED BY THIS LICENSE SHALL BE NULL AND VOID AS TO THE SOFTWARE, SOFTWARE PRODUCTS AND SERVICES WHERE NONCOMPLIANCE IS CAUSED BY OR RELATED TO (1) ACTS OR OMISSIONS OF OTHERS THAN JUSTICE SYSTEMS PERSONNEL, ITS AGENTS OR THIRD PARTIES; (2) MISUSE, THEFT, VANDALISM, FIRE, WATER OR OTHER PERIL; (3) MOVING OR RELOCATION NOT AUTHORIZED BY JUSTICE SYSTEMS; (4) ANY ALTERATIONS OR MODIFICATIONS MADE TO THE SOFTWARE BY CUSTOMER, ITS AGENTS OR REPRESENTATIVES, ACCIDENT, ABUSE, MISAPPLICATION, FAILURE TO FOLLOW CORRECT PROCEDURES FOR STARTING UP THE SYSTEM OR SHUTTING IT DOWN, OR BY INTRODUCTION OF ANY NEW SOFTWARE OTHER THAN IN THE OPERATING ENVIRONMENT SPECIFIED BY JUSTICE SYSTEMS; (6) FAILURE OF CUSTOMER TO ADEQUATELY PROVIDE FOR DATA SECURITY AND REASONABLE PROTECTION AGAINST VIRUSES, WORMS OR OTHER DESTRUCTIVE SOFTWARE MECHANISMS; OR (7) CODING, INFORMATION, OR SPECIFICATIONS CREATED OR PROVIDED BY CUSTOMER. Notwithstanding any other provision of this Agreement Justice Systems may terminate this SOFTWARE LICENSE agreement immediately if Customer (a) fails to make any LICENSE fee payment as set forth by agreement; or, (b) commits a material breach of any of its obligations provided for under this LICENSE, which breach is not remedied or cured within sixty (60) days after notice thereof by Justice Systems to Customer. Upon termination, Customer shall immediately cease to use the SOFTWARE and shall immediately deliver to Justice Systems all copies of the SOFTWARE or any other property of Justice Systems relating to the SOFTWARE and shall certify in writing that these terms have been fulfilled. Customer recognizes that money damages may not be an adequate remedy for its breach or violation of the terms of this SOFTWARE LICENSE, or threatened breach or violation, and injunctive relief or other equitable remedies ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 10 of 32 shall be available to Justice Systems as a remedy in addition to any other remedies available under the law. Any dispute relating to the terms of this license other than claims for preliminary injunctive relief or other equitable remedies shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in Albuquerque, New Mexico under the rules and procedures of the American Arbitration Association. This provision, and the rights created hereunder, shall survive termination of the Agreement. Customer Initials _______ ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 11 of 32 FullCourt Enterprise® Data Dictionary License Agreement For good and valuable consideration Justice Systems, Inc., a New Mexico corporation, hereby grants to Customer, (hereinafter “Licensee”) a LICENSE for the FullCourt Enterprise Data Dictionary, as follows: The FullCourt Enterprise Data Dictionary is the exclusive proprietary property of Justice Systems, Inc., a New Mexico corporation. As such, its use and products created as a result of its use (and the technology disclosed therein) are strictly governed by the terms of the original FullCourt Enterprise LICENSE and other licenses which may accompany the FullCourt Enterprise Court Case Management System. Use, disclosure, extraction from and any other information derived as a result of this disclosure of the FullCourt Enterprise Data Dictionary is further governed, as follows: 1- The FullCourt Enterprise Data Dictionary is protected in accordance with the provisions of the Justice Systems, Inc. copyright to FullCourt Enterprise; 2- The FullCourt Enterprise Data Dictionary is licensed, not sold, by Justice Systems, Inc. It shall remain proprietary to and a trade secret of Justice Systems, Inc. which retains the title, ownership and intellectual property rights in and to the FullCourt Enterprise Data Dictionary; 3- The Licensee may not modify, network, rent, lease, loan, sublicense, assign, or otherwise transfer, pledge, or encumber the FullCourt Enterprise Data Dictionary, in whole or in part; 4- The FullCourt Enterprise Data Dictionary contains trade secrets, and the Licensee, or its assignees, may not decompile, reverse engineer, disassemble, or otherwise manipulate any components of FullCourt Enterprise or the FullCourt Enterprise Database so as to disclose trade secrets, or for any other purpose; 5- The FullCourt Enterprise Data Dictionary described herein, and any modifications, updates, revisions, corrections or additions thereto, shall be used only for the purpose of providing Licensee with information pertaining to the FullCourt Enterprise Database so that Licensee might read data contained in the FullCourt Enterprise Database for the purpose of extracting, exporting , ad hoc inquiry and reporting; 6- Under no circumstances may any product developed by Licensee, or its assignees, modify, enhance or in any way affect the FullCourt Enterprise database structure. Any such modifications to the FullCourt Enterprise Database shall immediately void any and all warranties, and maintenance obligations of Justice Systems, Inc., and other obligations of Justice Systems, Inc. under the then existing FullCourt Enterprise license agreement; This license to the FullCourt Enterprise Data Dictionary is an extension of the original SOFTWARE LICENSE and shall terminate at such time as the original SOFTWARE LICENSE; Licensee shall keep the FullCourt Enterprise Data Dictionary and DOCUMENTATION in confidence and take all reasonable precautions to ensure that no unauthorized persons have access to the same. Customer Initials _______ ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 12 of 32 FULLCOURT ENTERPRISE® OPERATING ENVIRONMENT AGREEMENT Standard Configuration: FullCourt Enterprise is supported by four different components, each of which may be implemented on separate hardware platforms. These components are:  FullCourt Enterprise Java application/web server. Justice Systems requires FullCourt Enterprise Application Server as the application / web server for FullCourt Enterprise. The server running the application / web server must use either a Windows Server 2008 / 2012 or later or a Redhat Linux v5 or later operating system that is compatible with FullCourt Enterprise Application Server or such other MIDDLEWARE products as Justice Systems may approve.  Database server containing FullCourt Enterprise application data. Customer will provide Microsoft SQL Server 2008 / 2008 R2 / 2012 (Standard or Enterprise) as the FullCourt Enterprise database. Customer shall properly license and install the database as specified by Justice Systems or as the parties mutually agree. Customer will maintain and support the database and database environment. Justice Systems will assist the Customer in configuring the database to enable it to work in conjunction with FullCourt Enterprise.  Workstations supporting the browser based user interface. Justice Systems currently requires Microsoft Internet Explorer v9 or later or Google Chrome v23 or later as the browser for FullCourt Enterprise but will designate at the time of installation the appropriate version (in the event of change). Performance of the overall system is the result of a combination of products working together in harmony. Inasmuch as both parties will be independently providing and responsible for maintaining various components of the system, the parties mutually recognize that no assurances can be made by Justice Systems as to the final performance of the SOFTWARE. The parties agree to work together to achieve optimum performance results to the extent that the same may be reasonably obtained. Justice Systems Will Provide: It is understood that the FullCourt Enterprise System utilizes FullCourt Enterprise Application Server MIDDLEWARE and that Justice Systems will provide this MIDDLEWARE with FullCourt Enterprise. Justice Systems will provide as a part of the implementation contemplated by this Agreement all necessary SOFTWARE and SOFTWARE PRODUCTS for the operation of the FullCourt Enterprise System, including Enterprise Service Bus. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 13 of 32 Customer Will Provide: Any and all other components of the operating environment will be provided by Customer, including without limitation, the following:  All hardware, including workstations and servers  Compatible operating systems  Microsoft SQL Server 2008 / 2008 R2 / 2012  All networking components  All printers and scanners  Microsoft Word  A compatible internet browser  All backup system components  Java Virtual Machine  Java Development Kit Customer Preparation Responsibilities: The Customer must have the complete hardware and networking infrastructure in place and operational before the installation of the STANDARD SOFTWARE and/or CUSTOM SOFTWARE. This includes: 1. Assuring that all hardware (server/workstations/Local Area Network/ printers/Internet access with ports 80 and 443 unblocked/tape backup system etc.) is fully tested and operational prior to the FullCourt Enterprise installation. 2. Assuring that Internet access is available to the server and workstations in order to support remote installation and diagnosis. If any component is to be installed on servers running Linux, at least one (1) Windows workstation with Internet access should also have X Server SOFTWARE installed so that the server(s) may be accessed for installation, configuration and maintenance. The entire system (including Internet connection) must be fully tested and operational prior to the installation of the Justice Systems’ provided SOFTWARE. Customer must contact Justice Systems with any questions regarding the required hardware/software necessary to run the Justice Systems’ products. In order to assure that the proper hardware, networking, and operating system infrastructure, etc. is installed and fully operational, Justice Systems will conduct a preliminary installation conference call with the appropriate Customer staff (including Information Systems personnel). The operating environment will be configured by Customer pursuant to the provisions of the most currently published version of the “FullCourt Enterprise Recommended System Configuration” which will be provided to Customer by Justice Systems. Customer Initials ______ ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 14 of 32 FullCourt Enterprise® Application Server SUBLICENSE Agreement Justice Systems grants to Customer a SUBLICENSE to use FullCourt Enterprise Application Server software (FCE-AS) in conjunction with the FullCourt Enterprise software provided by Justice Systems to Customer. This SUBLICENSE is subject to the terms and conditions of the underlying Agreement to which this SUBLICENSE Agreement has been made a part, as well as the following terms. 1) The right to use FCE-AS is a nonexclusive, non-transferable SUBLICENSE granted Customer by Justice Systems to use FCE-AS provided by Justice Systems with the FullCourt Enterprise software LICENSE granted concurrent hereto. 2) FCE-AS will be provided by Justice Systems and shall be used only with FullCourt Enterprise or such other programs as may be provided by Justice Systems to Customer. 3) Justice Systems will install FCE-AS as provided by the agreement(s) referred to above. 4) Each copy of FCE-AS shall be for the Customer’s own internal use within the limits of its geographic jurisdiction. The FCE-AS program shall not be transferred except for temporary transfer in the event of computer malfunction. 5) Customer shall not remove or modify any program markings, nor any notice of proprietary rights. All trademarks, trade names, logos and notices present will be preserved and not deliverately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any trademarks without express written authorization. 6) Customer shall not hold Justice Systems liable for any damages, whether direct, indirect, special, incidental, or consequential, arising from the use of FCE-AS. 7) Customer shall, at the termination of the SUBLICENSE, promptly discontinue use and return to Justice Systems all copies of FCE-AS and Documentation. 8) Customer shall comply fully with all relevant export laws and regulations of the United States to assure that neither FCE-AS, nor any direct product thereof, are exported, directly or indirectly, in violation of United States law or laws of any other country. 9) Justice Systems does not provide any warranty for FCE-AS separate and apart from such warranties as are provided in the software license. Products Applicable to this Sublicense: Item # Application Specific Program Maximum Server Size Description Qty Price per License Total License Charge 1 FCE-AS N/A FCE Application Server Application Specific, Server Instance Licenses 1 N/C N/C TOTAL APPLICATION SPECIFIC LICENSE CHARGE $ N/C Customer Initials _______ ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 15 of 32 Services Agreement WHEREAS, Justice Systems, Inc., (Justice Systems) and Customer have simultaneously herewith or previously entered into an agreement for the licensing of software designed, developed or otherwise provided by Justice Systems; and, WHERAS, the parties recognize that continued use and operation of the licensed products by Customer may from time-to-time require modification, upgrade or enhancement and that Justice Systems is willing to obligate itself to provide same for the benefit of Customer in accordance with the terms of this Agreement; IN CONSIDERATION of the mutual promises and undertakings provided herein, the parties agree as follows: 1- That Customer may purchase from Justice Systems professional services related to the design, development, set-up and implementation of the FullCourt®, FullCourt Enterprise®, and /or FullCase® Case Management System, their associated modules, add-ons and extensions, as well as any other software products as the latter shall be willing to provide and support; 2- That the professional services to be provided in accordance with the foregoing subparagraph may include obtaining specifications, consulting, pre-installation, installation, set-up, training, project management, software modification, and such other services as Justice Systems may provide; and, 3- That the description of these professional services and the parties’ relative responsibilities with respect thereto, are set forth in the succeeding paragraphs (the parties acknowledge that this list is not all-inclusive but representative of those types of services which may be provided). Services & Responsibilities: The following services will be provided: Description Price a. Remote Installation and Setup of FullCourt Enterprise 4,750 b. 5 Day End User Training on FullCourt Enterprise in Albuquerque, NM 6,700 c. Remote Old Case Index data conversion. This conversion depends on the Customer to extract the legacy data from the legacy system into the format specified by Justice Systems. Only Parties are created in FullCourt Enterprise, and a subset of old case information is placed in a text field and associated with the Party. 6,000 d. Remote Standard Citation Import Module setup 2,000 Total Services: $ 19,450 a- Customer Preparation Responsibilities: The Customer must have the complete hardware and networking infrastructure in place and operational before the installation of the STANDARD SOFTWARE and/or CUSTOM SOFTWARE. This includes: 3. Installation of the printers, database and other related SOFTWARE. 4. Assuring that all hardware (server/workstations/Local Area Network/ printers/Internet access with ports 80 and 443 unblocked/tape backup system etc.) is fully tested and operational prior to the FullCourt Enterprise installation. 5. Internet access must be available to the server and workstations in order to support remote installation and diagnosis. If any component is to be installed on servers running either UNIX or Linux, at least one (1) Windows workstation with Internet access should also have X Server SOFTWARE installed so that the server(s) may be accessed for installation, configuration and maintenance. 6. Installation of Internet Explorer (the version as designated by Justice Systems); The entire system (including Internet connection) must be fully tested and operational prior to the installation of the Justice Systems’ provided SOFTWARE. Customer must contact Justice Systems with any questions regarding the required hardware/software necessary to run the Justice Systems’ products. In order to assure that the proper hardware, networking, and operating system infrastructure is installed and fully operational, Justice Systems will conduct a preliminary installation conference call with the appropriate Customer staff (including Information Systems personnel). ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 16 of 32 b- Installation: Justice Systems will install SOFTWARE onto the Customer’s server(s). For those SOFTWARE products which require the FullCourt Enterprise Application Server MIDDLEWARE for the proper operation of the SOFTWARE, Justice Systems will remotely install and configure the same. c- Training: To initiate the product installation, Justice Systems will send the Customer a product installation kit, containing several forms that need to be completed by the Customer and which will serve as the basis for customized setup of the product. The table set-up should be completed prior to training. d- Programming Services: Any requests for Programming Services that Justice Systems is willing to accommodate shall be managed in a two (2) phase process. Phase I will be the analysis portion of any programming work—that period of time when both the Customer and Justice Systems are working closely to communicate requirements, designs, work plans and the like-and Justice Systems Phase II applies to the period after which the delivery of designs has been made and plans have been agreed upon. Given this dual phased approach to Programming Services, a “workflow” process is intended to provide for a well-defined and cooperative environment:  Each request for Programming Services will be submitted by the Customer in writing and with as much detail as reasonably possible given the existent circumstances. Whenever practical, requests for multiple Programming Services will be submitted simultaneously to become part of a single “project”.  Each request will incorporate written documents that may more clearly apprise Justice Systems of the desired functionality and assist in the design process.  All requests for Programming Services shall be submitted in behalf of the Customer by an authorized Project Management personnel (PM), so stating that the request has been authorized and that sufficient funding for the Phase I commitment is available.  The written request will be submitted to a designated Justice Systems Client Manager, who will acknowledge receipt of same in writing and either simultaneously with that acknowledgement, or within a reasonable time thereafter, provide the Customer PM the Tracker Issue Number(s) assigned to the request.  The acknowledgment and assignment of a Tracker Issue Number will constitute Justice Systems’ acceptance of the request to begin analysis and design work toward the development of final specifications and a work plan. Phase I charges in accordance with the schedule set forth at the end of this Services Agreement will begin to be incurred at this point and continue until either of these events occurs: (a) the Customer PM communicates in writing to the Justice Systems Client Manager that the requested Programming Services has been withdrawn; or (b) the final specifications and Final Work Plan have been accepted by the Customer and a Purchase Order has been timely submitted to Justice Systems. All Phase I charges incurred up to this point and time will become due and payable as specified in the Payment section below. Analysis and Design:  Upon acknowledgment of the requested Programming Services, Justice Systems will begin initial analysis toward the Design and the definition of a Preliminary Work Plan. This analysis will most likely involve participation of resources from within the Customer’s staff. The Justice System Client Manager, together with the Customer PM, will coordinate the assignment and commitment of resources for this purpose. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 17 of 32  The completion of analysis work will take place following one or more of the following: conference calls among resources, email communications, web meetings and (where necessary) on-site meetings, as well as any other forms of communication and information exchanges as the parties mutually agree to be reasonably required in achieving the goals of the analysis.  Analysis work, the design, specifications and Work Plans (both Preliminary and Final) are intended to be elements of an overall “process” involving the exchange of ideas, questions, concepts and, as necessary, written instruments demonstrating screen mockups, reports, etc.,. Sometimes a single event or meeting may be all that is required for the parties to sufficiently appreciate the request. An iterative process will more likely be the standard. Final Specifications and Final Work Plan:  Products of the Analysis and Design work will be: o Preliminary Design Specification(s); o A Preliminary Work Plan; o A Quote based upon the Preliminary Design Specifications and Preliminary Work Plan which will be submitted by Justice Systems to the Customer for review, comment and approval. Based upon the Customer feedback, these deliverables will be finalized.  Upon the Customer’s approval of the Final Design Specification(s), Justice Systems will prepare and submit simultaneously, or within a reasonable time thereafter, a proposed Final Work Plan and Fixed Price Proposal. The Final Work Plan will outline the anticipated schedule for completion of the modification(s) outlining timeframes and deliverables.  The Final Work Plan, and included schedules, will be dependent upon receipt by Justice Systems of a Purchase Order for the contemplated Programming Services within the timeframe set forth in the proposed Plan. Failure to timely provide the Purchase Order, or other changes to the proposed Final Work Plan, may result in the necessity to adjust other timeframes or scheduling.  A Purchase Order will be required before Justice Systems will begin the performance of Services set out in the Quote (Phase II). Change Orders:  All requests from the Customer for Change Orders to the agreed upon specifications shall be submitted in writing to the Justice Systems Client Manager, and the parties will employ the same procedures outlined for submission of originating requests.  Change Orders not affecting the approved Programming Services, Final Design Specifications or Final Work Plan will be treated as “new” requests and assigned as being new Projects.  Change Orders or subsequent requests affecting the approved Programming Services, Final Design Specifications or Final Work Plan may require amendments to any, or all, such instruments, including changes to the agreed upon fixed costs. Therefore, all Change Orders will first be analyzed and work performed on account thereof charged in accordance with the Phase I process.  Prior to performing any work occasioned by a Change Order affecting the approved Programming Services, Final Design Specifications or Final Work Plan, the Customer will be invoiced for any affected work already in progress and shall be payable as specified in the Payment section below. Invoices will be for the proportionate amount of the fixed costs for work already performed by Justice Systems. e- Data Conversion Services: The Customer may purchase from Justice Systems Programming Services for the conversion of data from other legacy systems. The Customer acknowledges that the ability to convert data and the accuracy of converted data depends upon elements beyond the control of Justice Systems. JUSTICE SYSTEMS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO CONVERTED DATA FILES. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 18 of 32 Data Cleansing: The parties understand that an existing data environment may be compromised by a variety of errors such as: 1. Instances of different persons with the same Social Security Number 2. Missing or incorrect financial information 3. Incorrect and inconsistent status information 4. Malformed information (e.g., state code included in city name) 5. Inconsistent and non-standard data formats Such data errors may have a negative impact upon the quality of the converted data, and therefore the Customer may be required to manually cleanse the data. To the extent reasonable and practical, the approach outlined in the section entitled “Programming Services” will be applied for a data conversion. Other data conversion options are also available and Justice Systems may be contracted to perform the Services, where appropriate, and in accordance with the Schedule of Standard Professional Service Rates. The above listed services are not intended to be all-inclusive. Justice Systems’ responsibility to provide any other services is limited to those matters specifically enumerated in this Agreement, or as may be otherwise agreed to in writing between the parties. The Schedule of Standard Professional Service Rates is as follows: Professional Services Hourly Rate Executive Management $200 Administrative Staff $60 Management Client Manager $165 Project Manager $165 Configuration Management $145 Domain Specialist $155 Sr. Systems Analyst / Programmer $155 Programmer $145 Quality Assurance $145 Technical Writer $100 Training Services Daily Rate Onsite Per instructor $1,500/day Justice Systems facility Per instructor $1,000/day  From time-to-time at Justice Systems’ sole discretion these rates may change.  Travel time and travel expenses related to SERVICES are not included in the above rates and will be charged and invoiced separately. Payment of Services (non-Maintenance):  Phase I charges will be billed monthly for Programming Services that are “Time & Material”, unless otherwise mutually agreed upon in a fixed price quote.  Phase I “Time & Material” charges for Programming Services will be itemized on the monthly invoice by “rate type” of the Schedule of Standard Professional Services Rates.  Travel Expenses / Per Diem Expenses will be the actual/reasonable expenses incurred for each resource and will be invoiced monthly. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 19 of 32  Travel time will be invoiced separately and as “time and materials” in accordance with the Professional Services schedule.  All travel expenses and travel time is in addition to other costs unless otherwise specifically agreed in writing.  “Fixed Prices” will include the total costs for Justice Systems’ development, testing, and delivery of the requested modification(s), the cost of Release Letter and Help Text production, and other costs mutually agreed to by the parties. “Fixed Prices”, unless otherwise agreed in writing, do not include travel time or travel expenses.  Fixed Prices shall be invoiced, as follows: o Fifty (50%) percent along with the Purchase Order; o Forty (40%) percent at the time of delivery of the first release of the modification; o Ten (10%) percent upon acceptance of the modification or within thirty (30) days of its placement into production, whichever first occurs.  All invoices shall be paid within thirty (30) days of invoice date. Customer Initials _______ ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 20 of 32 Maintenance & Support Services TERM: Except as may otherwise be specifically stated herein, the Maintenance & Support Services shall begin at the end of the warranty period and shall continue for one year terms with automatic renewal for successive one year periods or until specifically terminated by either party giving thirty (30) days written notice of intent to terminate. Maintenance & Support Services is intended to survive the completion and termination of the underlying Agreement to which it has been made a part. “Definitions” as set forth in the underlying Agreement to which this Maintenance & Support Services has been made a part are not repeated herein, but are hereby incorporated by reference into this instrument as though fully set forth herein. APPLICABILITY: As used in the Maintenance & Support Services, the definitions set forth in the underlying FullCourt®/FullCourt Enterprise® and/or FullCase® Agreement shall apply. SUPPORT PROVIDED: Justice Systems will: 1) provide Customer with telephone access by which Customer may communicate with Justice Systems for purposes of seeking technical support of the LICENSED and SUBLICENSED SOFTWARE provided to the Customer, but excluding support for modifications, changes or upgrades to interfaces software not specifically and solely developed by Justice Systems (e.g., modifications made to third party software with which FullCourt products have been interfaced); 2) provide to Customer maintenance of the SOFTWARE covered under this agreement, including maintenance releases of the STANDARD SOFTWARE and CUSTOM SOFTWARE regularly distributed, upgrade versions of the STANDARD SOFTWARE periodically distributed, but shall not include any modifications to either the STANDARD SOFTWARE or the CUSTOM SOFTWARE as may be required due to changes made by third parties to integrated systems, or services or supporting applications or systems, not provided by Justice Systems; 3) correct or replace LICENSED and SUBLICENSED SOFTWARE and/or provide SERVICES necessary to remedy any SOFTWARE error which is attributable to Justice Systems or which functions differently than published Justice Systems’ documentation, or Justice Systems will provide a reasonable workaround for the error, or Justice Systems will refund the pro-rata pre-paid maintenance and support fees paid by customer under this agreement and terminate the maintenance and support agreement; 4) provide Customer with remote diagnostic SERVICES for the SOFTWARE. FEES1: Maintenance and support is included during the warranty period. After that, maintenance and support under the Maintenance & Support Services will be provided at the price stated in underlying Agreement or in any other accepted document (proposal, invoice, agreement, etc.), or any subsequently issued invoice and shall be paid in advance of the beginning of the covered period. This fee, unless otherwise stated in the underlying Agreement, is for the first year and may be increased in subsequent years at Justice Systems’ sole discretion. This fee may also be increased should the Customer elect to have modifications or customizations incorporated into the STANDARD SOFTWARE. SERVICES for the FullCourt Enterprise Data Dictionary shall be separately provided upon request of Customer who will be charged therefor on a per call basis at the then current Standard Professional Services Rate. Customer agrees that each call shall be billed in minimum one-half hour increments. Maintenance and Support shall be paid for all active LICENSES unless otherwise approved by Justice Systems in writing. Should the Customer reduce to total number of active LICENSES for which Maintenance and Support is provided and thereafter reinstate to active status some or all of those LICENSES which had been deactivated, a “reinstatement to active status” fee shall be assessed and paid before reactivation of the LICENSE. There shall be no refunds or pro-ration of the SOFTWARE maintenance and support fees. 1 For the purposes of this Agreement, it should be understood that included in the “Fees” is the maintenance and support of the FullCourt Enterprise application. Not covered by this agreement are any support services related to the browser, the operating system and operating environment, backup and restore software, word processing software, and any other software or hardware that was not sold and provided by Justice Systems as a component to the FullCourt Enterprise system. Upgrades and changes to the hardware, operating system or infrastructure are not included and may require additional services that may be provided by Justice Systems in accordance with its then current Standard Professional Service Rates. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 21 of 32 CONDITIONS OF SUPPORT: Customer acknowledges and agrees that support under the Maintenance & Support Services will not be provided for damage or problems to SOFTWARE caused by fire, smoke, water, vandalism, riots, theft, misuse, accidents, power outages, abuse, any acts of war, or acts of God. Customer further acknowledges that this agreement will not cover corrections for difficulties or defects traceable to system changes by Customer, alterations to SOFTWARE other than by Justice Systems, introduction of incompatible programs, hardware, viruses, worms or any other cause beyond the control of Justice Systems. If the customer elects to run FullCourt Enterprise in a virtualized environment, Justice Systems will support the product with some restrictions. Reported issues that are obviously originating in FullCourt Enterprise will be addressed in accordance with this Maintenance & Support Agreement. Issues that could have their origin in the configuration or management of the virtual environment - such as problems with performance, network and printer communications, etc. - may need to be reproduced outside of the virtual environment. Where the issue is confirmed to be unrelated to the virtual environment, Justice Systems will support the product in a manner consistent with support provided when the software is not running in a virtualized environment. Any support rendered by Justice Systems at Customer’s request to deal with any problems that lie outside the scope of this Maintenance & Support Agreement shall be billed in accordance with the time and materials rates then in effect by Justice Systems at the time the work is completed, together with any travel and expenses incurred in providing such extra support. Charges for support or work provided to Customer by Justice Systems that lie outside the scope of the Maintenance & Support Agreement shall be paid within thirty (30) days from the date of billing. Payments not timely made shall bear a penalty of 1 1/2 percent per month until paid. Services Excluded from Maintenance & Support Services: It is expressly understood and agreed by Customer that Justice Systems will not be responsible for performing the following SERVICES: Training Support SERVICES do not include any training SERVICES that may be required by Customer, including such SERVICES that may be required as a result of enhancements, modifications or upgrades. These SERVICES may be separately purchased at Justice Systems’ then current Standard Professional Service Rate. Non-Standard Configuration Justice Systems may assist, at costs additional to those set forth in this Agreement, with the configuration of any ALTERNATE DATABASE in order to assure that it will operate in conjunction with FullCourt Enterprise, but makes no assurances of compatibility. Hardware Hardware installation and setup, work station or server setup, fax-modem, scanner or printer installation or setup, local or wide-area networking hardware or setup, back-up system hardware or setup, services related to set up of the networking infrastructure. Other Software Supplying, installing, or integrating any other SOFTWARE, including but not limited to operating or networking systems; MIDDLEWARE and database SOFTWARE not defined as part of the Standard Configuration, or word processing systems; nor setup, remote communications SOFTWARE, back-up system SOFTWARE, or any legacy system or other non-FullCourt Enterprise application. VERSIONS SUPPORTED: Support under the Maintenance and Support Services shall be provided only for the most current release or as otherwise communicated in writing by Justice Systems to the Customer of the Justice Systems provided components as specified in the ”FullCourt Enterprise Operating Environment Agreement”. Subject to the availability of resources, Justice Systems, at its option, will provide maintenance and support for Justice Systems provided components as specified in the ”FullCourt Enterprise Operating Environment Agreement” not satisfying this criterion on a time and materials basis. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 22 of 32 It may be necessary to install the latest SOFTWARE releases for the licensed program and it may be necessary to update Customer’s computer hardware, operating systems and/or other SOFTWARE to achieve compatibility with the currently supported release of the licensed program. If Customer has not installed any releases that Justice Systems has made in the licensed SOFTWARE or is not using a currently supported release of the licensed program, database or necessary MIDDLEWARE, Justice Systems may suspend provision of SOFTWARE maintenance and support for the licensed program until Customer cures this condition. At times, releases provided as part of this Maintenance & Support Agreement may require changes to components that support the SOFTWARE, which changes are not included or covered in the SERVICES enumerated by the terms of the Maintenance & Support Services. Any installation required for an upgrade to a currently supported release of a licensed program, when performed by Justice Systems, will be charged to Customer at Justice Systems’ then current hourly rates plus reimbursement for any out-of-pocket costs or expenses incurred by Justice Systems. Such installation charges shall be in addition to other fees or charges that may be due. RELEASES:  Releases of SOFTWARE modifications will be accompanied by: o Distribution of SOFTWARE via Justice Systems’ FTP site (email notification of placement on the FTP site will be provided); o Mailing to the Customer of a CD/DVD upon which the SOFTWARE is written; o Written Release Notes that include: (1) identification of the Customer issues and modifications contained in the SOFTWARE release; (2) specific instructions pertaining to table setup and system setup affected by the release and delivered modifications; (3) other issues which Justice Systems determines appropriate for notification to end users; o Online Help Text (which will be regularly updated with each release). It is understood that completion of all modifications will be dependent upon the mutual commitments of the Customer and Justice Systems. Change Orders, or unforeseeable circumstances may impact actual delivery dates; and, while both the Customer and Justice Systems will endeavor to perform their individual responsibilities as expeditiously as reasonably possible, delays may occur.  TIME OF SUPPORT: Maintenance and support SERVICES provided under this agreement shall be available during the normal working hours of 7:00 a.m. to 5:00 p.m. in Albuquerque, New Mexico excluding weekends, legal holidays, or other days determined by Justice Systems by prior notice to Customer. WARRANTIES: EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, JUSTICE SYSTEMS DOES NOT WARRANT SERVICES AND SUPPORT PROVIDED FOR AND INCLUDED IN THIS AGREEMENT AND THE CUSTOMER HEREBY ACKNOWLEDGES THAT SAID AGREEMENT IS ENTERED INTO AND SAID SERVICES ARE PURCHASED REALIZING THAT NO IMPLIED WARRANTIES ARE MADE OTHER THAN THAT JUSTICE SYSTEMS WILL USE REASONABLE EFFORTS TO RESOLVE PROBLEMS, ANSWER QUESTIONS AND HELP CUSTOMER OBTAIN SATISFACTORY PERFORMANCE OF THE SOFTWARE. REMOTE SUPPORT: Customer agrees to install and maintain for the duration of this agreement Internet access to the FullCourt Enterprise system that is compatible with Justice Systems’ remote diagnostics system. Customer will pay for installation, maintenance and use of said items. Justice Systems shall use these items in connection with error correction and/or support. Any access by Justice Systems shall be subject to prior approval of Customer and in any case access shall be solely for the purpose authorized by Customer. PROPRIETARY RIGHTS: Any changes, additions and enhancements in the form of new or partial programs or documentation as may be provided under this agreement shall remain the proprietary property of Justice Systems. TERMINATION: In the event of termination of the SOFTWARE license specified above, all maintenance fees or charges payable for the entire term of the Maintenance & Support Services, without notice or demand by Justice Systems, shall immediately become due and payable; and, Justice Systems’ obligations under this agreement shall immediately end. Justice Systems may terminate the Maintenance & Support Services in the event of the failure of Customer to fulfill its obligations hereunder. Justice Systems shall be entitled to payment for the full amount of SERVICES performed under the contract. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 23 of 32 GENERAL: This agreement is not assignable without prior written consent of Justice Systems. Any attempt by Customer to assign any of the rights, duties and obligations of this agreement without such consent is void. The Maintenance & Support Services can be modified only by a written agreement duly signed by persons authorized to sign agreements on behalf of Customer and Justice Systems. Variance from the terms and conditions of the Maintenance & Support Services except in writing and signed by those persons authorized to sign for the Customer and Justice Systems will be of no effect. If any provision or provisions of the Maintenance & Support Services shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. No action regardless of form arising out of this agreement may be brought by either party more than two years after the cause of action has arisen or in the case of non-payment, more than two years from the date of last payment. Customer Initials _______ ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 24 of 32 CITEPAYUSA SERVICES AGREEMENT THIS AGREEMENT entered into this _____ day of _____________, 2015, by and between Justice Systems, Inc. (the “Provider”) and The Town of Avon (the “Customer”), shall be the complete understanding of the parties with respect to provision of the products and services hereinafter described, as well as the compensation to be paid on account thereof. THE PARTIES AGREE AS FOLLOWS: 1. Term of Agreement: This agreement shall commence on the date herein executed by both parties and, unless sooner terminated as hereinafter provided, shall be for an initial term of three (3) years. Thereafter, the term shall automatically renew for one (1) year periods unless either party gives written notice to the other at least thirty (30) days prior to inception of the next annual period indicating an intent not to renew. Following the initial three (3) year period either party may terminate the agreement by giving thirty (30) days written notice of intent to terminate. 2. Services: Provider, on behalf of the Customer, 2.1.1. shall perform services for the processing of payments through the use of Provider’s software and facilities, including the uploading of certain data from the Customer’s FullCourt CMS to Provider and the downloading of such payment transactions from Provider to the FullCourt CMS of the Customer. 2.1.2. will provide the appropriate merchant account(s). 2.1.3. will transmit funds due the Customer to its “Deposit Account”. For the purposes of this subparagraph it is understood that Provider will deposit to the account of the Customer amounts collected for case matters pending before said court as the same may be identified by the FullCourt CMS and in accordance with the provisions of paragraph “5. Payments/Billings/Reports”, below. 2.1.4. Provider, as part of this Agreement, shall sell to Customer as many payment terminals with CitePay software installed (unit) as the Customer requests from Provider, at a per unit cost of Eight Hundred ($800.00) Dollars (which amount includes delivery charges). Payment terminals are not required for use of CitePayUSA’s online services, and may be requested at any time during the term of this agreement. Each unit shall come pre-installed with CitePayUSA screens and software for interaction with the CitePay ePayment system, which screens and software shall not be modified, removed or otherwise altered without the prior written consent of the Provider. It is understood that the following terms and conditions shall apply to all units purchased: 2.1.4.1. Each such unit shall only be used incidental to the processing of transactions via the CitePay ePayment system; 2.1.4.2. Each such unit shall be installed and setup by Customer and maintained in accordance with the provisions for “Maintenance and Support” set forth in paragraph 2.1.5, below; 2.1.4.3. At the beginning of each service year, for each unit placed in service, Customer will pay to Provider One-Hundred-Eighty ($180) Dollars for Maintenance and Support. 2.1.4.4. Customer agrees to the software license with Verifone, Inc. which is an integral part of this agreement. 2.1.5. Maintenance and Support: Provider’s Help Desk support team shall provide to the Customer’s employees and their designees all maintenance and support reasonably required for the operation of the CitePay ePayment system. It is understood that under normal circumstances support will be available during normal business hours of 7:00AM through 5:00PM, Mountain Time (excluding weekends and holidays). 2.1.5.1 Should Provider determine that return of the unit to its facilities is required for repair or replacement of the unit, all shipping and handling charges associated with the return of the unit to said facilities shall be paid by Customer. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 25 of 32 2.1.5.2 As part of the ongoing maintenance and support of each unit Provider may reasonably require from time-to-time that Customer install upgrades and enhancements to the software. The timing of the installation of any upgrades and enhancements shall be mutually agreed upon by the Provider and Customer. 2.2. Customer’s Responsibilities: 2.2.1. Customer shall install upgrades to FullCourt CMS and software necessary to assure a compatible interface with the CitePayUSA ePayment system. Customer, for the purpose of permitting Automated Clearing House Network (ACH) transfers between Customer and CitePayUSA, shall maintain a Deposit Account as per the Authorization Agreement for Direct Deposits/Payments included in this agreement. 2.2.2. Customer shall: (1) notify in writing Provider any time there is a change in the bank or account that may materially affect the ability of Provider to make ACH transactions to the Customer’s Deposit Account; (2) at its own cost, maintain a persistent connection with the Internet for the purposes of transmittal of data and case information necessary to provide the services herein described and contracted; (3) maintain the FullCourt CMS (i) by continuing in effect the Maintenance and Support Agreement offered by Justice Systems, Inc.; (ii) by installing the then most current release of the FullCourt CMS as specified by Justice Systems, Inc.; (iii) and by maintaining the hardware, infrastructure and operating environment necessary for proper functioning of the FullCourt CMS; (4) be responsible for the accuracy of all case data and content made available to or transmitted to CitePayUSA; (5) immediately notify Provider of any perceived or known irregularities in services provided, including without limitation, the operation of the FullCourt CMS, the CitePayUSA ePayment system, transactions made to the Customer’s account(s) via the ACH system, and any transactions processed through CitePayUSA.com. 3. Fees: 3.1. Automated Payment Service Fees – Customer agrees to pay to Provider an automated payment service fee of 5.95% of the fine, fee or other amounts collected by Provider in behalf of Customer, as compensation for the services and products provided by Provider under this agreement. Customer and Provider understand and agree that said fee shall be paid as follows: 3.1.1 □ Customer agrees and authorizes Provider to assess the automated payment service fee owed for each transaction to the credit card, debit card or other account (as applicable) of the person or entity making payment in behalf of the defendant, litigant or individual, howsoever described, obligated to make a payment to the Customer, the relevant Court or court authorized agency. Said fee shall be in addition to the amount of the obligation owed to the Customer. The parties understand and agree that Provider’s receipt and retention of said fee shall substitute for the payment of same by Customer to Provider, but shall not relieve Customer of the obligation to pay said fee if Provider is ultimately unable to collect it as described in this paragraph, such as in the event of a chargeback or return as provided in paragraph 3.2 below. 3.1.2 □ Provider shall calculate the total amount of automated payment service fees owed by Customer to Provider each month, and shall invoice that total amount to Customer. Said fees shall be due and payable by Customer to Provider 30 calendar days after the date of each invoice. 3.2. Chargeback/Returned Check Fees - In the event that Provider is notified of a chargeback/returned check or the same shall be imposed upon or incurred by Provider for any reason whatsoever Provider shall charge to the Customer and Customer shall pay to the Provider an administrative fee of $15 in addition to all credit card, debit card and ACH transaction fees. Customer shall also reimburse Provider all amounts paid/credited to Customer’s account by reason of the obligation related to the chargeback/returned check. Provider shall notify Customer of any chargebacks/returned checks and provide documentation of amounts due as a result of a chargeback/returned check. [Note: Customer will be responsible for adjusting the balance of the FullCourt case associated with said chargeback/returned check and in accordance with the policies of Customer and/or court]. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 26 of 32 3.3. Within the initial three (3) year term of this agreement, or any renewal thereof, all costs and fees enumerated are subject to change only upon the mutual consent of the parties; except that in the event that any costs or fees imposed upon the Provider by the debit/credit card transaction service providers are increased by more than twenty-five (25%) percent Provider shall notify Customer of said increase as soon as reasonably possible. In addition to giving such notification, Provider shall propose to Customer adjustments to the provisions of this Agreement which Provider deems reasonable under the circumstances. Customer will thereafter have three (3) business days within which to accept said proposal or, in lieu thereof, Provider may elect to suspend the provision of services hereunder. If the parties are unable to mutually agree upon an adjustment of the enumerated costs and fees within a reasonable time following notification, either party may elect to terminate this agreement without penalty. 4. Security, Exclusivity: The parties agree that each shall remain compliant with the PCI Data Security Standard requirements of the Card Association and/or Merchant Bank and that the CitePay ePayment system shall be the exclusive method utilized for accepting all credit and debit card transactions for the payment of fines, fees, bonds and other payments by those courts of Customer which utilize the FullCourt CMS. The Customer shall cease using any alternative methods or systems for accepting credit and/or debit card transactions within thirty (30) days of the implementation of the CitePay ePayment system at their location; or, in the event the Customer is under existing contractual obligations which cannot be cancelled without penalty, at the time of termination of said contractual obligations. 5. Payments/Billings/Reports: Provider shall periodically provide to Customer financial reports as may be reasonably necessary for management of transactions. Provider shall transmit by ACH transfer payments received via the CitePayUSA ePayment system, and on account of obligations due to the Customer, within two (2) business days of the deposit of funds representing payment by the obligee, or in behalf of the obligee, to Provider’s account, conditioned upon: (1) a valid authorization code having been received from the Card Association; (2) acceptance of the payment has been had in accordance with the Terms and Conditions of the CitePayUSA website; and (3) payment has been received and deposited into the Provider’s Settlement Bank Account. Availability of ACH transferred funds for use by the Customer is subject to the control of the banking institutions. Payments shall be in the net amount received after deduction of all automated payment fees. 6. Confidentiality: Customer acknowledges that portions of the CitePayUSA ePayment system are a copyrighted work. Any materials provided by Provider including documentation may contain proprietary intellectual property rights. Customer agrees to keep the software, documentation and the CitePayUSA proprietary intellectual property in confidence and to take all reasonable precautions to ensure that no unauthorized persons have access to the same and that no unauthorized copies are made. Breach of this provision shall be construed as a material breach of the terms of this Agreement. As a consequence, in the event of such any breach, Provider at its sole option, may immediately terminate this Agreement without further obligation. Customer shall not alter any proprietary markings in connection with the CitePayUSA ePayment system, including copyright, trademark, trade secret, and patent legends. Customer’s obligations under this section as they relate to the use of the CitePayUSA ePayment system shall include, without limitation, giving notification to authorized users of the provisions of this section; to immediately halt and report to Provider unauthorized copying, use, distribution, installation, or transfer of possession of the licensed products by any authorized user of which Customer has actual knowledge. It is understood that receipt of confidential information under this Agreement shall not create any obligations in any way limiting or restricting the assignment of Customer’s employees. 7. WARRANTY: IN NO EVENT SHALL PROVIDER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR OF WHICH PROVIDER WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 27 of 32 8. Acts or Failures to Act: Neither party shall be responsible for liability incurred as a result of the other party's acts or omissions in connection with this Agreement. 9. Limitation of Liability: Provider will not accept responsibility for errors, acts, failure to act by banks, communication common carriers, data processors or clearinghouses through which transactions may be passed, originated, and/or authorized. Provider undertakes no duties to Customer other than the duties expressly provided for in this Agreement. 10. Severability: In the event that any provision of this agreement is held by a court of competent jurisdiction to be legally ineffective or unenforceable, the validity of the remaining provisions shall not be affected. 11. Provider Software Upon Termination: Upon termination of this agreement, with or without cause, Customer shall immediately cease the use of any CitePay software installed on the payment terminals as well as software installed upon other devices for the purpose of interfacing to said terminals. 12. Notices: Any notice required or permitted to be given in this agreement shall be in writing and shall be sent in a manner requiring a signed receipt, or if mailed, by registered or certified mail, return receipt requested. Notice is effective upon receipt. Unless otherwise set forth in writing, the addresses for notice are those set forth with the names of the signatories to this agreement below. 13. No Waiver: The failure of either party to exercise any right, or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right nor be deemed a waiver of any subsequent breach of the same or any other term of the agreement. 14. Force Majeure: Neither party shall be deemed in default of this agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, shortages of materials or supplies, or any other cause beyond the control of such party. This provision requires that any party claiming relief under this provision give written notice within fifteen (15) days of discovery thereof. 15. Compliance with Federal, State & Local Law: The parties shall perform all obligations hereunder in compliance with applicable federal, state and local statutes, laws, regulations and ordinances. This agreement shall be governed by and interpreted, construed, and enforced in accordance with the laws of the State of New Mexico. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 28 of 32 CITEPAYUSA SERVICES AGREEMENT DEFINITIONS When used in this Agreement the following words or terms, unless otherwise specifically stated, shall have the following meaning: a. "ACH" – means the Automated Clearing House Network. b. "Authorization" – is the process whereby Provider in compliance with the Operating Rules for each Card obtains approval of a Charge from the Card Issuer. An Authorization indicates only the availability of the Cardholder’s credit limit at the time the Authorization is requested. c. “Business Day” – is Monday through Friday excluding Merchant Bank holidays. Each Business Day ends at the cutoff time specified by the Merchant Bank. Charges submitted for processing on a holiday, weekend, or after the cut-off time are treated as received on the following Business Day. d. “Card Association” – refers to any entity formed to administer or promote credit cards or debit cards, including without limitation, MasterCard International, Inc., Visa International, DiscoverCard and Debit Networks. e. “Cardholder” – is the person issued a credit card or debit card and a corresponding account by a Card Issuer. f. “Card Issuer” – is the institution authorized by a Card Association to issue credit cards and debits cards to Cardholders and that has issued a credit card or debit card presented to Provider for a charge or credit voucher. g. “Chargeback” – is a return of a charge to Provider typically initiated by a Cardholder through a Card Issuer, for transmittal to and payment by Merchant under Operating Rules established by the Card Association. h. “CitePay Terminal” – is such device or devices, including software, either provided or required by Provider for interfacing to the FullCourt CMS and/or other hardware so as to allow interaction with the CitePayUSA ePayment system. The sale or conveyance by Provider of each device, or associated software, is subject to restrictions and conditions imposed by third-party providers. i. “Credit Card” – A plastic card (Visa–branded, MasterCard-branded or DiscoverCard-branded Credit and Business Cards or Debit Cards) bearing an account number assigned to a cardholder with a credit limit that can be used to purchase goods and services and to obtain cash disbursements on credit, for which a cardholder is subsequently billed by an issuer for repayment of the credit extended at once or on an installment basis. j. “Database” – dependent upon the context of the language in which it is used, “database” will mean the FullCourt CMS database associated with the Customer’s court case management system, or the CitePayUSA database owned and maintained by the Provider. k. “Debit card” – A plastic card with which an individual court customer may withdraw funds on deposit in the individual court customer's account. A debit card transaction pays the Customer/Provider by withdrawing funds already on deposit in the individual court customer’s account, as opposed to a credit card transaction in which funds are loaned to the individual court customer by the card issuer. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 29 of 32 l. “Deposit Account” – the Customer’s business account with a banking institution set up for receipt of payments from the Provider. m. “DISCOVERCARD®” card – A card that bears the DiscoverCard symbol, enabling a DiscoverCard cardholder to obtain goods, services or cash from a DiscoverCard merchant or acquirer. n. “FullCourt CMS” – is the FullCourt® or FullCourt Enterprise® Court Case Management System. o. “Individual court customer” – is the litigant, defendant, respondent, party, driver, registrant, or other person or corporation, howsoever denominated in the Customer’s FullCourt CMS, or identified as the entity making payment to the Customer on account of fines, fees, charges, bonds, restitution, costs or other obligations related to a court case within the FullCourt CMS database. p. “MASTERCARD®” card – A card that bears the MasterCard symbol, enabling a MasterCard cardholder to obtain goods, services or cash from a MasterCard merchant or acquirer. MasterCard Incorporated is a membership organization owned by financial institutions that issue its card. MasterCard is also the company's brand of credit cards. q. “Merchant Bank” – A financial institution that provides credit card processing services for the Customer or the Provider. Also herein referred to as the “acquiring bank” or “acquirer”. r. “Returned Check” – is an electronic check presented for payment which has been returned (not paid) by the financial institution or payment processor for any reason, including but not limited to, incorrect routing number, incorrect account number, and insufficient funds. s. “Settlement Account”– the Provider’s business account with the Merchant Bank set up for receipt of payments via credit cards, debit cards and electronic checks. t. “VISA®” card – A card that bears the VISA symbol, enabling a VISA cardholder to obtain goods, services or cash from a VISA merchant or acquirer. VISA is a brand of credit card and debit card operated by the VISA International Service Association of San Francisco, California, USA, an economic joint venture of financial institutions that issue and market Visa products. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 30 of 32 CITEPAYUSA SERVICES AGREEMENT AUTHORIZATION AGREEMENT FOR DIRECT DEPOSITS/PAYMENTS (ACH CREDITS/DEBITS) Court Name: Avon Municipal Court (hereinafter called Customer). Customer hereby authorizes Justice Systems, Inc. (hereinafter called Provider) to initiate credit/debit entries to Customer’s Checking Account / Savings Account (select one) indicated below at the depository financial institution named below hereafter called DEPOSITORY, and to credit/debit the same to such account. Customer acknowledges that the origination of ACH transactions to Customer’s account must comply with the provisions of U.S. law. Depository Name: City: State: Zip: ________ Routing Number: Account Number: This authorization is to remain in full force and effect until Provider has received written notification from Customer of its termination in such time and in such manner as to afford Provider and DEPOSITORY a reasonable opportunity to act on it. Name: Date: (Please Print) Signature: NOTE: WRITTEN CREDIT/DEBIT AUTHORIZATION MUST PROVIDE THAT THE RECEIVER MAY REVOKE THE AUTHORIZATION ONLY BY NOTIFYING THE ORIGINATOR IN THE MANNER SPECIFIED IN THE AUTHORIZATION. ____________________________________________________________________________________________ FullCourt Enterprise Complete Agreement Page 31 of 32 CITEPAYUSA SERVICES AGREEMENT Verifone PayWarePC® License Agreement In conjunction with the purchase of the CitePay Terminal and software by Customer from Provider, Customer agrees to the following software license with Verifone, Inc. IMPORTANT CAREFULLY REVIEW THIS AGREEMENT BEFORE CONTINUING THE INSTALLATION OR USE OF THE PAYWARE PC SOFTWARE ("SOFTWARE"). THIS END-USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) ("YOU") AND VERIFONE, INC. (“VERIFONE”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, TERMINATE THIS INSTALLATION AND PROMPTLY RETURN ALL SOFTWARE AND DOCUMENTATION, IF APPLICABLE, TO THE RESELLER FROM WHOM YOU OBTAINED THE SOFTWARE (THE “RESELLER”) FOR A FULL REFUND. THE SOFTWARE INCLUDES COMPUTER SOFTWARE, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, AND ANY "ONLINE" OR ELECTRONIC DOCUMENTATION. BY DOWNLOADING THE SOFTWARE AND/OR OPENING THE SOFTWARE PACKET(S) AND/OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS. 1. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement and your payment of the applicable license fees, VERIFONE grants You a limited, nontransferable (except as provided in Section 11 below), nonexclusive license to use the Software solely (i) in object (executable) code form, (ii) on a single computer (the "Computer"), and (iii) for your internal use only. You understand that You must comply with VERIFONE's Software registration policies and the failure to comply with those policies may result in the disablement of the Software. The Software is in "use" on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard disk, CD-ROM, or other storage device) of a computer. 2. COPYRIGHT. The Software and all copies provided to you are licensed and not sold. All title to the Software resides and remains in VERIFONE and its suppliers. The Software is protected by U.S. copyright laws and international copyright treaties. You may make one copy of the Software solely for backup or archival purposes. You may not copy any documentation accompanying the Software. 3. OTHER RESTRICTIONS. You may not decompile, disassemble, or otherwise reverse engineer the Software, except to the extent that the foregoing restriction is expressly prohibited by applicable law. You may not sublicense, lend, lease, donate, sell, load, pledge, or distribute (on a temporary or permanent basis) the Software. You may not use the Software for commercial time-sharing, rental, or service bureau use. 4. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable. 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If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavor to give the maximum effect to the parties' intentions as reflected in the provision, and that the other provisions of the Agreement shall remain in full force and effect. In addition to those obligations that have accrued prior to termination, Sections 3, 4 and 7 through 11 shall survive any termination of this Agreement. All notices, demands, or consents required or permitted hereunder shall be in writing and shall be delivered in person or sent via overnight delivery or certified mail to the respective parties. Notices for VERIFONE shall be sent to VERIFONE’s Corporate Legal Director at 2099 Gateway Place, Suite 600, San Jose, CA 95110 or such other address as shall have been given to You in writing. Notices for You shall be sent to the address in VERIFONE’s customer database, or such other address as shall have been given to VERIFONE in writing. Such notices shall be deemed effective upon the earliest to occur of: (i) actual delivery; or (ii) three days after mailing, addressed and postage prepaid, return receipt requested. Rev. 11/26/07 © Copyright 2010. VeriFone, Inc. All Rights Reserved. Customer Initials _______ TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 12-08-2015 Minutes Page 1 1. CALL TO ORDER & ROLL CALL Mayor Fancher called the meeting to order at 5:32 p.m. A roll call was taken and Council members present were Scott Prince, Megan Burch, Matt Gennett, Buz Reynolds, Jake Wolf and Sarah Smith Hymes. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager Scott Wright, Planning Manager Matt Pielsticker, Police Chief Bob Ticer, 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 T.J. Davis, Dave Dantas and Jason Browning commented. 4. WORK SESSION 4.1. FISCAL CONDITIONS REPORT ON TAXES, FUND BALANCE RESERVES & DEBT (TOWN MAYOR JENNIE FANCHER) David Strandjord commented. 5. ACTION ITEMS 5.1 PUBLIC HEARINGS – ADOPTION OF THE 2015 FINAL REVISED BUDGETS, 2016 OPERATING BUDGETS, 2016 CAPITAL PROJECTS FUND BUDGET & LONG-RANGE CAPITAL PROGRAM 5.1.1 RESOLUTION NO. 15-22, RESOLUTION TO AMEND THE 2015 TOWN OF AVON OPERATING FUNDS BUDGETS (BUDGET ANALYST KELLY HUITT) Councilor Reynolds moved to approve Resolution No. 15-22, Resolution to Amend the 2015 Town of Avon Operating Funds Budgets; Councilor Gennett seconded the motion and it passed unanimously by those present. 5.1.2 RESOLUTION NO. 15-23, RESOLUTION TO ADOPT THE 2016 TOWN OF AVON OPERATING FUNDS BUDGETS (BUDGET ANALYST KELLY HUITT) Councilor Reynolds moved to approve Resolution No. 15-23, Resolution to Adopt the 2016 Town of Avon Operating Funds Budgets; Councilor Burch seconded the motion and it passed unanimously by those present. 5.1.3 RESOLUTION NO. 15-24, RESOLUTION TO AMEND THE 2015 TOWN OF AVON CAPITAL PROJECTS FUND BUDGET (BUDGET ANALYST KELLY HUITT) Councilor Reynolds moved to approve Resolution No. 15-24, Resolution to Amend the 2015 Town of Avon Capital Projects Funds Budget; Councilor Prince seconded the motion and it passed unanimously by those present. 5.1.4 RESOLUTION NO. 15-25, RESOLUTION TO ADOPT THE TOWN OF AVON LONG-RANGE CAPITAL PROGRAM AND SIMULTANEOUSLY ADOPT THE 2016 CAPITAL PROJECTS FUND BUDGET (BUDGET ANALYST KELLY HUITT) TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 12-08-2015 Minutes Page 2 Councilor Reynolds moved to approve Resolution No. 15-25, Resolution to Adopt the Town of Avon Long-Range Capital Program and Simultaneously Adopt the 2016 Capital Projects Funds Budget; Councilor Gennett seconded the motion and it passed unanimously by those present. 5.1.5 RESOLUTION NO. 15-26, SERIES OF 2015, RESOLUTION LEVYING GENERAL PROPERTY TAXES FOR THE YEAR 2015, TO HELP DEFRAY THE COSTS OF GOVERNMENT FOR THE TOWN OF AVON, COLORADO, FOR THE 2016 BUDGET YEAR (BUDGET ANALYST KELLY HUITT) Peter Buckley, David Strandjord and Harry Greenburg commented. Councilor Reynolds moved to approve Resolution No. 15-26, Resolution Levying General Property Taxes for the Year 2015, to help defray the costs of Government for the Town of Avon, Colorado, for the 2016 Budget Year; Councilor Burch seconded the motion and it passed unanimously by those present. 5.1.6 RESOLUTION NO. 15-27, SERIES OF 2015, RESOLUTION LEVYING GENERAL PROPERTY TAXES FOR THE YEAR 2015, TO HELP DEFRAY THE COSTS OF GOVERNMENT FOR THE TOWN OF AVON GENERAL IMPROVEMENT DISTRICT NO. 1, AVON, COLORADO FOR THE 2016 BUDGET YEAR (BUDGET ANALYST KELLY HUITT) Councilor Gennett moved to approve Resolution No. 15-27, Resolution Levying General Property Taxes for the Year 2015, to help defray the costs of Government for the Town of Avon General Improvement District No. 1, Avon, Colorado for the 2016 Budget Year; Councilor Burch seconded the motion and it passed unanimously by those present. 5.2 ACTION TO AUTHORIZE THE TOWN MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR THE DESIGN OF MIKAELA WAY AND THE WEST AND EAST BEAVER CREEK BOULEVARDS FOR IMPROVED WALKABILITY, BICYCLE RIDERSHIP, ON-STREET PARKING, TRANSIT AND VEHICULAR TRAVEL LANES (PLANNING DIRECTOR MATT PIELSTICKER & TOWN ENGINEER JUSTIN HILDRETH) Councilor Smith Hymes moved to authorize issuance of Professional Service Agreement for Design Services for the 2016 Beaver Creek Boulevard Reconstruction Project to Design Workshop for Tasks 1 thru 3 in the amount of $74,000, as described fully in Attachment; Councilor Burch seconded the motion and it passed on a 5 to 2 vote. Councilor Prince and Mayor Pro Tem Wolf voted no. 5.3 REVIEW AND RECOMMENDED ACTION TO SET A MAXIMUM BUILDING SQUARE FOOTAGE AND BUDGET FOR THE POLICE DEPARTMENT’S RELOCATION TO THE PUBLIC SAFETY FACILITY AT BUCK CREEK AND PREFERRED OPTION OF CERTIFICATES OF PARTICIPATION FOR FUNDING, SUBJECT TO VOTER APPROVAL ON MAY 3, 2016 (TOWN ENGINEER JUSTIN HILDRETH & TOWN MANAGER VIRGINIA EGGER) Councilor Reynolds moved to approve the recommended action: 1. A Maximum Building Square Footage not to exceed 11,300 square feet, with a maximum budget of $4,688,656.00, with surface parking; 2. A Maximum Budget as set forth in the line items shown in the table above, Avon Police Station at Buck Creek Public Safety Facility, with the exception of the land purchase cost, which is to be TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 12-08-2015 Minutes Page 3 determined by the formula set forth in the recommended Second Amendment to the IGA (Agenda Item 5.4); 3. That Certificates of Participation are the preferred financing option, with a 15 or 20-year term, with the expectation of an election to be held on May 3rd, 2016; 4. That the Town’s Work Group elected representatives Mayor Jennie Fancher and Councilor Buz Reynolds are authorized to approve the December 22nd Schematic Plan Redesign, if all parameters are met, also subject to Town Attorney review; 5. Authorize additional architecture fees to Davis Partnership in the amount of $59,455, for updating the December 22 Schematic Plan Redesign; 6. Authorize the Town Manager to release the balance of the design and pricing fees, subject to the December 22nd Schematic Plan Redesign being approved. Mayor Pro Tem Wolf seconded the motion and it passed unanimously by those present. 5.4 REVIEW AND ACTION ON THE SECOND AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE- POLICE STATION FACILITY BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE PROTECTION DISTRICT (TOWN ATTORNEY ERIC HEIL & TOWN MANAGER VIRGINIA EGGER) Councilor Gennett moved to approve Second Amendment to the Intergovernmental Agreement for a Joint Fire-Police Station Facility, and to allow minor, non-substantive changes to the IGA to be made by the Town Mayor, subject to review by the Town Attorney; Councilor Burch seconded the motion and it passed unanimously by those present 5.5 PUBLIC HEARING SECOND READING OF ORDINANCE 15-09, IMPLEMENTING THE 2015 INTERNATIONAL BUILDING CODES (CHIEF BUILDING OFFICIAL WILLEY GRAY) Mayor Fancher opened the Public Hearing, no comments were made. Councilor Gennett moved to approve second reading of Ordinance 15-09 on Second Reading, approving the adoption of the 2015 International Building Codes, including the Wildland Urban Interface Code; and approving an Exterior Energy Offset Program for the Town of Avon; Councilor Burch seconded the motion and it passed unanimously by those present. 5.6 PUBLIC HEARING SECOND READING OF ORDINANCE NO. 15-12 APPROVING AN EXTENSION OF VESTED RIGHTS FOR THE RED HOUSE PLANNED UNIT DEVELOPMENT. NOTE: APPLICANT HAS REQUESTED CONTINUATION TO THE JANUARY 12, 2016, REGULAR TOWN COUNCIL MEETING (PLANNING DIRECTOR MATT PIELSTICKER) Mayor Fancher opened the Public Hearing, no comments were made. Mayor Pro Tem Wolf moved to continue second reading of Ordinance 15-12 and public hearing to January 12, 2016; Councilor Smith Hymes seconded the motion and it passed unanimously by those present. 5.7 PUBLIC HEARING: SECOND READING OF ORDINANCE 15-14, AN ORDINANCE ENACTING CHAPTER 2.34 QUALIFICATIONS OF COUNCIL MEMBERS AND PLANNING AND ZONING COMMISSION MEMBERS OF THE AVON MUNICIPAL CODE (TOWN ATTORNEY ERIC HEIL) TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 12-08-2015 Minutes Page 4 Mayor Fancher opened the Public Hearing, no comments were made. Councilor Prince moved to approve second reading of Ordinance 15-14, An Ordinance Enacting Chapter 2.34 Qualifications of Council Members and Planning and Zoning Commission Members of the Avon Municipal Code; Councilor Gennett seconded the motion and it passed unanimously by those present. 5.8 REVIEW AND ACTION ON A REQUEST FOR FUNDING FOR A 2016 CREATIVE WRITING EVENT ON LABOR DAY WEEKEND (PRODUCER DON DONAHUE) Councilor Burch moved to approve funding up to $75,000 for talent acquisition and up to $5,000 of in-kind services to Donahue Entertainment, LLC, producer of the event. Funding will be from the 2016 General Fund Special Events Assigned Fund Balance; Councilor Smith Hymes seconded the motion and it passed on a 5 to 2 vote. Councilor Prince and Councilor Gennett voted no. 5.9 APPROVAL OF 2016 REGULAR MEETING SCHEDULE (TOWN CLERK DEBBIE HOPPE) Councilor Reynolds moved to approve the 2016 Regular Meeting Schedule with suggested changes; Mayor Pro Tem Wolf seconded the motion and it passed unanimously by those present. 5.10 APPOINTMENTS TO BOARDS, COMMISSIONS, COMMITTEES (TOWN CLERK DEBBIE HOPPE) Mayor Pro Tem Wolf moved to elect Councilor Smith Hymes as the primary representative for the Upper Eagle Regional Water Authority and Councilor Reynolds as the alternate; Councilor Burch seconded the motion and it passed unanimously by those present. Councilor Gennett moved to elect Councilor Smith Hymes as the alternate for the Public Access TV Channel 5; Mayor Pro Tem Wolf seconded the motion and it passes unanimously by those present. Councilor Gennett moved to add Beaver Creek Resort Committee to the list and elect Mayor Fancher as the primary representative and Councilor Reynolds as the alternate; Mayor Pro Tem Wolf seconded the motion and it passed unanimously by those present. 5.11 CONSENT AGENDA 5.11.1 APPROVAL OF THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE COUNTY OF EAGLE, STATE OF COLORADO, AND THE TOWN OF AVON FOR ANIMAL CONTROL SERVICES (POLICE CHIEF BOB TICER) 5.11.2 APPROVAL OF NOVEMBER 17, 2015 REGULAR MEETING MINUTES (TOWN CLERK DEBBIE HOPPE) Councilor Gennett moved to approve the consent agenda; Councilor Burch seconded the motion and it passed unanimously by those present. 6 WRITTEN REPORTS 6.1 POLICE DEPARTMENT TRI-ANNUAL ACTIVITY REPORT (POLICE CHIEF BOB TICER) 6.2 2015 END OF YEAR FORFEITURE REPORT (POLICE CHIEF BOB TICER) 6.3 REPORT ON BLACKSMITH SHOP (PLANNING DIRECTOR MATT PIELSTICKER) 6.4 MONTHLY FINANCIALS (BUDGET ANALYST KELLY HUITT) TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 12-08-2015 Minutes Page 5 6.5 GIFT REPORTING – 2015 AUDI BIRDS OF PREY GIFT BAGS AND VIP TICKETS AND BEAVER CREEK PARKING MEDALLIONS (EXECUTIVE ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 8. MAYOR & COUNCIL COMMENTS 9. EXECUTIVE SESSION - 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- 402(2) (B) CONCERNING THE MOUNTAIN STAR WATER STORAGE TANK Councilor Gennett 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. The time was 9:48 p.m. Executive session ended at 11:07 p.m. Council reconvened into regular session. Council reconvened into regular session at 11:07 p.m. 10. ACTION ITEM 10.1 REVIEW AND ACTION ON THE UPPER EAGLE WATER AUTHORITY’S REQUEST FOR ADDITIONAL FUNDING PARTICIPATION FOR THE DESIGN AND ENGINEERING OF THE MOUNTAIN STAR WATER TANK IN THE AMOUNT OF $56,260 (TOWN ENGINEER JUSTIN HILDRETH) Mayor Fancher moved to approve the funds be appropriated in the 2015 water fund budget with following conditions: • All the parties acknowledge that this contribution comes from the Town of Avon Mountain Star water tap fees dedicated to this project • Mountain Star LLC also contributes $56,250 to the design to acknowledge the partnership that is required to complete the project Councilor Smith Hymes seconded the motion and it passed on a 4 to 3 vote. Councilor Gennett, Councilor Reynolds and Mayor Pro Tem Wolf voted no. TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY, DECEMBER 8, 2015 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 12-08-2015 Minutes Page 6 11. ADJOURNMENT There being no further business to come before the Council, the regular meeting adjourned at 11:09 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 ________________________________ FISCAL YEAR 2015 FINANCIAL REPORT January 12, 2016 ______________________________________________________________________________________ 1. Fiscal Year 2015 Financial Report Cover Memo 2. Sales and Accommodations Tax Reports - October 2015 3. Real Estate Transfer Tax Report and Monthly Detail - November 2015 4. General Fund Year-To-Date Expenditures - November 2015 5. Fleet Maintenance Fund Year-To Date Expenditures - November 2015 6. Transit Fund Year-To Date Expenditures - November 2015 TOWN COUNCIL REPORT To: Honorable Mayor Jennie Fancher and Avon Town Council From: Kelly Huitt, Budget Analyst Date: January 6, 2016 Re: Fiscal Year 2015 Financial Report – October / November Revenues: SALES TAX • Sales tax revenue for the month of October is up $5,780 or 1.38% compared to October 2014, and down -3.93% compared to the budget. This increase includes $11,677 from new businesses, and after adjusting for new business growth, -1.41% is the loss in revenue from existing business for the month. Year-to-date sales tax is up $200,666 compared to estimated monthly budgets, and new businesses make up 62.10% of this total growth. • October sales tax collections are down for several categories compared to 2014 including: Miscellaneous Retail (-10.19%), Restaurants/Bars (-5.29%), Other (-11.08%), and Service Related (-33.53%). The Restaurants/Bars total is skewed due to one entity filing their October return late. After correcting for this late payment the adjusted year over year change is -1.50% for this category. The Other business category had a shift from closing businesses to newly opened entities mostly related to construction and building finishing contractors. Service Related businesses have widely varying returns month to month largely affected by architectural and decorating related business. Sales tax from Home/Garden grew 17.40% for the month and Sporting Goods Rental/Retail Sales increased 19.92%. The Grocery, Specialty, and Health category is also up for October at 10.10%. 2014/2015 Growth Growth Variance Existing Business New Business Home/Garden 8,287.65 6.95%10.45% Grocery, Specialty, Health 10,894.71 5.25%4.85% Liquor Stores 800.00 4.45%0.12% Sporting Goods Retail/Rental 4,469.93 19.92%0.00% Miscellaneous Retail (2,419.16)-10.22%0.03% Accommodations 860.22 0.15%2.22% Restaurants/Bars (4,416.62)-5.56%0.27% Other (6,789.02)-11.46%0.38% Service Related (5,907.64)-34.50%0.97% Total $5,780.07 -1.41%2.79% Category Sales Tax Monthly Totals ACCOMMODATIONS TAX • Accommodations tax revenue for October is up $3,729, or 10.66% compared to October 2014, and up 2.10% compared to the monthly budget. • October accommodations tax collections increased for Hotels and Timeshares at 11.78% and 11.64%, while Vacation Rentals are slightly down -3.72%. REAL ESTATE TRANSFER TAX • 2015 real estate transfer tax collections for November equal $169,328.38. • Year-to-date real estate transfer tax collections through November total 95.25% of the total revised 2015 estimated revenue. Expenditures: • General Fund expenditures through November 2015 total 86.97% of the total revised budget. These expenditures include the annual Cirsa insurance payment as well as contributions for several of the community grants and special event seed funding. • Fleet expenditures to date are at 90.85% of the total revised budget. These costs include stock parts and several blanket purchase orders, which encumber funds for the year for ongoing expenditures such as regularly purchased shop supplies and monthly copier charges. • Transit funds are 88.51% expended compared to the revised annual budget. This includes encumbered funds for the purchase of one bus scheduled for acquisition in 2015. TOWN OF AVON SALES TAX 2015 Actual vs. Budget Budget YTD Collections Budget % of change 2010 2011 2012 2013 2014 2015 2015 Variance from 2014 January 515,009.18$ 511,040.76$ 519,784.89$ 677,943.78$ 638,863.27$ 674,203$ 765,195.68$ 90,992.75$ 19.77% February 504,752.59 532,903.25 533,546.48 636,702.27 673,722.03 710,990 788,999.06 78,009.10 17.11% March 620,937.20 665,532.70 643,910.29 720,267.31 793,301.96 837,185 875,499.53 38,314.90 10.36% April 309,937.09 305,269.73 304,220.84 307,407.13 381,839.56 402,962 403,560.42 598.84 5.69% May 242,830.16 236,424.93 270,082.79 309,938.72 340,332.28 359,158 353,840.11 (5,318.15) 3.97% June 377,920.42 406,828.27 430,588.57 490,329.18 538,517.31 568,306 570,424.51 2,118.32 5.93% July 421,975.98 452,873.44 472,215.40 537,479.66 570,959.86 602,543 601,516.82 (1,026.53) 5.35% August 361,702.25 419,977.29 455,439.86 504,332.25 547,085.80 577,349 572,647.57 (4,701.09) 4.67% September 359,139.22 391,546.49 424,793.75 475,362.88 546,016.59 576,220 595,235.68 19,015.38 9.01% October 288,859.84 299,193.35 341,711.43 356,925.96 417,921.46 441,039 423,701.53 (17,337.87) 1.38% November 284,528.70 301,407.41 336,060.63 362,460.94 397,935.36 419,948 December 818,360.74 921,815.61 852,868.64 981,917.79 1,221,263.98 1,288,820 Total 5,105,953.37$ 5,444,813.23$ 5,585,223.57$ 6,361,067.87$ 7,067,759.46$ 7,458,723$ 5,950,620.91$ 200,665.65$ 9.21% Actual Collections $0 $100,000 $200,000 $300,000 $400,000 $500,000 2011 2012 2013 2014 2015 Year Sales Tax Collections for October TOWN OF AVON SALES TAX 2015 Actual vs. Budget $- $1,000,000 $2,000,000 $3,000,000 $4,000,000 $5,000,000 $6,000,000 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 $900,000 Sales Tax Monthly Comparison 2013-2015 2013 2014 2015 TOWN OF AVON ACCOMMODATIONS TAX 2015 Actual vs. Budget Actual Collections Budget YTD Collections Budget % change 2010 2011 2012 2013 2014 2015 2015 Variance 2014 January 87,938.84$ 85,233.73$ 90,118.88$ 108,508.43$ 129,851.78$ 140,746$ 164,361.04$ 23,615.12$ 26.58% February 99,336.34 114,035.90 106,016.32 137,503.61 150,317.06 162,928 175,056.31 12,128.14 16.46% March 105,518.15 122,145.16 115,043.42 153,208.80 168,597.39 182,742 183,650.29 908.13 8.93% April 26,496.88 26,214.58 20,786.24 26,494.49 31,626.02 34,279 34,825.13 545.79 10.12% May 12,425.51 15,152.82 16,664.44 24,527.17 21,961.97 23,805 28,002.56 4,198.05 27.50% June 32,857.68 49,999.66 56,012.17 66,578.91 54,232.23 58,782 53,397.46 (5,384.68) -1.54% July 51,170.82 62,928.07 66,726.73 73,008.92 81,083.01 87,886 86,301.22 (1,584.39) 6.44% August 42,188.56 52,037.55 58,358.93 67,688.07 71,044.33 77,005 75,107.71 (1,897.01) 5.72% September 30,090.34 35,521.81 42,245.24 44,661.37 50,840.16 55,105 60,417.74 5,312.26 18.84% October 20,614.06 21,801.56 25,879.51 27,154.53 34,977.59 37,912 38,706.72 794.62 10.66% November 20,582.47 24,971.33 22,786.42 28,171.04 32,064.02 34,754 December 98,561.90 135,984.00 112,759.02 131,361.43 168,944.85 183,119 Total 627,781.55$ 746,026.17$ 733,397.32$ 888,866.77$ 995,540.41$ 1,079,063$ 899,826.18$ 38,636.04$ 13.25% - 10,000.00 20,000.00 30,000.00 40,000.00 2011 2012 2013 2014 2015 Accommodations Tax Collections for October 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$ 94,169$ 48,640.40$ (36,486.34)$ -42.86% February 362,719.22 230,705.50 41,750.07 55,872.69 562,219.70 260,794 85,479.08 (476,740.62)-84.80% March 284,243.65 187,099.47 84,760.49 125,927.64 50,375.06 152,407 168,744.22 118,369.16 234.98% April 210,185.30 249,482.30 219,195.80 144,437.80 197,656.36 212,453 125,266.30 (72,390.06)-36.62% May 112,431.30 187,668.62 270,170.12 121,784.12 183,745.60 182,246 237,971.08 54,225.48 29.51% June 66,271.14 49,606.58 169,040.47 90,309.74 220,009.15 123,864 294,434.84 74,425.69 33.83% July 63,509.36 46,707.37 71,057.40 386,434.78 141,051.52 147,487 396,838.68 255,787.16 181.34% August 88,823.40 106,785.21 232,505.93 97,579.70 154,032.32 141,445 152,380.93 (1,651.39) -1.07% September 159,861.96 140,876.56 96,389.34 157,010.67 267,886.92 171,056 291,223.61 23,336.69 8.71% October 222,575.20 64,005.33 176,889.62 169,839.80 178,044.24 168,836 172,855.22 (5,189.02) -2.91% November 115,654.16 98,057.44 150,549.86 112,491.82 122,582.66 124,717 169,328.38 46,745.72 38.13% December 236,117.45 198,448.03 145,134.57 83,382.60 1,598,062.92 470,525 Total 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,567,606.36$ 3,760,793.19$ 2,250,000$ 2,143,162.74$ (19,567.53)$ -0.90% Budget 2,250,000.00 Variance, Favorable (Unfavorable)(106,837.26)$ Actual Collections $- $250,000.00 $500,000.00 $750,000.00 $1,000,000.00 $1,250,000.00 $1,500,000.00 $1,750,000.00 $2,000,000.00 $2,250,000.00 2011 2012 2013 2014 2015 YTD Real Estate Transfer Tax Collections Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget General Government: Legislative: 111 Mayor and Town Council 239,890$ 24$ 170,236$ 69,630$ 70.97% 112 Boards and Commissions 15,299 - 10,951 4,348 71.58% 113 Town Attorney 155,000 51,066 112,124 (8,190) 105.28% 115 Town Clerk 119,162 5,710 111,304 2,148 98.20% Total Legislative 529,351 56,800 404,615 67,936 87.17% Judicial: 121 Municipal Court 109,262 4,102 83,767 21,393 80.42% Executive: 131 Town Manager 359,067 - 303,688 55,379 84.58% 133 Community Relations 132,355 - 103,176 29,179 77.95% Total Executive 491,422 - 406,864 84,558 82.79% Finance Department: 132 Human Resources 365,133 6,603 295,069 63,461 82.62% 141 Finance 779,580 9,040 678,778 91,762 88.23% 143 Information Systems 376,095 9,304 338,812 27,979 92.56% 149 Nondepartmental 395,157 19,210 346,174 29,773 92.47% Total Financial Administration 1,915,965 44,157 1,658,833 212,975 88.88% Total General Government 3,046,000 105,059 2,554,079 386,862 87.30% Community Development: 212 Planning 288,835 4,707 250,397 33,731 88.32% 213 Building Inspection 135,274 - 115,897 19,377 85.68% 214 Economic Development 130,568 4,163 85,108 41,297 68.37% 215 Town Produced Events 364,963 3,872 303,375 57,716 84.19% 216 Signature Event Seed Funding 302,122 45,398 290,398 (33,674) 111.15% 217 Community Grants 247,850 650 192,822 54,378 78.06% Total Community Development 1,469,612 58,790 1,237,997 172,825 88.24% Police Department: 311 Administration 619,451 7,453 525,027 86,971 85.96% 312 Patrol 2,188,121 17,683 1,942,420 228,018 89.58% 313 Investigations 198,955 950 228,288 (30,283) 115.22% Total Police 3,006,527 26,086 2,695,735 284,706 90.53% Department Expenditure Summaries General Fund November 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 November 2015 Expenditures to Date Public Works: 412 Engineering 379,433 552 277,857 101,024 73.38% 413 Roads and Bridges 1,494,783 31,486 1,233,687 229,610 84.64% 415 Parks 1,016,043 44,329 835,633 136,081 86.61% 418 Buildings & Facilities 1,157,527 67,294 898,487 191,746 83.43% Total Public Works 4,047,786 143,661 3,245,664 658,461 83.73% Parks and Recreation: 514 Administration 214,045 2,976 190,089 20,980 90.20% 515 Adult Programs 34,146 40 26,949 7,157 79.04% 516 Aquatics 435,468 1,800 353,651 80,017 81.63% 518 Fitness 131,054 89 128,975 1,990 98.48% 519 Guest Services 269,718 4,322 230,116 35,280 86.92% 521 Youth Programs 119,952 2,036 100,498 17,418 85.48% 522 Cabin 6,078 - 5,878 200 96.71% Total Parks and Recreation 1,210,461 11,263 1,036,156 163,042 86.53% TOTAL OPERATING EXPENDITURES 12,780,386$ 344,859$ 10,769,631$ 1,665,896 86.97% Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES Public Works: 434 Fleet Maintenance 1,737,941$ 38,942$ 1,539,991$ 159,008$ 90.85% Total Operating Expenditures 1,737,941 38,942 1,539,991 159,008 90.85% TOTAL EXPENDITURES 1,737,941$ 38,942$ 1,539,991$ 159,008$ 90.85% Expenditure Summary Fleet Maintenance Enterprise Fund November 2015 Expenditures to Date Dept./Div.2015 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES 431 Transit Administration 235,325$ 1,755$ 191,027$ 42,543$ 81.92% 432 Transit Operations 1,130,144 135,080 919,112 75,952 93.28% 435 Wash Bay 130,967 1,314 76,262 53,391 59.23% Total Operating Expenditures 1,496,436 138,149 1,186,401 171,886 88.51% TOTAL EXPENDITURES 1,496,436$ 138,149$ 1,186,401$ 171,886$ 88.51% Expenditure Summary Transit Enterprise Fund November 2015 Expenditures to Date